This week Holt Bill fervor hit the election reform movement in a big way. TrueMajority launched an email alert asking its members to support HR550 (aka the Holt Bill, aka the Voter Confidence and Increased Accessibility Act) as written. VoteTrustUsa.org posted an article on their website urging the same.

But election activists are not united on this issue, and for good reason.

The Holt Bill is well intended, its origins are pure, but unfortunately, it is not just about paper ballots; it includes several dangerous provisions that are not at all good for our democracy.

The movement of informed grassroots activists against the Holt bill is growing each day. This bill, like the Help America Vote Act, was borne from the grassroots but now seems to have been hijacked by special interests. Since the 2000 election, grassroots activists have been struggling to bring about meaningful reforms to ensure the integrity of our elections. Passion at the grassroots level has been repeatedly distorted once it hits Congress. Witness the so-called "Help America Vote Act" (HAVA). Ostensibly passed at the behest of election reform activists, the Act is one of the more heinous examples of Capital Corruption and lobbyist influence in contemporary politics. Rather than helping America Vote, HAVA has brought unprecedented chaos into America's elections, at an obscene cost to the country in dollars and democracy.

Now Congress is ready to do it again, once again with the backing and blessing of large election reform groups. Instead of responding to grassroots demands for verifiable paper ballots, HR550 has grown into another endorsement for the privatization of elections and the creation of a federalized launch into electoral chaos at the federal, state, and even the local level.

How did this transformation occur? I can't say, because I am not privy to the discussions and decisions being made in congressional offices. I am part of the grassroots: that vast, thriving, disorganized network of ordinary citizens trying to make our voices heard in the halls of power. We don't have funding, we don't have fancy websites and communication networks, and we don't have inside access to those in power. We work full time jobs, raise our families, try to pay our bills, and somehow fit in to our lives some moments of political expression.

Well, here is mine.

I am issuing a counter alert to TrueMajority and VoteTrustUsa.org. I am urging the grassroots to not sign their petitions, to not call their congressional representatives, to not allow the passage of another piece of federal legislation that will result in countless iterations of unintended consequences, and push us into more and more years spending our time in damage control rather than rebuilding our democracy.

We should all be able to work together on this, Congress, the grassroots, and organized election reform groups. This is too important to screw up yet again.

So what's wrong with the Holt Bill?

I have already written two articles explaining concerns that grassroots activists have about HR550. For background, you can read those here:

What's wrong with the Holt Bill? Part 1

What's wrong with the Holt bill? Part 2

The biggest issue with the bill as written is that it sets us up for a handover of election control to the executive branch. The bill proposes to empower the Election Assistance Commission (EAC), an entity created in HAVA allegedly for the sole purpose of overseeing HAVA implementation. But the EAC has been steadily growing in its power, and the Holt Bill cements and expands its powerful position of authority over our elections. The problem? EAC Commissioners are presidential appointees. They are not a representative body, they have no checks and balances.

Do you believe White House cronies will do a good and honest job of managing our federal, state, and local elections?

Do you want a federal agency to send in hired contractors to conduct random precinct recounts around the country, even, under certain circumstances, for state and local elections?

If you didn't answer "yes" to these questions, then you understand why the Holt Bill should not be passed as written.

The Counter-Argument

Proponents of the Holt Bill insist that we are crying wolf when we talk about the dangers of empowering the EAC as designed in the bill. They state that the EAC is not a regulatory agency, and we have nothing to fear from their "voluntary" guidelines and advisories. VoteTrustUsa's article this week presents their argument on this issue.

Even if this assumption is correct right now--which is doubtful--the battle lines on the EAC's regulatory powers have already been drawn.

Last November I cited the following instance of the EAC power-grab in my Gifts of HAVA document:

In a September 2005 EAC advisory, the following footnote asserted legal precedent for transforming administrative interpretation into de facto rulemaking authority (emphasis mine):

The EAC is the Federal agency charged with the administration of HAVA. HAVA requires the Commission to draft guidance to assist states in their implementation of Section 301(a). Although EAC’s administrative interpretations do not have the force of law associated with legislative rules, the Supreme Court has long held that the interpretations of agencies charged with the administration of a statute are to be given deferential treatment by courts when faced with issues of statutory construction.

