July 18, 2007, www.wheresthepaper.org/HR811markupCmt.htm
1.
Votes on ballots are not required to be counted. Cmt 1.
2.
Requirements are unclear for determining final results when paper ballots have
been compromised. Cmt 6.
3.a.
The bill would give vendors’ trade secret claims priority over citizens’ right
to know how elections are conducted. As a result, the bill puts unfair burdens
on citizens to request disclosure of software from ITAs, appeal denials of
disclosure and seek undefined remedies for denied or delayed disclosure by
undefined procedures. Citizens also bear the risk of lawsuits if vendors or ITAs assert improper use of disclosed
information. Cmt 12-23.
3.b.
Disclosure requirements make ballot definition files difficult to obtain and
subject to non-disclosure agreements, enlarge the functions of ITAs, require
privatization of the escrow of software, and create barriers that would prevent
anyone from detecting errors in version control. States must maintain a permanent
relationship with at least one ITA, the one that escrows the software of the
system they use. Unless states ALSO escrow the software they use, there will be
no way to detect errors in version control by ITAs and vendors. Cmt
12-23.
4.
Communications capability is allowed in voting systems, and internet connection
is allowed in Election Management Systems and central tabulators. Cmt
24-27.
5.
Trivial, unenforceable “security” requirements. Cmt 28-29.
6.
Weak requirements for emergency paper ballots when DREs fail. Cmt
30-31.
7.
ITA requirements shut out citizens as well as local jurisdictions and states. Cmt
33-42.
8.
Public money is authorized to develop voting system software, to the benefit of
private vendors one presumes, but no money is authorized to develop methods for
using and securing publicly understandable and observable voting methods such
as the use of voter-marked paper ballots. Cmt 44-46. Cmt 66.
9.
Increased duties and unlimited authorization of funds for EAC. Cmt
42.
10.
$1,000,000,000 for new equipment when no products meet 2005 VVSG. Cmt
47.
11.
Small audits triggered only by margin of victory. Cmt
49-52.
a.
Spot-check
audits of 10%, 5% and 3%. Cmt 52.
b.
When initial tallies show a candidate with 80% vote
share, no audit needs to be done. Cmt 50.
12.
No specific time requirement for how soon audits must begin after random
precincts are selected, which allows delays and defeat of the element of
“surprise.” Cmt 55.
13.
No requirement for public observation of all handling of voted ballots
from the time they are cast till election results are final. Cmt 59.
14.
Timely information not available to the public and candidates. Cmt 60-63.
To
amend the Help America Vote Act of 2002 to require a voter-verified permanent
paper ballot under title III of such Act, and for other purposes.
IN
THE HOUSE OF REPRESENTATIVES
Mr.
HOLT (for himself and [see ATTACHED LIST of cosponsors]) introduced the
following bill; which was referred to the Committee on Feb. 5, 2007
A
BILL
To
amend the Help America Vote Act of 2002 to require a voter-verified permanent
paper ballot under title III of such Act, and for other purposes.
Be
it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled,
SECTION
1. SHORT TITLE.
This Act may be cited as the “Voter Confidence and
Increased Accessibility Act of 2007”.
SEC.
2. PROMOTING ACCURACY, INTEGRITY, AND SECURITY THROUGH VOTER-VERIFIED PERMANENT
PAPER BALLOT.
(a) BALLOT VERIFICATION AND AUDIT CAPACITY.—
(1) IN GENERAL.—Section
301(a)(2) of the Help America Vote Act of 2002 (42 U.S.C. 15481(a)(2)) is
amended to read as follows:
“(2) BALLOT
VERIFICATION AND AUDIT CAPACITY.—
|
“(A) VOTER-VERIFIED
PAPER BALLOTS.— “(i) VERIFICATION.— |
(I) The voting system shall require the use
of or produce an individual, durable, voter-verified paper ballot of the
voter’s vote that shall be created by or made available for inspection and
verification by the voter before the voter’s vote is cast and counted. For
purposes of this subclause, examples of such a ballot include a paper ballot
marked by the voter for the purpose of being counted by hand or read by an
optical scanner or other similar device, a paper ballot prepared by the voter
to be mailed to an election official (whether from a domestic or overseas
location), a paper ballot created through the use of a ballot marking device or
system, or a paper ballot produced by a touch screen or other electronic voting
machine, so long as in each case the voter is permitted to verify the ballot in
a paper form in accordance with this subparagraph.
Cmt 1. No public purpose is served by using one term for two different things, or for calling a paper trail a “ballot.” However, using the term “ballot” for a paper trail allows the public to be misled. The public expects that votes on “ballots” will be counted for all initial and final tallies. Under this bill, that expectation is false.
Different terms should be used for
· first-hand voter-marked paper ballots which will be cast and counted for initial tallies,
· second-hand, software-created, machine-printed voter-verified paper audit trails which require voter-verification as a separate step by each voter, which are “preserved” instead of “cast,” which will not be counted for initial tallies, and which will be used only for spot-checks of computer function after the election.
Using one term for both impairs appropriate discussion and handling of differences. One example is four paragraphs below under (ii) PRESERVATION, (I), which requires ballots to be preserved in the manner or method in which all other paper ballots are preserved… A paper trail would be preserved inside a DRE whereas paper emergency ballots would be preserved inside a ballot box.
By defining VVPAT as a "ballot," HR811 opens a
dangerous door in the law because such a "ballot" is not required to
be counted to produce any initial tallies or most final tallies. Under this
bill, DREs produce two ballots: an unverifiable electronic ballot used to
produce initial and most final tallies, and a voter-verifiable placebo used for
tiny spot-checks of the computers.
In order to compensate for use of the term “ballot” for
both VVPAT and voter-marked paper ballots, in paragraphs (II) and (III) below,
we now have to discuss what should happen before the “ballot” is “preserved”
versus when it is “cast” because the VVPATs are not “cast.”
The audit provisions below allow VVPAT-type "ballots” from 90% to 97% of precincts to remain permanently unexamined and uncounted.
“(II) The voting system shall provide the voter with an opportunity to correct any error made by the system in the voter-verified paper ballot before the permanent voter-verified paper ballot is preserved in accordance with clause (ii).
“(III) The voting system shall not preserve the voter-verified paper ballots in any manner that makes it possible, at any time after the ballot has been cast, to associate a voter with the record of the voter’s vote.
“(ii) PRESERVATION.—The individual, durable voter-verified paper ballot produced in accordance with clause (i) shall be used as the official ballot for purposes of any recount or audit conducted with respect to any election for Federal office in which the voting system is used, and shall be preserved—
Cmt 2.
Will the requirement “shall be used as the official ballot for purposes of any
recount or audit” be used as an exclusive list (in other words, to say that
this is the only purpose for which the paper ballot shall be used) and
thus prevent the hand-counting of voter-marked paper ballots to determine
initial election-night tallies by hand-counting?
“(I) in the
case of votes cast at the polling place on the date of the election, within the
polling place in the manner or method in which all other paper ballots are
preserved within such polling place on such date; or
“(II) in any other case, in a manner which is consistent with the manner employed by the jurisdiction for preserving such ballots in general.
|
“(iii) MANUAL AUDIT CAPACITY.— |
(I) Each paper ballot produced pursuant to
clause (i) shall be suitable for a manual audit equivalent to that of a paper
ballot voting system, and shall be counted by hand in any recount or audit
conducted with respect to any election for Federal office.
Cmt 3. “a manual audit equivalent to that of a paper
ballot voting system” is unclear. Perhaps this paragraph should be worded as: (I)
Each paper ballot produced pursuant to clause (i) shall be suitable for a manual
audit equivalent to a manual audit of a voting system that uses voter-marked
paper ballots, and shall be counted by hand in any recount or audit
conducted with respect to any election for Federal office.
“(II) In
the event of any inconsistencies or irregularities between any electronic vote
tallies and the vote tallies determined by counting by hand the individual,
durable voter-verified paper ballots produced pursuant to clause (i), and
subject to subparagraph (B), the individual, durable voter-verified paper
ballots shall be the true and correct record of the votes cast.
Cmt 4. When an inconsistency between the electronic
and paper tallies occurs, it is possible for either or both to have been
tampered with, and the law should require investigation and access to the
systems used for the purposes of investigation by voters, candidates, and
law-enforcement.
Cmt 5. Inconsistencies between
electronic and paper tallies will be detected only if votes on paper ballots
are recounted or audited, and compared to electronic counts. Under this bill,
90% to 97% of such inconsistencies will not be detected.
If DREs are used, election night tallies and almost all
certified final tallies will be the unrecounted and unaudited machine tallies
of voter-UNVERIFIED electronic votes.
For example, if 3% of paper “ballots” are hand-counted during a recount
or audit, then 97% of DRE tallies will be the unrecounted and unaudited tallies
of voter-unverified electronically-recorded votes.
|
“(B) SPECIAL RULE FOR
TREATMENT OF DISPUTES WHEN PAPER BALLOTS HAVE BEEN SHOWN TO BE COMPROMISED.— |
“(i) IN GENERAL.—In the event that—
“(I) there is any
inconsistency between any electronic vote tallies and the vote tallies
determined by counting by hand the individual, durable voter-verified paper
ballots produced pursuant to subparagraph (A)(i) with respect to any election
for Federal office; and
“(II) it is demonstrated by clear and convincing evidence (as determined in accordance with the applicable standards in the jurisdiction involved) in any recount, audit, or contest of the result of the election that the paper ballots have been compromised (by damage or mischief or otherwise) and that a sufficient number of the ballots have been so compromised that the result of the election could be changed, the determination of the appropriate remedy with respect to the election shall be made in accordance with applicable State law, except that the electronic tally shall not be used as the exclusive basis for determining the official certified vote tally.
Cmt
6. Inconsistencies should be an issue for law enforcement and the
courts. If there are inconsistencies, or if the paper is compromised, then
for the purposes of investigation we must assume that both the paper and
electronic records may have been compromised, and both must be aggressively
investigated.
It
is unclear what kind of enforcement is possible for this paragraph:
a.
“it is demonstrated” does not specify WHO is responsible for demonstrating,
b.
each state may have to pass legislation to specify the kind of evidence that
would be considered clear and convincing in this situation, and
c.
each state may have to pass legislation to specify a remedy to resolve the
situation where DREs are used but the VVPAT doesn’t match the electronic tally,
and the VVPAT has been compromised.
This provision may set up a conflict between voters
and candidates who try to prove something and local election boards who can
prevent investigation and collection of evidence by (1) preventing observation
of the handling of paper ballots or VVPAT from the time of casting or
preserving till the completion of counting, and (2) preventing immediate access
to the equipment used. Without the right to observe and investigate, law
enforcement, voters, and candidates will be unable to demonstrate anything
about the paper tally, electronic tally, and their relationship.
It
is unclear what is meant by “a sufficient number of the ballots have
been so compromised that the result of the election could be changed” – must the
entire winning margin be found during a 3% audit? Or may the flaws found in the
3% audit be extrapolated to the other 97%? See also Cmt 7.
