I recently posted an article about the Holt bill, aka HR 550, aka the "Voter Confidence and Increased Accessibility Act of 2005." The Holt Bill is congressional legislation supported by many mainstream voting activist organizations and congressional leaders, including Rush Holt, John Kerry, Hillary Clinton, and more.

However, there is a growing contingent of grassroots activists who are challenging the Holt Bill and who would like to see the bill undergo some heavy revisions, although those voices have had difficulty getting heard. In my previous article I raised questions about several provisions in the Holt bill. That article primarily focused on the way in which the bill strengthens the Election Assistance Commission (EAC).

In this article I would like to clarify the concern held by grassroots activists and others about the Holt bill provisions to make permanent and further empower the Election Assistance Commission. I will also add a few words about two other aspects of the bill: paper audit trail and random audits.

The Mobbing of American Democracy
The confusion, political manipulation and spinning of the disastrous Election 2000 prompted passage of the Orwellian-named "Help America Vote Act" (HAVA). HAVA in turn created its own wave of electoral confusion and political manipulation, resulting in a $3.8 billion cash giveaway to questionable corporate entities involved in the production, programming, and distribution of computerized voting equipment throughout the nation.

HAVA, promoted and presumably in large part written by, election industry lobbyists like Diebold (through the offices of former lobbyist Jack Abramoff and other members of the --modern mob-- K Street Project), paradoxically accomplished the simultaneous selling of our democracy to the highest bidder and the enormous giveaway of taxpayer monies to corporate interests.

HAVA and the Holt Bill
Election industry interests used HAVA-madness to promote nationwide computerized elections. As a result, 90% of America's registered voters now must put their faith in computerized voting systems, with 39% of those being paperless.

Once the voting activist community caught up with this trend, they demanded that election systems require what they called a "Voter Verified Paper Audit Trail" (VVPAT). Notable computer scientists concurred and founded organizations like VerifiedVoting.org in support of this demand.

After a long dry spell, some politicians began to follow the people's lead. The Holt Bill, with its emphasis on VVPAT, is the most popular attempt to manifest the people's will in political legislation.

Unchecks and unbalances: the EAC and executive elections
In addition to its VVPAT focus, the Holt bill takes the unfortunate path of formalizing a centralized authority over the nation's elections in the form of the EAC, granting enormous power to four Election Assistance Commissioners who are political appointees chosen by the president. An empowered EAC would create a lopsided situation that removes all checks and balances over the Executive branch of government in election integrity issues, and would threaten the constitutional rights that states have to control their own state and local elections.

My previous article explained the problems with this approach in some detail. But I have received several questions about the "2.2.6 incident" example referenced in the document, "The Gifts of HAVA." The 2.2.6 incident illustrates how a small and "insignificant" action by the EAC can change voting systems in every state in the nation.

I'd like to try to break down this example a bit more clearly.

The EAC is responsible for publishing guidelines for voting systems. This is called the "Voluntary Voting System Guidelines" or "VVSG." (These guidelines are voluntary right now; as long as the EAC does not gain regulatory power this will remain the case.)

In the draft version of the VVSG, a single line of text was inserted to address the issue of disabled voters and their need for private, independent, and "verified" voting.

This provision was likely proposed to the EAC by disability lobbyist Jim Dickson, whose fame and fortune -- allegedly sponsored in good part by Diebold Election Systems -- have been made by his ubiquitous appearances at events held by the EAC, NASS, NASED, and of course, Bob Ney's original hearings on the cynically named Help America Vote Act (HAVA). (Snuggle shots of Dickson, Ney and Democratic HAVA co-sponsor Steny Hoyer can be seen here.)

The requirement, numbered 2.2.6 in the VVSG draft version, addresses the VVPAT movement and specifically targets paper ballot states:

If the normal procedure includes VVPAT, the Acc-VS (accessible voting system) should provide features that enable voters who are blind to perform this verification. If a state requires the paper record produced by the VVPAT to be the official ballot, then the Acc-VS shall provide features that enable visually impaired voters to review the paper record.

Discussion: For example, the Acc-VS might provide an automated reader for the paper record that converts the contents of the paper into audio output.

In the new and officially released version of the VVSG, this guideline is found, with more robust wording, in Section 7.9.7:

If the normal voting procedure includes VVPAT, the accessible voting equipment should provide features that enable voters who are visually impaired and voters with an unwritten language to perform this verification. If state statute designates the paper record produced by the VVPAT to be the official ballot or the determinative record on a recount, the accessible voting equipment shall provide features that enable visually impaired voters and voters with an unwritten language to review the paper record.

Discussion: For example, the accessible voting equipment might provide an automated reader that converts the paper record contents into audio output.

So what exactly is this final 7.9.7 guideline saying?

Guideline: If the normal voting procedure includes VVPAT, the accessible voting equipment should provide features that enable voters who are visually impaired and voters with an unwritten language to perform this verification.

Translation: If voting procedures require a paper audit trail, the paper audit trail must be "readable" by the blind and the illiterate.

