[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
ELECTION REFORM: H.R. 811
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ELECTIONS
COMMITTEE ON HOUSE
ADMINISTRATION
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MEETING HELD IN WASHINGTON, DC, MARCH 23, 2007
__________
Printed for the use of the Committee on House Administration
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COMMITTEE ON HOUSE ADMINISTRATION
JUANITA MILLENDER-McDONALD, California, Chairwoman
ROBERT A. BRADY, Pennsylvania VERNON J. EHLERS, Michigan,
ZOE LOFGREN, California Ranking Minority Member
MICHAEL E. CAPUANO, Massachusetts DANIEL E. LUNGREN, California
CHARLES A. GONZALEZ, Texas KEVIN McCARTHY, California
SUSAN A. DAVIS, California
------
Subcommittee on Elections
ZOE LOFGREN, California, Chairwoman
JUANITA MILLENDER-McDONALD, KEVIN McCARTHY, California
California VERNON J. EHLERS, Michigan
CHARLES A. GONZALEZ, Texas
SUSAN A. DAVIS, California
ELECTION REFORM: H.R. 811
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FRIDAY, MARCH 23, 2007
House of Representatives,
Subcommittee on Elections
Committee on House Administration
Washington, DC.
The subcommittee met, pursuant to call, at 9:45 a.m., in
room 1310, Longworth House Office Building, Hon. Zoe Lofgren
(chairwoman of the subcommittee) presiding.
Present: Representatives Lofgren, Millender-McDonald,
Gonzalez, Davis of California, McCarthy, Ehlers.
Staff Present: Tom Hicks, Election Counsel; Janelle Hu,
Professional Staff Member; Matt Pinkus, Professional Staff/
Parliamentarian; Kristin McCowan, Chief Legislative Clerk;
Gineen Beach, Minority Counsel; and Peter Sloan, Minority
Professional Staff.
Ms. Lofgren. Good morning. The subcommittee will come to
order. I would like to ask everyone in the room to please turn
off your cell phones, if you have not done so yet.
Today, we are going to discuss H.R. 811, Voter Confidence
and Increased Accessibility Act of 2007, which would amend the
HAVA Act of 2002 with respect to ballot verification and
mandatory paper record audit capacity, and accessibility and
ballot verification of results for individuals with
disabilities. Mr. Holt's legislation also aims at increasing
the security of voting of systems through prohibiting the use
of undisclosed software and also banning any conflicts of
interest between voting machine vendors and test labs. We know
that our election process must be open and transparent, and we
know that we need standards to modernize our voting system and
to bring accountability into the system throughout America.
Election reform is not a partisan issue. This is something
we can all agree on, and this bill has bipartisan support. For
this reason, I am delighted that Governor Crist of Florida has
accepted our invitation to testify to the progress that he is
making in his State.
This hearing on the Voter Confidence and Increased
Accessibility Act is just one step in the process for making
elections--a fundamental tenet of our democracy--open, fair,
accountable and correct.
So I will now recognize the ranking member for any opening
statement he may have.
Mr. McCarthy. Well, I thank the chairwoman for calling this
hearing on an opportunity to examine H.R. 811. I am excited
about hearing from the individuals today.
During the last election, we had more than 435 results
certified by respective States, and we have quite a few State
representatives here that were certified as well. So I look
forward to the discussion.
Ms. Lofgren. Thank you very much.
All the members are invited to submit their statements for
the record.
[The information follows:]
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Ms. Lofgren. As Governor Crist has another obligation, we
are going to ask him to testify first and take questions only
from myself and the ranking member.
Governor Crist is here to speak about what he is doing in
his State, where there were several contested elections in
Florida. But he is not here about that. He is here about the
future, and that is all that we are here to examine today.
So we are just so honored that you are here, and we are
honored that our colleagues, Mr. Lincoln Diaz-Balart and Bob
Wexler, are going to do the honors of introducing you.
Mr. Wexler, shall we begin with your introduction?
Mr. Wexler. Thank you very much, Madam Chair; and thank you
for giving Congressman Diaz-Balart and I the honor of
presenting and introducing to you and the committee our
Governor in Florida.
Governor Crist has served 3 months as Governor, and in that
period of time he has reformed the way in which government does
business in Florida. Governor Crist is a Republican, but
Democrats, Independents and Republicans alike in Florida are
very proud of the very inclusive fashion in which he has
governed thus far.
There is no better example of his inclusiveness than the
election proposal that he put forth to the Florida Legislature
in his budget, which I dare say has resolved a very divisive
issue in Florida that has persisted for the last 6 years. In
essence, what Governor Crist has done, he has proposed
replacing electronic machines, which do not have any paper
trail, which do not have a backup system, with an optical scan
system that will be used in each of Florida's counties, both on
election day and in early voting. In the process, I believe he
has created what I hope will be a model for the Nation in
ensuring that everyone's vote is cast and counted in the manner
in which they choose.
And it is with great pleasure that I ask my dear friend,
Congressman Diaz-Balart, to continue.
Mr. Diaz-Balart. Well, thank you. Thank you so much,
Congressman Wexler.
It is a privilege for me to join my good friend Robert
Wexler, Madam Chairman, distinguished ranking member and
members of the subcommittee, in welcoming our Governor here to
the Capitol.
Charlie Crist is a close personal friend of my brother's
and of mine and indeed of my family's, and we have long been
proud of him. As Congressman Wexler has made reference to, in
the short time that he has been Governor, the people of Florida
have been able to see what extraordinary judgment guides his
actions day in and day out and his exceptional fairness. He is
a man who everyone can know, and, as I say, the people of
Florida are realizing, makes his decisions in an ultimately
fair way. So as we have seen him in the short period of time
that he has been Governor already tackling issues, dealing with
issues that the people of Florida want to be dealt with.
Obviously, we are even more proud of him.
So it is a great privilege, and I thank you, Madam
Chairwoman, for allowing Congressman Wexler and I to introduce
our Governor to you because of the esteem, the respect and,
indeed, the admiration that we have for Governor Crist. So
thank you and all of you members for this great privilege.
Ms. Lofgren. Well, thanks to both of you.
Governor Crist, I can't think of another time when I have
heard such passionate praise on a bipartisan basis for a
Governor. So I look forward, and we all do, for hearing your
testimony at this point. Thank you very much.
STATEMENT OF HON. CHARLIE CRIST, GOVERNOR OF FLORIDA
Governor Crist. Thank you, Madam Chair. I appreciate the
opportunity to be here, and I first want to thank you for your
graciousness in allowing me to--and to all the members of the
committee, I appreciate the chance to be here.
And I want to thank my friends, and we are great friends. I
have known Lincoln and Robert, the Members of the Congress, for
many years. The words you just heard are incredibly kind and
almost embarrassing, but I am very grateful for their
friendship and for their leadership.
On behalf of the people of Florida, they have been
tremendous public servants, and we have a very proud
delegation. I am very proud of all of our members of our
delegation. Lincoln Diaz-Balart, along with Alcee Hastings,
Chair it; and they do an extraordinary job for the people of
our State. And I am just proud to be able to be here.
Congressman Wexler, as you know, has been a passionate
advocate on behalf of improving our voting system; and his
passion is evident this morning again, as is Lincoln's, as it
relates to voting and the importance of supporting our
democracy.
I also would like to recognize our Florida Secretary of
State, Kurt Browning. He is here with us today as well, and he
is doing a great job.
I had the opportunity last evening to experience some of
our national monuments. Standing at the feet of Lincoln and
Jefferson, one can't help but be inspired by their words and
their dedication to freedom. I was struck by Jefferson's words
in which he said, and I will quote, ``Laws and institutions
must go hand in hand with the progress of the human mind. As
that becomes more developed, more enlightened, as new
discoveries are made, new truths are discovered and manners and
opinions change. With the change of circumstances, institutions
must advance also to keep pace with the times.''
I want to speak to you this morning about the important
issue of a paper trail and share with you the improvements that
we have proposed in the State of Florida to our election
process.
As we all know, Florida has garnered much attention in past
elections. However, I am pleased to report that our State has
entered a new era. With the bipartisan efforts of the Florida
State Legislature and our administration, we have moved beyond
finger pointing and laying blame. Together, we have tackled the
challenges facing our elections process and have made great
progress towards implementing, I believe, a system that will
allow every eligible voter to have their voice heard and ensure
that their vote counts.