It is unclear what is solution is contemplated by the
last lines “except that the electronic tally shall not be used as the exclusive
basis for determining the official certified vote tally.”
“(ii) RULE FOR
CONSIDERATION OF BALLOTS ASSOCIATED WITH EACH VOTING MACHINE.—For purposes of
clause (i), the paper ballots associated with each voting system shall be
considered on a voting-machine-by-voting-machine basis, and only the paper
ballots deemed compromised, if any, shall be considered in the calculation of
whether or not the result of the election could be changed due to the
compromised paper ballots.”.
Cmt 7. The purpose of this paragraph is unclear. Does
it mean that you cannot extrapolate from the presence of paper ballots deemed
compromised on one machine to the fact that paper ballots on other machines may
have been similarly compromised? The Yale students’ study, www.wheresthepaper.org/ACM.pdf
, showed that if one vote is switched per machine, many election outcomes can
be changed. So if you find one vote was switched on the one machine that was
subject to a recount or audit, can you say, “we used 10,000 machines and that's
10,000 votes switched?” Or are you limited to saying one vote was switched, and
the judge throws you out of court?
A second issue is that when computer vote-switching is
done, the number of votes switched per machine would most likely be
“randomized” so that a different number of votes would be switched per machine.
For example, if tamperers want to shift an average of 5 votes per
machine, the number of votes switched on six machines might be 10 , 0, 6, 0, 3
and 11, respectively. Randomizing creates the illusion that there is no
systematic tampering being done. The intended effect of paragraph (ii) is
unclear in this situation. To be realistic, when computers are used and
discrepancies are found on any machine, for the purposes of investigation all
machines in that election should be assumed to be subject to similar
discrepancies and all machines must be investigated to discover the
election-wide pattern of discrepancy.
(2) CONFORMING AMENDMENT
CLARIFYING APPLICABILITY OF ALTERNATIVE LANGUAGE ACCESSIBILITY.—Section
301(a)(4) of such Act (42 U.S.C. 15481(a)(4)) is amended by inserting
“(including the paper ballots required to be produced under paragraph (2) and
the notices required under paragraphs (7) and (13)(B))” after “voting system”.
(3) OTHER CONFORMING
AMENDMENTS.—Section 301(a)(1) of such Act (42 U.S.C. 15481(a)(1)) is amended—
(A) in subparagraph
(A)(i), by striking “counted” and inserting “counted, in accordance with
paragraphs (2) and (3)”;
(B) in subparagraph
(A)(ii), by striking “counted” and inserting “counted, in accordance with
paragraphs (2) and (3)”;
(C) in subparagraph
(A)(iii), by striking “counted” each place it appears and inserting “counted,
in accordance with paragraphs (2) and (3)”; and
(D) in subparagraph
(B)(ii), by striking “counted” and inserting “counted, in accordance with
paragraphs (2) and (3)”.
|
(b) ACCESSIBILITY AND BALLOT
VERIFICATION FOR INDIVIDUALS WITH DISABILITIES.— |
(1) IN GENERAL.—Section
301(a)(3)(B) of such Act (42 U.S.C. 15481(a)(3)(B)) is amended to read as
follows:
“(B)(i) satisfy the
requirement of subparagraph (A) through the use of at least one voting system
equipped for individuals with disabilities at each polling place; and
“(ii) meet the
requirements of subparagraph (A) and paragraph (2)(A) by using a system that—
“(I) allows the voter
to privately and independently verify the individual, durable paper ballot
through the conversion of the human-readable printed or marked vote selections
into accessible form,
“(II) ensures that the
entire process of ballot verification and vote casting is equipped for
individuals with disabilities, and
“(III) does not
preclude the supplementary use of Braille or tactile ballots.”.
Cmt 8. At this time no DRE converts printed
content, but rather produces a read-out from internal information from the
computer.
(2) SPECIFIC
REQUIREMENT OF STUDY, TESTING, AND DEVELOPMENT OF ACCESSIBLE BALLOT
VERIFICATION MECHANISMS.—
(A) STUDY AND REPORTING.—Subtitle
C of title II of such Act (42 U.S.C. 15381 et seq.) is amended—
(i) by redesignating
section 247 as section 248; and
(ii) by inserting after
section 246 the following new section:
|
“SEC.
247. STUDY AND REPORT ON ACCESSIBLE BALLOT VERIFICATION MECHANISMS. |
“(a) STUDY AND REPORT.—The Director of the National
Institute of Standards and Technology shall study, test, and develop best
practices to enhance the accessibility of ballot verification mechanisms for
individuals with disabilities, for voters whose primary language is not
English, and for voters with difficulties in literacy, including best practices
for the mechanisms themselves and the processes through which the mechanisms
are used. In carrying out this section, the Director shall specifically
investigate existing and potential methods or devices, including nonelectronic
devices, that will assist such individuals and voters in creating
voter-verified paper ballots and presenting or transmitting the information
printed or marked on such ballots back to such individuals and voters.
Cmt
9. Only software-independent methods
should be researched.
Who
will own and use the results of this research and development? Will the results
be used by private vendors and claimed as proprietary trade secret by them? Why
is taxpayer money being spent to perform research and development for the
products of private vendors?
In
this bill the word “ballot” refers both to voter-marked paper ballots (the
votes on which will be used to create initial and final tallies) and VVPAT (the
votes on which will not be used to create initial and 90% to 97% of final
tallies). To the extent that these funds are spent for study of VVPAT, the
expenditure should be recognized as paying for busy-work on a placebo.
“(b) COORDINATION WITH GRANTS FOR TECHNOLOGY
IMPROVEMENTS.—The Director shall coordinate the activities carried out under
subsection (a) with the research conducted under the grant program carried out
by the Commission under section 271, to the extent that the Director and
Commission determine necessary to provide for the advancement of accessible
voting technology.
“(c) DEADLINE.—The Director shall complete the
requirements of subsection (a) not later than December 31, 2008.
“(d) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to carry out subsection (a) $3,000,000, to remain
available until expended.”.
(B) CLERICAL
AMENDMENT.—The table of contents of such Act is amended—
(i) by redesignating
the item relating to section 247 as relating to section 248; and
(ii) by inserting after
the item relating to section 246 the following new item:
“Sec.
247. Study and report on accessible voter verification mechanisms.”.
(3) CLARIFICATION OF
ACCESSIBILITY STANDARDS UNDER VOLUNTARY VOTING SYSTEM GUIDANCE.—In adopting any
voluntary guidance under subtitle B of title III of the Help America Vote Act
with respect to the accessibility of the paper ballot verification requirements
for individuals with disabilities, the Election Assistance Commission shall include
and apply the same accessibility standards applicable under the voluntary
guidance adopted for accessible voting systems under such subtitle.
(c) ADDITIONAL VOTING SYSTEM REQUIREMENTS.—
(1) REQUIREMENTS
DESCRIBED.—Section 301(a) of such Act (42 U.S.C. 15481(a)) is amended by adding
at the end the following new paragraphs:
|
“(7)
INSTRUCTION REMINDING VOTERS OF IMPORTANCE OF VERIFYING PAPER BALLOT.— |
“(A) IN GENERAL.—The appropriate election
official at each polling place shall cause to be placed in a prominent location
in the polling place which is clearly visible from the voting booths a notice,
in large font print accessible to the visually impaired, advising voters that
the paper ballots representing their votes shall serve as the vote of record in
all audits and recounts in elections for Federal office, and that they should
not leave the voting booth until confirming that such paper ballots accurately
record their vote.
Cmt
10. Such notice should also be required to be posted in the multiple languages
required for ballots by the Voting Rights Act in these locations:
a.
inside
each DRE voting booth,
b.
at
each sign-in table
c.
at
locations adjacent to each voting booth or wherever voters wait for their turn
in the DRE, and
d. along with any model,
diagram, or other instructional material or display that explains to voters how
to use the voting equipment.
“(B) SYSTEMS FOR INDIVIDUALS WITH DISABILITIES.—All voting systems equipped for individuals with disabilities shall present or transmit in accessible form the statement referred to in subparagraph (A), as well as an explanation of the verification process described in paragraph (3)(B)(ii).
Cmt 11. This requirement should apply to “all voting
systems” regardless of equipped for individuals with disabilities or not, and
required to be displayed immediately prior to the time when the voter is asked
to confirm his/her ballot selections and cast his/her votes.
|
“(8) PROHIBITING USE OF UNCERTIFIED
ELECTION-DEDICATED VOTING SYSTEM TECHNOLOGIES; DISCLOSURE REQUIREMENTS.— |
“(A) IN GENERAL.—A
voting system used in an election for Federal office in a State may not at any
time during the election contain or use any election-dedicated voting system
technology which has not been certified by the State for use in the election
and which has not been deposited with an accredited laboratory described in
section 231 to be held in escrow and disclosed in accordance with this section.
Cmt
12.1 The phrase “to be held in escrow
and disclosed” appears to mean that the accredited laboratory has authority and
responsibility to handle disclosure of software, including the administration
of non-disclosure agreements and evaluation of persons requesting disclosure. If
an accredited laboratory improperly denies or delays disclosure to a citizen,
it is unclear what appeal procedure or remedy a citizen would have. It is
unclear what public benefit is served by requiring private entities, rather
than NIST or another qualified public agency, to handle escrow and disclosure.
Cmt 12.2 The term “election-dedicated voting system
technology” is defined in paragraph (E) below as “ 'voting system software' as
defined under the 2005 voluntary voting system guidelines … but excludes
'commercial off-the-shelf' software and hardware defined under those
guidelines.“
The
2005 VVSG glossary definition is “voting system software: All the
executable code and associated configuration files needed for the proper
operation of the voting system. This includes third party software such as
operating systems, drivers, and database management tools. See also dynamic
voting system software, semi-static voting system software, and static voting
system software.”
In other words, this provision includes ballot definition files, which are the files that define which races and candidates are on the ballot. These files are prepared for each election, often at the last minute due to last minute legal challenges by candidates and court decisions.
Also, in some electronic voting systems, the voting
system software must be recompiled prior to each election in order to
incorporate the ballot programming for that election.
This section of HR811 means that, prior to each
election, each jurisdiction must transmit its ballot programming files and
possibly additional recompiled software to their state which must “certify”
these files and software, and that these files and software must be sent to an
accredited laboratory. This requirement will be impossible to comply with, due
to the short time frames and the vast amount of files and software to be dealt
with.
This requirement will also prevent the files and software
from being available prior to the election for inspection by candidates and the
public:
a. Ballot definition files need to be freely available to candidates and the public during pre-election logic and accuracy tests.
b. Ballot definition files need to be freely and immediately available to any investigator looking for errors (whether intentional or innocent) that result in wrong handling of votes. This section of HR811 would make ballot definition files difficult to obtain because they would be subject to non-disclosure agreements, and this would prevent timely investigation of errors.
This section needs to say explicitly that ballot
definition files are not included, and that they must be available to
candidates and the public without delay or restrictions both before and after
elections.
