HB 136 – AS INTRODUCED
2007 SESSION
07-0531
03/01

HOUSE BILL 136

AN ACT relative to approval of voting machines.

SPONSORS: Rep. Pierce, Graf 9; Rep. C. Chase, Hills 2

COMMITTEE: Election Law

ANALYSIS
This bill inserts an additional standard for approval of voting machines and devices by the ballot law commission.

Bill text here: http://gencourt.state.nh.us/legislation/2007/HB0136.html

Hearing on this bill: Thursday Feb. 1st 10:00 AM

DFNH FEC Position

We support this bill because we believe the Ballot Law Commission must have clear guidance in approving voting machines.

The recommended language in this bill is taken from the expired rules of the Ballot Law Commission, which they had neither renewed prior to, nor applied in making, their March 10, 2006 decision to approve Diebold Accuvote Firmware V. 1.94 against the overwhelmingly majority wishes of approximately 75 citizens who came out on a rainy Friday morning to testify against the approval.

Testimony delivered at the March 10, 2006 hearing included documented scientific evidence of the defects in the firmware under question, and the vendor himself admitted under oath that the firmware was defective.

A video of the hearing, vendor testimony and Commissioner votes can be seen here: http://www.democracyfornewhampshire.com/node/view/2682

The Voting Rights Act 1965, Section 12. SEC. 12 states:

Whoever shall deprive or attempt to deprive any person of any right secured by section 2, 3, 4, 5, 7, or 10 or shall violate section 11(a) or (b), shall be fined not more than $5,000, or imprisoned not more than five years, or both.

(b) Whoever, within a year following an election in a political subdivision in which an examiner has been appointed (1) destroys, defaces, mutilates, or otherwise alters the marking of a paper ballot which has been cast in such election, or (2) alters any official record of voting in such election tabulated from a voting machine or otherwise, shall be fined not more than $5,000, or imprisoned not more than five years, or both

(c) Whoever conspires to violate the provisions of subsection (a) or (b) of this section, or interferes with any right secured by section 2, 3 4, 5, 7, 10, or 11(a) or (b) shall be fined not more than $5,000, or imprisoned not more than five years, or both.

(d) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2, 3, 4, 5, 7, 10, 11, or subsection (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief, including an application for a temporary or permanent injunction, restraining order, or other order, and including an order directed to the State and State or local election officials to require them (1) to permit persons listed under this Act to vote and (2) to count such votes.

The Voting Rights Act Section 8 also stipulates that vote tabulation must be observable:

Sec. 8. Whenever an examiner is serving under this Act in any political subdivision, the Civil Service Commission may assign, at the request of the Attorney General, one or more persons, who may be officers of the United States, (1) to enter and attend at any place for holding an election in such subdivision for the purpose of observing whether persons who are entitled to vote are being permitted to vote, and (2) to enter and attend at any place for tabulating the votes cast at any election held in such subdivision for the purpose of observing whether votes cast by persons entitled to vote are being properly tabulated.

On March 10, 2006, the Ballot Law Commission, approved voting equipment for use in NH, with full and complete knowledge that the firmware could alter the tabulation of the vote either through tampering or software defect, as proven in scientific reports presented as clear and convincing evidence in official testimony submitted by the DFNH Fair Elections Committee, and as admitted by the vendor under oath in public hearing.

In view of the scientific evidence and the vendor’s own testimony, we believe there was clear and convincing evidence that the machines could not ensure the integrity of the election results, and that we have REASONABLE GROUNDS to believe that our vote tabulation rights may be violated every time we use these machines. We believe the Ballot Law Commission erred in their approval but they applied no legal standard when they made their decision to approve.

In fact, their decision to approve, as documented in their testimony, which may be viewed in the video referenced above, was not based at all on the firmware they were approving. The solitary Commissioner who voted against approving the firmware stated that he could not approve it because the evidence, and the vendor’s testimony, showed it to be defective. The four commissioners who voted to approve did not refer to the firmware at all, rather to their fear that New Hampshire elections could not function without the machines in place.

We require this legislation to prevent this type of flawed decision making process from ever happening again. If decisions about our elections are based on emotion rather than fact, on conjecture rather than evidence, on fear rather than democracy, then the integrity and the security of our election system are at terrible risk.

Had the Ballot Law Commission’s own rule, which they had allowed to lapse and which they did not apply, been instated and enforced in March 2006 we might not be using voting equipment in NH that fails to meet the basic requirements of the Voting Rights Act or the standards of democracy, those being citizen oversight and freedom of access to election information.