But look what's currently in the news. An ElectionLine.org newsletter, published just last Thursday, March 30th, entitled "Stealth Showdown Out West," Doug Chapin describes a battle being waged by the EAC to assert regulatory authority over the State of Arizona.

With this sort of evidence of how hard the EAC is pushing to establish de facto regulatory authority, one has to wonder why groups like VoteTrustUsa, and even Congressman Holt, are not getting it!

Read what ElectionLine Director Chapin writes below (emphasis mine):

NVRA Tussle Between Arizona and EAC Could Reverberate

Lost in higher-profile clashes over voting machines, voter databases and voter ID across the country, a developing spat between Arizona state and federal officials is rapidly shaping up to be a watershed event in the field of election reform.

The gory details
The substance of the dispute is deceptively arcane. It centers on Proposition 200, which was enacted by Arizona’s voters in 2004. Specifically, “Prop 200” amends state election law to prevent local registrars from accepting a voter registration application unless it is accompanied by some kind of state-approved documentation.

These requirements have drawn the attention of the U.S. Election Assistance Commission (EAC) in its enforcement role under the National Voter Registration Act of 1993 (NVRA). Earlier this month, the EAC wrote Arizona Secretary of State Jan Brewer (R) to inform her that that Prop 200’s requirements violate NVRA to the extent that they constitute an additional citizenship requirement for individuals using the National Voter Registration Form.

A week later, Brewer fired back in a terse response disputing the EAC’s reasoning and conclusions, and insisting she would continue to require Arizona registrars to apply Prop 200 to all registration forms, including the federal form. In defense of Prop 200, she cited the pre-clearance of the state’s registration requirements - and its registration form - by the U.S. Department of Justice. She urged the Commission to relent; arguing that failure to do so “would be incredibly irresponsible and may unnecessarily disenfranchise voters using the Federal Form to register.”

Recently, a coalition of voter advocacy groups announced their intention to file suit, claiming that Prop 200 would affect registrants who lack the requisite identification – mostly out-of-state students or military voters.

Why you should pay attention
The showdown is, in many ways, a classic dispute between litigants – differing interpretations of applicable law and relevant facts (including whether Prop 200 affects the federal form or just the instructions for completing it) ultimately to be decided by the judiciary using established methods of legal reasoning.

That’s all “law talk”, however – and this case is much more interesting than just another caption in a casebook. Instead, Arizona v. EAC has potentially wide-ranging implications for election reform:

1. Arizona is challenging the EAC in an area where it actually has regulatory authority.

Most people who follow election reform are familiar with some version of the phrase "although the EAC lacks regulatory authority with regard to the Help America Vote Act (HAVA) …"

The conventional wisdom is that because HAVA withholds regulatory power from the EAC, the EAC therefore lacks regulatory authority of any kind. And yet, like so much conventional wisdom – it is wrong. HAVA Section 802 expressly transfers to the EAC regulatory authority over NVRA – meaning that the EAC’s interpretation of NVRA can be binding regulation, rather than “provisional guidance” as it would be under HAVA.

The difference is significant. HAVA notwithstanding, NVRA is arguably the most sweeping assertion of federal authority over state election procedures since the 1982 amendments to the Voting Rights Act of 1965...

If, therefore, Arizona is successful in using the EAC’s HAVA toothlessness to remove its NVRA teeth, it would once again shift the balance of power between those seeking greater access to voters and those seeking to enhance the integrity of the election process.

On the other hand, if the EAC were to “win” this showdown, it might be emboldened to expand its influence (or “cut its teeth”) in other areas – including but not limited to HAVA.