Cmt 13. It is unclear who must cause technology
to be deposited and disclosed. The vendor? The state?
Cmt 14. Paragraph (A) not only requires all states to
“certify” equipment but to maintain a continuing relationship with at least one
ITA.
It is unwise to require privatization of any part of our elections. Escrow should be handled by a governmental agency, not a private laboratory whether or not “accredited.” The EAC does not have staff, expertise or resources to act as an archive. NIST should serve this purpose.
Cmt
14.5 Unless states ALSO escrow the software they use at a second facility
selected by the state, there will be no way for states and local jurisdictions
to detect errors in version control by ITAs. In the past, there have been
discrepancies in the versions certified, sold, delivered, installed during
“maintenance,” and used in elections. Control and verification of versions must
be based on verification, not trust.
Citizens
and watchdog groups must have some way of obtaining and verifying version
information.
“(B) REQUIREMENT FOR
AND RESTRICTIONS ON DISCLOSURE.—An accredited laboratory under section 231 with
whom an election-dedicated voting system technology has been deposited shall—
“(i) hold the
technology in escrow; and
“(ii) disclose
technology and information regarding the technology to another person if—
Cmt 15. What “information” is to be disclosed? Is
there an assumption that the laboratory that escrows “technology” is the same
laboratory that tested it for certification?
How will the process be managed if the laboratory
becomes unaccredited?
Cmt 16. This paragraph should specify the time, such
as 24 hours, within which the laboratory must disclose the “technology and
information” so that it is not improperly delayed.
“(I) the person is a
qualified person described in subparagraph (C) who has entered into a
nondisclosure agreement with respect to the technology which meets the
requirements of subparagraph (D); or
Cmt
16.5 With whom will the “qualified person” enter into a nondisclosure
agreement—the laboratory? The vendor of the system? Who will administer the
paperwork and enforce the non-disclosure agreements? To whom will “persons”
appeal if they are told that they are not “qualified”, and what procedure or
remedy is available for improper delays and denials? See also Cmt 12.1.
“(II) the laboratory is
required to disclose the technology to the person under State law, in
accordance with the terms and conditions applicable under such law.
Cmt 17. The same “technology” might be disclosed to a
particular person in one state and not another, depending on the law of the
different states.
|
“(C) QUALIFIED PERSONS DESCRIBED.— With
respect to the |
disclosure of
election-dedicated voting system technology by a laboratory under
subparagraph (B)(ii)(I), a ‘qualified person’ is any
of the following:
“(i) A governmental
entity with responsibility for the administration of voting and
election-related matters for purposes of reviewing, analyzing, or reporting on
the technology.
Cmt
17.5 Governmental entities with law enforcement or investigatory responsibilities
should also be “qualified persons.”
“(ii) A party to pre-
or post-election litigation challenging the result of an election or the
administration or use of the technology used in an election, including but not
limited to election contests or challenges to the certification of the
technology, or an expert for a party to such litigation, for purposes of
reviewing or analyzing the technology to support or oppose the litigation, and
all parties to the litigation shall have access to the technology for such
purposes.
Cmt 18. In the course of litigation, will the
information become public, or will judges, jurors, litigants, other witnesses,
and the public who observes the litigation be sworn to non-disclose -- or will
we have only the conclusions of parties and their experts revealed in court?
Notwithstanding the term “party to pre- … election
litigation”, the term “used in an election” appears to mean that challenges
cannot be made until after the use of the “technology,” so that at least one
election must be spoiled by a known problem before the problem can be
litigated. To avoid this interpretation, the language should say “used or to be
used in an election.”
“(iii) A person not
described in clause (i) or (ii) who reviews, analyzes, or reports on the
technology solely for an academic, scientific, technological, or other
investigation or inquiry concerning the accuracy or integrity of the
technology.
Cmt 19. A person who reports on the “technology” has a
right to have the “technology” disclosed to him or herself after he/she signs a
non-disclosure agreement. Can any citizen declare that he or she is making a
“technological, or other investigation or inquiry” and sign a non-disclosure
agreement and have the “technology” disclosed?
|
“(D) REQUIREMENTS FOR NONDISCLOSURE
AGREEMENTS.—A |
nondisclosure agreement entered into with respect to
an election-dedicated voting system technology meets the requirements of this
subparagraph if the agreement—
“(i) is limited in scope to coverage of the technology disclosed under subparagraph (B) and any trade secrets and intellectual property rights related thereto;
Cmt 20. Trade secret and intellectual property claims
of vendors must be evaluated before they are accepted, so that such claims are
not used to prevent public knowledge of shoddy quality and other aspects of
equipment that vendors may wish to conceal. NIST could perform examination of
any material for which vendors make trade secret claims.
Unless claims of “trade secrets and intellectual property
rights” are validated prior to disclosure of the technology under
non-disclosure agreements, the citizens to whom such technology is disclosed
bear unfair legal burdens. If the citizens’ evaluations convince them that some
aspect of the technology is not a trade secret, nor intellectual property of
the vendor, they must defend this in court if sued for breach of the
agreement. Subparagraph (iii) immediately below exempts any
information in the public domain, but citizens to whom the information is disclosed
bear the burden to asserting that the information is in the public domain.
“(ii) does not prohibit a signatory from entering into other nondisclosure agreements to review other technologies under this paragraph;
“(iii) exempts from
coverage any information the signatory lawfully obtained from another source or
any information in the public domain;
“(iv) remains in effect
for not longer than the life of any trade secret or other intellectual property
right related thereto;
“(v) prohibits the use
of injunctions barring a signatory from carrying out any activity authorized
under subparagraph (C), including injunctions limited to the period prior to a
trial involving the technology;
“(vi) is silent as to
damages awarded for breach of the agreement, other than a reference to damages
available under applicable law;
“(vii) allows disclosure
of evidence of crime, including in response to a subpoena or warrant;
“(viii) allows the
signatory to perform analyses on the technology (including by executing the
technology), disclose reports and analyses that describe operational issues
pertaining to the technology (including vulnerabilities to tampering, errors,
risks associated with use, failures as a result of use, and other problems),
and describe or explain why or how a voting system failed or otherwise did not
perform as intended; and
Cmt 21. Courts would have to decide on a case-by-case
basis whether a specific report or analysis that describes operational issues
and failures has crossed the bounds of violating the non-disclosure agreement.
This places an unfair burden on citizens who perform analyses and disclose
reports, etc.
“(ix) provides that the
agreement shall be governed by the trade secret laws of the applicable State.
Cmt
22. Is the applicable state the state in which the “qualified person” lives, or
where the vendor has their home office, or where the laboratory is?
Conflicts
will arise if different states have different trade secret laws.
|
“(E)
ELECTION-DEDICATED VOTING SYSTEM TECHNOLOGY DEFINED.—For purposes
of this paragraph, ‘election-dedicated voting system |
technology’ means ‘voting system software’ as defined
under the 2005 voluntary voting system guidelines adopted by the Commission
under section 222, but excludes ‘commercial off-the-shelf’ software and
hardware defined under those guidelines.
Cmt
23. See Cmt 12. The 2005 voluntary voting system guidelines adopted by the EAC
has a glossary definition of “voting system software,” www.eac.gov/VVSG%20Volume_I.pdf
page A-19, pdf page 192:
voting system software: All the executable code and associated
configuration files needed for the proper operation of the voting system. This
includes third party software such as operating systems, drivers, and database
management tools. See also dynamic voting system software, semi-static voting
system software, and static voting system software.
|
“(9) PROHIBITION OF USE OF
WIRELESS COMMUNICATIONS DEVICES IN VOTING SYSTEMS.—No voting system
shall contain, use, or be accessible by any |
wireless, power-line, or concealed communication
device, except that enclosed infrared communications devices which are
certified for use in the voting system by the State and which cannot be used
for any remote or wide area communications or used without the knowledge of
poll workers shall be permitted.
Cmt 24. All forms of communications are easy
entry-points for tampering. All communications capability must be banned in all
voting and vote-tabulating equipment.
The focus on specific types of communications (such as
wireless) betrays an unhistorical and superficial understanding of computers,
which were subject to break-ins via the older telephone line/modem technology
long before wireless became common. Thus, this section needs to ban “dial-up
modem networking” or "telecommunications"
or "connections to the public switched telecommunications network."
The bill does not need a list of prohibited devices, but if it contains one, the list should also include ultra- or sub- sonic audio transmission, as well as the phrase “and all other communications devices and technologies that may be developed”.
Cmt
25. Very few poll workers would have knowledge of communications being used,
even when they themselves were using it.
“(10) PROHIBITING CONNECTION OF SYSTEM OR TRANSMISSION
OF SYSTEM INFORMATION OVER THE INTERNET.—No component of any voting device upon
which ballots are programmed or votes are cast or tabulated shall be connected
to the Internet at any time.
Cmt
26. This paragraph speaks of “voting device” while the previous paragraph
speaks of “voting system.” The Election Management System (“EMS”) and central
tabulator are part of a “voting system” but are not part of a “voting device.”
Both DREs and optical scanners are voting devices upon which ballots are
programmed (meaning, they contain ballot programming), votes are cast, and
votes are tabulated for their end-of-election-day tally printouts.
This
section must ban internet and communications capability in the entire voting
system, including the EMS and central tabulator.
Many
jurisdictions do not require poll workers to print and post tally reports PRIOR
TO connecting their DREs or optical
scanners via telephone line or internet to their central tabulator (or EMS
system if it functions as the central tabulator) to send in the day’s tallies.
This enables a tamperer to connect via communications capability to the central
tabulator and put in malicious code so that when individual DREs or optical
scanners connect to the central tabulator to send in their tallies, the central
tabulator ALTERS their tallies first, then lets them send in the altered
tallies. Then the poll workers print the tally reports in the poll site—but the
tallies have already been altered.
This
may have been what Clint Curtis was talking about when he testified before a
Congressional panel a few years back; he was asked, if tallies in the central
tabulator are altered, won’t people notice that the tallies in the poll sites
are different from those in the central tabulator? He said, "Not if I did
it!"
Given
that the bill does not ban all communications capability in all parts of the
voting system, it would be wise to require poll workers to print and post all
precinct tally reports from all DREs and optical scanners before connecting any
of these machines via any method of communications to the central tabulator.
Cmt 27. Prohibition of communications capability needs to be supported by inspection and enforcement. If a jurisdiction is incapable of inspection (for example, due to trade secret provisions in its purchase contract), the jurisdiction should be prohibited from using the equipment.
|
“(11) SECURITY STANDARDS FOR
VOTING SYSTEMS USED IN FEDERAL ELECTIONS.— |
“(A) IN GENERAL.—No
voting system may be used in an election for Federal office unless the
manufacturer of such system and the election officials using such system meet
the applicable requirements described in subparagraph (B).
“(B) REQUIREMENTS
DESCRIBED.—The requirements described in this subparagraph are as follows:
“(i) The manufacturer
and the election officials shall document the secure chain of custody for the
handling of all software, hardware, vote storage media, ballots, and
voter-verified ballots used in connection with voting systems, and shall make
the information available upon request to the Commission.