I would like to share with you the proposal that I am
presenting to our legislature during the current session in
Florida. I would like to emphasize that every aspect of this
proposal is aimed at a commitment to ensuring that every
Floridian's vote will be counted and verifiable. This proposal
will move Florida toward a comprehensive, streamlined election
system that does use a paper ballot in every voting precinct in
time for the primary election in the fall of 2008.
Our proposal has three major components to it. First, we
will replace all touch screen voting machines in polling places
with optical scanners. Optical scan voting machines have a
proven track record for accuracy and provide the paper trail
that can be used for any recount if necessary.
As you know, this system allows for the voter to use a
pencil to fill in a designated space on a paper ballot for each
race. The voter would then insert the completed ballot into an
optical scanning machine which then records the vote on paper
that can be used for verification purposes.
Second, we will provide a system known as a ballot on
demand that will produce an optical scan ballot for all early
voting sites. Ballot on demand is a ballot production system
that can be utilized by absentee as well as early voters.
Ballot on demand allows for individual optical scan ballots to
be printed when the voter arrives for the early voting, thus
eliminating the need for touch screens with voter-verifiable
paper trails to be used at early voting sites. The benefits of
the ballot on demand system from an election management
standpoint are numerous.
In conclusion, Florida has worked in a bipartisan manner,
actually, a nonpartisan manner, to effectively improve our
election process. Our goal is to resolve voter confidence
through new systems and restore voter confidence, procedures
and implementation of both Federal and State legislation. We
are pleased with the progress we have made in our State and
continually look to enhance our elections system and streamline
the voting process for millions of Floridians. When one of our
citizens casts a ballot in an election at any level, be it
local, State or Federal, they can leave the polling place with
the confidence that their vote has been counted, recorded and
can also be verified if necessary.
As the grandson of an immigrant who came to this country
when he was only 14 years old, I have a deep and abiding
admiration and love for this Nation, as do you. The United
States offers its citizens exceptional power through our
democratic process. That democracy must be preserved and
protected.
I know your respect for our system of government is why
each of you serve in this august body with great honor. We must
work together to continue to ensure the integrity of that
process. Our electoral process is the foundation of our
democracy.
As my friend Lincoln Diaz-Balart knows well, people just 90
miles south of Florida shores are unable to freely exercise
that right to vote. Every 2 years, millions of Americans
express their opinion without fear of consequence. Sadly,
people around the world yearn for this freedom and don't yet
have it.
We must work diligently to ensure our citizens' votes are
validated and they are valued. The right to vote is the most
fundamental of all American rights. There is no greater
testament to our democracy than the ability of the people to
choose their leaders.
Thank you, Madam Chair.
Ms. Lofgren. Thank you, Governor, for an impressive
statement.
[The statement of Governor Crist follows:]
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Ms. Lofgren. By unanimous consent, we will limit the
questions to myself and the ranking member, because the
governor's legislature is in session, and he needs to fly back
there.
I will just ask two quick questions. First, as we are
looking at amendments to HAVA, concerns have been expressed by
some elections officials as to the timing and whether changes
can be made in time for the next election in 2008. So I am
interested in how Florida is dealing with that.
And the second question is, it is important to all of us
and I know, sir, to you, that those who have disabilities have
an opportunity to cast their vote freely and privately. And how
are you addressing that?
Governor Crist. Thank you very much for the opportunity.
The timing issue first. As I indicated, we believe that if
the legislature grants our wish and gives us the appropriate
funding to be able to pay for these machines, that again, by
the primary of 2008, they would be in place.
Your other issue is extremely important to us as well. To
make sure that the disabled have the opportunity to vote and
that every one of their votes would count, we would employ
touch screens with a printed ballot that would be produced next
to it so that the opportunity and the ease of voting is
accommodated there as well.
Ms. Lofgren. Mr. McCarthy.
Mr. McCarthy. I thank the Governor.
I was reading the statement that you submitted. It was
different than what you read.
I want to congratulate Florida on the improvements they
have made. You were saying, dropping down on the Presidential
from 2000, the undervotes down to .4 percent. Tremendous
improvement. I thank you for that.
I come from a large State, California. We are moving our
primary up. Are you moving your primary up?
Governor Crist. We may be. And it is a very timely
question. In fact, yesterday in our House of Representatives
they passed an opportunity to move it up to either January 29
or maybe even February 5. It is uncertain in its language at
this point.
Our State Senate, with a friend of the Congresswoman's, a
new Senator, Jeremy Ring, has filed a bill that would address
the same issue and also have the opportunity to move it up. But
it is unclear at this point, but it may be moving in that
direction.
Mr. McCarthy. The other thing, knowing we are both from
large States and we go out to make purchases, I just worry
about the timeline. Is Florida willing to pay for all of your
new optical machines if that is where you end up going? And by
the purchase agreement, going out to bid and you move the
primary up, will you have the time and the training to be able
to do that?
Governor Crist. We believe that we will. That is a very
important issue to us. We are willing to pay for it. As the
Congressman mentioned, we have recommended it in our budget
from the Governor's Office to the legislature. We are pretty
confident that they are going to honor their request.
It is important to both our States. I have a sister who
lives in the golden State, Laguna Beach. But I think it is very
important that we have the appropriate funding, that we make
sure the citizens can have faith in their voting system and
that the election of the next President is one that is carried
out with integrity and honor so that our country continues to
move forward.
Mr. McCarthy. I thank you for your time.
Ms. Lofgren. With that, let me note that other members may
submit questions to Governor Crist, and he has graciously
offered to provide a written response.
Governor, we were so delighted and pleased that you were
able to join us here today. Thank you so very much for making
the effort to share your experience.
Governor Crist. Thank you, ma'am, very much for having me.
Ms. Lofgren. Well, we now have our two colleagues,
Congressman Rush Holt and Congressman Tom Petri, who are
sponsors of the bill that is the subject of this hearing.
We know them as well as friends and colleagues, but, for
those in the audience, Congressman Holt is a Member of Congress
from New Jersey. He has held positions as a teacher,
congressional science fellow and arms control expert at the
U.S. State Department; and he was the Assistant Director of the
Princeton Plasma Physics Laboratory prior to his election to
the Congress.
Tom Petri represents Wisconsin's Sixth Congressional
District and is serving his 15th term in the House of
Representatives. He is the ranking member on the Aviation
Subcommittee of the House Transportation and Infrastructure
Committee; and he is a former chairman of the House British
American Parliamentary Group, an official organization formed
to strengthen relations with the British Parliament and known
as a foe of government waste.
We are happy to have you both here and to present on the
bill that is the subject of this conference.
Mr. Holt, if you would begin.
STATEMENT OF HON. RUSH D. HOLT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW JERSEY
Mr. Holt. Thank you, Madam Chair.
I am delighted to be here with Mr. Petri, not only one of
the couple hundred co-sponsors but one of the leading co-
sponsors of H.R. 811.
Mr. McCarthy, Mr. Ehlers, Mr. Gonzalez, Mrs. Davis, I am
sure you will agree with me that a self-governing country works
only if we believe it does. The faith in the process of
democracy has been shaken, and I think we have to take
immediate steps to restore that trust. Anything of value should
be auditable, and it is central to this legislation that each
voter's vote will be verifiable and the results of every
election will be publicly auditable.
As it is with nearly 40 percent of the voters around the
country now, they are being asked to vote in ways that cannot
be verified. In fact, a voter can leave the polling booth
scratching her head or his head and wondering if the vote was
recorded the way they intended. In fact, without a voter-
verified paper ballot, no election official, no computer
scientist, no vendor will be able to reconstruct what the voter
intended. Only the voter can verify what she or he intended,
and that is at the heart of this legislation.
The legislation would require a voter-verified, durable
paper ballot for every vote cast that would serve as the record
for all recounts and audits. It would preserve and enhance the
accessibility requirements of the Help America Vote Act and
fund the development of new accessible ballot marking and
ballot reading technologies.
It would require random audits--and this is key--in every
Federal election; and it would require that voters be given
emergency paper ballots, emergency ballots immediately upon
machine failure to prevent any disenfranchisement, as we saw,
for example, this past year in Maryland. It would ban wireless
devices, undisclosed software and Internet connections in order
to make certain that the devices that are used are independent
and unmodified.
It is worth pointing out that a number of States, more than
two dozen, have paper ballot-based voting now. Many of these
requirements have recently been enacted.
I think our legislation, which has been prepared with
meticulous care and reviewed by many individuals and
organizations, is somewhat better than many of those States. It
is worth pointing out, for example, though 27 States have some
sort of paper ballot-based voting, only 13 States conduct
random audits.
