electionline Weekly - May 10, 2007

I. In Focus This Week

Holt Bill Clears Committee as Republican Amendments Shot Down
Few changes but much controversy over reform legislation

By Kat Zambon

Arguing that they were acting on behalf of state and local elections officials concerned about the implications of election reform legislation, Republicans in the Committee on House Administration were nonetheless thwarted this week in their attempts to amend the bill by Democrats who say the bill is necessary to safeguard the 2008 vote.

In his opening statement, Rep. Vernon Ehlers, R-Mich., ranking member on the committee, reiterated his concerns about H.R. 811, the "Voter Confidence and Increased Accessibility Act of 2007."

"Unfortunately, the additional time for review has not changed my perception of this bill," he said. "As we all saw in the 2000 elections, in the days of hanging and pregnant chad, paper is far from fool-proof."

Ehlers displayed a stack of letters he received from elections officials from across the country opposing the bill.

"These are the people who are most familiar with our elections systems, telling us that they simply cannot effectively administer the 2008 election if Congress ignores their pleas and forces this legislation upon them," he said.

GOP lawmakers on the committee introduced a dozen amendments, with issues directly relevant to the bill, including altering the legislation's source code disclosure requirements, its timetable for meeting federal mandates for voter-verified paper audit trails, what would constitute the ballot recording in a recount, cost issues and the future of thermal paper printing currently in use in a number of states.

Other amendments reflected the party's legislative priorities in election reform, including two introduced by Rep. Kevin McCarthy, R-Calif., that would have required voters to show photo identification at the polls. The subject is not addressed in the original bill nor a substitute offered by Rep. Zoe Lofgren, D-Calif., who also chairs the subcommittee on elections.

Democrats, however, said they had the voters on their side.

Lofgren's staff countered Ehlers' stack of letters with boxes of petitions signed by citizens in favor of the bill.

"We have heard the concerns of state and local elections officials and we have tried to address them in the substitute bill," Lofgren said. "We believe this substitute deals with all of the issues that can be dealt with."

Lofgren's substitute would increase the authorization for replacing touch-screen voting machines to $1 billion from the $300 million offered originally in H.R. 811. It would allow states to use the audit standards issued in H.R. 811 or develop another audit system with approval from the National Institute of Standards and Technology (NIST). NIST would be required to establish guidelines and a process for states to receive approval by May 1.

While thermal paper doesn't fall under the definition of "durable paper," which the substitute described as capable of withstanding hand counts and recounts and able to be preserved for 22 months, Lofgren's substitute would allow states that currently use electronic voting machines with thermal paper to receive a waiver, allowing them to keep using their voting technology until 2010.

Under Lofgren's substitute, the Election Assistance Commission (EAC) would be responsible for notifying Congress, states and the public when a voting machine testing laboratory's accreditation is revoked, terminated, suspended or restored and when there is "credible evidence of significant security failure at an accredited laboratory." EAC would also be required to set up an escrow account through which vendors will pay testing labs.

Ehlers offered a substitute that would delay implementation until 2010 and give states the authority to determine their own audit procedures. States say the process in the bill is worse than nothing because it interferes with the recount process, according to Ehlers, and the National Association of Counties (NACo) supported Ehlers' substitute. It's impossible to measure the successes of the Help America Vote Act (HAVA) until states have finished implementing it, Ehlers said, and H.R. 811 undermines HAVA's gains. Ehlers' substitute failed.

After Ehlers' bill was voted down, Rep. Michael Capuano, D-Mass., introduced an amendment that would give voters the ability to choose between casting a paper ballot at the polls or at an electronic voting machine. The amendment also would require polling places to carry enough paper ballots for each voter and display a sign reminding voters to verify their ballots. Capuano's amendment passed.

After Capuano's amendment was introduced and approved, the mark-up fell into a routine whereby a minority member of the committee would propose an amendment, a majority committee member, usually Lofgren, would explain their opposition to the amendment, then the amendment would be defeated in a vote.

At the close of the hearing, Ehlers stated, "I just register my dismay that the bill is passing in this form." Lofgren's substitute passed.

Citing the 18,000 lost votes in Sarasota, Fla. during the 2006 general election, Ralph Neas, People for the American Way (PFAW) president urged Congress to consider the new H.R. 811 in a timely fashion. "If voting machines are a sickness, the Holt bill is good medicine. We must make every effort possible to ensure that an injustice like Sarasota never happens again," he said in a press release.

However, PFAW's assertion that a voter-verifiable paper audit trail would have prevented the election meltdown and ensuing confusion in Sarasota is "despicable," according to Brad Friedman.

"Neas well knows - because we personally discussed it at length with him . that 'paper trails' on the paperless touch-screen voting machines used in the FL-13 election would likely have made no difference whatsoever in the outcome of that election," Friedman wrote. "Apparently a paper ballot - one that is actually counted - for every vote cast in America is of little interest to either the Democratic or Republican members of the committee."

When asked if the Holt bill that was approved in committee was an improvement, Alysoun McLaughlin, associate legislative director for NaCO said, "Not even close . there's still no DRE on the market" that meets H.R. 811's requirements.

McLaughlin pointed out that H.R. 811 would force states to conduct audits by hand and ban the use of handheld scanners to tally ballots for the official count. "Fundamentally there are some bottom line assumptions in this bill that cannot go. The notion that electronic scanners should never be used in conducting a recount . is impossibly cumbersome," she said.

"What I keep hearing is that people are going to quit their jobs if this becomes law," he said. "It can't be implemented - hand recounts statewide? You just can't do that."