Clause-by-Clause Analysis of HR 811 as Amended May 8

FOR A COMPLETE CLAUSE-BY-CLAUSE-ANALYSIS, Click Here >> to DOWNLOAD the PDF [1]

Also see Five-Point Legislative Alternative below for essential election reform (stripping out the secrecy, computers, unfunded mandates, and executive power grab contained in the Holt bill).

by Nancy Tobi

The Holt Bill is falsely marketed as a paper trail and audit bill.

It is instead a multibillion dollar unfunded boondoggle that embraces and codifies into federal law secret vote counting, White House control over American voting technology, complex computerized voting technology that places an impenetrable and opaque layer between the voter and his vote, and impossible bureaucratic requirements that will threaten and cripple election officials and cause death by bureaucracy to our state election systems.

Our nation’s election officials oppose this bill because they want to protect our election systems from failure, not because they oppose paper based voting.

Our nation’s election officials are ready to implement paper based voting, even after having been sold an e-voting bill of goods following Congress’s 2002 passage of the “Help America Vote Act” (sic), which encouraged the states to use $3 BILLION American taxpayer dollars to purchase of the paperless e-voting equipment for which election officials are now being publicly derided for buying!

We don’t need this bill to bring paper back into our state election systems! We don’t need another multibillion dollar boondoggle to inject even more complex, more opaque, high tech democracy demolishing gadgetry into our voting systems.

There is another answer. See the 4-point Alternative Legislative Proposal at bottom of this posting.

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The two BIG LIES being propagated and very successfully circulated about the bill reported out of committee to the House:

1. It is now fully funded

2. It is a completely new bill ("the Lofgren substitute")

RESPONSE TO THE TWO BIG LIES:

1. The $1 BIL appropriated in the bill is not going to come close to covering the costs for the mandated text converter/readback technology, not for this year, and certainly not in 2-3 years when new federal guidelines obsolete (once again) ALL voting technology currently available. And that is not even going into the two new mandated state functions - both of which need to be staffed and operational (certification and audit functions)

2. The bill reported out of committee is titled the Lofgren substitute, I suppose, because it is what Lofgren released from her subcommittee in charge of the bill. However, it is commonly accepted that this version, with the exception of the Capuona amendment, and other small edits, came directly from Holt's office and his counsel, Michelle Mulder, who has been in charge of writing the bill all along. It is different from previous versions, yes, mostly in bad ways, but it is NOT a completely new bill.

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Careful readers of the bill reported out of committee to the full house will find the following:

The Capuano amendment, which gives voters choice to use paper ballots if they wish, is the best thing to come out of the bill, and opens the doorway for new thought. A whole new bill, if you will. In fact, a REAL paper ballot bill that could and should be strengthened with guidance, funding and training for what to do with those real paper ballots: i.e., hand count em. This provision has been added to the 4-point proposal appended at bottom of this posting.

Otherwise, most of the old flaws in the bill still exist and have in fact been made worse.

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SUPPORTS SECRET VOTE COUNTING! aka ” WE CAN SHOW YOU THE CODE BUT WE’LL HAVE TO ‘KILL’ YOU”
This version of the bill removed all prohibitions on nondisclosed software that had been present in previous versions and actually proactively requires public officials to sign nondisclosure agreements with evoting vendors! The codification into federal law of nondisclosure contractual requirements is unprecedented and anathema to a free democratic society. While they tout the bill as a "paper trail/audit" bill, it now actually provides waivers for thermal paper DREs until 2010 as long as they use those useless reel to reel printers. As anyone knows by now, this paper trail output is difficult to handle, and for all practical purposes, useless for auditing, so the representation of the bill as a paper trail/audit bill is misleading and is nothing other than a bait and switch.

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PLACES CONTROL OF ELECTIONS IN THE HANDS OF FOUR WHITE HOUSE APPOINTEES
Although they have removed the provision to extend the EAC, the bill consistently extends authority to the democracy-demolishing entity and even broadens its authorities and responsibilities, going so far as to authorize the EAC to manage taxpayer money for the fraudulent testing and certification Ponzi Scheme! Since the EAC will continue to receive appropriations as long as bills like HR 811 give it broadened and continuous powers and authority, removing the provision in this manner is nothing but a disingenuous shell game.

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REMOVES PUBLIC OVERSIGHT, REDUCES ELECTION SECURITY, COMPLICATES ELECTION ADMINISTRATION, OBSCURES VOTING SYSTEM PROCESSES, AND BREAKS THE BANK
HR811 mandates entirely new and highly complex technology (“conversion of human-readable printed or marked vote selections into accessible form”) for every polling jurisdiction in the nation. The requirement for new, complex, opaque computerized technology in the form of a text converter for every polling place in the nation is another nail in the coffin for democratic elections with citizen oversight. Ballot text or selection conversion for multiple language and multiple ballot designs requires the most complex high tech gadgetry yet proposed for our voting systems. This level of complexity injected between American citizens and their votes is unacceptable.

Additionally, it is a

vastly underfunded mandate. Proponents like to say that the increased funding to $1 billion makes HR 811 a fully-funded bill, but estimates for the text converter alone reach up to a minimum of $4 billion for the technology and programming costs it will incur.

Furthermore,

the device does not even exist in any form tested or certified, and it is still questionable whether any existing technology can meet matrix ballot design needs or pictorial language needs, such as Chinese. This mandated technology is so complex and high tech that the e-voting industry itself does not believe it can deliver the product in any workable, practical, or financially feasible form by the deadline date of 2010.
And once the next iteration of the federal voting system guidelines kicks in, any investment in this technology will be rendered obsolete in 2-3 years by the new software independence requirements in the next version of the guidelines, triggering a whole new round of unfunded investment in Holt-mandated computerized voting technology. This means an exorbitant expense today with an additional “investment”in this Ponzi scheme as soon as the next version of the federal standards is released in 2-3 years.