This would require, as I say, random audits in every
election. We have seen too many elections in recent years where
the winner was lack of evidence and the loser was the intent of
the voters. This I think will correct that.
I know there is some question about our ability to
accomplish this in time. I am pleased that Governor Crist was
able to speak this morning, because that gives an example that
it is possible. As I understand what he plans to do, it would
comply fully with this legislation, and they intend to have
that in place before their primary in 2008.
Certainly if we were able to spend billions of dollars and
mount a national effort to comply with the Y2K imagined or
maybe imaginary threat, we certainly should be able to mount
this same kind of effort to deal with something that is central
to the functioning of our democratic government.
Ms. Lofgren. Thank you very much, Congressman Holt.
[The statement of Mr. Holt follows:]
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STATEMENT OF HON. THOMAS E. PETRI, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WISCONSIN
Mr. Petri. Well, thank you very much for having this
hearing, and I have a statement that I appreciate you making--
--
Ms. Lofgren. We will make it part of the record.
Mr. Petri. I will just summarize by saying the key
responsibility we have is to do everything we can to assure
public confidence in the integrity of the election process.
That is, in my mind, accomplished by having a paper trail that
can be checked; and if there is a recount, that people have
confidence that they are getting an accurate count as a result
of the recount.
There are always going to be some gray areas and questions
in any system. We are in the business. We have all been through
or have known colleagues who have been through recounts, but it
is very important to have that opportunity.
People can challenge votes. They can look at it. They can
look at each one and actually assure themselves that, as best
can be determined, the voters' intention is being carried out.
Some of these electronic systems don't provide that, and it
seems to me that undermine confidence, and we all know the kind
of conspiracy feelings that people have as a result.
So I have confidence that this committee, with your
expertise, will sift through the various ideas. Look at what
Florida is doing and what many States have already done to
assure their voters they do have a verifiable paper trail and
get Federal law in line with that objective.
Thank you very much.
[The statement of Mr. Petri follows:]
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Ms. Lofgren. Thank you both very much. We know that this is
a busy day for all of us, and we appreciate your taking the
time to appear here and to be willing to answer some questions
if we have some.
In your written statement, Congressman Petri, you talk
about some technical issues in the bill. Do you feel that we
can deal with those technical issues as part of the hearing
process and the amendment process?
Mr. Petri. I think so. And I also think you have to be
careful that--you have different vendors who are, obviously,
looking for a little bit of an opportunity to have an edge when
it comes to buying their equipment, and it seems to me the
objective of the legislation should be not to favor one vendor
over another but to make sure that there are standards that
ensure an independently verifiable paper trail.
There are some issues about whether you would permit, for
example, kind of like a credit card receipt and then the voter
is supposed to look at it and say, yeah, that is the way I
voted. I am not sure that really meets the standard of
separate, after the fact, independent audit. I would prefer
that people could look at what the voter actually did and check
it out in a recount.
So there are issues like that that you need to look at very
carefully, but it shouldn't be that complicated. Many States I
think have got it right. The systems are in place where you
cross--draw--as Governor Crist said, you draw a line through an
arrow behind the name of the candidate you favor. The machine
scans it and you see it drop into a bin. Those are there. They
can be recounted or reprocessed and checked. It is a pretty
confidence-inspiring system, I think.
Ms. Lofgren. Mr. Holt, I know that both of you actually are
very concerned, as are we, that disabled voters be able to have
full access to the democratic process by casting a private
vote, and you are aware that some concern has been expressed in
some sectors relative to the paper trail and the ability of the
visually impaired to certify that. What is your answer to that?
How do we make sure that all Americans, including the disabled,
are accommodated?
Mr. Holt. Well, not only is increased accessibility
explicitly dealt with in the legislation, it is really central
to the conception of the legislation, that it is intended to
build on the Help America Vote Act and enhance the
accessibility.
I know there are some in the country--now you see it on the
blogs--that are asking that we do away with all electronics and
have paper ballots only. When confronted, they say, well, that
is not quite what they mean, but it is, in fact, what they say.
That would be a step backward, I think, as far as accessibility
goes.
Voters with physical limitations don't want a separate but
equal system of voting. They want to be able to vote in secret,
independently, just as every other citizen does; and this
legislation I think certainly allows that.
We have been careful not to get into the certification
business, not pick and choose certain kinds of systems that
should be used. Rather, we have chosen to establish principles
that must be observed with a full recognition that there are
systems available that meet those principles; and the
principles are accessibility, auditability and voter
verifiability.
Ms. Lofgren. Thank you very much. My time has expired.
Mr. McCarthy.
Mr. McCarthy. Well, I thank both of you for coming.
My first question is to Congressman Holt. Your bill talks
about open source software. A lot of these machines run on also
a Microsoft-based--and they have the intellectual property and
protection and others, and they have to update regularly as
they go through. How do you proceed to solve that problem? Or
would you just keep it all publicly displayed or ask for that?
Mr. Holt. The legislation as written was reviewed by a
number of computer scientists and endorsed by them and by
groups and organizations as well. I am certainly aware of that
problem.
Someone once said to me, why can't the software be publicly
disclosed? It only counts. What is the proprietary secret that
must be protected?
Chairwoman Lofgren made reference to the legislative
process that you are going through now. I am certainly willing
to talk with you, and I am sure the computer scientists around
the country who have shown such interest in this matter of
verifiable voting would be willing to talk with you, to get the
precise language that will give all voters the confidence that
comes from transparency and, at the same time, protect
legitimate trade secrets.
Mr. McCarthy. Thank you.
We have had quite a few hearings setting up to this one
today, and you were able to participate in one we had the other
day. The thing that struck me was the number of elected
officials that run elections from the county to the Secretary
of State that seem opposed to this bill and--I mean, we had the
Executive Director of the National Association of Election
Officials. I was just wondering if you could talk to that,
explain to me why the majority of them would oppose your bill.
Mr. Holt. I don't know to whom you are referring. I haven't
taken a tally. But it was my sense that a large number of
elected officials, the majority of elected officials, support
this.
I do, for example, have here the written testimony that was
submitted to you from the Secretary of State of Minnesota,
speaking in favor of this legislation and also making the point
that it could be implemented within the time prescribed.
I think some election officials have kind of the usual
personal reluctance to have anybody tell them what to do. You
know, several of them have said to me, what is the matter?
Don't you trust us?
You know, it seems to me that is like a CEO saying, well, I
am not going to have the books audited because what is wrong?
Don't you trust me?
You want independent auditing in any case for anything of
value.
Mr. McCarthy. Can I ask you one question?
Mr. Holt. Yes, sir.
Mr. McCarthy. Do you have this letter that I got from NCSL
and NACo, National Association of Counties opposing your bill?
I mean, I don't assume that--and I come from the State
legislature. I find elected officials, whether Republican or
Democrat, want to have accountability and want to have honest
elections.
Then I guess if I could just follow up on another question
with you. I appreciate your passion on this bill, and I
appreciate your desire to make sure we have accurate elections.
An interesting thing happened in one of the panels. A person
said that their organization goes through all phases. And I
agree with you. I want to make sure at the end of the day we
have the most honest elections we can. And a unifying thing
that most everybody says, the more people handle ``paper'', the
more options you have to have problems.
But, okay, we count at the end of the day auditing that
those who voted make sure their votes counted. In your bill,
you never addressed or would you address the people who vote--
are we allowing people to vote who don't have a right to vote?
Would that not be overall accountability when a person says
"all phases" and did you think of that or would you bring that
into your bill?
Mr. Holt. There are, I think, a number of aspects of
elections and voting in the United States that still need
attention, that has to do with everything from the registration
lists to whether felons or former felons should be allowed to
vote to how provisional ballots are counted and what happens if
you intentionally deceive voters.
There are a number of things that are not dealt with in
this legislation, including conflicts of interest, except in a
limited way with regard to system vendors and so forth. There
is a little language about conflict of interest, but I think
many of those things are better dealt with in other pieces of
legislation.
Mr. McCarthy. Thank you for your time.
Ms. Lofgren. I would note for the record that the testimony
of the Secretary of State of Minnesota, Mr. Mark Ritchie, will
be included in the record.
[The statement of Mr. Ritchie follows:]
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Ms. Lofgren. Now I invite Congressman Gonzalez to----
Mr. Gonzalez. Thank you very much, Madam Chair.
If I am not here throughout the proceedings, it is because
we have a mark-up in Energy, and I will be going back and
forth.
