Friday, June 29, 2007

H.R.811: Fact and Friction -- Part IV

I'd like to conclude this series by stating what I think is most important to include in federal election integrity legislation, seeing how H.R.811 stacks up against that, and finally by saying whether or not I support H.R.811 anyway. (I'll try not to spoil that for readers until near the end.)

As I and other critics of H.R.811 have been told: "If you don't like it, go write your own bill!" Gee, I thought that's what we were supposed to be doing during the H.R.811 drafting process, but I guess I was wrong.

What some of us seem to have forgotten during the drafting of this bill is that experts have told us in no uncertain terms that it's beyond the state of the art to produce error-free software -- not to mention the potential for fraud and abuse of that software which is almost infinitely scalable. So electoral outcomes need to be confirmed independently of software. I don't know how we got so far off the track of achieving this relatively straightforward goal with H.R.811, but here's how to do it (and there ought to be a law about it):

1. Publicly disclose and audit all Ballot Definition Programming before each election. Follow up with rigorous Logic & Accuracy (L&A) tests.

2. Aggregate precinct totals transparently and independently after posting and witnessing them at the precincts on election night.

3. Audit within-precinct tallies (using paper and hand-to-eye counts) with a statistically accurate, fair and efficient method. (I don't care if it's ballot sampling, precinct sampling or machine sampling as long as it's statistically accurate and audits all types of electronically counted ballots and of course, the dreaded "paper records.")

4. Follow up on any discrepancies found until correct outcomes can be confirmed with very high certainty (prior to certification of course). Ninety-nine percent has been shown to be feasible for all recent federal elections without excessive administrative burden.

5. Have plenty of paper ballots on hand in case of DRE failures (or ban the DREs altogether until someone can get them right)! The 9.2% failure rate allowed by the federal voting system standards makes DREs an unacceptable technology for running elections, especially when other methods are used in other jurisdictions within the same State.

So let's see how the new version of H.R.811 reported out of the Committee on House Administration meets these simple criteria:

1. Disclose and audit all Ballot Definition Programming before each election: Well, that may have been possible in the original version of the bill, but the new section on software (non)disclosure gives ballot definitions the same legal status as vendors' source code. This change has been attributed to lobbyists for Microsoft, but I don't recall ever seeing any of their products produce a Ballot Definition File. Even if they did, this should be no more proprietary than a Word for Windows document or Excel Spreadsheet, and should be viewable with open-source software. While there are requirements for ballot definitions to be disclosed, these files are not required to be a matter of public record, as they should be. Without seeing how our ballots and our election have been defined and configured in the vendors' election management systems (EMS), there is no way to know how the machines (be they DREs or optical scanners) will interpret voters' selections -- even on hand-marked paper ballots. So H.R.811 fails on this count.

2. Aggregate precinct totals transparently and independently: This is the goal of another bill introduced by Rep. Holt in the last (109th) Congress, H.R.6414, which has still not been introduced in this session. Its provisions are not contained in H.R.811 or any other federal legislation but they are pretty good. This is not so much a failure of H.R.811, but perhaps a political miscalculation not to reintroduce this bill.

3. Audit within-precinct tallies (using paper and hand-to-eye counts) with a statistically accurate, fair and efficient method: The best that can be said about H.R.811 with respect to this is that it would allow such methods to be used by the States -- but it certainly does not mandate them. The audits mandated by the bill are neither statistically accurate, nor fair, nor efficient. In case you're wondering about the unfair part, the audits in the bill will provide much greater assurance that statewide races are correctly decided than they would for many US House races, and that makes them unfair to candidates for and members of Rep. Holt's own legislative chamber -- the US House of Representatives. I have already written extensively about this problem and suggestions to remedy it have been mostly ignored, although, as I've said here, H.R.811 does allow States to do better. The State of New Jersey, which happens to be Mr. Holt's State, may be the first to do so if S.507, the amended bill pending in their State Senate, becomes law.

