EAC Gopher Bash

April 14, 2007

By Nancy Tobi

The Holt Bill (H.R. 811) is being advertised as a "paper trail" bill, but it also makes permanent the Election Assistance Commission (EAC). The EAC is four White House appointees who control the nation's voting systems.

Holt Bill proponents say that this is not a problem. They point to recent news coverage of the EAC, showing its incompetence and its questionable and even fraudulent actions. They say that the EAC has conducted itself so poorly as to make itself irrelevent. They look to hiring new Commissioners to "do a better job".

But the issue is not who are the Commissioners or how they conduct themselves. The issue is the very entity itself: four White House appointees with the power to determine what voting equipment is in use in our nation's elections, and to influence policy through the release (or nonrelease, as the case may be) of valid (or fraudulent) studies and reports.

Activists point to the EAC's first Chair, DeForest Soaries, now a vocal critic of the Commission. One of Soaries' first acts as Chair was to seek the authority to cancel national elections in case of a "homeland security threat". Soaries' resignation, and his subsequent criticism of the EAC is not about the inherently undemocratic nature of the Commission in our political structure, but rather the lack of authority held by the EAC. There is no solace to be found in this school of thought. The problem is not, as some activists claim, that we need to hold the EAC accountable or even replace current Commissioners with "better" ones. The problem is the existence of the entity itself.

The Holt Bill neither broadens nor weakens their power per se. Last year's version of the bill, H.R. 550, did broaden their powers, giving them audit and de facto recount authority, but this year's version H.R. 811 was changed, possibly to defuse that criticism. But H.R. 811 makes the EAC a permanent entity, removing the EAC sunset date imposed by the Help America Vote Act (HAVA) when it created the EAC.

HAVA created the EAC as “an advisory” commission, with the exception of granting it regulatory power over the NVRA. As an executive commission it can become 100% regulatory with the insertion of one line of text in any congressional legislation.

This is how the FEC became regulatory; it began advisory just as did the EAC.

If the EAC had been created as a congressional commission this picture changes, because a congressional commission can never be regulatory. This, in fact, was the rationale behind the advise of then counsel for the architects of HAVA. Counsel advised against making the EAC executively appointed, but the HAVA gang of four (McConnell, Dodd, Hoyer, and Ney) overrode his objections.

We don’t know why they wanted to centralize election control, but we know full well the implications and we need to make this clear to all those good people supporting Holt because they think it requires paper trails and that is the full essence of the bill.

Holt's office and his supporters want us to believe that making the EAC permanent is a “nonissue”. But if they think it is such a great idea, then why did Hholt's office deliberately remove the word "Permanent" from the December draft of the bill, and make the section header " sec. 4. Extension of authorization of election assistance commission" instead of “PERMANENT Extension…" as it had been spelled out in the December draft. Do they think that by removing the word "permanent" we won't understand that the unlimited extension means the same thing?

As appalling as is the notion of cancelling elections proposed by former Chair Soaries, the who and how question with respect to the EAC Commissionres is not really the issue. It is, rather, the unprecedented proposal in H.R. 811 for Congress to use its constitutional authority to preempt state sovereignty in the conduct of elections in order to shift power not to itself, a representative body, but to a nonrepresentational executive commission of four White House appointees, and to permanently change the entire structure of governance and control in the United States.

Historically, Congress has taken the dramatic step of intervening in election administration when it held in doubt the states' intentions to carry out their duties to preserve and protect the rights of their voters. A GAO report ("The Scope of Congressional Authority on Elections" - March 2001) on this matter states:

"Congress has passed legislation relating to the administration of both federal and state elections, pursuant to its various constitutional powers. Federal legislation has been enacted in several major functional areas of the voting process, as described in more detail below. These areas include the timing of federal elections; voter registration; absentee voting requirements; accessibility provisions for the elderly and handicapped; and prohibitions against discriminatory voting practices."

But it is unprecedented for Congress to pass legislation that makes permanent an unchecked and unbalanced executive commission with broad powers and control in the matter of elections.

I will note at this point that we have, in our Request by Voters ( http://www.wethepatriots.org ) proposed an alternative solution to shift EAC responsibilities to the HAVA-created Standards Board, which unlike the EAC, is a truly representational body.

With the EAC in permanent control over voting system technologies and standards, the American people lose all control and decisionmaking authority over our elections. Any mandates we impose at our state or local levels are easily overridden by the EAC. And any action we may want to take against questionable electronic voting technology is mooted by the EAC, which is the final authority on what electronic voting technology is not only approved and recommended, but may actually be mandated in our cities and towns.

Just like the Gopher Bash (or Whack-a-Mole) arcade game, you can keep bashing the gophers, but they will keep popping up again. You can bash down DREs, and the EAC can pop them back up.

With an Executive Commission permanently controlling election systems, no matter what your local, state, or federal government may legislate, the EAC gopher can come up with its own voting system requirements whenever they want.

In other words, you can fight to amend Holt so it bans DREs, or you can knock down the technovote gopher in your own home states by passing laws requiring paper ballots and manual recounts, but the EAC can pop up those technovote gophers by writing contravening and contradictory requirements into their voting system guidelines.