“(ii) The manufacturer shall disclose to the
Commission and to the appropriate election official any information required to
be disclosed under paragraph (8).
“(iii) After the
appropriate election official has certified the election-dedicated and other
voting system software for use in an election, the manufacturer may not—
“(I) alter such
software; or
“(II) insert or use in
the voting system any software not certified by the State for use in the
election.
“(iv) At the request of
the Commission, the appropriate election official shall submit information to
the Commission regarding the State’s compliance with this subparagraph.
Cmt 28. Anyone can fabricate a false chain of custody
report.
Security standards cannot rest on the EAC requesting
information from manufacturers and election officials. The information must be
submitted on a regular, routine basis, and posted for public inspection.
Otherwise, citizens can expect delays and difficulties obtaining the
information, since only the EAC has the power to request it, and citizens must
request it from the EAC (see (D) two paragraphs below).
This bill needs to designate a watchdog to regularly
inspect and verify the reports, and enforce these requirements.
“(C) DEVELOPMENT AND
PUBLICATION OF BEST PRACTICES ON DOCUMENTATION OF SECURE CHAIN OF CUSTODY.—Not
later than August 1, 2008, the Commission shall develop and make publicly
available best practices regarding the requirement of subparagraph (B)(i).
“(D) DISCLOSURE OF
SECURE CHAIN OF CUSTODY.—The Commission shall make information provided to the
Commission under subparagraph (B)(i) available to any person upon request.
Cmt 29. A time-limit, such as “within 24 hours,”
should be specified to clarify what “upon request” means. It would be easier to
simply post the information on the EAC’s web site.
|
“(12) DURABILITY AND READABILITY
REQUIREMENTS FOR BALLOTS.— |
“(A) DURABILITY
REQUIREMENTS FOR PAPER BALLOTS.—
“(i) IN GENERAL.—All
voter-verified paper ballots required to be used under this Act (including the
paper ballots used under paragraph (13) and the paper ballots provided to
voters under paragraph (14)) shall be marked, printed, or recorded on durable
paper.
“(ii) DEFINITION.— For
purposes of this Act, paper is ‘durable’ if it is capable of withstanding
multiple counts and recounts by hand without compromising the fundamental
integrity of the ballots, and capable of retaining the information marked,
printed, or recorded on them for the full duration of a retention and preservation
period of 22 months.
“(B) READABILITY
REQUIREMENTS FOR MACHINE-MARKED OR PRINTED PAPER BALLOTS.—All voter-verified
paper ballots completed by the voter through the use of a marking or printing
device shall be clearly readable by the voter without assistance (other than
eyeglasses or other personal vision enhancing devices) and by a scanner or
other device equipped for individuals with disabilities.
|
“(13) USE OF PAPER BALLOTS IN CASE OF SYSTEM OR
EQUIPMENT FAILURE.— |
“(A) IN GENERAL.—In the event of the failure
of voting equipment at a polling place that causes a delay, any individual who
is waiting at the polling place to cast a ballot in an election for Federal
office shall be provided with a paper ballot for the election and the supplies
necessary to mark the ballot. Any paper ballot which is cast by an individual
under this subparagraph shall be counted and otherwise treated as a regular
ballot in the final unofficial vote count and certified count and not as a
provisional ballot, unless the individual casting the ballot otherwise would
have been required to cast a provisional ballot if the voting equipment had not
failed.
Cmt 30. “Failure” needs to be defined and examples listed. The list should include but not be limited to vote-switching on a touchscreen or other form of DRE display, and the display of wrong votes on a final review screen or paper printout.
Feasible remedies must be specified to prevent voters from being disenfranchised when jurisdictions do not in fact have sufficient paper emergency ballots on hand.
If a DRE voting machine fails, it must be removed from
service for the duration of the election.
“(B) POSTING OF
NOTICE.—The appropriate election official shall ensure that at each polling
place a notice is displayed prominently which describes the right of an
individual under this paragraph to be provided with a paper ballot for voting
in the election.
Cmt 31. The notice must be posted in the multiple languages required for ballots by the Voting Rights Act, and must be posted at each sign-in table in the precinct. In addition to the right to a paper emergency ballot, the notice must describe:
a. failures of DRE voting systems that should cause equipment to be taken out of service, and
b. remedies for voters when paper emergency ballots are not available for use when needed.
“(C) TRAINING OF
ELECTION OFFICIALS.—The chief State election official shall ensure that
election officials at polling places in the State are aware of the requirements
of this paragraph, including the requirement to display a notice under
subparagraph (B).”.
|
“(14) MANDATORY AVAILABILITY OF PAPER BALLOTS AT
POLLING PLACE.— |
“(A) REQUIRING BALLOTS TO BE OFFERED AND PROVIDED.—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.
“(B) TREATMENT OF
BALLOT.—Any paper ballot which is cast by an individual under this paragraph
shall be counted and otherwise treated as a regular ballot for all purposes
(including, to the greatest extent practicable, the deadline for counting the
ballot) and not as a provisional ballot, unless the individual casting the
ballot would have otherwise been required to cast a provisional ballot if the
individual had not accepted the offer to cast the vote using a paper ballot
under this paragraph.
Cmt
31.5 “to the greatest extent practicable” opens a large loophole for delay in
counting the votes on such ballots.
“(C) POSTING OF
NOTICE.—The appropriate election official shall ensure that at each polling
place a notice is displayed prominently which describes the obligation of the
official to offer individuals the opportunity to cast votes using a pre-printed
paper ballot under this paragraph.
“(D) TRAINING OF
ELECTION OFFICIALS.—The chief State election official shall ensure that
election officials at polling places in the State are aware of the requirements
of this paragraph, including the requirement to display a notice under
subparagraph (C), and are aware that it is a violation of the requirements of
this title for an election official to fail to offer an individual the
opportunity to cast a vote using a pre-printed paper ballot under this
paragraph.
“(E) EXCEPTIONS.—This
paragraph does not apply with respect to—
“(i) a polling place at
which each voting system used in the administration of an election for Federal
office uses only preprinted paper ballots which are marked by hand and which
are not produced by a direct recording electronic voting machine (other than a
system used to meet the disability access requirements of paragraph (3)); or
“(ii) a polling place
in operation prior to the date of the election, but only with respect to days
prior to the date of the election.
“(F) EFFECTIVE
DATE.—This paragraph shall apply with respect to the regularly scheduled
general election for Federal office in November 2010 and each succeeding
election for Federal office.”.
Cmt 32. Paper or plastic? In 2010 all voters in DRE
poll sites on election day will have the choice of voting on a preprinted
voter-marked paper ballot. This choice is not required to be available
in early voting.
HR811 should require the votes on these ballots to be
counted at the polls and reported on election night along with the tallies of
votes cast on DREs. Otherwise two unequal classes of voters are created. The
unofficial vote tallies announced on election night do prejudice all media
reporting and public opinion, and give an advantage in subsequent recounts,
audits, and legal disputes to the announced winner, for example Bush v. Gore,
Jennings v. Buchanan.
Rights
that cannot be enforced are meaningless. This provision needs some penalties
for officials who do not comply and remedies for the voters who do not receive
a paper ballot, and for all voters and candidates affected if the votes are not
tallied and announced on election night.
|
(2) REQUIRING LABORATORIES
TO MEET STANDARDS PROHIBITING CONFLICTS OF INTEREST AS CONDITION
OF ACCREDITATION FOR TESTING OF VOTING SYSTEM HARDWARE AND
SOFTWARE.— |
(A) IN GENERAL.—Section
231(b) of such Act (42 U.S.C. 15371(b)) is amended by adding at the end the
following new paragraphs:
“(3) PROHIBITING
CONFLICTS OF INTEREST; ENSURING AVAILABILITY OF RESULTS.—
“(A) IN GENERAL.—A
laboratory may not be accredited by the Commission for purposes of this section
unless—
“(i) the laboratory
certifies that the only compensation it receives for the testing carried out in
connection with the certification, decertification, and recertification of the
manufacturer’s voting system hardware and software is the payment made from the
Testing Escrow Account under paragraph (4);
“(ii) the laboratory
meets such standards as the Commission shall establish (after notice and
opportunity for public comment) to prevent the existence or appearance of any
conflict of interest in the testing carried out by the laboratory under this
section, including standards to ensure that the laboratory does not have a
financial interest in the manufacture, sale, and distribution of voting system
hardware and software, and is sufficiently independent from other persons with
such an interest;
“(iii) the laboratory
certifies that it will permit an expert designated by the Commission to observe
any testing the laboratory carries out under this section; and
Cmt 33. Given the EAC’s past unresponsiveness to the
public and failure to comply with HAVA requirements, such experts should be
designated by NIST.
Additionally, there should be a way for the public to
observe. Also, any state or local jurisdiction should be able to designate
observers.
“(iv) the laboratory,
upon completion of any testing carried out under this section, discloses the
test protocols, results, and all communication between the laboratory and the
manufacturer to the Commission.
Cmt 34. NIST -- not the EAC -- should receive and
immediately publish this information.
“(B) AVAILABILITY OF
RESULTS.—Upon receipt of information under subparagraph (A), the Commission
shall make the information available promptly to election officials and the
public.
Cmt 35. “Promptly” should be replaced by a specific
time limit such as 24 hours.
“(4) PROCEDURES FOR
CONDUCTING TESTING; PAYMENT OF USER FEES FOR COMPENSATION OF ACCREDITED
LABORATORIES.—
“(A) ESTABLISHMENT OF
ESCROW ACCOUNT.—The Commission shall establish an escrow account (to be known
as the ‘Testing Escrow Account’) for making payments to accredited laboratories
for the costs of the testing carried out in connection with the certification,
decertification, and recertification of voting system hardware and software.
“(B) SCHEDULE OF
FEES.—In consultation with the accredited laboratories, the Commission shall
establish and regularly update a schedule of fees for the testing carried out
in connection with the certification, decertification, and recertification of
voting system hardware and software, based on the reasonable costs expected to
be incurred by the accredited laboratories in carrying out the testing for
various types of hardware and software.
“(C) REQUESTS AND
PAYMENTS BY MANUFACTURERS.—A manufacturer of voting system hardware and
software may not have the hardware or software tested by an accredited
laboratory under this section unless—
“(i) the manufacturer
submits a detailed request for the testing to the Commission; and
Cmt
36. What details are contemplated?
“(ii) the manufacturer
pays to the Commission, for deposit into the Testing Escrow Account established
under subparagraph (A), the applicable fee under the schedule established and
in effect under subparagraph (B).
“(D) SELECTION OF
LABORATORY.—Upon receiving a request for testing and the payment from a
manufacturer required under subparagraph (C), the Commission shall select at
random (to the greatest extent practicable), from all laboratories which are
accredited under this section to carry out the specific testing requested by
the manufacturer, an accredited laboratory to carry out the testing.