Guideline: If state statute designates the paper record produced by the VVPAT to be the official ballot or the determinative record on a recount, the accessible voting equipment shall provide features that enable visually impaired voters and voters with an unwritten language to review the paper record.

Translation: If states require the paper "record" to be the official vote record in a count or a recount, the paper record must be "readable" by the blind and the illiterate.

If you are wondering how paper ballots can be "read" by the blind or illiterate, you are not alone. But the EAC, in its discussion of the guideline, provides a hint:

Guideline discussion: For example, the accessible voting equipment might provide an automated reader that converts the paper record contents into audio output.

Translation: Just buy a gizmo that can scan the paper and turn it into audio, preferably in multiple languages.

So now we have gone from the realm of computerized machines marking our votes and counting our votes, to yet another addition of technology to read our votes aloud.

The only problem is, this technology does not exist for voting systems. If and when it is developed, it is bound to be expensive.

In simple terms, the EAC's response to the VVPAT movement is to create a situation in which paper ballots are simply not a realistic option.

Now, this is bad enough in and of itself. But the negative ramifications of the EAC's guideline are compounded when one considers that the EAC's own Standards Board had recommended against the guideline. Unlike the four politically appointed EAC Commissioners, the Standards Board is a representative body, comprised of election officials and citizens from each state in the nation.

The arrogance of the EAC is easily seen throughout the VVSG, which steadfastly ignores or reduces the feasibility of paper-based voting systems against the expressed recommendations of numerous public comments. In example after example, the EAC likewise resisted incorporating the recommendations of experts in the field of computerized election security.

Looking at just one example, ACCURATE (A Center for Correct, Usable, Reliable, Auditable, and Transparent Elections) issued the following warning against allowing any wireless or other transmission and connectivity technologies in its Public Comment on the 2005 Voluntary Voting System Guidelines:

All provisions, such as Volume I, Sections 1.5.4, 4.4.2 and 5, that keep open the possibility that voting systems can be networked outside the polling place for data transmission or any other purpose must be eliminated from the 2005 Guidelines. Although the word “ internet” does not appear in Volume I, except once in Appendix A, it is clear the authors of the Guidelines intend to open the door to internet voting without using the term. Internet voting should be banned for the foreseeable future because of massive vulnerabilities that have no easy resolution.

In addition, the possibility that a wireless connection be used, as allowed in Volume I, Section 6.7 must be removed. As is specifically admitted in Volume I, Section 6.7, wireless connections involve substantial risk. Therefore, their use cannot be tolerated. Overall, the standards must prohibit any connection of a voting system to networks that extend outside the polling place, including wireless networks, internet-connected networks, and networks connected to a public telephone system.

The EAC's response to these recommendations? The final release of the VVSG includes an entire section on wireless technology alone:

Wireless Communications This section provides requirements for implementing and using wireless communications within a voting system. These requirements reduce, but do not eliminate, the risk of using wireless communications for voting systems.

Call me old fashioned, but I just don't think it is appropriate for the EAC to recommend guidelines that will "reduce but not eliminate" risks for the institution that forms the very basis of the democracy on which our republic is built. It's kind of like saying, "we know these levees can't sustain a Category 5 hurricane, but let's just sit back and see what happens when it hits."

Now a few words on two other aspects of the Holt bill that grassroots activists would like to see revised.

Paper Audit Trail
Grassroots activists would like to see the Holt bill refer to "paper ballots" rather than "paper audit trails." A ballot is a piece of paper on which a voter marks his or her preferences from among all the listed choices. A ballot can be placed in a ballot box to be counted by hand, if desired. And most importantly, a ballot can be visually examined in a recount to determine the voter's true intent in marking their choice.

In contrast, a VVPAT can be what some grassroots activists now refer to as a "toilet paper trail." i.e., the attempt to tack on a paper trail to computerized vote marking machines, such as touch screen machines. Many election integrity activists now agree that adding paper to the voting process as an afterthought can cause more harm than good.

NC Voter, a grassroots voting rights organization based in North Carolina, spells this out for us in clear language. On their February 4th blog, entitled "The Problem With The Touchscreen Paper Trail" blogger Joyce McCloy reports on the California test that demonstrated a 1.37 percent loss of paper trail ballots due to printer malfunctions. Joyce breaks down how this would have translated in Election 2004, with upwards of 4,467 lost votes in one of North Carolina's largest counties.

Printer jams are not the only problem with the toilet paper trail the election industry is trying to sell American voters. One proposed solution to the machine-generated paper trail is to print voter preferences onto a thermal fax paper roll, which is then captured in a sealed container that can not be viewed by the voter or opened unless for recounts.

Anyone who has worked with thermal fax paper rolls knows that manual recounts with this paper would at best be difficult, and at worst impossible. First,the paper roll would need to be manually cut to separate each individual voter preference sheet. Then the thin, curly sheets would need to be stacked and counted, and preferably before the ink smudges or fades through handling.