My second observation is that I don't think the sky is
falling, but I think parts of the ceiling may be falling. So if
I rush out of the way----
Rush, thank you very much. Tom, thank you very much for
your testimony today. You have been here for the testimony for
other election officials, and it seems to me--and we have the
Governor today, of course, with his proposed legislation in
Florida. If you had your druthers, would you prefer to go the
route that Governor Crist is proposing in Florida, as opposed
to your bill? Because we deal with legislative realities. I
understand that. But I am just talking about if you had
choices, because I am going to ask the same question of Tom in
a minute.
Mr. Holt. I have only had a second-hand account of what
precisely the Governor is going to do. It sounds to me as if it
would be fully in compliance with this legislation.
As I said, in drawing the legislation, we recognized that
running elections has been, under the Constitution, the purview
of the States and that there are many, many systems already in
use. We chose not to specify election systems here. We didn't
want to get into the certifying business of--that this system
is good for physical accessibility for people with physical
disabilities, this system is not, and so forth. So not knowing
enough about the Florida system and in keeping with my general
principle of this bill, I think I really can't answer that.
Mr. Gonzalez. Tom, same question.
Mr. Petri. Yeah. I think there is a danger of trying to
overload what should be a pretty simple bill that has at its
heart ensuring basically a paper trail so there can be an
accurate recount. And issues of--as the Governor said and, of
course, Florida, we are all aware of, has been in the
crosshairs because of close Presidential elections and so on.
But it has happened in every State, I suspect, in one election
or another.
I think we should allow a reasonable amount of initiative
to the people that have to carry this out and what the States
are doing to deal with this problem, frankly. And I think the
Governor has indicated he has bipartisan support in his State,
and that is important I think for public confidence, for
members of both parties as well.
There are a lot of other issues that might well be dealt
with at one time or another, you know, who is qualified to
vote, helping handicapped people vote with various types of
disabilities and so on. But the key point, after what happened
in Florida, is to attempt to upgrade or help States upgrade the
election process, and to make sure that we have a system that
people have confidence in at its core; and that is what I think
the Governor was attempting to address.
Mr. Gonzalez. And, believe me, I appreciate the effort that
you are demonstrating regarding this piece of legislation. It
seems to me--and we will have this debate--that if any State
has had experiences that leads them to probably seek the most
thorough of remedies, it has to be the State of Florida. So I
really applaud the Governor.
Let me tell you what I mean by that. It seems to me that I
know we should have a paper trail. That is important. The voter
can then verify to make sure that those are the votes, if in
fact the voter takes his or her time and such. And then, for
the purpose of a recount, obviously, without a paper trail, we
know a recount means nothing in most instances; and I will tell
you that from my experiences in the State of Texas.
The remedy that Florida proposes, though, it appears to
have something in the front end; and that is that I think at
the time of casting the ballot you have a more informed,
thorough process at that point, if you take the testimony of
the Governor.
It also addresses something else other than the
verification, the audit, the recount, which is incredibly
important, but, at the front end, we are talking about
undervoting, undercount--people that believe they have cast a
vote and somehow have not.
I really believe that Florida may be onto something, and I
think we need to be exploring that avenue, and there is so much
more to discuss, and I need to go. But, Madam Chair, there are
other aspects of the voting process regarding its integrity,
who is allowed to vote and so on. I think that is a different
issue that needs to be dealt with, just as voter intimidation
and denial of the right to vote by those who are eligible to
vote. That is an argument, that is a debate for a different
day, I believe, and that we should expend some energy on it,
but, today, I think we are really looking at the mechanics.
Thank you very much.
Ms. Lofgren. Thank you, Mr. Gonzalez.
Let me note our colleague, Corrine Brown, is here also from
Florida. And Mr. Ehlers.
Mr. Ehlers. Thank you, Madam Chair.
First of all, I would observe that the ceiling never fell
in when the Republicans were in control. Maybe we have had a
few tremors in the last year.
First, for Dr. Holt, a very specific question that my staff
was wondering about. Do you know of a DRE with a VVPAT that
currently meets the accessibility standards described in your
bill and that would be ready for deployment in 2008?
Mr. Holt. Yes, I think there are several. In fact, there
were several that were on display in this very room a week or
so ago.
Mr. Ehlers. Okay. I would just appreciate for the record if
you could just give those to us later. I don't want to take
your time here.
Mr. Holt. All right.
Mr. Ehlers. Next, I totally agree with you. You stated your
objective at the beginning that every voter should have the
assurance that the vote they cast is counted and, as you said,
verifiable. That is a good goal. I have always added a second
one, that they also have the assurance that their vote is not
diluted by fraudulent votes being cast elsewhere. I think that
is very important. We often forget that.
For example, the reason that the voting machines were
developed, the primary reason was because of all the fraud that
occurred with the paper ballots of that day; and I find it
interesting back then they went from paper to machines in order
to avoid fraud and get reliability. Now we are talking about
going from machines to paper to get better reliability.
I am not against your bill, by the way. I have raised a lot
of questions about the specifics of it, but the State of
Michigan has had several elections already using equipment
precisely the same as what Florida is planning to install.
Frankly, I think optical scan is a good approach, but it is not
just the equipment. We have to get away from the idea that
establishing equipment answers it.
The election in 2000 in Florida had a paper trail called
punch card ballots. It is no different from the optical scan.
You punched the ballot, the machine counted it and so forth.
They did not maintain it properly, and that is what led to all
the confusion.
So it really, once again, comes down to the local level.
I have some 35 years' experience at local elections and
working with Secretaries of State. Some are absolutely superb.
In a few elections it tends to go bad, but it is not always
just the equipment.
One other comment, your comment about some opposition to
your bill, and indeed there is, but I think the real issue is
that most--the counties, the States feel it is overly
prescriptive and that it doesn't trust their judgment to handle
local situations, particularly I think the detailed audit
requirements. For years, States have had a lot of audit
requirements. It is called the Board of Canvassers, and they
each have developed their own methods to suit their particular
localities and particular States. So, I think the prescriptive
nature of your audit requirement is what has alienated the
counties and the States. The Boards of Canvassers have a very
good record of doing this.
These are just comments on the bill. As I say, I don't
oppose your intent, but I think we have to be very careful.
First of all, not infringe on what the actual poll workers want
to say and do, but, secondly, have a reasonable approach how
that works and not define the market simply by being very
prescriptive.
I do have a question for you. You are a physicist, as I am,
and you have used computers most of your life. How did you
verify the results of the computers when you used them?
Mr. Holt. Usually and, in fact, it is a principle of
computer science that a computer program cannot verify itself.
There must be an independent verification. In other words,
whether the landing module actually touches down or whether the
books balance separately. Some people compare this to ATM
machines; and I say, really, it is quite different from ATM
machines. Because at the end of the month, you and the bank
compare notes. But that cannot happen in the case of voting and
still maintain the secrecy. So whenever I have done computer
programming and I think whenever anybody does, the verification
must come through some independent path.
Mr. Ehlers. But also verification can come through using
the computer appropriately. I have verified programs by using
the same computer but taking a different approach. My point is
simply, being overly prescriptive and requiring a paper trail,
couldn't we also just require that there be a verifiable
redundant trail which could, in fact, include the computer with
an additional CPU that observes the keystrokes?
Again, you don't necessarily have to answer that and say,
yes, that is okay. My point is simply, let's let the market and
let's let the county clerks, the State, the Secretaries of
State, and the State election officials decide which system is
best for their State. We should just establish the principle
that the result of the voters' actions has to be verifiable,
has to be verifiable in your language by the voter, him or
herself, but also by the canvassers, those who tally the votes
and so forth. Would you accept that as a guiding principle?
Ms. Lofgren. The gentleman's time has expired, but you can
answer that.
Mr. Holt. I can answer that very quickly by saying there
have been suggestions that you use a separate electronic method
of verifying an electronic count. That would not give the
voters confidence. Maybe someday, in which case we would want
to rewrite and update this legislation. But I think all of the
co-sponsors and the endorsers of this legislation believe that
the only way we will have confidence in the voting system is
with paper ballots that voters can independently verify.
Mr. Ehlers. The only way I will----
Mr. Holt. And as for fraudulent voters, there have been
very few cases----
Ms. Lofgren. We are going to ask----
Mr. Holt [continuing]. Prosecuted around the country.
Ms. Lofgren [continuing]. Congresswoman Davis be permitted
to ask her questions.
