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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, February 6
The Latest Version of the Holt Bill
Rep. Rush Holt (D-NJ) has introduced another version of his bill (H.R. 811) to require that all voting systems generate a "voter-verified" paper ballot. It would authorize $300 million for fisacal year 2007 to meet the new requirements. I've commented on the problems with this sort of requirement numerous times in the past, including here and here, and little would be gained by again replaying that debate. Suffice it to say that, whatever problems exist with electronic voting, it remains doubtful at best that attaching a printer will provide a workable and effective solution.

As with previous versions of the Holt bill, there are some good things here, most notably a provision clarifying that individuals may bring private lawsuits to enforce the technology and administration requirements of the Help America Vote Act (HAVA). Also, the bill would extend the authorization of the Election Assistance Commission (EAC). Other aspects of the bill, however, are cause for concern.

One is a provision that the paper records aren't just to be used to audit the accuracy of machines, but to "be used as the official ballots for purposes of any recount" of a federal election. This is asking for trouble, in my view, in places where the system used to comply with the bill is an electronic system with a paper printout. To take an oft-cited example, 10% of the paper records were compromised in Cuyahoga County's 2006 primary election. That may be an extreme example -- we don't really know since, as far as I can tell, no one's done any kind of systemic study of how often paper printouts are compromised elsewhere. But the reality is that, in any election, there are likely to be some printing problems, caused either by jams, other mechanical problems, or mistakes in loading the paper. It's thus possible that the electronic record may be more accurate than the paper record; yet under this bill, the paper record would control absent "clear and convincing" evidence, to be determined on a machine-by-machine basis.

I've previously noted the difficulties in actually counting the curled-up strips of thermal paper that contemporary DRE-with-VVPAT systems generate, but this is inviting a whole new set of problems and, most likely, post-election litigation. All of this might arguably be worthwhile if voters really checked the paper records ... but what little evidence is available indicates that they seldom do. As I've described here, it's difficult to do with contemporary systems even if one were so inclined.

Another problematic feature of the bill is the provision having to do with disability access. Voters with disabilities must be able to "privately and independently verify the content of the permanent paper ballot throught he conversion of the printed content into accessible media." How would this work for blind voters? You'd presumably have to have equipment capable of reading back what's on the paper record. The makers of the Automark say that it does this, but there appears to have been no independent assessment of how well it does so -- and no other equipment of which I'm aware that has this capacity. In addition, some disability advocates have raised questions about whether the Automark allows the private and independent voting that’s now required by federal law.

In any event, it's a really bad idea to require something as a matter of federal law that hasn't yet been tested, much less implemented or proven effective in a real-world election environment. This is especially problematic, given that it appears the effective date for this requirement -- as for the bill's other provisions -- is 2008. If I'm reading this right, it's borderline crazy to think that such a transition could get done by then, even if one thought that implementation of this new equipment were a good idea.

Despite these severe problems, I think it's very likely that some version of the Holt Bill will be passed in the House. That's simply because Democrats are now in control and paper trails have been a red meat -- or perhaps more properly, blue meat -- issue for them. Where things may get interesting is in the Senate, where the minority party has a greater power to influence the course of legislation. There have been rumblings that Republicans will demand some sort of voter ID bill to get their support for a paper trail. This is basically what the widely criticized Carter-Baker Report recommended, and I think it's a worst-of-both-worlds compromise. I suspect that Senate Democrats won't go for such a deal ... but who really knows?

[Note: I've edited the above post to add something on the Automark, to which some alert readers called my attention after my initial post.]

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Moritz College of Law The Ohio State University