HB 138 – AS INTRODUCED
2007 SESSION
07-0545
03/04

HOUSE BILL 138

AN ACT relative to disclosure of voting machine information.

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

COMMITTEE: Election Law

ANALYSIS
This bill requires public disclosure of certain information pertaining to voting machines.

Bill text here: http://gencourt.state.nh.us/legislation/2007/HB0138.html

Hearing on this bill: Thursday Feb. 1st 10:30 AM

DFNH FEC Position

We support this bill because we believe that democratic elections require full citizen oversight over every aspect of the election process. We recommend that this bill be sent to a subcommittee for full study and analysis of the depth required to facilitate passage of the bill.

The Founders stated in the Declaration of Independence:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Our own New Hampshire Constitution reinforces the requirement that our government reflects the consent of the governed by demanding open elections administered under full citizen oversight in open meeting, as stated in Article 32 as follows:
Art. 32. [Biennial Meetings, How Warned, Governed, and Conducted; Return of Votes, etc.] The meetings for the choice of governor, council and senators, shall be warned by warrant from the selectmen, and governed by a moderator, who shall, in the presence of the selectmen (whose duty it shall be to attend) in open meeting, receive the votes of all the inhabitants of such towns and wards present, and qualified to vote for senators; and shall, in said meetings, in presence of the said selectmen, and of the town or city clerk, in said meetings, sort and count the said votes, and make a public declaration thereof, with the name of every person voted for, and the number of votes for each person; and the town or city clerk shall make a fair record of the same at large, in the town book, and shall make out a fair attested copy thereof, to be by him sealed up and directed to the secretary of state, within five days following the election, with a superscription expressing the purport there of.

Clearly voting equipment using secret and proprietary software to count our votes meets neither the Constitutional requirement for sorting the votes nor for counting the votes in open meeting. Vote counting machines using proprietary software are by nature secret, or “black box,” and can not therefore reflect open meeting under any common sense or, we contend, constitutional interpretation.

While traditional perhaps in dictatorships, secret vote counting does not belong in democratic elections. It is tantamount to handing over our ballots to be counted in a warehouse in Massachusetts with blacked out windows and locked doors so that New Hampshire citizens have no oversight over the vote counting process. This is anathema to democracy and to the values expressed in our New Hampshire Constitution, State Motto, and our citizen legislature.

Democratic elections require full citizen oversight and freedom of access to election information.

The electronic voting equipment industry has had, to this point, an unreasonable and undemocratic “free pass” to holding the keys of OUR democracy in their proprietary pockets. Federal and state governments have unquestioningly accepted industry demands for maintaining their vote counting algorithms and mechanisms as proprietary trade secrets, in direct contradiction to American democracy standards of citizen oversight and freedom of access to election information.

New Hampshire citizens are demanding that we pull back the curtain on this nonsensical approach and acquiescence to industry demands, and restore full transparency in our vote counting processes in the name of democracy.

Election 2006 saw an unprecedented explosion of grassroots citizen groups rise to the challenge of overseeing our own elections in response to this wholesale handover of the nation’s elections to private industry. Citizens panned out throughout the nation to conduct their own independent exit polls, to video and document the use of secret vote counting equipment in the nation’s polling places, to document vendor “service calls” to polling places, where “software patches” and “reconfigurations” and “recalibrations,” were done, affecting election outcomes in undetermined ways, and were conducted under the veil of proprietary and trademark secrecy.

The citizens of the United States of America understand full well the dangers to our democracy posed by the privatization of our elections. The citizens of New Hampshire, too, understand the importance of grassroots democracy based on citizen oversight and the consent of the governed.

Collectively, we understand how close we are to losing our democracy because of the selling out of our elections to profit-driven industry, and we are insisting that we put an end to the undemocratic practice of subverting citizen oversight of the counting of our votes under cover of industry trade secrecy.

The 2006 election results from Sarasota, FL have made the headlines because of the inexplicable 18,000+ undervotes in that county’s Congressional race. As a result of this controversy, we now have a sitting US Congressman whose legitimacy to govern is called into question. Astonishing as this is, even more astonishing is the lower court’s ruling in that county that a candidate in that race can not access the voting machine data because it is protected under trade secrecy! The position that the ballot and voting records of the American people are owned by private industry and not by the American people is exceedingly damaging to our democracy, and is, in fact, now the basis of numerous legal challenges, including from the U.S. House of Representatives itself.