Finally, computer-generated VVPATs, under certain conditions, can increase the risk for software tampering, as in the design described above where the paper "receipt" is captured inside a sealed container and is impossible for further use in recounts.

Random Audits
New Hampshire and Maine continue to rely on hand counting in many of their polling places. But nationwide, less than 0.4% of registered voters have their ballots counted by hand. The cultural loss of this vote counting method has taken its toll, and hand counting is now virtually a lost art.

These days, most election integrity activists don't even consider hand counting as a viable option. Maybe they have never experienced a hand counting system, maybe they believe that technology solutions are generally beneficial, and maybe they think that hand counting is just not manageable or feasible.

As a result of these mistaken impressions about hand count voting systems, and because of the proliferation of computerized voting systems, many voting activists have turned to the idea of "random audits" as a check against errors and tampering with computerized voting.

In an article entitled The Audit Trap: An Analysis of HR 550 Audit Provisions, Kathy Jackson of the Oregon Voter Rights Coalition, outlines four questions that arise with random audits as defined in the Holt bill:

1. Qualitative measurement: Kathy takes issue with the Holt provision that the sampling be of precincts. Kathy points out:

The problem is that each precinct is unique and not representative of the broader universe of voters. In order to answer the question "who won," the entire universe of voters must be randomly sampled.

With its mandate for sampling of precincts, it is clear that the Holt bill does not provide a mechanism for determining the accuracy of the reported machine results. The precinct-based Holt audit process only speaks to the results in the precincts sampled and has no predictive power about the results in any other precinct or indeed, the overall election results.

2. Quantitative measurement: Kathy takes issue with the Holt bill setting the sample level at an arbitrary two percent. She explains that a statistical analysis depends on two variables: the margin of error and the size of the sample population. Kathy recommends using a one percent margin of error to find the sample population size. As she explains,

The output to this equation is not a per cent but a number of voters to be sampled. Those who have crunched these numbers for various states say that the results often may seem counterintuitive, requiring a smaller percentage of voters in a populous state like California and a significantly larger percentage in sparsely populated Wyoming.

The problem with enshrining this statistically irrelevant figure of two per cent in federal statute is that it will make it nearly impossible for states to use sample sizes that have a one per cent margin of error. As a consequence, the audit will not help attain the goal of determining with high confidence the accuracy of the election results.

3. Audit consequences: Kathy asks, what are the consequences if an audit shows a discrepancy between the machine tally and the audit results? She explains her concerns:

According to the Holt bill, it cannot impact the certification of the slate of Electors for the President and Vice President of the United States. A state cannot announce any other election results prior to completion of an audit. But there could be an additional audit at the discretion of the Election Assistance Commission if there is “cause for concern”.

It is not clear whether the machine results could or would be overturned as a result of the audit process. Without severe consequences like a mandatory full hand recount to determine actual election results, or the mandatory use of the audit results as the official tally in case of discrepancies, this audit provision is a weak link in the Holt bill which must be fixed in order for HR 550 to live up to the hopes and expectations of the Election Reform community in particular and American citizens in general.

4. EAC Authority: Kathy correctly raises the alarm that the Holt bill hands over undue authority to the EAC, and provides for the use of third party contractors, in the conduct of elections. As she explains:

The entire Section 5 places the audit in the hands of the Election Assistance Commission and requires in subsection (a) (4) that the states turn over to the Commission “all information and materials requested by the Commission” (meaning ballots and related items).

The laws in most, if not all states, regulate who may handle the ballots. The custody of ballots is usually placed by law in the hands of election officials, often with final authority residing in the office of the Secretary of State (or whichever official is charged with the responsibility for elections in that state).

If one examines the relevant statutes in Oregon (the state this writer is most familiar with), one will find that the requirements of the law are very clear. Only election officials may handle ballots....In addition, each county election director is required to have an acceptable security plan on file with the Secretary of State. A secure chain of custody of the ballots is essential for election integrity and is a vital part of this security plan.

As currently written, HR 550 would breach these chain of custody and security provisions that exist under state law and require that ballots and other materials be turned over to a third party in clear violation of state statutes ....There are no ballot security provisions in HR 550....A compelling case has not been made for overriding all of the chain of custody and security statutes in all fifty states in order to deal with situations which may exist in only some states.

Not ready for prime time
The Holt bill and other similar proposed legislation, like HAVA, is a grand act of Congress that seeks to remedy egregious flaws in our voting systems. But, like HAVA, the Holt bill is replete with the potential for entire series of unintended consequences.

Look folks, this is our democracy we're talking about. You know, the Constitution, the Voting Rights Act, that whole thing about the land of the free and the brave. We can't be fooling around with this stuff.

It is time for those in power to reach in to the depths of their patriotic souls and act accordingly. Every action they take must be taken in the light of true patriotism. Every action must be examined carefully and thoughtfully. And the voices of the people, and those who legitimately represent the people, must be recognized, at long last, as the strongest and clearest voices in the loud and clamoring halls of power.

Those in power must remember that only as a government of the people, by the people, and for the people, will our great republic not perish from the earth.