We are going to have I think a vote around noon, so I think
we are going to have to ask people after this panel to stick a
little bit closer to the 5 minutes.
Mrs. Davis. Thank you, Madam Chair. I, too, will be in and
out a little bit; and I am looking forward to the next panels
as well.
But I wonder if you could just comment--I think one of the
criticisms perhaps in terms of this prescription has been for
the durable and archival paper trail, and if you could just
comment on that, whether that is something, you know, we have
available to us so that it is not necessarily in a roll--and,
again, how would those paper rolls--if that or something
archival--be counted, be audited and then possibly be
recounted?
Mr. Holt. Is that to me?
Mrs. Davis. Sure.
Mr. Holt. When we wrote the bill, I didn't understand that
archival paper has a generally understood meaning that
archivists and book historians and others refer to. We
definitely want, I believe, a durable paper ballot. It does not
have to meet the standards of archival quality, and so that is
a word that I would suggest changing in the legislation.
I know some have said we are using thermal paper, thermal
printer paper, and we would like to continue to use that. I had
a good example last weekend where I got a receipt on thermal
paper, and I just sent it to my staff yesterday. Because when I
went to look at it again, I guess because it had been near a
hot liquid or something, it was illegible just from last
weekend. It is not durable. It is not the sort of thing that
you want to count and recount weeks or even months later.
Mrs. Davis. So this is an issue that you are still looking
at? Just for the record.
Mr. Holt. That is right.
Mrs. Davis. Thank you. I appreciate that.
I am going to ask this question to the next panel.
Hopefully, I will be here at that time. Because what we are
talking about really goes to the heart of voter confidence.
One of the issues that was kind of facetiously mentioned at
our hearing the other day, paper or plastic, as people come to
vote, but the reality is that people choose absentee in many
cases. They sometimes need a provisional ballot so there is an
alternative to whatever system is in place at the precinct, and
I am wondering if there is anything in your legislation here
that precludes using both an electronic system and a paper
system--well, I guess optical scans are electronic. But
something that--where people were actually making those
choices. Is there anything in your legislation that would
preclude that----
Mr. Holt. Well, I am not quite sure----
Mrs. Davis [continuing]. As long as it has a verifiable
paper ballot?
Mr. Holt. Yes. What our legislation requires, that there be
a voter-verified paper ballot. Now what goes along with that,
we don't really specify. There are some accessibility issues
that, you know, a purely paper system cannot help the voter
with disabilities along with the process.
Mrs. Davis. Exactly. And part of my question is----
Mr. Holt. Ballot marking device certainly can, for example.
Mrs. Davis. Right. And the issue is whether or not--and I
didn't suspect that there was in your legislation. I just
wanted to confirm that. Because I think that, as the Governor
from Florida mentioned, they will have two types essentially.
My sense would be that people, disabilities or not, might
choose one system over another; and there may be a point at
which we arrive at that. We are not there today, but that is
something that we might want to do.
Mr. Holt. The one issue on that subject that I would
caution you on is, with all good intentions, coming up with a
system that is separate but equal for people with disabilities,
to the extent possible voters with disabilities should be
permitted to vote as everyone does.
Mrs. Davis. Right. As well. And anyone can vote on a system
for the disabled as well. I think people could choose either
system.
I think that is all I am asking and just to be sure that
that is nothing that would be in this legislation that would
preclude that for the future.
Ms. Lofgren. Thank you.
We have been joined by the chairwoman of the full
committee, Congresswoman Millender-McDonald, who will ask a few
questions.
The Chairwoman. Thank you so much, and good morning to you,
members, the ranking member, good morning and good morning to
all of you. It is great to see you here this morning.
I am especially pleased to see my colleagues, Congressman
Rush Holt and Congressman Petri.
I can say unequivocally that Congressman Holt has given
this everything he has. He has worked tirelessly to make sure
that this bill came before the Committee, and that we recognize
the important work that he put into it. I thank you so much for
your tenacity and for ensuring that we try to look into
something that is especially important to the American people.
People want to know that when they vote, their vote is counted
accurately. You have come up with what you perceive is a way to
ensure that happens.
I have just one question, and I don't know whether I can
ask either of you. In December the Technical Guidelines
Development Committee sent a recommendation to the Election
Assistance Commission that said all voting systems meet
requirements for an independent verification system that
produces multiple independent records of ballot selections that
can be audited to a high level of precision. Are there other
methods for achieving voter confidence without using this
paper? Is there anything, Mr. Holt or Mr. Petri, that you know
about? Are you aware of that?
Mr. Holt. Actually, I am not sure that I understood the
question. I apologize.
The Chairwoman. Well, that is okay. I am looking into that
further.
Mr. Holt. I will be happy to follow up on that.
The Chairwoman. All right then. Is there any statistical
data on the number of votes lost during the 2000 election
because of overvotes and the number of votes lost in 2006 when
DREs were used in elections?
Mr. Holt. Well, following the 2000 election, there was a
study done by a group of academics from MIT and Caltech that
looked at what they call residuals, overvotes, undervotes for
various kinds of systems.
And that is partially out of date now because many States
have changed their systems in the meantime. But still there are
40 percent of Americans now who are voting in ways that are
unverifiable on machines of the type that did not fare too well
in those studies. So you might suspect that there are some
problems that are going undetected because there are no paper
ballots for the actual count.
There have been other studies done by a variety of groups,
more recently taking slightly different approaches. But, yes,
there are data about overvotes and undervotes and the vendors,
some of whom were here last week.
The Chairwoman. Right.
Mr. Holt. Who have changed their designs in many cases to
try to address those issues so that they will catch overvotes,
undervotes, intentional and unintentional.
The Chairwoman. Okay. Well, Madam Chair, I will just stop
there and I will resume questioning the witnesses when your
next panel comes, because it appears to be someone that you and
I both know.
Ms. Lofgren [presiding]. Thank you both very much for your
leadership on this issue.
We are now pleased to have two secretaries of State testify
before us: the Honorable Debra Bowen, Secretary of State of
California; and the Honorable Chris Nelson, Secretary of State
of South Dakota. Thank you both so much for taking the time to
be here.
And another friend from California. Hello, Delores.
Our Secretary of State--and I say we are heavily
Californian on this committee--Debra Bowen is the author of the
first-in-the-world law to put all of California's legislative
information on line and has required all audits to be conducted
in public and to include absentee and early voter ballots.
She was elected California Secretary of State last
November. She has been a pioneer of open government, personnel
privacy rights, and election integrity. After earning her law
degree at the University of Virginia, she practiced corporate
tax and ERISA law. And she was elected to the California
Assembly in 1992, served for 8 years in the California State
Assembly. And she became only the sixth woman in California
history to be elected to statewide constitutional office. We
are very proud of Debra Bowen in California.
And the Honorable Chris Nelson, South Dakota Secretary of
State, has been the State election supervisor in the Secretary
of State's office for 13 years. He is currently serving, of
course, as the Secretary of State, having been elected in 2002.
Prior to becoming Secretary of State, he held the position
of State election supervisor for 13 years and he received in
2003 the 2003, Excellence in South Dakota Municipal Government
Award from the South Dakota Municipal League. He has been
appointed in 2005 as the National Governors Association
representative on the United States Election Assistance
Commission Board of Advisers. He graduated from White Lake High
School and South Dakota State University in 1987 with highest
honors. And we welcome you both.
STATEMENTS OF HON. DEBRA BOWEN, SECRETARY OF STATE OF
CALIFORNIA, AND HON. CHRIS NELSON, SECRETARY OF STATE OF SOUTH
DAKOTA
Ms. Lofgren. Debra, thank you so much for being here, and
if you would start. We have this little machine, and we ask
that the testimony try and be within 5 minutes. The written
testimony will be a part of the official record. When the
yellow light goes on it means you have about a minute left, but
we are not too heavy on the gavel, as you have noticed. Welcome
back, Debra.
STATEMENT OF DEBRA BOWEN
Ms. Bowen. It is an enormous honor for me to be here with
you today and I join you as a very proud American, proud of
this country's history, of our spirit, our ability to create
and to innovate. And I believe that the greatest innovation in
this country's history is democracy itself. And when I work on
these issues that involve the democratic process, I remind
myself that in the history of civilization, there has been
nothing obvious about self-governance.
One of the wonderful things about democracy is it permits
us to correct course. In fact, it demands we correct course.
And in most of our country's early elections, voters had to be
white, male, and own 50 acres of property in order to exercise
the franchise. We have corrected course on that, of course, but
we face another great challenge now, which is proving to
skeptical citizenry that every vote counts.
