Stopping H.R. 550 Because We Can't Compromise on Democracy
November 18, 2006
by Nancy Tobi and Paul Lehto
Following the General Election of 2006, which returned control of the U.S. House and Senate to the Democrats, Common Cause sent a mass email to its members exhorting them to support House Resolution 550, also known as the Holt Bill. H.R. 550 provides for the addition of "paper trails" to electronic voting, provides for audits of 2% or more of the paper trails with discrepancies to be resolved in favor of the paper trail, makes permanent and further strengthens the Election Assistance Commission (EAC), and requires that source code for e-voting machines be disclosed and placed in escrow.
Yet Common Cause is DEEPLY wrong about H.R. 550 as a solution to the problems in America's election systems. Citing the Sarasota Florida's now-famous 18,000 undervotes in a disputed Congressional race, they suggest we lobby for H.R. 550 paper trails, yet Sarasotans themselves learned from their experience, blew right past H.R.550's paper trails for touchscreens, and went to paper ballots. If citing Sarasota, why not follow the Sarasotan example and ban touchscreens instead of validating them?
Touchscreens make one's own ballot invisible, and at best create a paper trail that studies suggest only 25% of people actually check, and most of those who do check still miss many errors, making errors, fraud and legitimate votes equally "voter-VERIFIED" to use H.R. 550's deceptive terminology. Thus, H.R. 550 paper trails as applied to touchscreens is the gold standard of fraud-approval, allowing 75% and then some to sail through totally unnoticed, but nevertheless earning public confidence. With H.R. 550, Common Cause seems to want to do something "realistic", but these "realistic" Band-Aids don't help; they actually make things worse.
In the case of H.R. 550, this is not entirely unsurprising. The legislation, in its first iteration (H.R. 2239), was first proposed in 2003, shortly after the passage of the Help America Vote Act (HAVA) that it purports to favorably amend, and a lot has happened since then.
The election integrity movement has shown that the technology solutions HAVA foisted on the American public--with the full support of the federal government to the tune of an appropriated $4 billion-- were based on a singularly faulty premise that was not fully disclosed to the American public: the idea that private ownership of elections through proprietary technology and trade secret software has a legitimate place in a truly democratic election system, and that the safekeeping of our ballots and the counting of our votes should be outsourced to private corporate interests who claim the Constitution is inapplicable to them as private actors, rather than held in the hands of our American communities and overseen by local citizens.
This premise of HAVA, that secret vote counting and privatization of elections and removal of public oversight is somehow OK, flies in the face of one of the most widely held political values ever measured. This political value is the 92% of the American public which support, as measured in an August 2006 Zogby poll, the right of the public to witness vote counting and obtain information about vote counting: the necessities of public oversight of elections. That HAVA is trying to make this sacred democratic value extinct is the brewing scandal of the century in elections.
Because it questioned this faulty premise, the citizens' election integrity movement was able to uncover many other holes in the approach taken by HAVA.
The movement discovered that HAVA undermined community-centered, paper ballot-based voting systems, along with transparency in elections. It discovered that by giving primacy to technology, HAVA spawned a myriad of voter suppression nightmare scenarios: (1) voters waiting hours in bottlenecked lines because there weren't enough expensive e-voting machines in their polling stations (2) Voters being handed provisional ballots, many of which were never counted, because their names had been stripped from the HAVA-mandated computerized voting registration systems, and (3) Voters stripped of their ability to understand the basics of election vote counting due to the complexity of computerization even if the software were not secret.
The movement discovered that the HAVA-created Election Assistance Commission effectively hands oversight of the nation's elections squarely to the Oval Office and the Executive Branch, causing a dangerous shift in the balance of governmental powers. This shift takes a sharp turn away from the time-honored system of checks and balances necessary for election integrity, and toward the dangerous precedent of consolidating the power of incumbents to control the terms and circumstances of their own re-election in unhealthy ways.