4. Follow up on any discrepancies found until correct outcomes can be confirmed with a high level of certainty (prior to certification of course): It's vague, but H.R.811 does say there should be additional audits if cause is shown. However, the States get to decide what the cause and the additional audits will consist of. There's no assurance that they will get this right. Besides, material discrepancies may never be found with the audits required by the bill, especially for close races and US House races where their statistical power to detect potentially outcome-altering miscounts is low.

5. Have plenty of paper ballots on hand in case of DRE failures: This is perhaps the most disturbing aspect of H.R.811. While there was a clear provision for this to happen for the 2008 election, it has mysteriously disappeared without any public record or amendment by the Committee on House Administration to strike it. Attempts by this author and others to find out what happened have yielded no additional information, but we have been assured that it will be restored before the bill is voted on. That's nice, but what other last minute changes can we expect to see, or not see until it's too late? Of course an outright DRE ban is "off the table."

Now, in case you're wondering, I support H.R.811 despite its flaws, so long as condition #5 above is met without any other undesirable changes. We have been told there is no room for improvement, but if there is a process to restore the missing section, why not work to improve the bill as part of this process, and to counter any other unexpected negative changes? Major improvements may not be possible but clarification of the language that, according to talking points, is supposed to ban Internet connections to voting systems (but is actually still limited only to certain "voting devices"), and clarification of the role of dial-up networking (if any) in voting systems, still needs to be included. Otherwise there is little if any improvement in overall voting system security required by the bill. It bans Internet voting while leaving the core of the voting system, the EMS, vulnerable to tampering via the Internet. If this is no longer the bill's intent, it needs to be made crystal clear.

Reasons why I support H.R.811 (anyway):

1. H.R.811 now requires all audits and recounts of federal elections to be conducted with hand counted paper ballots or records. Although the records may be corrupted by DREs incorrectly recording voter intent, the mandatory warning issued to the voters may be enough to get them to notice. Unfortunately, there is currently no requirement for DREs to be taken out of service, or for a paper ballot to be issued in the event of machine failure, so voters would still in effect be forced to vote on faulty equipment. Hopefully, this will change if the missing provision requiring paper ballots to be issued in the event of machine failure is restored. The bill does not ban DREs but it is not DRE-friendly and I believe it discourages their use.

2. H.R.811 allows States to do better. The bill allows States to get audits right and it pays for them. But activists will have to drop their slavish adherence to Holt's audits, start to do a little math, listen to the real experts (professional auditors and statisticians) instead of just the "usual suspects", and take the necessary steps at the State level to make audits work. There is finally some interest in this at the national level, thanks to the efforts of members of the American Statistical Association, Common Cause, Verified Voting Foundation and others, including this author. But it's also essential to be vigilant and not allow any State to come up with a worse audit plan than H.R.811 requires. The alternative audit language in the bill is still quite vague and gives the National Institute of Standards and Technology (NIST) a bit too much authority without sufficient statutory guidance from Congress. While I expect NIST to do a good job based on their past performance in this area, Congress should be the ones to set minimum standards for their elections without loopholes, because under the Constitution, only Congress has the right to judge the elections of its members.

3. The Senate bill, S.1487, introduced by Dianne Feinstein is a lot worse than H.R.811. I know this isn't the best reason for supporting Holt's bill, but at least, in my opinion, there's nothing in Holt's bill that will make things worse, as long as advocates are vigilant and hold their State and local officials accountable for doing things right.

It's clear that Congress still isn't taking the e-vote-counting problem seriously enough, and probably never will, but there's no reason why the States can't pick up the slack. H.R.811 may motivate some of the "slacker" States to finally do that. Without such a bill, it may not be possible.

You can read the other parts of this series here, here and here.

8 comments:

Nancy Tobi said...

I am continually amazed at the mental, financial, and logical gymnastics the technoelection community subjects us to as they try to contort their agenda into our democracy. What, do we owe the e-voting industry something, so we need to contort our entire country's history to fit into their ludicrous framework?

A simple look at the arguments in this piece shines a pretty bright light on how your base assumption - that computers belong in elections - is completely blown away by your own arguments.

