"Emergency" Bill Tries to Make Electronic Voting More Accurate, but Will It?

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By Steven Rosenfeld

Looking ahead to the fall election, a House bill lets states decide if they want to replace paperless voting systems - or just add printers.

Efforts to improve the machinery that will count the 2008 presidential vote fell prey to a classic Washington compromise on Wednesday, when a House committee approved a bill giving money to both opponents and supporters of controversial paperless electronic voting systems.

The "Emergency Assistance for Secure Elections Act of 2008," or H.R. 5036, now goes to the House floor, where its goal is helping cities and counties create a "verifiable" paper trail and audits for individual votes cast for president and Congress.

But just how that paper trail is achieved is broadly defined in the bill. Opponents of paperless electronic voting can seek federal funds to buy paper ballot-based systems, where voters mark ballots by hand and computer scanners tally the result. Several states, notably California, Ohio and Florida, are making this transition. Meanwhile, proponents of all-electronic voting can keep their machines but seek funds to add printers that theoretically will allow voters to see if their choices have been properly recorded.

Under the bill, the hand-marked paper ballots and new computer printouts would be used to verify the accuracy of vote counts. Jurisdictions taking federal money to buy new machinery would be required to hand count 2 percent of all ballots as part of an audit to ensure the vote count is accurate.

"It will reduce the uncertainly, questions and disputes about the election in many places in our country," said Rep. Rush Holt, D-NJ and the bill's chief sponsor. "It is intended for counties to provide voter verified paper ballots and or audits. And although it does not establish a national standard [for a paper trail], it encourages counties and states to do the right thing. And that means offer voter verified paper ballots and audits."

Election integrity activists, who documented many problems with paperless, electronic voting systems and played a big part in convincing top officials in several states to return to paper ballot-based voting, were generally disappointed in the bill.

"I do not support any version of the HOLT bill or any other proposed bill that solidifies the continued use of DREs with printer," said Nevada's Patricia Axelrod, who has an extensive technical background, in an e-mail Wednesday. DRE, or direct recording equipment, is industry slang for the paperless voting systems.

"I am well-seasoned in the use of such machines as I battling against the Sequoia AVC Edge with Verivote printer now in use throughout the entire State of Nevada since 2004," Axelrod said. "I hasten to assure you that the attachment of a Mickey Mouse printer to a poorly designed, engineered and manufactured computer - one built to the same specifications as your average lap or desk top computer; only with less oversight - is not going to assure accurate and reliable elections."

"I do not support any legislation that perpetuates the myth of verified voting," said New Hampshire's Nancy Tobi, Election Defense Alliance legislative director. "The problem is the current bill is fundamentally wrong in its originating premise. Holt and his supporters believe the key is the audit, but the key is the first count. And the audits they recommend are not even audits. They are spot checks. So you have a fake audit for a fake election."

Holt acknowledged H.R. 5036 was a compromise bill. Activists following its progress in Washington said lobbyists for the disabled community, election officials and the voting machine industry pushed to preserve the use of DREs. The House Majority Leader Steny Hoyer, D-MD, siding with those constituencies, apparently would not allow a bill on the House floor that said paper ballots were superior to paperless voting, they said. However, Holt said most election supervisors at the local level recognized that the paper-based optical-scan systems were more reliable and accurate than DREs with printers.

"We have found that electronic machines with attached printers don't work very well," he said. "I think more and more states are moving away from that. My guess is that states and counties that choose to opt in [to buy new voting machinery] would probably use the technologies that are gaining favor."

Holt said states that have been transitioning from DREs to optical-scan paper-ballot systems, such as California, Ohio and Florida, should be eligible for federal funds to acquire new voting machinery, under the bill. However, one lobbyist who has been tracking the bill questioned if that was the case under its fine print.

Beyond the apparent compromise appeasing both sides of the paperless voting machine debate, the bill also has constitutionally significant ramifications because it accords paper printouts with the same legal standing as hand-marked paper ballots. This factor could become very significant for close elections and recounts.

"Now we will rely on printed receipts as reflective of voter intent, when it's the case that they jam, they don't print, they cause long lines, and they cannot be trusted," said John Bonifaz, Counsel for Voter Action, a public interest law firm. "Voter Action endorsed the original version of this bill, HR 5036, and did that because we think it is critical that we shift from DRE machines to optically scanned paper ballot systems. This substitute bill effectively undermines the underlying principle of that original bill."

Holt said he believed hand-marked paper ballots would be taken more seriously in recounts than print-outs from add-ons to DRE systems. However, he said it was not possible, given the current political landscape, to establish a national standard for a paper record - such as legislation requiring hand-marked paper ballots.

"I think that a hard copy vote that the voter can verify is always going to be regarded better than an ethereal electronic memory. That's the lesson of the last few years," he said. "Now, it is true that in different states, the studies and the experience of the election officials shows that not all methods of recording ballots are equally good. Some systems break down. Some systems don't seem to work very well in practice with voters. But it has not been possible, this year, anyway, to establish a national standard."

The bill would also require any jurisdiction taking federal funds for new machines audit 2 percent of their precincts to determine if the vote count was accurate. An earlier version of the bill required that mandatory audit consist of 3 percent of the precincts. Election officials lobbied to ease that audit requirement, Rep. Zoe Lofgren, D-CA said, when telling Administration Committee of the changes in the bill's text.

The bill also will cover the cost of printing backup paper ballots, in case the DRE systems fail. However, like the rest of the bill, it is an "opt-in" proposal, meaning that any jurisdiction can choose to take advantage of the federal funding, as opposed to mandate.

Still, not all election integrity activists criticized the bill.

"I think it's a good bill," said Warren Stewart of VerifiedVotingFoundation.org. "Maybe it gets us some more audits. It pays for back-up paper ballots for jurisdictions with DREs. It will help states like Iowa change to paper ballots. I think it is unfortunate that it funds the purchase of flawed printers. But legislation is compromise."