HR 811 (The Holt Bill): Time to Put Us Out of its Misery

Originally published at http://www.opednews.com/articles/opedne_nancy_to_070605_hr_811__28the_ho...
June 5, 2007

By Nancy Tobi

HR 811 has a long and controversial history. It is embraced primarily by well-funded lobbyists, while the general citizenry, election officials, and activists oppose the bill. In the ultimate bait and switch, all carrots dangled in front of activists have been eaten up: full software disclosure is now full nondisclosure. Implementation on key aspects is moved from 2008 to 2010, effectively quashing the "Let's get it straight by 2008" bullshit campaign by MoveOn, Common Cause, VoteTrustUSA, PFAW and other large lobbyists pouring money into passage of this bill (and who is funding those guys anyway?).

Let's kill this thing and put us all out of its misery.

Here is the text of the bill as reported out of Committee to the House:

http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.811:

People continue to ask, what can we do to make HR 811 work? We can continue to request amendment after amendment on the bill, but the reality is that the bill is so fatally flawed and the drafters of the bill are so intractable on critical issues, that it is my belief that the bill can not be salvaged, it must be killed, and a new bill introduced.

We the people have introduced alternate legislative language, which has been vetted by election officials and others, and we believe is workable and can bring necessary changes in time for 2008 without creating a destabilization of the nation’s election systems. This language may be found here (and appended at bottom of this document):

http://www.electiondefensealliance.org/five_point_proposal

And if you really want to go simple and to the point: why not just enact legislation that everyone can agree on: federal BUYOUT for all paperless DREs with the funding to go to paper ballot systems (not paper records) using opscams OR hand counts?

I have tirelessly submitted analysis on every iteration of the bill and I am now weary of this process. Congressman Holt’s office and others in Congress have paid no mind to the very real and serious objections we have to this legislation. Congressman Holt’s office has not acted in good faith to engage in any dialog regarding our concerns.

I, personally, have been informed by congressional staffers that the political “reality” on the Hill is such that Congressman Holt is regarded as “the leader in election reform on the Hill” and that nobody will dare sponsor counter legislation to his. I have been informed that his bill is a moving train that will not be stopped.

My response to these remarks made to me by a congressional staffer is that this is not acceptable.

The matter of our democracy is not something to be dropped into the framework of any individual’s reputation, cult of personality, or otherwise. I don't care if Mr. Holt is a nice man, a good Christian, who his wife is, or how many coins he tosses to beggers on the DC sidewalks.

It is unacceptable to consider legislation of this import within the prism of how anyone “feels” about its sponsor. And frankly, I am tired of being told by congressional staffers that “they have heard from Holt’s office that the bill does x,y,z” as though they have not bothered to read the text before their eyes in black and white, just as I, an ordinary citizen, have taken the time to do.

Our democracy deserves better than these kinds of lazy and irrelevant rationalizations for supporting HR 811.

It is the opinion of many reputable citizens and public officials alike that HR 811 is completely unworkable, if enacted will destabilize our state election systems, and contains many elements that are antithetical to the basic foundations of our democracy.

If Congressman Holt is indeed the only leader on the Hill then I respectfully submit his leadership in this area is sorely lacking in the area most important for building good legislation: consensus building.

His office has consistently engaged in the practice of misdirection and disinformation rather than meaningful dialogue, and has intentionally shut out all dissenting voices.

Politicians in Washington may well be used to these kinds of strategies running their political campaigns. But this is not a political campaign, and those of us ordinary citizens engaged in this struggle deserve better thatn the disinformation campaigns and swiftboating of American citizens simply because they hold dissenting opinions about this legislation.

As a result of the stonewalling and closed circuit deliberations, Holt's office has released a bill that is extraordinarily controversial in nature and opposed by a wide swath of the American citizenry, including all major representational organizations of election officials and state legislatures.

At this point in time, I am no longer conducting clause by clause analysis. I will point out the fundamental problems with the bill, which may be used as benchmarks for anyone wishing to continue to attempt to point out the flaws of the bill. I simply do not believe that this bill can be the vehicle for effective and meaningful election reform.

If the bill fails these fundamental benchmarks for democratic elections as defined below, then the bill should not pass. Period.

There is no negotiation and no compromise on defending our democracy.

So here are the most important problems with this bill, which are the benchmarks for improvement and change in order for HR 811 to be considered as a serious contender for our support.

1. It is designed to protect technological e-voting industry interests rather than our democracy.

2. It is overly complex, overly prescriptive
The Holt plan relies on “experts” and “qualified” persons, rather than ordinary citizens. Our elections must be straightforward, able to be run by ordinary citizens, 100% observable, and publicly owned.

3. It replaces the constitutional, historical, and irreplaceable democratic requirement for OBSERVABLE elections with VERIFIABLE elections.
These are not equivalent. Providing voters with opportunities to allegedly “verify” computer vote counting--which is inherently impossible anyway because nobody other than the programmer knows what is going on in the trade-secret software—is not equivalent to protecting our RIGHT to conduct observable elections.

4. It replaces our right to secure, observable FIRST COUNTS of the votes on election night, with the opportunity to conduct post-election AUDITS.
Auditing machine results is not equivalent with our right to hold free, fair, open and democratic elections with observable vote counting of the first count before any winners are announced and peremptorily sworn in (a la Bilbray, San Diego, 2006), or any chain of custody or other issues may arise.

5. It fraudulently represents machine-generated records as “ballots.”
This undermines our time-honored system of elections, based on voter-marked paper ballots as the vote of record. This obfuscation of terminology has both legal and conceptual implications.