I would offer three key thoughts:
First, at this point in our country's history, every
State's elections affect every other State's citizens. We truly
are interdependent.
Second, our democracy, our self-governance has costs, but
those costs are a small price to pay for the certainty of fair,
open, and honest elections, with results that are beyond doubt.
And third, we can and should accomplish the goals of having
fair, open, and honest elections, without doubt, and we should
do that now.
That provision that we be able to prove that the results of
an election are accurate is our greatest challenge. That
verification must be publicly reviewable and verifiable. Which
is what makes it unlike the verification of software used, for
example, on a lunar landing module or a fly-by-wire system. It
is not just those who are using the computer system who have to
be able to verify its accuracy, it is every single citizen who
relies on the accuracy of the system has to be able to do that.
This issue, as has been discussed here today, is not
partisan. We currently in Orange County, California have a
situation where two Republicans, Janet Nguyen and Trung Nguyen,
are locked in a recount with less than 10 votes separating
them. And the e-voting experts have already been engaged.
So what steps can States and local jurisdictions take? Our
first step in California was to require that electronic voting
machines have a paper trail. That has been the law in
California since 2004, pursuant to a bill carried by Republican
State Senator Ross Johnson, who was just appointed by Governor
Schwarzenegger to chair our Fair Political Practices
Commission. But having the paper trail proved to be
insufficient and we subsequently revised our laws to require
that that paper trail be used to conduct the mandatory 1
percent recount that every county does before an election is
certified.
And even so, in California questions about voting equipment
persist and that is why I have undertaken a top-to-bottom
review of every voting system that we currently use. We will
review security, accuracy, verifiability and usability not just
for voters and disabled voters, but also for poll workers and
elections officials. The more complicated you make a system,
the more likely you are to make mistakes, and I think that is a
useful principle for all of us to keep in mind.
So while I know what I would do if I were a county
registrar of voters--I am not; my task in California, my
statutory mandate, is to review systems to determine whether
they meet the basic criteria of security, accuracy,
verifiability and usability. We have a very short time frame to
complete this. As you all know, we have recently added a
February 5th primary to our election schedule for next year and
I do not want to put county elections officials in the position
of having to purchase and deploy new election equipment 2
months before an election or between the three elections we
will hold next year. We will get this done and we will have
public participation. And I would ask and hope that other
States would do the same.
We cannot afford another election in which the citizenry
questions the results once the election is complete. Thank you.
[The statement of Ms. Bowen follows:]
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Ms. Lofgren. Thank you very, very much. Mr. Nelson.
STATEMENT OF CHRIS NELSON
Mr. Nelson. Madam Chairwoman, members of the committee. It
is truly a privilege for me to appear before this honorable
committee. Just one additional bit of introduction of myself, I
also serve as a cochair of the National Association of
Secretaries of State Elections Committee.
The key question that I would like to answer today is this:
How can we improve the election system in America without
damaging the things that are currently working?
And my answer to that question is this: I ask you to allow
State and local election officials the time and flexibility
needed to perfect the HAVA mandates before we go on with
additional mandates from the Federal level.
I can assure you that after each election, election
officials evaluate what worked, what needs to be improved and
what new challenges may occur in the next election, and we work
with a passion to get it right. You heard a powerful example
from the Governor of Florida this morning about changes that
they are making because of the issues that they have been
involved with. They are making those changes at the State and
local level.
I ask who is best positioned to drive the change in the
improvements that are needed in our election system in America?
I believe it is State and local officials who understand the
landscape. I also know that what might work in Los Angeles
County may not work very well in Jones County, South Dakota,
with 817 registered voters, and the perfect fit for Jones
County may not work in San Diego or San Jose. One-size-fits-all
mandates and requirements at the Federal level simply may cause
unintended consequences and problems when implemented at the
State and local level. As State and local officials, one of our
first priorities when we work on change and improvement is to
make sure we do no harm to the things that are already working.
I just want to address briefly two of the principles in the
whole bill, the first being the requirement for the individual
verified paper ballot requirement. And I want to be clear. I am
a paper ballot advocate. I am a paper component advocate. In
South Dakota we have adopted the optical scan system with a
touch-screen marking device for that system. It has worked very
well.
But I also understand that across America hundreds of
millions of dollars have been spent in the last 3 and 4 years
in faithful compliance with the requirements of the Help
America Vote Act. That money was spent to procure equipment and
train and implement and test that equipment. And now we are
looking at a bill that may require much of that to be scrapped
in the next 12 months and that is a shameful, shameful waste of
taxpayer money and I hope we can find some way to work around
that tremendous expenditure that has already been made to try
to comply.
I know the bill contains $300 million to help offset those
costs. I don't think that is going to be enough for the
retooling that will have to happen across America with the
requirements of the bill.
The section 5 audit requirement provision of this
particular bill, I absolutely agree and understand that
accountability is a mandatory and valuable part of an election
system. States are adopting audit requirements. States have
provisions that can deal with these issues and are moving in
that direction. But those provisions that States are adopting
work in harmony with their existing procedures as opposed to
complicating processes that are already in place.
The audit provisions of H.R. 811, I believe, may lead to
unintended consequences. In visiting with my State auditor, he
said this is going to put me in a position of conflict of
interest that we work very hard never to be in. The logistics
are a concern to me. The audit board, is this board going to
travel from county to county to county in some sort of
traveling show doing vote counts? Or are we going to be sending
ballot boxes into the State capital with all the accompanying
security concerns that would be involved in that? I have
questions about that.
I have concerns about the delay that this will cause in
certifying Federal elections. In 2004, South Dakota's lone
House seat was vacant. We held a special election. And our
citizens were anxious to get that position filled. When they
elected our Congresswoman, Stephanie Herseth, we were able to
certify that in a day or two after the election. This bill
would require that it take several weeks before an audit would
be complete and we would be able to install a Congressperson
when there is a vacancy. That is an unintended problem or
consequence.
As you are aware, there is a provision in this bill to
reimburse States for that audit requirement. You are also aware
that the original Help America Vote Act contained another $800
million of authorization to reimburse States for their costs.
That money has never been appropriated. And I will tell you, at
the State and county level we are skeptical whether or not the
funds will be appropriated to pay for this new mandate.
The last thing that I would say--and I would just ask you,
work with us to allow us to finish implementing the original
HAVA requirements and work out those problems that might be
there at the State and local level before we put new mandates
and pressures on the system. Thank you.
Ms. Lofgren. Thank you.
[The statement of Mr. Nelson follows:]
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Ms. Lofgren. Now we will get into our questions. I just
have a couple of questions. In California, you are doing a top-
to-bottom review and--could this result in some machines or
systems being decertified in this calendar year?
Ms. Bowen. Yes.
Ms. Lofgren. And then the counties would have to have
another system in place by February of next year?
Ms. Bowen. That is correct.
Ms. Lofgren. Obviously, you wouldn't do that unless you
felt it was possible for them to comply. How do you think this
is going to work?
Ms. Bowen. It is going to require a lot of teamwork with
elections officials and the public. And one of the things that
we can do in a primary election that we cannot do in the
general is to lease equipment or to use equipment from other
States. And that happened in the 2006 cycle in some places. We
don't all go to the polls at same time.
Ms. Lofgren. So your real deadline is November of 2008.
Ms. Bowen. The big issue for the country is November of
2008. And the other option, and it is one that has been used in
California before, because we have to have an election and even
if equipment is not what we would choose, we still have to have
an election. But there are conditions that can be put in place
that help make up for flaws in security, accuracy, and
usability.
So if we are in the situation where equipment does not meet
the the standards, we will have some difficult choices to make
about what conditions should be put into place. Just as an
example, one of the difficulties we have had with some of the
electronic voting machines is that they are in large counties.
They are sent home with poll workers, sometimes as much as a
week in advance, fully programmed, and stored in places that
are not necessarily secure. One of the conditions we might
think about is a much more secure means of delivery. That is
available in the private sector.
Ms. Lofgren. Correct. Let me just raise the issue of
software. You have been a proponent, if I am correct, of open
source. Why have you advocated that? And if you could also
comment--I think California requires an exact copy of source
code to be put in an escrow-type situation, and I am wondering
has that been resisted by software companies. Could you address
those two issues?
Ms. Bowen. I have the software in my office, and when we do
the top-to-bottom review we will engage experts to look at the
software. But obviously I have fewer eyes and fewer experts to
do that review, because some of that software is proprietary
and I cannot release it.