“(E) PAYMENTS TO
LABORATORIES.— Upon receiving a certification from a laboratory selected to
carry out testing pursuant to subparagraph (D) that the testing is completed,
along with a copy of the results of the test as required under paragraph
(3)(A)(iv), the Commission shall make a payment to the laboratory from the
Testing Escrow Account established under subparagraph (A) in an amount equal to
the applicable fee paid by the manufacturer under subparagraph (C)(ii).
Cmt
37. Only large companies could do this work, since they don’t get paid till
after the work is done which could take many months.
Cmt 38. This is a trust-based system. Reports of “test
protocols, results, and all communication between the laboratory and the manufacturer”
are easily fabricated. There is a need for observers who represent states,
local jurisdictions, and the public to be able to observe certification work.
“(5) DISSEMINATION OF
ADDITIONAL INFORMATION ON ACCREDITED LABORATORIES.—
“(A) INFORMATION ON
TESTING.—Upon completion of the testing of a voting system under this section,
the Commission shall promptly disseminate to the public the identification of
the laboratory which carried out the testing.
Cmt 39. The need for this paragraph is unclear.
Systems being tested, and the specific lab doing the testing for each one,
should be published on the EAC web site. Moreover, the identification of the
lab would be revealed when the EAC publishes, in accordance with paragraph (B),
the information provided by the lab to the EAC under paragraph (A)(iv).
“(B) INFORMATION ON
STATUS OF LABORATORIES.—The Commission shall promptly notify Congress, the
chief State election official of each State, and the public whenever—
“(i) the Commission
revokes, terminates, or suspends the accreditation of a laboratory under this
section;
“(ii) the Commission
restores the accreditation of a laboratory under this section which has been
revoked, terminated, or suspended; or
“(iii) the Commission has credible evidence of significant security failure at an accredited laboratory.”.
Cmt
40. Information about all alleged security failures should be published, along
with the results of investigations to confirm or discredit them, and evaluation
of their “significance.”
The
meaning of “credible” evidence and “significant” security failure are unclear,
but suggest that evidence of security failures will remain concealed as a
result of arbitrary and capricious determinations.
(B) CONFORMING
AMENDMENTS.—Section 231 of such Act (42 U.S.C. 15371) is further amended—
(i) in subsection
(a)(1), by striking “testing, certification,” and all that follows and
inserting the following: “testing of voting system hardware and software by
accredited laboratories in connection with the certification, decertification,
and recertification of the hardware and software for purposes of this Act.”;
(ii) in subsection
(a)(2), by striking “testing, certification,” and all that follows and
inserting the following: “testing of its voting system hardware and software by
the laboratories accredited by the Commission under this section in connection
with certifying, decertifying, and recertifying the hardware and software.”;
(iii) in subsection
(b)(1), by striking “testing, certification, decertification, and
recertification” and inserting “testing”; and
(iv) in subsection (d),
by striking “testing, certification, decertification, and recertification” each
place it appears and inserting “testing”.
|
(C)
DEADLINE FOR ESTABLISHMENT OF STANDARDS, ESCROW ACCOUNT, AND SCHEDULE
OF FEES.—The Election Assistance |
Commission shall establish the standards described in
section 231(b)(3) of the Help America Vote Act of 2002 and the Testing Escrow
Account and schedule of fees described in section 231(b)(4) of such Act (as
added by subparagraph (A)) not later than January 1, 2008.
Cmt 41. The deadline of 1/1/08 will prevent
certification of equipment in 2007.
(D) AUTHORIZATION OF
APPROPRIATIONS.—There are authorized to be appropriated to the Election
Assistance Commission such sums as may be necessary to carry out the
Commission’s duties under paragraphs (3) and (4) of section 231 of the Help
America Vote Act of 2002 (as added by subparagraph (A)).
Cmt 42. Unlimited authorization is inappropriate,
especially to an agency that has a history of non-responsiveness and failure to
comply with its mission.
|
(3) SPECIAL
CERTIFICATION OF BALLOT DURABILITY AND READABILITY REQUIREMENTS FOR STATES
NOT CURRENTLY USING DURABLE PAPER BALLOTS.— |
(A) IN GENERAL.—If any of the
voting systems used in a State for the
regularly scheduled 2006 general elections for Federal
office did not require the use of or produce durable paper ballots, the State
shall certify to the Election Assistance Commission not later than 90 days
after the date of the enactment of this Act that the State will be in
compliance with the requirements of sections 301(a)(2), 301(a)(12), and 301(b)
of the Help America Vote of 2002, as added or amended by this subsection, in
accordance with the deadline established under this Act, and shall include in
the certification the methods by which the State will meet the requirements.
(B) CERTIFICATIONS BY
STATES THAT REQUIRE CHANGES TO STATE LAW.—In the case of a State that requires
State legislation to carry out an activity covered by any certification
submitted under this paragraph, the State shall be permitted to make the
certification notwithstanding that the legislation has not been enacted at the
time the certification is submitted and such State shall submit an additional
certification once such legislation is enacted.
Cmt 43. Future drama is sure to ensue when the
expected legislation does not get passed.
|
(4) GRANTS FOR RESEARCH ON DEVELOPMENT OF
ELECTION- DEDICATED VOTING SYSTEM SOFTWARE.— |
(A) IN GENERAL.—Subtitle D of
title II of the Help America Vote Act
of 2002 (42 U.S.C. 15401 et seq.) is amended by adding
at the end the following new part:
“PART 7—GRANTS FOR
RESEARCH ON DEVELOPMENT OF ELECTION-DEDICATED VOTING SYSTEM SOFTWARE
“SEC. 297. GRANTS FOR
RESEARCH ON DEVELOPMENT OF ELECTION-DEDICATED VOTING SYSTEM SOFTWARE.
“(a) IN GENERAL.—The
Director of the National Science Foundation (hereafter in this part referred to
as the ‘Director’) shall make grants to not fewer than 3 eligible entities to
conduct research on the development of election-dedicated voting system
software.
Cmt 44. Underlying HAVA and this bill is the
assumption that elections should be computerized. If these sums were authorized
for study and development of best practices for handling, securing, and
counting votes on voter-marked paper ballots, and the recruitment and training
of poll workers and observers, the USA would spend less money and get better
results in terms of voter confidence, citizen participation in the conduct of
elections, and election integrity.
Given that the entire voting machine industry (with
the exception of Oklahoma’s state-developed and state-owned optical scan
system) is privately owned, what is the purpose of this research?
“(b) ELIGIBILITY.—An
entity is eligible to receive a grant under this part if it submits to the
Director (at such time and in such form as the Director may require) an
application containing—
“(1) certifications
regarding the benefits of operating voting systems on election-dedicated
software which is easily understandable and which is written exclusively for
the purpose of conducting elections;
Cmt 45. “Easily understandable software” is a fantasy
that should not be codified into U.S. law. Elections must be understandable and
observable for all citizens, not just computer experts.
“(2) certifications
that the entity will use the funds provided under the grant to carry out
research on how to develop voting systems that run on election-dedicated
software and that will meet the applicable requirements for voting systems
under title III; and
“(3) such other
information and certifications as the Director may require.
“(c) AUTHORIZATION OF
APPROPRIATIONS.—There are authorized to be appropriated for grants under this
part $1,500,000 for each of fiscal years 2007 and 2008, to remain available
until expended.”.
Cmt 46. Who will own and have the right to use the
work-product or software developed by these projects, and where will the
information be published?
(B) CLERICAL
AMENDMENT.—The table of contents of such Act is amended by adding at the end of
the items relating to subtitle D of title II the following:
“PART 7—GRANTS FOR
RESEARCH ON DEVELOPMENT OF ELECTION DEDICATED VOTING SYSTEM SOFTWARE
“Sec. 297. Grants for
research on development of election-dedicated voting system software.”.
|
(d) AVAILABILITY OF ADDITIONAL FUNDING TO ENABLE
STATES TO MEET COSTS OF REVISED REQUIREMENTS.— |
(1) EXTENSION OF
REQUIREMENTS PAYMENTS FOR MEETING REVISED REQUIREMENTS.—Section 257(a) of the
Help America Vote Act of 2002 (42 U.S.C. 15407(a) is amended by adding at the
end the following new paragraph:
“(4) For fiscal year
2007, $1,000,000,000, except that any funds provided under the authorization
made by this paragraph shall be used by a State only to meet the requirements
of title III which are first imposed on the State pursuant to the amendments
made by section 2 of the Voter Confidence and Increased Accessibility Act of
2007, or to otherwise modify or replace its voting systems in response to such
amendments.”.
Cmt 47. The deadline for establishment of standards
and escrow arrangements is January
1, 2008. This is a cart-before-the-horse arrangement.
Much of this billion dollars will be profit for
private companies. The money would be better spent if NIST oversees development
of a publicly-owned open-source software-independent ballot-marking and optical
scan systems which would be available for minimal cost to all states and local
jurisdictions.
(2) USE OF REVISED
FORMULA FOR ALLOCATION OF FUNDS.—Section 252(b) of such Act (42 U.S.C.
15402(b)) is amended to read as follows:
“(b) STATE ALLOCATION
PERCENTAGE DEFINED.—
“(1) IN GENERAL.—Except
as provided in paragraph (2), the ‘State allocation percentage’ for a State is
the amount (expressed as a percentage) equal to the quotient of—
“(A) the voting age
population of the State (as reported in the most recent decennial census); and
“(B) the total voting
age population of all States (as reported in the most recent decennial census).
“(2) SPECIAL RULE FOR
PAYMENTS FOR FISCAL YEAR 2007.—
“(A) IN GENERAL.—In the
case of the requirements payment made to a State for fiscal year 2007, the
‘State allocation percentage’ for a State is the amount (expressed as a
percentage) equal to the quotient of—
“(i) the sum of the
number of noncompliant precincts in the State and 50% of the number of
partially noncompliant precincts in the State; and
“(ii) the sum of the
number of noncompliant precincts in all States and 50% of the number of
partially noncompliant precincts in all States.
“(B) NONCOMPLIANT
PRECINCT DEFINED.—In this paragraph, a ‘noncompliant precinct’ means any
precinct (or equivalent location) within a State for which the voting system
used to administer the regularly scheduled general election for Federal office
held in November 2006 did not meet either of the requirements described in
subparagraph (D).
“(C) PARTIALLY
NONCOMPLIANT PRECINCT DEFINED.—In this paragraph, a ‘partially noncompliant
precinct’ means any precinct (or equivalent location) within a State for which
the voting system used to administer the regularly scheduled general election
for Federal office held in November 2006 met only one of the requirements
described in subparagraph (D).
“(D) REQUIREMENTS
DESCRIBED.—The requirements described in this subparagraph with respect to a
voting system are as follows:
“(i) The primary voting
system required the use of or produced durable paper ballots (as described in
section 301(a)(12)(A)) for every vote cast.
“(ii) The voting system
provided that the entire process of paper ballot verification was equipped for
individuals with disabilities.”.