In fact, there is a growing trend towards openness and full disclosure of election information and voting systems, as evidenced in the myriad of legal actions throughout the nation being taken by citizens towards these goals. According to VoterAction.org, whose chief litigator has just been sworn in as Deputy Secretary of State to newly elected California Secretary of State Debra Bowen, lawsuits are currently being argued in Arizona, California, Colorado, Florida, New Jersey, New Mexico, New York, Ohio, Pennsylvania, and Wisconsin. ElectionFraudNews.com also contains excellent coverage of Attorney Paul Lehto’s lawsuit in Snohomish County in the State of Washington.

The proposed legislation, HB 138, will remedy the fractures to our New Hampshire democratic elections caused by the heretofore acceptance of the intrusion of privatized, profit-driven industry into our elections.

Election attorney Paul Lehto rejects industry claims to trade secrecy in election equipment, asserting that by entering the public domain of elections all proprietary claims made by vendors are trumped by democracy. In an ongoing legal challenge in the State of Washington, Lehto claims against the proprietary contractual demands of Sequoia Voting Systems:

Unconstitutional Delegation; Sequoia Performing Core Governmental Functions. The Contract instantiates a wholesale delegation by the government to a private company of the conduct of a core governmental function, the counting of votes in public elections. In light of the County’s undisputed lack of access to the source code governing the vote-counting algorithm and lack of access sufficient to ascertain whether tampering has occurred, invocation of “trade secret” protection in this context places the conduct of elections effectively outside of the power of the County or the public to review.

Sequoia has, in effect, assumed the obligation of the state by engaging in such a governmental function, yet, by virtue of its insistence on trade secret status and protection has refused to subject itself to the same limitations on its freedom of action as would be imposed upon the state itself and insists, with County support, on counting votes in a secret way. Such status and protection interferes with the ability of the Appellants specifically to review and verify the accuracy of the casting, tabulation, and counting of their votes and is inimical to the Constitutional and statutory regime governing the conduct of elections in the State of Washington.

The full brief may be viewed here: http://electionfraudnews.com/LegDoc/LehtoWellsVSnohomishCo.doc

New Hampshire can avoid costly and unnecessary lawsuits by enacting proper legislation in support of our Constitutional requirements for sorting and counting our votes in open meeting.

Tom Wilkie, Executive Director of the federal Election Assistance Commission, recently made the audacious statement that “security” trumps “transparency” in a voting system when he wrote in the January 25, 2007 edition of Roll Call:

EAC is guided by two "musts": transparency and security. Transparency wins every time - except if it jeopardizes the security of the voting system and, thereby, the integrity of the vote.

Mr. Wilkie apparently does not understand the irony of his contention that the security of a democracy would be bound in secret vote counting technology.

Mr. Wilkie apparently forgets the lesson of our Founder Benjamin Franklin, who stated:

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

However, we in New Hampshire do not forget the wisdom of the Founders, nor do we miss the irony of Mr. Wilkie’s statement.

You, the legislature, are bound by oath to represent the People of New Hampshire, and to govern with the consent of the governed.

When legislation to prohibit proprietary voting machine software was proposed in last year’s NH legislative session, we heard testimony that “the vendor is not ready to disclose their proprietary software code.”

The General Court does not need reminding that New Hampshire is not passing laws for the vendor’s convenience or for technology or industry standards. Our election laws must protect the interest of democratic elections and not private industry interests. To do any less is an affront to the foundational basis of our American Republic, the democratic processes that uphold it, and our own New Hampshire historical leadership in promoting freedom, liberty, and grassroots democracy.

In support of this legislation, we respectfully submit the following recommendations for amendments to strengthen the bill.
(a) Change the title to “An Act relative to disclosure of election information”
(b) COTS generally refers to “commercial off the shelf” rather than “common off the shelf”
(c) Terminology referring to the physical evidence of the voting system should be included to cover every element in the voting system
(d) Add the following language to require freedom of access to election information:
a. All information necessary to validate elections must be produced by the voting system and its accompanying elections procedures;
b. When information to validate the election is requested, it must be provided befor recount and contest periods have expired;
c. The information must be provided in a usable and cost-effective manner;
d. There will be no restrictions imposed by proprietary claims, nor shall access to information be placed outside of governmental custody.