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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

A Bad Bill, With Some Good Things in It

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June 14, 2005

Voting activists descended upon Washington last week to urge enactment of the "Voter Confidence and Increased Accessibility Act of 2005" (H.R. 550). This bill is one of several that aims to enhance the security of electronic voting machines, by requiring that they produce a contemporaneous paper record of the electronic ballot, or "voter-verified paper record." While H.B. 550 has some worthy features, Congress should not enact the bill in its present form because its core requirement would do more harm than good.

What the Bill Would Do

H.R. 550 is a modified version of a bill that was considered but not enacted by the last Congress (H.R. 2239). The chief sponsor of both bills is Representative Rush Holt (D-NJ). This year's version has 135 co-sponsors in the House, almost all of them Democrats.

H.R. 550 would amend certain provisions of the Help America Vote Act ("HAVA"), the election reform law passed in 2002. The centerpiece of the current bill is its requirement that all voting systems "produce or require the use of an individual voter-verified paper record of the voter's vote." For electronic touchscreen machines, this would require an attached printer that would generate "a paper print-out of the voter's vote."

While HAVA already requires that voting systems generate a paper record, H.R. 550 would go further. In particular, it would require that electronic voting machines generate a paper record contemporaneously – that is, at the time of voting – so that the voter has the opportunity to "verify" his or her choices. This requirement would take effect on January 1, 2006, the effective date of HAVA's other voting system requirements.

This sounds good on paper (apologies for the pun), but the results would be chaotic and possibly disastrous in practice. The most conspicuous problem is timing. It is unrealistic to require all jurisdictions using electronic voting technology to obtain printer add-ons by the 2006 election. That's particularly true, given that there aren't any federal standards for this device in place yet.

As many election officials discovered in the wake of the 2000 election, rushing the transition to new voting technology can cause more problems than it solves. A 2006 deadline doesn't give states and counties nearly enough time to investigate their options, go through the procurement process, implement the new equipment, train their poll workers, and educate their voters.

Worse still, there is no provision exempting counties that have already made a successful transition to electronic voting technology. The State of Georgia, for example, moved to electronic voting throughout the state and saw the number of uncounted votes decline dramatically in 2004, particularly in heavily-minority precincts. Under H.R. 550, Georgia election officials would have just a few short months in which to replace their existing system – or retrofit it with an as-yet unproven printing device. That's inviting trouble. It would be unfortunate if Congress enacted legislation that had the effect of reversing the substantial improvements in technology since the 2000 election.

The Experience in the States

Even beyond the timing issue, it's doubtful that H.R. 550 provides a workable or effective solution to the legitimate concerns regarding electronic voting security. So far, only one state – Nevada – has actually implemented an electronic voting machine with a contemporaneous paper record on any significant scale. Anecdotal evidence indicates that few voters actually bothered to check the contemporaneous paper records. A serious and unbiased analysis of Nevada's experiment is needed, before even considering a national mandate.

While experiments like Nevada's are to be encouraged, it's a mistake to lock in place a particular would-be solution – especially one that's expensive and not yet proven. This will only discourage states from trying other mechanisms that may turn out to be more effective. In the end, it may actually make our voting system less secure than it otherwise would be.

Congress should also look to the experience of states that have passed legislation to require a contemporaneous paper record. The experience of California and Ohio, in particular, demonstrates the hazards of mandating a contemporaneous paper record.

In California, former Secretary of State Kevin Shelley issued a directive requiring that electronic voting systems generate a contemporaneous paper record effective 2006, and the California legislature wrote this requirement into state law last year. The dilemma that counties face is that it's not at all clear whether these systems will actually work effectively – or, alternatively, whether paper jams, privacy issues, lack of accessibility, or the difficulty in reading the paper print-outs will hamper their effectiveness.

The result of this dilemma has been for the largest county in the United States, Los Angeles County, to retain its "Inkavote" system – an optical scan system that functions like the Votomatic punch card machine, but with dots that voters fill in instead of chad. This device was intended to be an interim solution, and is an improvement over the Votomatic that Los Angeles County used before 2004. But while "hanging chads" aren't a problem with the Inkavote, it's equally difficult for voters to check their work. The Inkavote is therefore inferior to the paperless electronic systems currently available, which not only reduce the number of uncounted votes but also provide accessibility advantages for disabled and non-English proficient voters. The result of California's paper-trail bill has thus been to hinder the country's largest electoral jurisdiction from moving to better technology.