(3) INCREASE IN STATE
MINIMUM SHARE OF PAYMENT.—Section 252(c) of such Act (42 U.S.C. 15402(c)) is
amended—
(A) in paragraph (1),
by inserting after “one-half of 1 percent” the following: “(or, in the case of
the payment made for fiscal year 2007, 1 percent)”; and
(B) in paragraph (2),
by inserting after “one-tenth of 1 percent” the following: “(or, in the case of
the payment made for fiscal year 2007, one-half of 1 percent)”.
(4) REVISED CONDITIONS
FOR RECEIPT OF FUNDS.—Section 253 of such Act (42 U.S.C. 15403) is amended—
(A) in subsection (a),
by striking “A State is eligible” and inserting “Except as provided in
subsection (f), a State is eligible”; and
(B) by adding at the
end the following new subsection:
“(f) SPECIAL RULE FOR
FISCAL YEAR 2007.—
“(1) IN
GENERAL.—Notwithstanding any other provision of this part, a State is eligible
to receive a requirements payment for fiscal year 2007 if, not later than 90
days after the date of the enactment of the Voter Confidence and Increased
Accessibility Act of 2007, the chief executive officer of the State, or
designee, in consultation and coordination with the chief State election
official—
“(A) certifies to the
Commission the number of noncompliant and partially noncompliant precincts in
the State (as defined in section 252(b)(2)); and
“(B) files a statement
with the Commission describing the State’s need for the payment and how the
State will use the payment to meet the requirements of title III (in accordance
with the limitations applicable to the use of the payment under section
257(a)(4)).
“(2) CERTIFICATIONS BY
STATES THAT REQUIRE CHANGES TO STATE LAW.—In the case of a State that requires
State legislation to carry out any activity covered by any certification
submitted under this subsection, the State shall be permitted to make the
certification notwithstanding that the legislation has not been enacted at the
time the certification is submitted and such State shall submit an additional
certification once such legislation is enacted.”.
(5) PERMITTING USE OF
FUNDS FOR REIMBURSEMENT FOR COSTS PREVIOUSLY INCURRED.— Section 251(c)(1) of
such Act (42 U.S.C. 15401(c)(1)) is amended by striking the period at the end
and inserting the following: “, or as a reimbursement for any costs incurred in
meeting the requirements of title III which are imposed pursuant to the
amendments made by section 2 of the Voter Confidence and Increased
Accessibility Act of 2007 or in otherwise modifying or replacing voting systems
in response to such amendments.”.
(6) RULE OF CONSTRUCTION
REGARDING STATES RECEIVING OTHER FUNDS FOR REPLACING PUNCH CARD, LEVER, OR
OTHER VOTING MACHINES.—Nothing in the amendments made by this subsection or in
any other provision of the Help America Vote Act of 2002 may be construed to
prohibit a State which received or was authorized to receive a payment under
title I or II of such Act for replacing punch card, lever, or other voting
machines from receiving or using any funds which are made available under the
amendments made by this subsection.
(7) EFFECTIVE DATE.—The
amendments made by this subsection shall apply with respect to fiscal years
beginning with fiscal year 2007.
(e) EFFECTIVE DATE FOR NEW REQUIREMENTS.— Section
301(d) of such Act (42 U.S.C. 15481(d)) is amended to read as follows:
“(d) EFFECTIVE DATE.—
“(1) IN GENERAL.—Except
as provided in paragraph (2), each State and jurisdiction shall be required to
comply with the requirements of this section on and after January 1, 2006.
“(2) SPECIAL RULE FOR
CERTAIN REQUIREMENTS.—
“(A) IN GENERAL.—Except
as provided in subparagraph (B), the requirements of this section which are
first imposed on a State and jurisdiction pursuant to the amendments made by
section 2 of the Voter Confidence and Increased Accessibility Act of 2007 shall
apply with respect to the regularly scheduled general election for Federal
office held in November 2008 and each succeeding election for Federal office.
|
“(B) DELAY FOR
JURISDICTIONS USING CERTAIN PAPER BALLOT PRINTERS OR CERTAIN PAPER
BALLOT-EQUIPPED ACCESSIBLE MACHINES IN 2006.— |
“(i) DELAY.—In the case of a jurisdiction
described in clause (ii), subparagraph (A) shall apply to the jurisdiction as
if the reference in such subparagraph to ‘the regularly scheduled general
election for Federal office held in November 2008 and each succeeding election
for Federal office’ were a reference to ‘elections for Federal office occurring
during 2010 and each succeeding year’, but only with respect to the following
requirements of this section:
“(I) Paragraph
(3)(B)(ii)(I) and (II) of subsection (a) (relating to access to verification
from the durable paper ballot).
“(II) Paragraph (12) of
subsection (a) (relating to durability and readability requirements for
ballots).
“(ii) JURISDICTIONS DESCRIBED.—A jurisdiction
described in this clause is—
“(I) a jurisdiction
which used thermal reel-to-reel voter verified paper ballot printers attached
to direct recording electronic voting machines for the administration of the
regularly scheduled general election for Federal office held in November 2006
and which will continue to use such printers attached to such voting machines
for the administration of elections for Federal office held in 2008; or
“(II) a jurisdiction
which used voting machines which met the accessibility requirements of paragraph
(3) of subsection (a) (as in effect with respect to such election) for the
administration of the regularly scheduled general election for Federal office
held in November 2006 and which used or produced a paper ballot, and which will
continue to use such voting machines for the administration of elections for
Federal office held in 2008.”.
Cmt 48. To restate the effect of this section: states
and jurisdictions currently using DREs without VVPAT have to fully comply by
2008, but those currently using DREs with VVPAT or accessible paper ballot
systems can wait till 2010 to fully comply with accessibility and durability of
their paper “ballot.”
SEC.
3. ENHANCEMENT OF ENFORCEMENT OF HELP AMERICA VOTE ACT OF 2002.
Section
401 of such Act (42 U.S.C. 15511) is amended—
(1) by striking “The Attorney General” and inserting
“(a) IN GENERAL.—The Attorney General”; and
(2) by adding at the end the following new
subsections:
|
“(b) FILING OF COMPLAINTS BY AGGRIEVED PERSONS.— |
“(1) IN GENERAL.—A
person who is aggrieved by a violation of section 301, 302, or 303 which has
occurred, is occurring, or is about to occur may file a written, signed,
notarized complaint with the Attorney General describing the violation and
requesting the Attorney General to take appropriate action under this section.
“(2) RESPONSE BY
ATTORNEY GENERAL.—The Attorney General shall respond to each complaint filed
under paragraph (1), in accordance with procedures established by the Attorney
General that require responses and determinations to be made within the same
(or shorter) deadlines which apply to a State under the State-based
administrative complaint procedures described in section 402(a)(2).
“(c) CLARIFICATION OF AVAILABILITY OF PRIVATE RIGHT OF
ACTION.—Nothing in this section may be construed to prohibit any person from
bringing an action under section 1979 of the Revised Statutes of the United
States (42 U.S.C. 1983) (including any individual who seeks to enforce the
individual’s right to a voter-verified paper ballot, the right to have the
voter-verified paper ballot counted in accordance with this Act, or any other
right under subtitle A of title III) to enforce the uniform and
nondiscriminatory election technology and administration requirements under
sections 301, 302, and 303.
“(d) NO EFFECT ON STATE PROCEDURES.—Nothing in this
section may be construed to affect the availability of the State-based
administrative complaint procedures required under section 402 to any person
filing a complaint under this subsection.”.
SEC.
4. REQUIREMENT FOR MANDATORY MANUAL AUDITS BY HAND COUNT.
(a) MANDATORY MANUAL AUDITS.—Title III of the Help
America Vote Act of 2002 (42 U.S.C. 15481 et seq.) is amended by adding at the
end the following new subtitle:
“Subtitle C—Mandatory
Manual Audits
|
“SEC.
321. REQUIRING AUDITS OF RESULTS OF ELECTIONS. |
“(a) REQUIRING AUDITS.—
“(1) IN GENERAL.—In
accordance with this subtitle, each State shall administer, without advance
notice to the precincts selected, audits of the results of elections for
Federal office held in the State (and, at the option of the State or
jurisdiction involved, of elections for State and local office held at the same
time as such election) consisting of random hand counts of the voter-verified
paper ballots required to be produced and preserved pursuant to section
301(a)(2).
Cmt 49. To restate the definition in this paragraph:
an audit is a random hand count of the voter-verified paper ballots, held without
advance notice to the precincts selected. Presumably “without advance
notice” means that audits will begin within the hour after selection of
precincts to be audited takes place. See also comments 54 and 55.
“(2) EXCEPTION FOR
CERTAIN ELECTIONS.—A State shall not be required to administer an audit of the
results of an election for Federal office under this subtitle if the winning
candidate in the election—
“(A) had no opposition
on the ballot; or
“(B) received 80% or
more of the total number of votes cast in the election, as determined on the
basis of the final unofficial vote count.
Cmt 50. Vote share, like margin of victory, is an inappropriate reason to skip audits. Electronic voting systems enable tamperers to easily provide any share of the votes, or margin of victory, for any candidate, and this paragraph merely ensures that future elections will be won by vote shares of 80% or more when tampering is involved.
“(b) DETERMINATION OF ENTITY CONDUCTING AUDITS;
APPLICATION OF GAO INDEPENDENCE STANDARDS.—The State shall administer audits
under this subtitle through an entity selected for such purpose by the State in
accordance with such criteria as the State considers appropriate consistent
with the requirements of this subtitle, except that the entity must meet the
general standards established by the Comptroller General to ensure the
independence (including the organizational independence) of entities performing
financial audits, attestation engagements, and performance audits under
generally accepted government accounting standards.
“(c) REFERENCES TO ELECTION AUDITOR.—In this subtitle,
the term ‘Election Auditor’ means, with respect to a State, the entity selected
by the State under subsection (b).
“SEC.
322. NUMBER OF BALLOTS COUNTED UNDER AUDIT.
“(a) IN GENERAL.—Except as provided in subsection (b),
the number of voter-verified paper ballots which will be subject to a hand
count administered by the Election Auditor of a State under this subtitle with
respect to an election shall be determined as follows:
“(1) In the event that
the unofficial count as described in section 323(a)(1) reveals that the margin
of victory between the two candidates receiving the largest number of votes in
the election is less than 1 percent of the total votes cast in that election,
the hand counts of the voter-verified paper ballots shall occur in at least 10
percent of all precincts or equivalent locations (or alternative audit units
used in accordance with the method provided for under subsection (b)) in the
Congressional district involved (in the case of an election for the House of
Representatives) or the State (in the case of any other election for Federal
office).
“(2) In the event that
the unofficial count as described in section 323(a)(1) reveals that the margin
of victory between the two candidates receiving the largest number of votes in
the election is greater than or equal to 1 percent but less than 2 percent of
the total votes cast in that election, the hand counts of the voter-verified
paper ballots shall occur in at least 5 percent of all precincts or equivalent
locations (or alternative audit units used in accordance with the method
provided for under subsection (b)) in the Congressional district involved (in
the case of an election for the House of Representatives) or the State (in the
case of any other election for Federal office).