You starts the piece with the following statement:

"What some of us seem to have forgotten during the drafting of this bill is that experts have told us in no uncertain terms that it's beyond the state of the art to produce error-free software -- not to mention the potential for fraud and abuse of that software which is almost infinitely scalable. So electoral outcomes need to be confirmed independently of software. I don't know how we got so far off the track of achieving this relatively straightforward goal with H.R.811, but here's how to do it (and there ought to be a law about it):"

This begs the question: IS COMPUTERIZED TECHNOLOGY EVEN AN APPROPRIATE METHOD FOR CONDUCTING DEMOCRATIC ELECTIONS?

I will point out, that Ms. Mulder of Holt's office gave me one opportunity to weigh in during the drafting of the bill in Dec 2006. And guess what? I DID ask this question. Unlike the rest of you (according to your own statement above) I DID NOT forget that what we are talking about is democracy.

Sorry, said Mulder to me, in her own inimitable way. We are looking at technoelections, not democracy.

No surprise there, given the output from your Quixote driven drafting sessions.

But since you raise it, how about we answer this question first and foremost, before working on all kinds of complicated legislation that offers work-arounds to the fundamental problem he expresses here, which clearly is: THIS SHIT DON'T FLY.

You yourself conclude this computer-based analysis with paper ballots as the ultimate fail safe for running our elections.

What's it gonna take for you guys to make the next leap of logic?

How long are we supposed to continue to sustain this unsustainable and unsupportable premise that computers -- with their invisible and secret vote counting algorithms - belong in our elections?

How much money are we supposed to dump into this technoelection toilet?

Why break our heads with the complicated, expensive, and largely unworkable and impractical proposals found in your piece and others, when the answer is right there for us all to see in your own conclusion?

PAPER BALLOTS.

This is a waste of time and energy. We can apply our dollars and energy instead to training and management development for properly run observable hand count elections. The costs are chump change compared to the technoelection energy drain.

Sheesh. How far do things have to go before common sense kicks in?

We don't owe the computer scientist community or the e-voting industry squat. You are both leading us down a regressive path - away from our heritage of representational democracy and into the fascist present and future of secret vote counting under centralized control.

This the opposite of progress.

Sure, Microsoft handed Bill Gates the revenge of the nerds. They learned how to make billions of dollars and develop all kinds of neat things for us to play with and work with.

Thanks for that!!!

But that don't make these cocky geeks democracy experts. In fact, they have long ago proven the opposite. All they have done, with the exception of Bruce O'Dell, is practice either denial or outright lying about the appropriateness of computers in elections. All they do is complicate things trying to fit their square technopeg into our round democracy hole.

Forget it.

We all have better ways to spend our time and money. Like, in building real democratic elections and not faux technoelections.

Wanna see how it works?

Look here:

http://www.democracyfornewhampshire.com/node/view/2648

Howard Stanislevic said...

Hello, and thanks for the comment.

So can I assume that New Hampshire will be moving to HCPB statewide then? Or will you continue to run a significant portion of your elections on computerized electronic vote-counting systems consisting of Diebold Accuvote Optical Scanners programmed en masse by as few as a single insider by the secret ballot definition software contained in the Windows-based GEMS election management system?

Are you allowed to inspect your ballot definition files in GEMS before each of your elections and see them loaded onto those scanners, ostensibly without modification, once they've been approved by the parties and candidates, or better yet, by independent pre-election auditors?

Do you know that your Straight Party voting options (which I think have now been made illegal in your state -- but will still exist in the GEMS ballot definition software) have been configured (or not configured) correctly so that no candidate is added to or omitted from a party illegally so their votes won't be counted as cast?

Do you know that when your L&A tests are performed, that they use the same ballot definition file that the actual election will use and not a corrupted version that will cause vote switching or deletion?

Do you have mandatory audits based on the statistical power to detect outcome-altering miscounts, or do the candidates just "guess" which precincts they are supposed to recount? (I know NH is a recount-friendly state and that's wonderful, but that doesn't answer the question of how or why the recounts, or partial recounts, aka audits, are actually conducted.)

