A new effort to ensure the 2008 presidential election is held using verifiable paper ballots and random audits to ensure accurate vote counts is underway in Congress.
Early next year, Rep. Rush Holt, D-N.J., will introduce the "Confidence in Voting Act of 2008," which would provide $500 million to counties and other election jurisdictions to replace controversial paperless electronic voting systems before the 2008 presidential election. The bill envisions voters using paper ballots that are marked by hand, or ballots that are printed on Election Day after voters use a computer to make their choices. An electronic scanner, like a standardized test, would then tally the ballots.
The bill also provides $100 million for audits, where 3 percent of all paper ballots -- including absentee and early voting -- would be hand-counted to verify the electronic count before winners would be certified. Those audits would be public, according to the New Jersey congressman.
The bill also would pay for printing "emergency" paper ballots to be used as backup if there were a "failure" of paperless voting systems, although it does not state what constitutes an emergency or a failure.
"The overall goal is to have audited elections based on voter-verified paper ballots throughout the country," Holt said. "Audits must be completed and discrepancies resolved before certification of the winner. You could publish the results on Election Night, but they would not be final."
The proposal by Holt comes against a backdrop of congressional gridlock on voting technology issues and studies by top election officials in key states, notably California and Ohio, which have documented security and accuracy problems with all-electronic voting systems. In some states, election administrators have wanted to update voting systems before 2008's presidential vote but have lacked the necessary funds.
"What we do is offer reimbursement for anyone who opts in," Holt said, stressing the proposal's optional nature. "There is time to do this by November."
Paper ballots, paper audits
Across the country, more than 69,000 precincts in 1,142 counties use paperless touch-screen electronic voting systems, according to Election Data Services. To replace these computers with an optical scan device would cost $5,000 to $6,000 each, according to industry estimates. There are additional costs for programming and training.
The bill, which Holt said has the support of the House Democratic leadership, does not specify which optical scan voting systems to use. That decision was best left to local election administrators, he said. However, the bill would not provide funding for the printing systems now accompanying electronic touch-screen machines known as the "Voter Verified Paper Audit Trail," or "VVPAT."
These cash register-like receipts were intended to record all individual votes for audits and recounts. However, many counties across the country have found these systems to be inaccurate, where VVPAT totals did not match results from other parts of the electronic voting system. In Cuyahoga County, Ohio, where Cleveland is located, the VVPAT error rate in 2006's primary election was 10 percent, the Election Science Institute found. Holt's bill would not encourage continued use of this technology.
"The whole country is moving toward paper ballots with optical scanners," Holt said. "There are some places that want to hold on to their DREs (direct recording electronic or paperless voting machines). It wouldn't make sense for this legislation to encourage people to take steps that would be obsolete immediately."
"We could specify what transition would take place, but in the interests of passing something that the states would opt into, it has to be an independent decision," Holt said. "It has to be an audit that is independent as well."
Holt's bill has several shifts in emphasis from his previous legislative efforts to regulate electronic voting systems. Apart from being an optional program, as opposed to prior proposals that were mandates, the bill emphasizes a paper trail where voters' intent is discernable and audits to ensure accurate vote counts.
"The whole idea is to put the emphasis on the audits," Holt said. "You can't audit unless you have auditability. You can't have auditability unless you verify each ballot. You end up with voter verified paper ballots."
Under the bill, counties could receive up to $100 million for audits. The bill envisions local or state governments designating an independent audit board to hand count three percent of the paper ballots to ensure the electronic scanners are accurate. The audits have to start within 24 hours of announcing the unofficial results. If discrepancies are found, the hand count would expand until the vote was verified.
Holt said election integrity activists should be involved in the audit process. He also said candidates should not declare victory or concede until the count was done and certified.
"Audits must be completed and discrepancies resolved before certification of the winner," he said. "You could publish the results on Election Night, but they would not be final ... I always felt Al Gore and other people succumb to pressure to take the Election Night results as final. No one should do that. No one should concede or declare victory until the votes are certified."
Reactions vary
Earlier efforts by Holt to regulate electronic voting were stopped by a range of political factions. Among the most influential opponents were election officials and their trade associations, who successfully lobbied Congress with arguments that prior legislation was forcing too much change too quickly and that regulation efforts were not supported by federal funding.
Kay Stimson, director of communications for the National Association of Secretaries of State (NASS), said NASS "has not taken a position as an association" on the new bill. Her members are still awaiting $800 million that Congress pledged under the Help America Vote Act, she said, referring to the legislation that encouraged states to buy paperless electronic voting systems after Florida's 2000 presidential election.
"We have members who very much support the bill," Stinson said, referring to Holt's latest initiative. "And we have members who oppose it."
Alyssoun McLaughlin, associate legislative director for the National Association of Counties, or NACO, welcomed the proposed legislation.
"I am glad to see the shift in thinking from a one-size-fits-all mandate to Rep. Holt and members of the House Administration Committee thinking about how to create incentives for the kind of election policy they would like to see," she said. "The audit section allows individual jurisdictions to apply, not just a whole state. That is important to us."
