The members House Administration Committee
By FAX 202-225-7664, 202-225-9957

Honorable members:

I OPPOSE HR 811, titled "Voter Confidence and Increased Accessibility Act".

I note the remarks by Nancy Tobi of the Fair Elections Committee of Democracy for New Hampshire, and endorse them, but I have a good deal more to say.

The concentration of political power that this bill represents, and the potential for improper influence, should frighten anyone who ever hopes to run for public office, incumbents included.

This bill is wrong-headed at every level of analysis, and will exacerbate and perpetuate the country's election troubles. To start with, its priorities are backwards. Conducting provably accurate elections is job #1 for any republic. The legal profession has a word for convincing the public that their votes are being recorded and counted in an open and verifiable manner, when in fact they are not. It's called fraud. It undermines the legitimacy of government. It's deeply unpatriotic. If true reform of the electoral process is carried out, then public confidence will follow. Further, distorting the electoral process to favor the small minority of handicapped voters at the cost of subjecting all votes to unpublished and unverifiable technology places a distinctly secondary objective ahead of the indispensible requirement for an accurate and verifiable election. To put the point quite bluntly, I don't think the intent behind it is honest, and the handicapped are being used.

The history of the past few years convinces me that it was a mistake for the national government to intervene in election practices and technology, and it would be a greater mistake to continue. There are good reasons why our nation was organized as a federal republic. The separation between the state governments serves as a firewall against the rapid spread of bad ideas. Each state government is a legislative laboratory, in which experiments can be contained while other governments observe, and assess the results. HAVA has breached that firewall for election methods. Because of HAVA, the chaos and suspicion of fraud that occurred in Florida and Ohio in 2000 have spread to most of the nation. The best course of action now would be to abolish the EAC, zero out the budget for federal involvement in electoral technology, repeal HAVA, and in the future limit the federal role in election administration to facilitating communication and discussion among state and local election officials.

If the federal government were to legislate further on election practices, the best course of action would be to take inspiration from the New Hampshire statutes. In particular, New Hampshire election law recognizes the bedrock reality that an open and verifiable election absolutely requires a tangible physical record of the voters' decisions. The ballot counters must see what the voter saw, on the same physical piece of paper, and not a corruptible indirect representation of it. This is a straightforward problem in public record-keeping, and advanced technology has nothing to contribute to its solution. Accordingly, I propose the following language:

Each vote for President and Vice President of the United States, or for a member of the United States Congress, shall be indelibly recorded on a durable paper ballot. Each vote shall be recorded by the voter's own hand without the intervention of mechanical, electronic, or optical devices other than personal corrective lenses, unless the voter is unable to do so.

Each such vote shall be counted in public at the polling place by direct inspection of the ballot, without the use of mechanical, electronic, or optical devices other than personal corrective lenses.

Now, about "accessibility" and "privacy"... Let's be clear about the real objectives. The curtained ballot booth isn't there for social privacy. The point of the secret ballot is to prevent improper influence on the voters, such as intimidation or bribery. For voters who can't see the ballot, can't read it, or can't physically handle it, New Hampshire law permits the voter to appoint an assistant, who can be anyone other than an employer or a union official. The voter is the final authority as to the appointment. This law has served us well for more than a century. We can afford to approach change with a wary eye.

It could be desirable to develop a way for handicapped voters to mark a ballot without someone else seeing it, but the indispensible requirement is that the voter must be able to verify with absolute certainty that the ballot is marked as intended - because there is nobody else who can make that determination. And without that certainty, we don't have a legitimate election.

As an electronics engineer with 40 years of experience, some of it in the design of safety-critical products, I know something about devices which must be provably correct in logical design, and safe in the event of component failure. I also understand the principles of open government, having commented in various state and federal rulemaking and legislative actions. For a blind or illiterate voter to determine without human assistance that the ballot is marked correctly, and with unquestionable certainty, it would be necessary to design an optical reader with an output the voter can use, and do it from first principles according to detailed written technical standards for safety-critical products such as aviation flight controls - all in an open regulatory environment such that any member of the public could study the blueprints, machine code, and verification records, and verify their correctness and completeness. Anything less is a mockery and a danger to democracy. With a readback device that has been publicly proven correct, fail-safe, and fully verifiable by party inspectors at the polling place, there would then be a reason to develop a ballot-marking device with handicapped user controls. These are formidable tasks, though within the bounds of feasibility. I'd expect it to take about five years. But nobody is working on such equipment, nor is any government working on suitable laws, regulations, and formal technical standards to supervise its development. I've discussed it with some members of the state legislature and the Secretary of State's office, but that's all.

Until some state government and its contractors undertake such a project and bring it to fruition, what we have is human assistance under the voter's direction. As we say in New Hampshire, if it ain't broke, don't fix it.

Sincerely,

John A. Carroll