Using open source software has two advantages. One is that
it allows everyone to review the software, and there are a very
large number of computer programmers in this country who have
not normally been highly active in political processes who are
very engaged in issues around voting systems.
And second, the ownership is in the public domain so that
any State, any local jurisdiction, can use that software
without paying a licensing fee; and also, then, if they are
using open source software, can change vendors without having
to scrap an entire system and buy everything over again.
Having said that, an open source system that is certified
does not currently exist. There is a system that is ready to be
certified. I would particularly be interested in seeing open
source software used in the tabulator, because even if we go
back to paper ballots at the polling place, we are going to be
tabulating, using a computer, and that counting is so critical
and it is so important that that software be open.
And the other place I would like to see a focus on that is
with better disabled voting systems. We do not have, for all of
the great innovation in this country and in Silicon Valley, we
don't have a large number of choices in voting systems that
meet the needs of some disabled voters.
Ms. Lofgren. Thank you so much.
Mr. McCarthy.
Mr. McCarthy. Thank you both for coming. If I could follow
up with Secretary Bowen, in listening to your statement and
hearing you in these concerns you have, in the bill it says it
wants this to be implemented by 2008. And it sounds like that
would be a major concern to you. And also the only concern I
thought I had, listening to you, was the $300 million would not
be enough.
Ms. Bowen. $300 million is not enough, particularly if
States that currently have only touch-screen voting systems
with no paper have to replace those systems. 2008 is doable for
some parts of the bill and difficult for others. I am not going
to ask my counties to procure something that does not exist, or
to use it. So we have to be realistic about what exists. And
then States need to get together and work towards creating
systems that meet their needs.
Mr. McCarthy. My other question to you, then, is would you
propose to audit every Federal race, knowing some of these
races, some are close and some are not close at all? Referring
to our Speaker, she won with 80-some percent of the vote. I won
with 71 percent of the vote. And you and I had a little
discussion about time line. The Secretary talked about time
line. Would it be feasible or would it be better to do random?
Ms. Bowen. The best audit system, I think, is one that is
random, but that in the randomly selected precincts does audit
each vote, including early votes in that precinct and votes
cast by absentee ballot or by mail ballot.
One of the suggestions that I think has been the best is to
then use that result to trigger a fuller review, depending on
what the margin is. In a race in which there is only one
candidate on the ballot, there is not a lot of need to go to a
100 percent hand recount or hand audit. But in a race such as
the one in Orange County right now, where they are very close,
it is appropriate I think for elections systems to build in a
trigger that automatically does that audit without the need for
a candidate to post the funds to do that. It is public interest
to have accuracy.
Mr. McCarthy. What percent do you do in California when we
do the random? Do we do 3 percent or 1 percent?
Ms. Bowen. One percent.
Mr. McCarthy. Do you feel that is sufficient?
Ms. Bowen. It is not sufficient.
Mr. McCarthy. What do you feel that number should be?
Ms. Bowen. We need the guidance of statisticians. We want
statistically significant audits and recounts. That is a
stepped process. When I do the 1 percent count, if you get a
result that is a significant difference you may decide that is
not a place to recount. But this isn't a place where
politicians should be making the calls; it is a place where--
statistics is a well developed science. We don't need to
reinvent it.
Mr. McCarthy. Maybe we should not sit down and mandate in
every congressional race in California you need to do 10
percent of the vote. Would that be feasible?
Ms. Bowen. Of course it is feasible, but I don't think it
makes sense. It is not the best use of the resources that we
have.
Mr. McCarthy. Okay. I appreciate you coming all this way.
And congratulations, by the way.
Ms. Bowen. Thank you.
Mr. McCarthy. To Secretary Nelson, you talked about one-
size-fits-all does not work. If you could elaborate on that on
some of the experiences you have had.
Mr. Nelson. I have had a lot of years of experience working
with the various laws--of election laws that we have to
administer. In my written testimony I give a poignant example
of a one-size-fits-all requirement that was in the Help America
Vote Act. And it dealt with the requirement for putting
minority languages on the voting machines in those areas that
are covered by the minority language provisions of the Voting
Rights Act.
And in South Dakota that applies to Native Americans with
the Lakota language. And we went to the leaders within that
community and we said this is the new Federal requirement. And
they said, that does not make any sense. Our people are not
going to use that. And yet we said we have to do it. And so we
did. And we spent $28,000 on that requirement, and 10 people
statewide used it. It is $2,800 per voter that we spent on that
particular requirement.
In areas of our country where there is a heavy population
of minority speakers, that might make sense. In other areas it
does not, and yet that is one of the unintended consequences
when we get Federal legislation that does not take that into
account.
Mr. McCarthy. Thank you both for your time.
Ms. Lofgren. Thank you.
The Chairwoman. It is very interesting to sit and hear the
two of you who are the top guns, as election officials in your
respective States, and yet as we sit here and talk to
manufacturers and look at machines, it is disturbing to hear
Secretary Bowen say that we do not have a lot of voting
equipment that will work for the disabled. That seems to be a
travesty in this country.
Are we talking to manufacturers? Are they beginning to look
into this? Where are we in this continuum?
Ms. Bowen. We do have some systems that I think meet the
needs of disabled voters quite well. There is one system that
is a ballot-marking device that has sip-and-puff capability,
has capability for voters who are visually challenged, and that
ballot-marking device produces a ballot that can be optically
scanned. That is important because it means that counties that
use an optical scan system and that ballot-marking device for
disabled voters only need one tabulating system, one auditing
and review system, one place where everything is done.
It is an enormous advantage to using optical scan ballots.
It is a well-developed technology. You can, if you have a long
line in a particular polling place, simply hand people the
paper ballot and a marking device and they can shorten the line
very quickly, if they choose to do so, by marking their ballot
independently.
But, again, I don't like being in a position where there
are only one or two or three vendors. And that is a place
where, if we don't have what we need, then I think it is our
responsibility as election officials to get together. And
States can do this together, and particularly with open source
software. I think we will find that there will be foundations
and groups who will work with us. I would expect if we come
back with this issue in 2 years, that the landscape about what
is available will be quite different than what it is currently.
The Chairwoman. I had about six or seven manufacturers here
last week with their machines, and one had a telephone-type
machine that can be used by the disabled. How do you feel about
that? Do you think that particular machine is good for our
disabled voters?
Ms. Bowen. For many disabled voters that system is
terrific. The difficulty is that it requires a securitized
telephone call. It depends on a call that is originating from a
place that is known. Otherwise, an election official has no way
of knowing that the voter who is using the code they have been
given is actually that voter, or whether the code has been
given to someone else, usurped by someone else, sold to someone
else.
In States that use that system, a disabled voter has to
come to a polling place or to the registrar's office to be able
to use it. We don't have a mechanism to vote over the Internet,
not because the technology isn't there, but because we have no
way to know who is casting that vote.
So we will look at that system if counties in California
want to use it. Vermont did use it. I believe it was quite
expensive on a per-vote basis and it does not solve the single
greatest challenge to exercising the franchise for disabled
voters, which is transportation to the polling place.
The Chairwoman. The vendor did state that this type of
phone system could be used in a polling place and that would
make it a little easier for you to track it.
Ms. Bowen. In a polling place if you set up a secure
connection, you can use that. But remember that polling places
are often situated in locations that are challenged in terms of
security. I have voted in a carpet store, I have voted in a
garage, a living room, the fellowship room of a religious
institution. Many of those places could not continue to be used
with the advent of electronic voting, simply because they do
not have the capacity to provide enough electricity to run all
of the equipment that would be needed.
The Chairwoman. Madam Secretary, you spoke of wanting to
ensure that each vote is secure, accurate, and reliabe. How can
we assure that, with everything we have just outlined, plus the
myriad of other things that we know are taking place?
Ms. Bowen. We have good lessons from the private sector on
how to do this in two areas that I would suggest the committee
review. One is in the casino industry where the standards for
the auditing and the review of electronic slot machines are
very stringent. They do things such as if there is a problem
with an electronic slot, it is pulled off the floor
immediately. We don't do that with voting machines. We reboot
and keep the machine in service in many instances. And that is
a matter of money. The machines are expensive. If you have to
provide enough machines in each polling place to allow for
difficulties in pulling a machine, you are going to spend more
money. But the casino industry and their standards are a useful
measuring point.