“(3) In the event that
the unofficial count as described in section 323(a)(1) reveals that the margin
of victory between the two candidates receiving the largest number of votes in
the election is equal to or greater than 2 percent of the total votes cast in
that election, the hand counts of the voter-verified paper ballots shall occur
in at least 3 percent of all precincts or equivalent locations (or alternative
audit units used in accordance with the method provided for under subsection
(b)) in the Congressional district involved (in the case of an election for the
House of Representatives) or the State (in the case of any other election for
Federal office).
Cmt 51. Electronic voting systems enable tamperers to easily provide any margin of victory for any candidate, so using margin of victory as the only trigger for determining percentage of recounts merely ensures that future elections will be won by large margins when tampering is involved.
Cmt 52. 10%,
5%, and 3% audits are spot-checks, and they mean that 90%, 95% or 97% of
election results will be based on electronic equipment is not verified at all.
These spot-checks are inadequate to create “statistical confidence” or the
probability of detecting outcome-altering miscounts. The use of spot-checks and
statistics, moreover, forces most citizens to “trust” experts rather than being
able to understand and observe election procedures with votes. An average
citizen would be right to ask, for example, if a 3% spot-check is "statistically
significant," how significant is 97% of unverified computers?
In the computer industry, 100% of transactions are
normally confirmed via crosschecks and/or manual inspection. These small
spot-checks are a result of election people’s pathetic “can’t do” arguments:
election administrators don’t believe that they should have to confirm the
correct functioning of their computer equipment, their time constraints in
certifying elections won’t allow them to do so, and it is too burdensome to do
so. www.wheresthepaper.org/HouseAdminTestimonyDougLewis3_20_2007.pdf
If the computers can’t be used properly, they should not
be used, and our elections should use technology that is simpler and less
burdensome.
www.votetrustusa.org/index.php?option=com_content&task=view&id=2135&Itemid=26
(1) “Random Auditing of E-Voting Systems: How Much is Enough?”
http://www.votetrustusa.org/pdfs/VTTF/EVEPAuditing.pdf
(2) "Auditing Election Equipment -- How much auditing is enough?"
http://www.votersunite.org/info/auditingissues.asp
(3) "On Estimating the Size of a Statistical
Audit," Ronald L. Rivest, 11/14/06, Computer
Science and
Artificial Intelligence Laboratory MIT Cambridge, MA 02139
http://theory.lcs.mit.edu/%7Erivest/Rivest-OnEstimatingTheSizeOfAStatisticalAudit.pdf
Voters, candidates, and proponents/opponents of ballot questions have great interest in election integrity, and may suspect that irregularities will be found in certain precincts. It would be wise and efficient in achieving the purpose of audits (to rule out tampering or errors in the recording, casting, storage, handling and counting of votes) to enable such voters, candidates, proponents and opponents, to select an additional and equal number of precincts for auditing, thus doubling the percentage of precincts to be audited.
“(b) USE OF ALTERNATIVE MECHANISM.—Notwithstanding
subsection (a), a State may adopt and apply an alternative mechanism to
determine the number of voter-verified paper ballots which will be subject to
the hand counts required under this subtitle with respect to an election, so
long as the alternative mechanism uses the voter-verified paper ballots to
conduct the audit and the National Institute of Standards and Technology
determines that the alternative mechanism will be at least as statistically
effective in ensuring the accuracy of the election results as the procedure
under this subtitle.
Cmt 53. The average citizen needs to be a computer
expert AND a statistician to determine whether votes were properly cast and
counted in an election.
Simple language for a more powerful, less burdensome
alternative audit mechanism is at
http://e-voter.blogspot.com/2007/04/amend-hr811-to-allow-states-to-use.html
and consists of: Use of Alternate Mechanism – Notwithstanding subsection
(a), a State may adopt and apply an alternative mechanism to determine the
number of voter-verified paper ballots that will be subject to the hand counts
required under this subtitle with respect to an election for Federal office, so
long as the National Institute of Standards and Technology determines that the
alternative mechanism is as transparent as the procedure under subsection (a) and
is consistent with the guidelines set forth in Section X.
Section X -- GUIDANCE ON BEST PRACTICES FOR
ALTERNATIVE AUDIT MECHANISM. Not later than May 1, 2008, the National Institute
for Standards and Technology shall establish guidance for States to establish
alternative audit mechanisms. Such guidance shall be based upon scientifically
reasonable assumptions for the purpose of creating an alternative audit
mechanism that will
“(a) require the hand-count of at least 2% of all
precincts (or other audited units) within each Congressional District, and
ensure, with at least [90/95/99]% statistical confidence, for each federal
election held in the State, that a 100% manual recount would not alter the
outcome of the election; or
“(b) be at least as effective as section 322(a) in
ensuring that for each federal election held in the state, a 100% manual
recount would not alter the outcome of the election.
AUTHORIZATION OF APPROPRIATIONS – There are authorized
to be appropriated to the National Institute of Standards and Technology
$100,000 to establish the guidance required by this section.
|
“SEC.
323. PROCESS FOR ADMINISTERING AUDITS. |
“(a) IN GENERAL.—The Election
Auditor of a State shall administer an audit under this section of the results
of an election in accordance with the following procedures:
“(1) Within 24 hours
after the State announces the final unofficial vote count (as defined by the
State) in each precinct in the State, the Election Auditor shall determine and
then announce the precincts in the State in which it will administer the
audits.
Cmt 54. Any one precinct has the power to delay
statewide audits, by delaying the return of its tallies.
Cmt 55. This bill should require audits to begin
within a specified time, such as an hour, after selected precincts are
announced. Any delay allows tampering to be done and any delay is reasonable
cause for suspicion of tampering. See also comment 49, the audit is to begin
“without advance notice.” For an example of the use of weekend delays, see www.wheresthepaper.org/NYT07_06WineRegionVotingFraud.htm
“(2) With respect to
votes cast at the precinct or equivalent location on or before the date of the
election (other than provisional ballots described in paragraph (3)), the
Election Auditor shall administer the hand count of the votes on the
voter-verified paper ballots required to be produced and preserved under
section 301(a)(2)(A) and the comparison of the count of the votes on those
ballots with the final unofficial count of such votes as announced by the
State.
“(3) With respect to
votes cast other than at the precinct on the date of the election (other than
votes cast before the date of the election described in paragraph (2)) or votes
cast by provisional ballot on the date of the election which are certified and
counted by the State on or after the date of the election, including votes cast
by absent uniformed services voters and overseas voters under the Uniformed and
Overseas Citizens Absentee Voting Act, the Election Auditor shall administer
the hand count of the votes on the applicable voter-verified paper ballots
required to be produced and preserved under section 301(a)(2)(A) and the
comparison of the count of the votes on those ballots with the final unofficial
count of such votes as announced by the State.
“(b) USE OF ELECTION PERSONNEL.—In administering the
audits, the Election Auditor may utilize the services of election
administration personnel of the State or jurisdiction, including poll workers,
without regard to whether or not the personnel have professional auditing
experience.
“(c) LOCATION.—The Election Auditor shall administer
an audit of an election at the location where the ballots cast in the election
are stored and counted after the date of the election, and in the presence of
those personnel who under State law are responsible for the custody of the
ballots.
“(d) SPECIAL RULE IN CASE OF DELAY IN REPORTING
ABSENTEE VOTE COUNT.—In the case of a State in which the final count of
absentee and provisional votes is not announced until after the expiration of
the 7-day period which begins on the date of the election, the Election Auditor
shall initiate the process described in subsection (a) for administering the
audit not later than 24 hours after the State announces the final unofficial
vote count for the votes cast at the precinct or equivalent location on or
before the date of the election, and shall initiate the administration of the
audit of the absentee and provisional votes pursuant to subsection (a)(3) not
later than 24 hours after the State announces the final unofficial count of
such votes.
Cmt
56. Paragraph (d) deals with when the selection of precincts will be done, not
when the audit will begin. The subsection (a) referred to is above: “(a) IN
GENERAL.—The Election Auditor of a State shall administer an audit under this
section of the results of an election in accordance with the following
procedures: “(1) Within 24 hours after the State announces the final unofficial
vote count (as defined by the State) in each precinct in the State, the
Election Auditor shall determine and then announce the precincts in the State
in which it will administer the audits.
“(e) ADDITIONAL AUDITS IF CAUSE SHOWN.—
“(1) IN GENERAL.—If the
Election Auditor finds that any of the hand counts administered under this
section do not match the final unofficial tally of the results of an election,
the Election Auditor shall administer hand counts under this section of such
additional precincts (or equivalent jurisdictions) as the Election Auditor
considers appropriate to resolve any concerns resulting from the audit and
ensure the accuracy of the results.
Cmt 57. In case of discrepancies, the decision to
perform audits of additional precincts, and apparently WHICH additional
precincts, is completely under the discretion of the Election Auditor. The Yale
Study showed that by shifting one vote per machine, the outcome of many
elections can be changed. www.wheresthepaper.org/ACM.pdf
“(2) ESTABLISHMENT AND
PUBLICATION OF PROCEDURES GOVERNING ADDITIONAL AUDITS.— Not later than August
1, 2008, each State shall establish and publish procedures for carrying out the
additional audits under this subsection, including the means by which the State
shall resolve any concerns resulting from the audit with finality and ensure
the accuracy of the results.
Cmt 58. Under paragraph (1) above, the Election
Auditor has discretion to determine “such additional precincts…appropriate to
resolve any concerns…and ensure the accuracy of the results.” Under paragraph
(2), the state must have procedures for carrying out the additional audits, and
for resolving “concerns” resulting from the audit. In other words, the Election
Auditor still has complete discretion to determine whether and which additional
precincts will be audited.
“(f) PUBLIC OBSERVATION OF AUDITS.—Each audit
conducted under this section shall be conducted in a manner that allows public
observation of the entire process.
Cmt 59. Public observation needs to be described with more detail. The public should be able to see each ballot and the votes on it as they are counted, even if this requires the use of close-up cameras and big-screen TV. Unless “public observation” is specified in more detail, the public may be relegated to watching from such a distance that observation is meaningless or partly so.
This legislation should also explicitly mandate that all state and county voter registration and election records be available at all times without delay and without limitation (except for maintaining the privacy of voter information used for identity theft, such as date of birth, social security number, drivers license number, etc) to the public. Records that need to be public include tally printouts from each voting or vote-counting machine, which should be printed prior to connection to the central tabulator (see comment 26) and posted in each precinct at the end of each voting day (election day and each day of early voting if early voting is used) as well as voter rolls and the number of voters that have voted per voting day in each precinct, etc.
“SEC.
324. SELECTION OF PRECINCTS.
“(a) IN GENERAL.—Except as provided in subsection (c),
the selection of the precincts in the State in which the Election Auditor of
the State shall administer the hand counts under this subtitle shall be made by
the Election Auditor on an entirely random basis using a uniform distribution in
which all precincts in a Congressional district have an equal chance of being
selected, in accordance with procedures adopted by the Commission, except that
at least one precinct shall be selected at random in each county.
