We are concerned with the markup version of HR 811, the “Voter Confidence and Increased Accessibility Act of 2007.” As a result of the markup, this bill now contains some provisions that are unwise and in one case, impossible to comply with.
We urge you to consider the comments in the bill as posted at
We urge you to work for amendment of this bill in the areas discussed below.
(8) PROHIBITING USE OF UNCERTIFIED ELECTION-DEDICATED VOTING SYSTEM TECHNOLOGIES; DISCLOSURE REQUIREMENTS.
This section would make ballot definition files difficult to obtain and subject to non-disclosure agreements. Since ballot definition files are produced shortly before an election, this requirement is probably impossible to comply with. Moreover, ballot definition files must be inspected by candidates before and after each election as part of normal procedure to prevent errors, whether innocent or malicious.
This section also unwisely enlarges the functions of Independent Testing Laboratories and requires privatization of the escrow of software by the use of these labs.
Also, the procedures and requirements of this section would create possibly insurmountable difficulties for anyone wishing to detect errors in version control of the software used in electronic voting equipment. In the past, vendors have delivered versions of software different from what has been certified, so this is not something that should be made more difficult to discover.
This section now requires states to 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 for states or local jurisdictions to to detect errors in version control by ITAs and vendors.
This section allows unevaluated claims of trade secret, and establishes in legislation that these claims override citizens’ right to know how elections are conducted.
(9) PROHIBITION OF USE OF WIRELESS COMMUNICATIONS DEVICES IN VOTING SYSTEMS.
Any form of communications is an easy entry-point for tampering, and no communications capability should be allowed in any voting or vote-tabulating equipment. The bill’s focus on wireless communications betrays an unhistorical understanding of computers, which were subject to break-ins via the older telephone line/modem technology long before wireless became common.
The list of prohibited devices should include ultra- or sub- sonic audio transmission, as well as the phrase "and all other communications devices and technologies that may be developed".
The prohibition against “enclosed infrared communications devices” being used for remote communications or used without the knowledge of poll workers will be impossible to enforce.
Very few poll workers would know when such communications capability was used, even when they were using it themselves.
The second paragraph uses different terminology and concerns only "voting devices" rather than "voting systems" It is important for this paragraph to cover central tabulators. This wording needs to be clarified.
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 must be prohibited from using the equipment.
(2) REQUIRING LABORATORIES TO MEET STANDARDS PROHIBITING CONFLICTS OF INTEREST AS CONDITION OF ACCREDITATION FOR TESTING OF VOTING SYSTEM HARDWARE AND SOFTWARE.-
This section gives increased and in some cases technical duties to the Election Assistance Commission (EAC), a body which in the past has failed to comply with the duties it was already given by HAVA. The National Institute for Standards and Technology (NIST) is a more appropriate agency to provide technical services concerning elections.
Given past failure of the EAC to respond to requests for information at all, much less in a timely manner, all requirements that the EAC should provide information should include specific time requirements, such as “within 24 hours,” rather than the vague terms “immediately” or “promptly.”
This section gives full control to select observers of the certification process to the EAC, a highly politicized body. NIST and the states themselves need to be able to designate observers. There must also be a way for independent observers to observe the certification process.
This section also gives excessive discretion to the EAC without requiring it to reveal the information upon which it makes decisions to certify, decertify, and recertify voting systems.
(d) AVAILABILITY OF ADDITIONAL FUNDING TO ENABLE STATES TO MEET COSTS OF REVISED REQUIREMENTS.
$1,000,000,000 is authorized to be spent for new equipment, when in fact no products meet the current 2005 Voluntary Voting System Guidelines.
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 ballot-marking and optical scan system which would be available for minimal cost to all states and local jurisdictions.
In other sections, more public money is authorized to be spent to develop voting system software, which will presumably benefit private vendors, 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.
In still another section there is an unlimited authorization of funds for EAC.
Statisticians say that the percentages of 10%, 5% and 3% as specified in this section are too small for statistical confidence.
More serious, is that the percentage of recount is based on margin of victory. This is foolish because insider tampering can easily provide any margin of victory to any candidate.
Although the audits are supposed to be “surprise” they will not be. This is because there is no requirement for immediate audits after random precincts are selected. This gives counties time to adjust their records or ballots to ensure that the audit uncovers no discrepancies.
There is no requirement for public observation of all handling of voted ballots from the time they are cast till election results are final.
This section does not require timely information to be available to the public and candidates. Audit results are not required to be posted in public as soon as audits are completed. No public purpose is served by concealing this information from the public until it is delivered to the EAC and the EAC reveals it. The EAC is not given a specific time requirement for such publication. Moreover, EAC may not have the skills and personnel to handle publication of audit results from the thousands of precincts nationwide that will be audited. NIST should perform the task of receiving and publishing the information.