6. The Holt bill requires new technology for every polling jurisdiction in the nation: the text converter technology.
Drafters of the bill have progressively been changing the language of this provision and making claims as to how it might be fulfilled in various ways. The fact is the language is obscure and, if passed as is, interpretations will be thrown to the courts as every interested person sues their state for using one solution over another. The current text reads the requirement to “convert ballot selections into accessible form.” What does this mean? It’s anyone’s guess.
Common wisdom in the industry and certainly in the EAC is that voting systems must provide technology conversion of ballot text into multiple forms of “accessible media” such as audio, pictures, and multiple languages.
Given the obvious confluence of EAC standards and Holt Bill text, it is not inconceivable to interpret the provision a la the EAC interpretation. New technologies as defined by the EAC and passed into law by bills like the Holt Bill will cripple local and state economies, place further complex technological walls between the voter and his vote, between citizens and our elections, and the costs will be unacceptably borne by the decline of freedom and democracy and crippling property taxes.

7. The bill is underfunded and rides roughshed over state laws.
Drafters of the bill followed the unacceptable practice of using figures brought them by a lobbyist (VoteTrustUSA), rather than conducting honorable due diligence with an eye to county, town, and state budgets and legal requirements. In stark contrast to the lobbyist budget inserted into the bill, estimates by diligent state officials indicate that the bill is underfunded by a factor of 3-4 times the implementation costs budgeted in the Holt bill.
Additionally, the bill actually articulates its recommendation for states to follow the prescriptive requirements of the bill and only later enact legislation to support these actions, rather than honoring the sovereignty of state legal infrastructures, which should not be peremptorily overrun in order to satisfy federal legislation.

8. The Holt bill has unworkable and conflicting requirements and effective dates.
The combination of incomprehensible requirements, conflicting timelines, no safe harbor language, and limited ability for states to interpret the bill, all add up to a lot of open doors for litigation and election outcome challenges. This is extremely destabilizing and dangerous to the nation, as we learned in 2000 when only ONE state had a legal challenge to the election outcome. More information on this here: http://www.opednews.com/articles/opedne_nancy_to_070522_the_real_threat_...

And here: http://www.opednews.com

9. HR 811 makes permanent the Election Assistance Commission (EAC):
The EAC consists of four White House appointees who, through their power to design the software and hardware specifications of voting equipment to be used in America (and they have now expanded their purview even to designing our paper ballots), can effectively control the counting of votes in the United States. This is unacceptable. This Commission MUST BE DISSOLVED. Its very existence threatens our 231 year constitutional republic by shifting the ultimate power – that of counting our votes – to the Executive Branch. This is the destruction of our democracy.

The drafters of HR 811 have disingenuously removed the clear directive to make the EAC permanent (each successive version has obfuscated their intention to do so). Early versions of the bill clearly called for the “Permanent Extension of the EAC." Then they removed the word “Permanent” and now they have removed the actual provision itself. But these are games they are playing. The current version of HR 811 mentions the EAC, giving it authority and responsibility, more than 32 times in the 62-page bill. It also appropriates to the EAC in perpetuity an amount of funding 5 times the current budget. This, my friends, is a duck. It walks and quacks, and it is a duck.
More information on the EAC here:
http://www.electiondefensealliance.org/eac_takes_aim_at_paper_ballots_NT

And here: http://www.electiondefensealliance.org/eac_gopher_bash

10. Vote counting secrecy:
The most egregious bait and switch for many activists supporting the bill is that the original language calling for full disclosure in the bill has now been replaced with full nondisclosure, as well as adding requirements for public officials to sign nondisclosure agreements with private corporations in order to keep secret from the American people the manner in which our votes are being counted.

11. HR 811 imposes overly burdensome and cumbersome auditing and reporting requirements, many of which will not conform to current state practices and traditions.
This is another area where the bill uses complexity and “experts” rather than simplicity and citizen oversight. It places the EAC between the state and the state’s certification of election results. It is ambiguous as to the reporting requirements and EAC authority in obstructing state certification of election results. It inappropriately involves an executive commission of four white house appointees in the process of certification of state election results.

5-Point Alternative Proposal for Meaningful Election Legislation 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

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.)

Effective Date: February, 2008

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

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

5. In support of the Ninth Amendment that no single right can trample or trounce others:

Appropriations for real study of practical, implementable solutions, by a broad range of citizen stakeholders including representation from disability activists and election officials, arriving at consensus solutions that support and resolve conflicts among the voting principles of citizen oversight, security, accuracy, and accessibility.

Effective Date: Upon passage

Reallocation of EAC Responsibilities:

* Generate technical guidance on the administration of federal elections.
– Hand over to NIST and Standards Board with Citizen Representation

* Produce voluntary voting systems guidelines.
– Hand over to NIST and Standards Board with Citizen Representation

* Research and report on matters that affect the administration of federal elections.
– Hand over to Standards Board and 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 and 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 Department of Education

* Develop a national program for the testing,certification, and decertification of voting systems.
– Hand over to NIST and 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 the FEC (Federal Elections Commission)

* Audit persons who received federal funds authorized by HAVA from the General Services Administration or the Election Assistance Commission.
– Hand over to GSA, using Inspector General

* Submit an annual report to Congress describing EAC activities for the previous fiscal year.
– Hand over as appropriate to entities assuming functions as above

* Certification, recertification and decertification of voting machines
-- Delegate to the States