“(b) PUBLIC SELECTION.—The random selection of
precincts under subsection (a) shall be conducted in public, at a time and
place announced in advance.
“(c) MANDATORY SELECTION OF PRECINCTS ESTABLISHED
SPECIFICALLY FOR ABSENTEE BALLOTS.—If a State establishes a separate precinct
for purposes of counting the absentee ballots cast in an election and treats
all absentee ballots as having been cast in that precinct, and if the state
does not make absentee ballots sortable by precinct and include those ballots
in the hand count administered with respect to that precinct, the State shall
include that precinct among the precincts in the State in which the Election
Auditor shall administer the hand counts under this subtitle.
|
“(d) DEADLINE FOR ADOPTION OF
PROCEDURES BY COMMISSION.—The |
Commission
shall adopt the procedures described in subsection (a) not later than March 31,
2008, and shall publish them in the Federal Register upon adoption.
Cmt
59.5 March 31, 2008 is after the primaries in many states.
|
“SEC.
325. PUBLICATION OF RESULTS. “(a) SUBMISSION TO
COMMISSION.—As soon as practicable after the completion of |
an
audit under this subtitle, the Election Auditor of a State shall submit to the
Commission the results of the audit, and shall include in the submission a
comparison of the results of the election in the precinct as determined by the
Election Auditor under the audit and the final unofficial vote count in the
precinct as announced by the State and all undervotes, overvotes, blank
ballots, and spoiled, voided or cancelled ballots, as well as a list of any
discrepancies discovered between the initial, subsequent, and final hand counts
administered by the Election Auditor and such final unofficial vote count and
any explanation for such discrepancies, broken down by the categories of votes
described in paragraphs (2) and (3) of section 323(a)
Cmt 60. “As soon as practicable” should be replaced by
a specific time requirement, such as “within 24 hours.”
All the information should be available immediately,
except for the “explanation for such discrepancies” if this is determined by a
forensic computer examination or law enforcement investigation. All information
except the explanation should be submitted within 24 hours of completion of the
audit.
There is a conflict between paragraph (a) immediately
above, which speaks of “any explanation for such discrepancies,” and paragraph
(c)(1)(B) below which assumes that this information will be submitted
separately at a later time. See Cmt 63.
“(b) PUBLICATION BY COMMISSION.—Immediately after
receiving the submission of the results of an audit from the Election Auditor
of a State under subsection (a), the Commission shall publicly announce and
publish the information contained in the submission.
Cmt 61. Audit results should be posted in public at each county seat as soon as the audit in each precinct is completed. No public purpose is served by concealing information from the public until it is delivered to the EAC and the EAC reveals it.
A specific time should be specified, such as “within
24 hours.” If this is burdensome to the EAC, then NIST should perform the task
of receiving and publishing the information.
“(c) DELAY IN CERTIFICATION OF RESULTS BY STATE.—
“(1) PROHIBITING
CERTIFICATION UNTIL COMPLETION OF AUDITS.—No State may certify the results of
any election which is subject to an audit under this subtitle prior to—
“(A) to the completion
of the audit (and, if required, any additional audit conducted under section
323(d)(1)) and the announcement and submission of the results of each such
audit to the Commission for publication of the information required under this
section; and
Cmt 62. No “announcement” by states of the results of
each such audit was required in previous sections or paragraphs.
“(B) the completion of
any procedure established by the State pursuant to section 323(d)(2) to resolve
discrepancies and ensure the accuracy of results.
Cmt 63. In “SEC. 325. PUBLICATION OF RESULTS. “(a)
SUBMISSION TO COMMISSION” the resolution of discrepancies was supposed to be
part of the report submitted to the EAC. This is a conflict. See Cmt 60.
Resolution of discrepancies could take a long time,
and prevent anyone from taking office.
“(2) DEADLINE FOR
COMPLETION OF AUDITS OF PRESIDENTIAL ELECTIONS.—In the case of an election for
electors for President and Vice President which is subject to an audit under
this subtitle, the State shall complete the audits and announce and submit the
results to the Commission for publication of the information required under this
section in time for the State to certify the results of the election and
provide for the final determination of any controversy or contest concerning
the appointment of such electors prior to the deadline described in section 6
of title 3, United States Code.
Cmt
63.5 Resolution of discrepancies involving DREs could take longer than the time
allowed.
|
“SEC.
326. PAYMENTS TO STATES. “(a) PAYMENTS FOR COSTS OF
CONDUCTING AUDITS.—In accordance with the |
requirements
and procedures of this section, the Commission shall make a payment to a State
to cover the costs incurred by the State in carrying out this subtitle with
respect to the elections that are the subject of the audits conducted under
this subtitle.
“(b) CERTIFICATION OF COMPLIANCE AND ANTICIPATED
COSTS.—
“(1) CERTIFICATION
REQUIRED.—In order to receive a payment under this section, a State shall
submit to the Commission, in such form as the Commission may require, a
statement containing—
“(A) a certification
that the State will conduct the audits required under this subtitle in
accordance with all of the requirements of this subtitle;
“(B) a notice of the
reasonable costs incurred or the reasonable costs anticipated to be incurred by
the State in carrying out this subtitle with respect to the elections involved;
and
“(C) such other
information and assurances as the Commission may require.
“(2) AMOUNT OF
PAYMENT.—The amount of a payment made to a State under this section shall be
equal to the reasonable costs incurred or the reasonable costs anticipated to
be incurred by the State in carrying out this subtitle with respect to the
elections involved, as set forth in the statement submitted under paragraph
(1).
“(3) TIMING OF
NOTICE.—The State may not submit a notice under paragraph (1) until candidates
have been selected to appear on the ballot for all of the elections for Federal
office which will be the subject of the audits involved.
“(c) TIMING OF PAYMENTS.—The Commission shall make the
payment required under this section to a State not later than 30 days after
receiving the notice submitted by the State under subsection (b).
“(d) RECOUPMENT OF OVERPAYMENTS.—No payment may be
made to a State under this section unless the State agrees to repay to the
Commission the excess (if any) of—
“(1) the amount of the
payment received by the State under this section with respect to the elections
involved; over
“(2) the actual costs
incurred by the State in carrying out this subtitle with respect to the
elections involved.
“(e) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to the Commission for fiscal year 2008 and each succeeding
fiscal year $100,000,000 for payments under this section.
Cmt
65. This is a continuing cost of using computers to record and cast votes, and
doesn’t even provide for voter-verification of the votes that are to be counted
for initial and final tallies, or the understandable and observable counting of
all votes.
|
“SEC.
327. EXCEPTION FOR ELECTIONS SUBJECT TO RECOUNT UNDER STATE LAW PRIOR TO
CERTIFICATION. |
“(a) EXCEPTION.—This subtitle does
not apply to any election for which a recount under State law will commence
prior to the certification of the results of the election, including but not
limited to a recount required automatically because of the margin of victory
between the two candidates receiving the largest number of votes in the
election, but only if each of the following applies to the recount:
“(1) The recount
commences prior to the determination and announcement by the Election Auditor
under section 323(a)(1) of the precincts in the State in which it will
administer the audits under this subtitle.
“(2) If the recount
would apply to fewer than 100% of the ballots cast in the election—
“(A) the number of
ballots counted will be at least as many as would be counted if an audit were
conducted with respect to the election in accordance with this subtitle; and
“(B) the selection of
the precincts in which the recount will be conducted will be made in accordance
with the random selection procedures applicable under section 324.
“(3) The recount for
the election meets the requirements of section 323(e) (relating to public
observation).
“(4) The State meets
the requirements of section 325 (relating to the publication of results and the
delay in the certification of results) with respect to the recount.
“(b) CLARIFICATION OF EFFECT ON OTHER REQUIREMENTS.—
Nothing in this section may be construed to waive the application of any other
provision of this Act to any election (including the requirement set forth in
section 301(a)(2) that the voter verified paper ballots serve as the vote of
record and shall be counted by hand in all audits and recounts, including
audits and recounts described in this subtitle).
“SEC.
328. EFFECTIVE DATE.
“This
subtitle shall apply with respect to elections for Federal office beginning
with the regularly scheduled general elections held in November 2008.”.
(b) AVAILABILITY OF ENFORCEMENT UNDER HELP AMERICA
VOTE ACT OF 2002.—Section 401 of such Act (42 U.S.C. 15511), as amended by
section 3, is amended—
(1) in subsection (a),
by striking the period at the end and inserting the following: “, or the
requirements of subtitle C of title III.”;
(2) in subsection
(b)(1), by striking “section 303” and inserting “section 303, or subtitle C of
title III,”; and
(3) in subsection (c)—
(A) by striking
“subtitle A” and inserting “subtitles A or C”, and
(B) by striking the
period at the end and inserting the following: “, or the requirements of
subtitle C of title III.”.
|
(c) GUIDANCE ON BEST PRACTICES FOR ALTERNATIVE AUDIT
MECHANISMS.— |
(1) IN GENERAL.—Not later than May 1, 2008,
the Director of the National Institute for Standards and Technology shall
establish guidance for States that wish to establish alternative audit
mechanisms under section 322(b) of the Help America Vote Act of 2002 (as added
by subsection (a)). Such guidance shall be based upon scientifically and
statistically reasonable assumptions for the purpose of creating an alternative
audit mechanism that will be at least as effective in ensuring the accuracy of
election results and as transparent as the procedure under subtitle C of title
III of such Act (as so added).
Cmt 66. Considering the history and prevalence of
tampering with paper ballots in the United States, NIST should also be charged
with developing best practices for ensuring the continuous observation and
securing of paper ballots.
(2) AUTHORIZATION OF
APPROPRIATIONS.— There are authorized to be appropriated to carry out paragraph
(1) $100,000, to remain available until expended.
(d) CLERICAL AMENDMENT.—The table of contents of such
Act is amended by adding at the end of the item relating to title III the
following:
“Subtitle C—Mandatory Manual Audits
“Sec. 321. Requiring audits of results of elections.
“Sec. 322. Number of ballots counted under audit.
“Sec. 323. Process for administering audits.
“Sec. 324. Selection of precincts.
“Sec. 325. Publication of results.
“Sec. 326. Payments to States.
“Sec. 327. Exception for elections subject to recount
under State law prior to certification.
“Sec. 328. Effective date.”.
SEC.
5. REPEAL OF EXEMPTION OF ELECTION ASSISTANCE COMMISSION FROM CERTAIN
GOVERNMENT CONTRACTING REQUIREMENTS.
(a) IN GENERAL.—Section 205 of the Help America Vote
Act of 2002 (42 U.S.C. 15325) is amended by strik18 ing subsection (e).
(b) EFFECTIVE DATE.—The amendment made by subsection
(a) shall apply with respect to contracts entered into by the Election
Assistance Commission on or after the date of the enactment of this Act.
SEC.
6. EFFECTIVE DATE. Except as otherwise provided, this Act and the amendments
made by this Act shall apply with respect to the regularly scheduled general
election for Federal office in November 2008 and each succeeding election for
Federal office.