And the movement also discovered, with astonishment and sadness but not surprise, that HAVA was largely written and funded by lobbyists working for an industry for whom profit trumped patriotism. It should go without saying that elections are to be utterly neutral, and the need for accuracy and transparency and checks and balances should not be limited by profitability concerns. Indeed, state Supreme Courts have observed that the integrity of our Republic is only as strong as the integrity of our elections, and sometimes doing the right thing involves falling on a sword that a for-profit entity may not wish to fall on.
Rather than taking into account these lessons, H.R. 550 continued to build on the false premises of HAVA, and as a result, H.R. 550, if passed as written, now promises to become HAVA II, building an even more expensive and elaborate superstructure on top of an undemocratic foundation that is radically hostile to the public's right to supervise its own elections and be a watchdog on the only mechanism of power and money transfer to government: elections.
H.R. 550's defects are stated below in brief form.
Paper Trails Can't Work
H.R. 550 calls for "paper trails" and "verified voting". Paper trails might be paper ballots, but H.R. 550 still allows for machine-produced records rather than voter-produced ballots. Paper trails can not work to protect American democracy. Placing technology, as opposed to the tried and true paper ballot, as the start and end of the voting system, H.R. 550 invites the e-voting industry to open its palms for the federal handout to pay for the development of printing "add-ons" to its already substandard product, at around $1000 per printer.
Printing technology solutions provided in 2006 to many jurisdictions around the nation have already failed to deliver on this promise. The printers jam, the paper records can not be used effectively in any kind of a recount, and then there is always the question of the software that programs the machine and its printer. In black box technology, we never really know if what is printed out on a paper trail is what has actually been recorded and counted inside the e-voting machine's bits and bytes, and there's no way to guarantee the two are in fact the same. Under H.R. 550, the electronic ballot is always still the first ballot counted, and in almost all cases is the only ballot ever counted (barring a recount or 2% audit).
When voters mark their ballots by hand, they know exactly where they are making their marks, and,through the experience of marking the ballot, they express their political will and intent without having to look back and "verify" a second time that what they have marked reflects their intent.
Legislation like H.R. 550 supplants definite visible indelible ballots with the notion of indefinite "verifiable" paper trails, or trails "able to be verified" instead of those that most certainly are verified (paper ballots). But voters do not inspect paper trails at rates greater than 25% or so, just as customers in grocery stores don't typically inspect the secondary paper receipt handed to them by the teller after electronic entry of the prices. In fact, studies that show that even when voters do check the paper, they don't catch most of the errors, so the true rate of "error approval" when paper trails are used is significantly higher than 75%.
The verified paper trail directly causes false voter confidence and tells the election hacker that at least 75% of his hacks and more will get through and further get the Good Hacker Seal of Approval by the misleadingly 'verified' paper trails themselves! This has got to keep the hackers and riggers laughing as they prepare for Election Day in e-voting jurisdictions!
In any truly defective or defrauded election, many election officials (whether to protect their jobs OR to protect themselves if they are involved in the fraud) in fact resist production of paper trails and all other information. In actual election contests, it is often difficult or impossible to get at "paper trail" information of any kind. (Co-author Lehto, an attorney that has been involved in both federal and state election contests, has found this to be true in every election contest example he knows of or has been involved with). For a check and balance to be most effective, it must be triggered before election results are released for the first time.
Auditing as Described in H.R. 550 Won't Work
Interestingly enough, at the prescribed 2% audit in H.R. 550 lacks the statistical power to detect even half of likely errors. If the district is a congressional district (H.R.550 has 220 cosponsors in the House, a companion in the Senate is being proposed by Senator Dianne Feinstein) as opposed to a statewide district like governor or Senator, this is particularly true.
Beyond this statistical failure, the whole notion of 'audits' is misleading in all elections, because of the unique nature of ballot secrecy laws. To truly audit you must trace back to the original source of the data, which in elections is the voter herself, but secrecy of the ballot prevents re-connecting voters with their ballot to confirm its accuracy, thus you can not ultimately or truly audit anything in elections to determine whether it has changed since it was voted by the voter. Only a RIGOROUS chain of custody that is truly reliable can save a secret balloting system from near total unreliability. Electrons in computerized voting can not possibly provide such a rigorous chain of custody.