The technovote gopher then becomes the law of your state if your state requires compliance with federal voting system guidelines, or if something like the Holt Bill comes along and just writes them into federal law, as it has done with the EAC-recommended text converter technology.

Consider this: Dixville Notch, NH has roughly 16 registered voters. They cast and count their ballots by hand. It might cost them under $100 to run their elections. They don’t need to worry about the EAC’s technovote gophers because they have no technology in their polling jurisdiction. Right?
Wrong.

In January 2007 Holt’s office, citing the EAC’s “voluntary” voting system requirement, inserted into its bill a mandate for an entirely new technological device to be used in every polling jurisdiction in the nation.

This ballot text converter, a scheme concocted by the EAC in 2005 against the advice of the Standards Board, may or may not even exist. Industry experts say it does not exist. Nonetheless, the Holt Bill mandates it for use in every polling place in the nation for the 2008 elections. Voila. The EAC's "voluntary" voting system guideline is now the law of the land. Presumably some industry maven will come up with something that is claimed to meet the requirement, and there goes another $4 billion of our American taxpayers money into more proprietary, nontransparent, undemocratic, but federally mandated voting system technology.

So where does Dixville Notch come up with the $6,000 initial investment for this device, and will it fit nicely, do you think, on top of their old wooden ballot box to “read back” the voter’s choices as prescribed by the EAC and Holt?

In March 2007 the EAC’s Technical Guidelines Development Committee (TGDC) had a lengthy discussion as to whether to use the language of “should” or “shall” regarding their new resolution for “accessibility of paper-based vote verification.” Their proposed resolution initially was drafted as follows:

“For the purpose of allowing voters to verify their ballot choices then the system should provide a mechanism that can read that record and generate an audio representation of its contents. The use of this system should be accessible to voters with dexterity disabilities.”

I don't want to spend too much time even going into the meaning of this particular TGDC resolution. But it would be irresponsible of me to not at least point out that it is "simply" requiring all paper-based voting systems to talk and be independently mobile (the paper ballot needs to get itself into the ballot box independent of the voter, who may have dexterity disabilities). . . . Hmmm . . . Do you think this is do-able or feasible in any economic, practical, or realistic way?

What I'd like us to focus on here is not the idea of a group of people (with little to no election experience) sitting around a DC office coming up with all sorts of pie in the sky ideas (just because they can), which our states, cities and towns can neither afford nor implement. I'd like to instead really take a close look at the decisionmaking process itself and what that means to the nation.

Holt proponents claim that the EAC is ineffective and benign. But we have already seen that EAC "guidelines" are easily transformed into the law of the land through bills like H.R. 811.

Holt proponents like to say that the EAC is only an advisory committee. A look at the TGDC's discussion tells us otherwise. The TGDC discussion around the use of two words: should and shall, reveals the extent to which the EAC understands its inherent regulatory nature. Bear with me on this slightly esoteric jaunt down a linguistic pathway.

In statutory language, should is very different from shall. Shall is mandatory, but should is recommended. During the discussion, TGDC member Paul Miller, representing the Standards Board, made the statement,

“If you make this a ‘shall’ there are implications because it [equipment meeting this requirement] doesn’t yet exist’.”

Changing the language to shalleffectively means the “voluntary” guideline will apply to all electronic voting systems and not just “accessible” systems. It means that should another bill like the Holt Bill come along, this requirement for talking and walking paper ballots becomes the law of the land.

In practical terms, it means further complexification of our elections, further nontransparency of the vote casting and counting processes, and expanded costliness of high tech voting equipment.

And it also means, for all intents and purposes, the death of the simple hand count paper ballot voting system.

Despite Mr. Miller's acknowledgment that they were mandating something that doesn't even exist, a nearly unanimous vote (with Mr. Miller voting in assent and only one dissenter) adopted the statutory “SHALL” rather than “SHOULD".

At the heart of this discussion we can see clearly that the TGDC, as they craft their expensive and possibly non-implementable, and therefore destabilizing to our election systems, “voluntary guidelines” are fully aware that their use of language can easily transform their “voluntary” system to statutory given the right conditions (such as federal or state law, or even just the industry product development meeting those EAC requirements).

So now you see how, just like a Gopher Bash, with a permanent EAC, technovoting requirements can keep coming back to haunt you. You can knock down as many gophers as you want, but the EAC can keep making them pop up again.

And the gophers will have ruined your country. Game Over.

Take action to Halt Holt. Election Defense Alliance has complete information and action pages. Click here!

Authors Website: www.democracyfornewhampshire.com
Authors Bio:
Nancy Tobi is the author of numerous articles on election integrity, including "The Gifts of HAVA: Time to Ask for a Refund," "What's Wrong with the Holt Bill,"and the newly released "We're Counting the Votes: An Election Preparedness Kit." She is Legislative Coordinator of Election Defense Alliance, co-founder of Democracy for New Hampshire and Chair of the New Hampshire Fair Elections Committee. Her writings may be found at www.electiondefensealliance.org and www.democracyfornewhampshire.com