But McLaughlin said time was short for Congress to pass a bill and for local election officials to adopt new voting systems for the presidential election.
"There is a very short timetable between now and the '08 election and not a lot of time for the federal government to appropriate funds," she said. "If anything will be done in a year or less, an incentive grant is the way."
Still, the legislation was welcomed in some states where top election officials have found flaws in their electronic voting systems and want to adopt paper-based systems for 2008.
"Secretary Brunner is well aware of this version and would definitely be interested in any assistance it could provide to our state," said Patrick Gallaway, spokesman for Ohio Secretary of State Jennifer Brunner.
The election integrity community was split on Holt's new bill, just as it was divided on his previous efforts to regulate electronic voting. Zach Goldberg, a spokesman for Holt, said the new legislation was supported by New York University's Brennan Center for Justice, the Verified Voting Foundation and the Electronic Frontier Foundation. The bill was not introduced in December, Goldberg said, because Holt wanted to build a broader coalition.
But other longtime election integrity activists had concerns about relying on optical scan systems, or were unenthusiastic, saying this technology has its own problems.
"Congressman Holt's new, and important, effort to forward election reform legislation is appreciated and incredibly important as we head into an election year with the horrific current state of unaccountable, unverifiable electronic voting systems littered across the country in the disastrous wake of the Help America Vote Act (HAVA) of 2002," said Brad Friedman, editor and publisher of BradBlog.com, which covers electronic voting, in an e-mail. "His new effort, if others in Congress will support it, may finally help begin to turn the Titanic around and move us towards unavoidable need for a paper ballot -- not a "trail" or "record" -- for every vote cast in America."
Still, Friedman said the jurisdictions that take federal money to buy new optical scan voting systems should also be required to conduct audits to ensure accurate counts.
"If states and counties are to receive federal money for paper ballot voting systems, there is no reason, as far as I can tell, that they shouldn't agree to necessary randomized audits, which should be included as a fiscally responsible condition for receiving those taxpayer dollars," Friedman said.
And he said jurisdictions that take federal money should not report election results until all the counting was verified.
"It's also necessary to stipulate that those ballots actually be counted before any unofficial totals are released to the media, since, as we all know to clearly by now, the candidate named by the media as the "winner" on election night, generally gets to remain the winner -- whether they actually received the most votes or not," he said.
Mark Crispin Miller, author of Fooled Again: How the Right Stole 2004 and Will Steal the Next One Too (Unless We Stop Them), said the country will not have accurate vote counts unless it returns to a system of hand-counted paper ballots.
"I am not impressed," he said. "The best that one can say about optical scanners is that they are prone to frequent breakdowns. In the 2006 election, they malfunctioned from coast to coast. In 13 counties in Kentucky, optical scanners failed to come through for various reasons. There were problems reported in Colorado and California and Maine. Optical scanners are delicate machines that break down, miscount and malfunction."
Miller also said that these voting systems are also "susceptible to manipulation."
"It is somewhat encouraging that optical scan (voting systems) require paper ballots of some kind, as opposed to DRE machines, which are paperless. There is paper involved, and that is a good thing. But optical scanners have been involved in some of the most suspicious races in the country."
Miller said the machines were used in the 2002 gubernatorial election in Alabama, where former Democratic Gov. Don Siegelman lost after a midnight recount shifted 6,000 votes to his Republican opponent, Bob Riley. He also pointed to California's 50th congressional district, where Democrat Francine Busby lost to Republican Brian Bilbray after election workers took machines homes with them and the GOP boasted of a last-minute surge in absentee ballots in a June 2006 special election.
"It is all very well for the bill to stipulate there will be an audit protocol," Miller said. "Even if that audit protocol were iron-clad, the fact is audits are belated. They occur after Election Night. Unless this bill outlaws the (television) networks' practice of calling the winner on Election Night, the audits won't make a dime's worth of difference because any ex post facto revelations will strike most people as the desperate measures of sore losers ..."
"The alternative is hand-counted paper ballots," Miller said. "Only in Washington does that notion get dismissed as utopia."
But Rep. Holt dismissed criticism that paper ballots could not be counted electronically.
"I know that some have argued somewhat illogically that they could not even imagine a touch-screen electronic device that was properly calibrated, or a DRE as a ballot-marking device. I don't see why not," he said. "I just think they are wrong. The key is whether you have an auditable record of the votes that the voter has verified. That is what counts. It is not when the electronic count is taken. It is the audit trail."
"If this were a perfect world, the new bill would be OK," Miller said, after hearing Holt's comment. "But the real world has been perpetrated by election fraud. I don't think the perpetrators of fraud have anything to fear from this bill."
Steven Rosenfeld is a senior fellow at Alternet.org and co-author of What Happened in Ohio: A Documentary Record of Theft and Fraud in the 2004 Election, with Bob Fitrakis and Harvey Wasserman (The New Press, 2006).