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RIDES ROUGHSHOD OVER STATE LEGISLATIVE PROCESS
The bill actually asks states to disregard their own laws in order to comply with its mandates, stating, in effect, "Do what we – the Feds –say, and don't worry about your own state laws that may not actually support our mandates. Just do what we say, then pass the laws just as we are requiring them to be. Don't act as though state legislation is a deliberative process, just pass the laws as we tell you to."

HR 811 is presuming an outcome for state legislation thereby denying any deliberative process that might result in an outcome different from that the bill presumes. This is utter disrespect for the rule of law, state sovereignty, the deliberative legislative process, and is outrageous.

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IMPOSES IMPOSSIBLE TIME LINES AND IS OVERLY PRESCRIPTIVE The bill gives states 90 days to come up with plans to completely overhaul their voting systems, and further imposes burdensome reporting requirements to the White House-controlled EAC. The bill contains too much detail for how to implement its requirements, superseding any state requirements, traditions, or other variables. The bill promises todestabilize our state election systems as election officials scramble to meet impossible mandates, leaving no time to take care of the things like security, accuracy, and citizen oversight that are required for democratic elections!

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4-Point Alternative Legislative Proposal for Real Paper Trail with Checks and Balances
Plus Incentives for Real Paper Ballots and Hand Counts

1.  In support of the principle of checks and balances and citizen oversight:
Require that Paper Ballots be Offered and Provided Voters at the Polls—
The appropriate election official at each polling place in an election for Federal office shall offer each individual who is eligible to cast a vote in the election at the polling place the opportunity to cast the vote using a pre-printed paper ballot which the individual may mark by hand and which is not produced by a direct recording electronic voting machine. If the individual accepts the offer to cast the vote using such a ballot, the official shall provide the individual with the ballot and the supplies necessary to mark the ballot, and shall ensure (to the greatest extent practicable) that the waiting period for the individual to cast a vote is not greater than the waiting period for an individual who does not agree to cast the vote using such a paper ballot under this paragraph.

Jurisdictions will ensure that a sufficient supply of paper ballots be available, that notice of the option is provided, that the ballots are treated with equal dignity provided to other ballots, including canvassing/counting those ballots on election day, and that consequences are provided for violations. In the event of violations related to the provision, canvassing, and handling of paper ballots, any citizen eligible to vote in the jurisdiction will have standing to go to court to require compliance and authority for the court to grant immediate relief. Funding for training and documentation for election officials and election workers in the proper hand counting methods and election administration using paper ballots will be appropriated to support this provision. Prior to election certification, appropriate protocols must be implemented to ensure the integrity of election results as authenticated by transparent vote counting methods.

(Compliance to be determined by each state in a state plan process that supports the standards for democratic elections, those being citizen oversight and security, and which process includes diverse stakeholders group including citizen representation, published plans, and consequences for noncompliance. State Plans will be published in the Federal Register.)

Effective Date State Plan: February, 2008

Effective Date Implementation: General Election November 2008

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2.  In support of the principle of fiscal responsibility and stabilization of state governmental administration, checks and balances and citizen oversight:

BUYOUT funding for states wishing to replace DRE systems with paper-based voting systems.
(BUYOUT funding can be applied to paper ballot, optical scan voting systems, paper ballot, hand count systems, or a combination thereof. In the case of buyout funding as applied to hand count systems, training costs may be included.)

(Compliance to be determined by each state in a state plan process that supports the standards for democratic elections, those being citizen oversight and security, and which process includes diverse stakeholders group including citizen representation, published plans, and consequences for noncompliance. State Plans will be published in the Federal Register.)
Effective Date: February, 2008

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3. In support of the principle of checks and balances:
Dissolution of EAC and reallocation of its functional responsibilities to appropriate representational groups (as described below)

Effective Date: January 2008

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4.  In support of the principle of fiscal responsibility and stabilization of state governmental administration:
Prohibition on any additional unfunded mandates being added into the bill

Effective Date:  Upon passage

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Reallocation of EAC Responsibilities:

• Generate technical guidance on the administration of federal elections.
  – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
• Produce voluntary voting systems guidelines.
  – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
• Research and report on matters that affect the administration of federal elections.
    – HAND OVER TO STANDARDS BOARD & CITIZENS GROUP
• Otherwise provide information and guidance with respect to laws, procedures, and technologies affecting the administration of Federal elections.
  – HAND OVER TO STANDARDS BOARD & CITIZENS GROUP
• Administer payments to States to meet HAVA requirements.
  – HAND OVER TO GENERAL SERVICES ADMINISTRATION
• Provide grants for election technology development and for pilot programs to test election technology. 
  – ELIMINATE THIS FUNCTION.
• Manage funds targeted to certain programs designed to encourage youth participation in elections.
  – HAND OVER TO DEPT. OF EDUCATION
• Develop a national program for the testing,certification, and decertification of voting systems. 
  – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
• Maintain the national mail voter registration form that was developed in accordance with the National Voter Registration Act of 1993 (NVRA), report to Congress every two years on the impact of the NVRA on the administration of federal elections, and provide information to States on their responsibilities under that law. 
  – HAND BACK TO FEC
• Audit persons who received federal funds authorized by HAVA from the General Services Administration or the Election Assistance Commission.
  – HAND OVER TO GAO
• Submit an annual report to Congress describing EAC activities for the previous fiscal year.
  – HAND OVER AS APPROPRIATE TO ENTITIES PICKING UP FUNCTIONS AS DESCRIBED ABOVE

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