What Needs to Change

The article above puts to rest Holt Bill proponents' rebuttals that the EAC is not regulatory and that the guidelines are voluntary. Other rebuttals to grassroots concerns are that the parameters for audit are clearly delineated, and that hired hands for recounts is a good thing because even election reform organizations can mount recounts if desired. This sounds okay on the surface, but the truth is these rebuttals to our concerns don't add up.

Proponents of the bill need to at least address the following concerns and make revisions to the bill in order to gain widespread grassroots support:

1. The very real possibility that the EAC will become regulatory, either through de facto litigation outcomes, or in much the same way the FEC did: with a single line of text inserted into a completely unrelated congressional act. It will then become an executive agency, reporting to the executive branch of government.
2. The question of crony appointments having power over the nation's election systems, as shown in GW Bush's recent recess FEC appointment, a stunning example of how a president can use crony appointments to control election-related issues without the benefit of checks and balances for the American people.
3. The concerns and questions that have already been raised by organizations such as ACCURATE, EPIC, and other ordinary citizens like myself, about the composition of the EAC and the non-transparent manner in which the EAC conducts itself and its decision making process.
4. The fact that the bill would enable the institution of yet another privatized election industry in the form of contracted recount firms.
5. The possible subversion -- through assent of potentially corrupt local officials -- and constitutional conflict with federal oversight of state and local elections.
6. The question of how the parameters for audit are exactly defined, given ambiguous language such as shown in the bolded section: "IN GENERAL.—The Election Assistance Commission shall conduct random, unannounced, hand counts of the voter-verified records required to be produced and preserved pursuant to section 301(a)(2) of the Help America Vote Act of 2002 (as amended by section 2) for each general election for Federal office (and, at the option of the State or jurisdiction involved, of elections for State and local office held at the same time as such an election for Federal office) in at least 2 percent of the precincts (or equivalent locations) in each State.
7. The absence of any form of real best management practices and guidelines for conducting hand counts that would account for the various and varied precincts in the nation, and enable orderly procedures for the mandated recounts.
8. The possibility of countless unintended consequences stemming from federal audits, such as chaotic hand count management, or litigation resulting in court-appointed rather than elected officials, as we saw in 2000.
9. The fact that election system traditions, customs, and configurations vary from locale to locale, and a one-size-fits-all imperative from above - the Federal level - will cause chaos. We have seen this with campaign finance and the FEC, with the NVRA, and more recently with HAVA.

One no longer needs to be a conservative to be a federalist. There are many of us progressive federalists, and given the nature of the current administration I would imagine this political ideology has a rightful place in any discussion. The integrity of our republic depends on real checks and balances in its foundational democratic systems and processes.

We, the grassroots, would like to support the Holt bill; it has great promise to heal some of the wounds inflicted with the passage of HAVA. But can not do so until it is revised to appropriately bring it back to its original intent: the re-institution of verifiable elections through the use of real, voter-marked and verifiable paper ballots, and the elimination of black box voting products.

More specifically:

Provisions of the Bill we support:

SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Voter Confidence and Increased Accessibility Act of 2005’’.

SEC. 2. PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-VERIFIED PERMANENT RECORD OR HARD COPY. (change "verified" to "verifiable")

Provisions we want stricken from the Bill:

SEC. 4. PERMANENT EXTENSION OF AUTHORIZATION OF ELECTION ASSISTANCE COMMISSION.

SEC. 5. REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT.

SEC. 6. REPEAL OF EXEMPTION OF ELECTION ASSISTANCE COMMISSION FROM CERTAIN GOVERNMENT CONTRACTING REQUIREMENTS.

What's next?

Call Congressman Holt's office, reach out to our brothers and sisters in the election integrity movements, and let's sort this out.

Congressman Rush Holt
District Office
50 Washington Rd.
West Windsor, NJ 08550
Phone - (609) 750-9365 Fax - (609) 750-0618

Washington Office
1019 Longworth House Office Building Washington, D.C. 20515
Phone - (202) 225-5801 Fax - (202) 225-6025

Then, write to TrueMajority: info@truemajorityaction.org

And to VoteTrustUsa.org: contact@votetrustusa.org