I've read that you believe that in your state, paper ballots and the mere threat of recounts or audits on demand is enough to deter election fraud. It seems this is what H.R.811 is trying to do too -- provide deterrence -- just not very well, as I think you'd agree.

But I don't see how H.R.811 (the current version -- not the first one which some still keep referring to disingenuously as if it were the actual bill at this point) will make things any worse, and I do see how it makes it possible for States to follow the lead of New Hampshire and other States that require paper ballots -- even though you also seem to be quite dependent on computerized, proprietary, trade-secret, electronic vote counting there too -- and possibly even "faith-based" auditing.

What I don't see is how some other States will ever get past completely software-dependent voting systems without a mandate such as that provided by H.R.811. If that were possible, I'd be the first one to say that although Congress does have the authority to judge the elections of its members, they should but out of the States' affairs. But unfortunately, efforts to bring other States up to the standards you've set in New Hampshire, or even those in H.R.811, have met with failure for years and years.

So I'll ask you 2 more questions:

1. Without a federal law, how do you propose to bring those "slacker" states up to your standards?

2. Why did you apparently NOT support H.R.6414 in the last Congress, since even HCPB requires the kind of transparent precinct-level vote total aggregation to check the central tabulator totals as proposed by Bev Harris and Kevin Shelley in Aug., 2004 on national television?: http://www.crocuta.net/Dean/Dean_Host_TopicA_Aug8_2004.htm

Thanks again for your post.

Nancy Tobi said...

1) You are correct NH has outlawed straight ticket voting

2) 55% of our polling places use Diebold Optical Scanners, which are the only machine approved for use in NH. We do not use GEMS. The results are tallied at the local level and reported to the SoS on election night.

The other 45% of our polling places hand count. These decisions are made at the local level. Each city and town decides whether to use machines or hand count.

NH is in the process of evaluating our options with respect to this secret vote counting technology. We know that we can't upset our entire election system with instantaneous changes. We are deliberative and thoughtful.

But we also know that our NH Constitution requires the sorting and counting of our votes in open meeting, and our voting system and election laws need to align to this requirement. This is what we are working on now.

3) We are well aware of the ridiculousness of the testing that is done on these machines.

4) We don't have audits in NH, but we have a long tradition of accessible recounts, the most liberal recount laws in the nation, and routinely recount (manually) 20-30 races each election. These act effectively as a random audit. I do believe that our culture and tradition of open recounts does act as a deterrent, but it doesn't excuse the use of secret vote counting. Nothing does. Additionally, well executed hand counting is a self auditing process in and of itself. It is the most advanced system for checked and balanced democratic elections known.

5) I agree with you that the audits and reporting protocols suggested in HR811 are "not so good" so to speak. They are ludicrous; they would be both ineffective in detecting fraud and would break system after system because of their burdensome requirements.

6) The current version of HR811, as best as any of us are able to know what it is in our opaque system, is not just flawed. It is not just problematic. It is dangerous. I have outlined these dangers in numerous pieces, anyone can find me on opednews.com in the writers archives for more information. I don't believe in passing dangerous legislation just cuz we can.

7) Your last questions: a) we can have sane federal law to provide guidance that is meaningful but doesn't break the system. We have submitted numerous alternatives. b) Don't know the bill you are referring to so I can't comment.

Howard Stanislevic said...

I would be most interested to know how you are programming Diebold optical scanners in New Hampshire without the use of GEMS. I thought Harri Hursti and the University of CT were the only ones who knew how to do that, and it was done by hacking the memory cards through the use interpreted code, which violates even the lax federal voluntary voting systems guidelines. In fact, it voided the warranty in Ion Sancho's county in FL as I'm sure you know.

By the way, is this work in NH being done by election officials, or by a private contractor such as LHS?

Ellen Theisen said...

Howard, I read your objections to HR.811, and then I read your three reasons why you support it. I think the balance here is skewed.

You think publicly available ballot definition files are essential, but you're willing to give that up because audits (which you say are absolutely inadequate) and recounts will be done on the paper (which you say may be reviewed by the voters).

Your second reason is that states will be allowed to do better audits. But they are allowed to now! So the bill does not accomplish this. All it does is not prevent it.

