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.

Wednesday, June 6, 2007

Model for the Nation: New Jersey May Do Audits Right (And Other Needed Reforms)

New Jersey Citizens’ Coalition
on HAVA Implementation


FOR IMMEDIATE RELEASE

June 7, 2007

Contact:
Renée Steinhagen, Coordinator, NJ Citizens’ Coalition on HAVA Implementation, 973-735-0523
Sandra Matsen, League of Women Voters of New Jersey,
908-236-6847

Glenn Magpantay, Asian American Legal Defense & Education Fund (AALDEF), 212-966-5932 x206

COALITION INTRODUCES GROUNDBREAKING ELECTION REFORM LEGISLATION
Bills seek to improve the administration of elections to ensure accuracy, security, inclusiveness and integrity

Newark, NJ – The New Jersey Citizens’ Coalition on the Implementation of HAVA (Help America Vote Act) is introducing six pieces of legislation that it believes are needed to ensure the integrity of New Jersey’s elections. One bill, which has a sponsor, outlines a procedure for the mandatory audit of election results (amending S.507), and is designed to serve as model legislation for election integrity post-HAVA. Its most innovative feature is that the margin of victory in a race would determine the extent of the audit. In closer races, more districts would be scrutinized, and the districts to be audited would be chosen at random. The process is transparent, nonpartisan, and completely independent of software, assuring that outcome-reversing miscounts are detected. The other five bills address inter-county provisional voting, voter assistance in Asian languages, verification procedures for voter registration information, training for poll workers, and requirements for voter registration agencies.

Over the past few years, the Coalition has been working with State and local election officials and legislators to propose and implement election reforms that build upon the requirements of federal law. By treating HAVA as a floor and not a ceiling, New Jersey is poised to become a leader in election administration. With the 2008 Presidential primaries less than a year away, the need to have reforms in place has created a sense of urgency across the state, causing the Coalition to take the lead in drafting the new legislation and forge new partnerships along the way. Its mandatory audit bill was drafted with the assistance of a Ph.D. political scientist, experienced election integrity advocates from two states that have election auditing laws, Ph.D. statisticians from the American Statistical Association, and other voting rights advocates, all of whom worked pro bono.

“We could no longer simply comment on the initiatives of others,” said Renée Steinhagen, Coordinator of the Coalition. “The time had come to change our stance and become proactive rather than reactive.”

“These bills put New Jersey voters first,” said Justin Levitt, Counsel for the Brennan Center for Justice at NYU School of Law. “They take reasonable steps – some long overdue – to protect the integrity of our elections and promote the participation of all eligible voters. We hope that the legislature will give them the speedy passage they deserve.”

“The proper administration of elections is essential to our democracy,” added Ms. Steinhagen. “All the proposed bills go a great distance toward improving the administration of elections by achieving the goals of transparency, accuracy, and voter inclusiveness.”

In addition to the mandatory audit bill, the Coalition is introducing five other pieces of legislation. “Though the mandatory audit bill is apt to garner the most attention due to NJ’s looming voter-verifiable paper record requirement on January 1, 2008, each and every one of these bills is critical for ensuring fair, nondiscriminatory and inclusive elections in our state,” said Lauren Skowronski, Executive Director, Common Cause New Jersey.

One of the bills will increase election participation among Asian American voters who have limited English proficiency. Glenn D. Magpantay, Asian American Legal Defense and Education Fund staff attorney said, “AALDEF has conducted multilingual exit polls in New Jersey for many years and has consistently found that many Asian American voters need language assistance to exercise their right to vote. Last year, during the November 2006 elections, 32% of Asian American voters we surveyed in New Jersey were limited English proficient. Ballots, voting instructions, and interpreters in Asian languages will ensure access to the vote for the Asian American community in New Jersey, which has now surpassed the 600,000 mark.”

Another bill will permit voters who move between counties to vote a provisional ballot if they do not notify election officials of their move in a timely fashion. Sandra Matsen, League of Women Voters of New Jersey, said, “With the statewide voter registration system up and running, it is time for the promise of provisional ballots to become a reality. Individuals who move between counties and fail to re-register should be able to vote in their current place of residency on a provisional ballot.”

Yet another bill imposes uniform training requirements on poll workers and another sets forth best practices for voter registration agencies. “Poll workers are the link between election administration – the laws, rules and procedures governing the election process – and the voters. We have one set of state election laws and we can no longer tolerate 21 different trainings. Statewide uniformity for training poll workers is essential for a fair and effective election system,” added Jo-Anne Chasnow, Policy Director of Project Vote’s Election Administration Program. “Furthermore, New Jersey must comply with the National Voter Registration Act of 1993 in offering voter registration opportunities in a host of state agencies. Compliance is long overdue, and one of these bills will help to ensure that this will happen.”

To date, the package of six proposed bills has been endorsed by: AARP-NJ, American Civil Liberties Union of New Jersey, Asian American Legal Defense & Education Fund, Asian American Political Coalition of NJ, Asian Pacific American Lawyers Association of NJ, Brennan Center for Justice, Coalition for Peace Action, Common Cause New Jersey, Korean American Bar Association of NJ, Korean American Voters’ Council of NY/NJ, League of Women Voters-NJ, Manavi, New Jersey ACORN, NJ Appleseed Public Interest Law Center, New Jersey Citizen Action, NJ Immigration Policy Network, Organization of Chinese Americans-NJ Chapter, Pan American Concerned Citizens Action League, Pan American Friendship Committee, Philippine American Friendship Committee, Project Vote, and South Asian American Leaders for Tomorrow.

For more information, contact Renée Steinhagen, Coordinator of the NJ Citizens’ Coalition on the Implementation of HAVA at: New Jersey Appleseed Public Interest Law Center,
973-735-0523, rsteinhagen@lawsuites.net, www.njappleseed.net.

Summary of the bills and all six bills in their entirety are available online at:
http://www.njappleseed.net/publications.php

The PDF can be downloaded here:
http://www.njappleseed.net/entity_pdfs/175.pdf


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