The experience of Ohio, which also passed a law requiring a contemporaneous paper record last year, is equally illustrative. In Ohio, the result of this law has been to give a virtual monopoly of the electronic voting market to a single company – the oft-reviled Diebold. Until recently, there were no electronic systems certified in the state that satisfied the state's requirement that these machines generate a "voter verified paper audit trail." The only system presently certified is manufactured by Diebold and it is presently unclear whether any other systems will be certified in time to be implemented in 2006. Thus, in Ohio, the ironic result of the campaign to require a contemporaneous paper record was to give a virtual lock on the market to the very company that has been the poster child for the supposed ills of electronic voting.

The Good, the Bad and the Ugly

California's and Ohio's experience with "voter verified" paper trail laws should give pause to anyone who believes that H.R. 550 is the magic bullet to the problem of electronic voting security. More fundamentally, the bill rests upon the questionable premise that paper is less susceptible to manipulation than electronic records. While there have been a number of documented instances of fraud in past elections, most have taken place with paper ballots; none have taken place with electronic voting.

Moreover, it's unlikely that the recount process mandated by the current version of H.R. 550 would catch fraud, even if it did occur with an electronic voting machine. The bill would require that the Election Assistance Commission ("EAC") conduct a manual recount of two percent of all precincts in the country in each general election. At least one precinct per county would be recounted. This would impose an enormous burden on the EAC, requiring unprecedented coordination among federal, state and local election officials, but would have only modest benefits. It would do nothing to catch fraud at the local level, where it is more likely to occur given that relatively small changes in vote totals can swing an election. Even for federal races, such a recount would by itself provide little reason for increased confidence in the accuracy of the result, according to this analysis by VoteHere's Andrew Neff. Neff's analysis finds that a two percent precinct recount of a U.S. House race would catch a five percent change in the results (either accidentally or maliciously) with only 40 percent confidence. The bottom line is that the recount process mandated by H.R. 550 would impose a heavy financial burden on the federal government, while doing little to promote electoral integrity.

It is certainly important that voters be allowed to "check their work." The paperless electronic voting machines already available allow voters to do this, in a way that's likely to be more effective than a contemporaneous paper record that voters may or may not actually check. The best thing that may be said of allowing voters to check a paper record is that it functions as a sort of placebo, helping to elevate public confidence that elections are being conducted on the square. Even here, however, the benefits of paper are overstated. Approximately 90 percent of ballots in Washington's recent gubernatorial election, for example, were cast by paper ballot. Yet this did little to "convince the loser that he or she lost," one of the supposed advantages of paper.

None of this is to say that fraud and error are impossible with electronic voting. But better testing and procedures are much more likely to promote electoral integrity than a printer add-on. The $150 million that H.R. 550 would authorize for such hardware – not to mention the unknown amounts that would be required on an ongoing basis for the 2 percent national recount – would be much better spent on improving the testing and certification of voting machines. The EAC is presently engaged in this process, but progress has been hampered by Congress' delay in funding its work.

While the centerpiece of H.R. 550 should be rejected, some of its subsidiary features are worthy of serious consideration. Foremost among them is a provision that would make the EAC permanent. HAVA only authorized appropriations to the EAC through fiscal year 2005, even though it has become abundantly clear that the work of election reform will not be finished by 2006. It's also a good idea to address conflicts of interest by the entities responsible for testing voting systems, as the bill would do.

Another salutary change contained in H.R. 550 would clarify that there is a private right of action, where state and county election officials fail to comply with HAVA's mandate. One federal appellate court, the Sixth Circuit, has already held that such a right of action exists. Nevertheless, it would be helpful to clarify the existence of a private right of action, so that the voting rights protected by HAVA may be adequately enforced.

Although H.R. 550 is undoubtedly well-intentioned, Congress should not enact the bill in its present form. Its core requirement would lock into place a device unlikely to be workable or effective, and would impose significant burdens – financial and otherwise – on the federal government, as well as state and local election officials. Congress should instead stay the course it charted when enacting HAVA, while providing the EAC with the authority and resources it needs to oversee the transition to better voting technology.