And your last reason -- that there is another bill out there that is much worse -- is incomprehensible to me. If both are bad, then declare them both to be bad. You don't have to hope the dingos get you just because you don't want to be eaten by the ants.

Howard Stanislevic said...

Hi Ellen,

I'm not willing to give anything up. H.R.811 isn't going to get us everything we need but that doesn't mean it's unsupportable.

Nothing in H.R.811 says that ballot definitions or other election software can't be fully disclosed by a State under its own laws. The non-disclosure agreement in the bill, as it was explained to me, is a minimum. States can go further and disclose more if they want to. My problem is that the bill doesn't go far enough because it does not require public disclosure of ballot definition files. Again, this does not necessarily make it unsupportable. It just means there's more work to be done at the State level.

The reason why I think the H.R.811 audits are useful is that they are so inefficient that States will want to do better. In other words, by imposing something that's onerous at times, and doesn't work very well at times, States will be motivated to do better audits that may also be less onerous. This probably won't happen by itself; State activists will have to push for it. But by imposing an ineffective, inefficient, unfair audit, H.R.811 can motivate States to come up with better solutions, which it does allow. Would I rather see H.R.811 mandate better audits? You bet! But like the DRE ban, that seems to be "off the table." (You know I tried!) But I like the fact that audits are required and that States are allowed to do them better than what's in the bill. Voters reviewing the paper records, which I agree should not be called "ballots", can happen with voter education. But right now there are states without any paper records at all.

As to the third point, I've been saying how bad H.R.811 is for some time, or perhaps more accurately, how much better it could have been. Some of our concerns have been addressed. I'd love to see a better bill in the House that could be sent to the Senate to counter their bill. But if H.R.811 is the best the House can offer, and it's better than what the Senate has to offer, I'd say send it to the Senate with a note that they need to get their act together -- as long as it does no harm. I'm not convinced that H.R.811 will do harm in its present form, as long as pressure continues to be applied in the States and there is no false sense of security.

By the way, if we are talking 2010 instead of 2008 for the effective date of H.R.811, I might change my mind. If that happened, we'd need a whole new bill for next year. Something like Kucinich on steroids! What's going on with that anyway?

Chuck Garner said...

Mr. Stanislevic, you make a flat statement that, "Of course an outright DRE ban is "off the table", which apparently you have no idea how ludicrous it sounds to us who're not brainwashed into the whole computer mythology. A whole lot of us have awakened to the fact that we've been had by the scam known as HAVA, and are doing everything we can to rid our elections from this Republican scourge- and when that happens, there will be an "outright DRE ban". Along with computerized voting devices of any description.

Howard Stanislevic said...

Dear Chuck,

Hey, I'm in NY. Need I say more? You're preaching to the choir! No e-voting here -- not even optical scan -- at least not yet.

But you should know that HAVA mandated neither e-voting nor DREs. Those decisions were made at the State and local levels by those who decided to misread the law. DREs were around at least a decade prior to HAVA and HAVA never required any form of electronic voting. It just failed to require a voter-verified paper record or a truly independent audit, which H.R.811 attempts to correct.

The "off the table" quote that you quote, was just that -- a QUOTE. It comes from Congress -- not from me -- and it does not necessarily reflect the opinion of Election Integrity: Fact & Friction.

However, if HR811 passes with a 2008 effective date, DREs would be replaced with scanners in any jurisdiction that doesn't have a VVPAT now. That's a lot of DREs that will be going off line permanently -- not just during elections as they were designed to do about 10% of the time.

If you want to get rid of the rest of the DREs (in the States with VVPATs), that could happen by 2010 because thermal paper would be outlawed by HR811 at that time. At that point, optical scan becomes a very attractive alternative.

The Republicans know this. It's on their website. They called HR811 an optical scan bill. I'm surprised they seem to be the only ones who've noticed that. Here's the URL:
"H.R. 811 Promises Optical Solution to Election Reform..."
http://gop.cha.house.gov/mediapages/PRArticle.aspx?NewsID=1450