H.R. 550's 2% or more audit provision presents legal challenges as well. H.R. 550 includes an extra requirement that the paper totals from an audit TRUMP the electronic totals and replace them if they conflict. This, however, makes the "audit" the functional equivalent of a partial recount in its scope and effect. Partial recounts are unconstitutional under Bush v. Gore, as Al Gore found out by requesting that only certain counties be recounted. Does anybody doubt that in 2008 the Supreme Court will have no trouble seeing the similarity of 2% audits that trump results and partial recounts, and rule accordingly? Blurring the lines between audits and recounts creates an open playing field for the litigiously inclined who may prefer judicial selections over elections when determining who will hold the reins of power in the country. While these types of challenges will not be met in smaller elections, they are likely to come up and be fully litigated when it counts the most: in close elections, at the national and Presidential level.
Imbalance of Power
It was against the dangerous centralization of power that the Patriots of American history arose in revolt and revolution. By making permanent and strengthening the EAC, H.R.550 pushes us to a dangerous brink. It's a simple matter for the White House to stack the EAC with crony appointments, leading to any number of dangerous decisions about our elections. With technological elections in place, it also puts the "keys" to the codes programming our elections in the hands of the incumbent administration, precisely the folks (of whatever party) who are most likely to throw elections so they can stay in power. The Founders were adamant about not allowing an aristocracy or self-perpetuating class to rule this country.
H.R. 550 calls itself the voter confidence act but the biggest problem is confidence itself. We need distrust and observation throughout the whole voting process, because only THAT, in the end, brings about a trustable result. "Confidence" is necessary only for a fraud, not for a reliable result.
Transparency and Citizen Oversight
The only solution to the problems caused by HAVA is radical transparency and observation, combined with the robust checks and balances that are available, if and when they are used, by a physical paper balloting system. Although fraud or incompetence in elections has occasionally caused the proper checks and balances to not be in place in paper balloting systems, at least with paper the average payoff per election crime is low and evidence is created. Whereas, with electronic voting the average payoff is high, little or no evidence is created, making the prospects of undetected fraud unprecedented in our history as a democracy. As previously mentioned, the Zogby poll in August 2006 showed 92% of the public supports a system in which the public can view and witness vote counting and obtain information about it, as opposed to one which does not allow that because of trade secrecy. This also happens to constitute strong support for a system that keeps the damage to the integrity of the election to a minimum when it does occur.
Even a weak politician can run on 92% numbers, from any political party. Every politician should favor election integrity. The notion that we need to sacrifice transparency in favor of legislation reinforcing all that is wrong with HAVA in order to be "realistic" with H.R. 550 is entirely bogus, entirely undemocratic, and an abdication of the integrity of our system.
Again and again, the same mistake is made; a conflict arises between some consideration of convenience or administration of elections and election integrity or public oversight itself, and in nearly all cases, it is determined that election integrity should be sacrificed. For example, when the question of hand counting paper ballots comes up, the objection of long ballots requiring significant counting labor is raised, it is simply assumed that the answer is that the integrity of the election must be sacrificed, and rarely is it considered that the ballot is too long or perhaps the ballot should be shorter with an additional election each year. While many other examples of sacrificing our democracy could be given, the bottom line is that it is hard to imagine what could possibly be worth sacrificing our democracy for.
The sine qua non of democracy is not elections per se, it is the fact that all legitimate power comes from the people. In light of this, there is simply NO consideration that has the weight necessary to sacrifice public supervision of elections and public observation of elections, particularly the concern for vendor profitability or election official convenience. The HAVA-caused elimination of public oversight and official accountability via computerization and privatization ultimately means the end of government "of the people, by the people, and for the people" if the people can not fully understand and check the legitimacy of their own elections. As such, HAVA, and anything that attempts to put a shiny coat of confidence on HAVA, must not be tolerated by democracy-loving Americans.
Take action -- click here to contact your local newspaper or congress people:
No Compromise on Democracy: Oppose H.R. 550
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 co-founder and Chair of Democracy for New Hampshire and Chair of the Democracy for New Hampshire Fair Elections Committee. Her writings may be found at www.democracyfornewhampshire.com