Another place that I think it is useful to look is the
computer game manufacturers. They have a great interest in
keeping counterfeit software from being used, and they have
some very clever ways of determining whether the software that
is running on a particular game card is actually what was
licensed by the manufacturer. Some of it is trade secret and
proprietary. But I have been very impressed with some of the
tools that could help us in a situation where we have to verify
that the software that was certified is actually what is
running on every single location, which is another challenge
that we haven't talked about today.
The Chairwoman. Both of those that have been cited in terms
of looking into, in terms of helping us. And yet if it is
proprietary, there we are back at square one.
Will we have another round of questions, Madam Chair?
Ms. Lofgren. No, but with unanimous consent, the Chairwoman
has an additional minute.
The Chairwoman. You are just a sweetheart, thank you. Just
one more question. Some DRE touch-screen voting machines use a
paper ballot printer. In the voting forum that I held last
week, I witnessed a printer that used a reel-to-reel thermal
paper roll. A version of this type of thermal ballot printer
was also used in Cuyahoga County, Ohio in May of 2006.
You are probably familiar with the analysis of that
election done by the Election Science Institute. One of the
findings of the analysis was that almost 10 percent of the
paper ballots were missing, damaged, or blank. How does that
compare with your experience with the thermal printer and the
ballots printed? Either one of you can answer that.
Ms. Bowen. I am extremely concerned about reliance on a
paper trail that is printed either on thermal paper or on
standard paper. The number of ways that that kind of system can
go wrong mechanically is fairly--the list of problems,
potential problems, is fairly long. Paper jams, overwrites. It
is difficult, because the ballots are on a roll, to maintain
secrecy if you only have a small number of voters voting.
It is also difficult to audit. We do it in California
pursuant to our law that requires that we use that paper trail,
and it is a very cumbersome process as someone sits and goes
through the paper and looks at the votes that were crossed out
or unkept.
The other issue that arises is what happens in a crowded
polling place with long lines, where a voter may feel very
pressured to vote because they know that there are several
hours of people standing behind them, and the time that it
takes to actually verify properly may mean that people spend as
long as 20 minutes voting on a touch-screen machine.
We also had basic problems in California in our recent
elections, such as the county elections officials not providing
a sufficient supply of paper. We had a poll worker in Santa
Clara County, the home of our high-tech industry, who sent a
poll worker to Kinko's with $40 to copy sample ballots, which,
if marked by hand, are legally cast ballots in California.
Otherwise the lack of paper was going to completely bring that
polling place to a stop.
The Chairwoman. Mr. Nelson did you want to expound on that
a little bit?
Mr. Nelson. We don't have any experience in South Dakota
with that type of technology, but all of the reasons that
Secretary Bowen laid out and the potential problems are one of
the reasons that we chose to go with the optical scanner in
response to the HAVA mandate as opposed to going that
direction.
The Chairwoman. Thank you for your courtesy, Madam Chair.
Ms. Lofgren. Mr. Ehlers.
Mr. Ehlers. Thank you, Madam Chair. I will try to be very
brief because the time is wasting here.
Secretary Bowen, I am very pleased with your last comment.
One of the provisions of the bill I am very upset with is that
it mandates that in case of dispute, the paper trail is the
vote of record. I agree totally with you. I have very little
confidence in the type of printers that you have described. I
have seen some that I do have confidence in, but a number that
I don't. I thank you for making that point. We simply should
not, sitting here in the Congress, decide what is the matter of
record. That should be up to the local election officials and
State election officials. So I appreciate your comment.
Also, Mr. Nelson, I thank you for your comments because it
reinforces my observation that maybe it is because I have been
at the local level. I have been at the State level. I have a
lot of confidence in our people there who know how to run
elections better than many Members of Congress do, and your
statements certainly reinforce that.
I yield back so that we can move on.
Ms. Lofgren. Thank you very much. Congresswoman Davis.
Mrs. Davis. Thank you, Madam Chair. And I just want to say,
on a matter of personnel privilege, that I think the State of
California is very fortunate actually to have such a diligent
and attention-to-detail Secretary of State. And I appreciate
that.
And I wanted to just ask you very quickly if you could
comment on the importance of a backup system at the polls. I
mentioned the idea of people actually being able to choose one
of two systems. One that would be available certainly to anyone
who needed special assistance, but also to anybody who may be
in line and need to vote in that way.
Can you comment on that? And I guess for the future, what
other issues ought we be looking at?
Ms. Bowen. The California law already requires that a
voter--gives the voter a right to ask for a paper ballot. The
implementation of that has been difficult in some counties. But
in a county that uses an optical scan system, again, that is a
fairly simple matter because precisely the same ballot is
created by the voter, just in a different manner.
In a county that uses a touch screen or other electronic
voting system, it means that the elections officers will need
to find a different way to count hand-marked ballots. Either
they need to have more than one voting system, they need to
count optical scanned ballots if that is what the paper is, or
they will be literally counting those ballots by hand as they
do with write-in ballots and that, obviously, adds a
significant amount of delay to the process.
I think it is useful--backup, let me say, is a really
critical issue that we have not addressed significantly as a
country. We know from experience around the country that there
will be problems at individual polling places and that you
might have hurricanes, storms, various things, and you need to
have a mechanism to allow people to vote. So the backup system
is critical, and we have a lot to learn from what we did in Y2K
and what is done in the private sector.
When we look at our voting systems more generally and what
issues we should be considering, we actually have very little
academic research when it comes to usability by voters and what
the experience of a voter--particularly one who is not
accustomed to using ATM machines and does not have a credit
card--what their experience is voting.
Someone commented earlier that voting systems are only a
small portion of the challenge that we face as election
officials. Poll worker training and voter education are also
very important and easier to accomplish using an optical scan
system than using a touch-screen system. The whole audit
procedure and the closing procedure is far simpler using the
older technology that we have.
So as we deal with what systems we should use, we need to
ask for results. We need to ask for better measures of what we
have done, and then we need to look at the overall costs; not
just the cost of equipment, storage and all of the things we
think of, but the costs of training, the cost of poll workers
and the cost of educating voters. Every time we change voting
systems, we have any number of voters who have a great deal of
difficulty with the new system, and the same is true of poll
workers who, as I am sure you know, are not getting younger as
we go along.
Mrs. Davis. Secretary Nelson, quickly.
Mr. Nelson. One comment that I would make, when the Help
America Vote Act was passed, one of the very first statements
that I made in my State was that I did not want any of our
polling places to be hostage to an electronic voting machine.
So that if that machine went down, that things stopped and
people could not vote. That is why we went with the optical
scan device, with the voter assist device to mark that ballot.
So I understand that concern.
Ms. Lofgren. Thank you very much. Thank you to both
Secretaries of State. We know that your days are busy ones and
we very much appreciate that you were willing to take this time
and spend it with us and share your expertise. Thank you so
very much.
Our next panel, if they could come forward, would be Tanya
Clay House, George Gilbert, Dr. Felten and Dr. Norris.
I would like to introduce Tanya Clay House who began her
tenure with People for the American Way in April of 2002 as the
senior legislative counsel. She now serves as director of
public policy. Miss House also serves as the policy liaison for
the the African American Ministers Leadership Council, a
program of PFAW Foundation. She began her legislative career as
counsel for our colleague, Congresswoman Sheila Jackson Lee.
And in 2003 she was awarded the Congressional Black Caucus
Chair's Award for her dedication and leadership and commitment
in advancing the cause of civil and human rights.
George M. Gilbert, since 1988, has been director of
elections to the Guilford County Board of Elections, a
jurisdiction of more than 300,000 registered voters. During his
19 years in this position he has administered 56 elections,
using four different DRE voting systems.
We have also Dr. Edward Felten, a professor of computer
science at Princeton University. His research interests include
computer security and privacy technology law and policy. He is
the author of Security Analysis of the Diebold AccuVote-TS
Voting Machine Study, and his research on electronic voting has
been covered extensively in the press. And we were fortunate to
have him testify before this very committee in the last
Congress.
We also have Dr. Donald F. Norris, a professor of public
policy at the University of Maryland, a specialist in public
management, urban affairs, and application management and
impacts of information technology in public organizations. He
has consulted with local governments and State agencies for
more than 25 years in the area of information technology and
management.
STATEMENTS OF TANYA CLAY HOUSE, DIRECTOR OF PUBLIC POLICY,
PEOPLE FOR THE AMERICAN WAY; GEORGE GILBERT, DIRECTOR OF
ELECTIONS, GUILFORD COUNTY, NORTH CAROLINA; EDWARD FELTEN,
PH.D., PROFESSOR OF COMPUTER SCIENCE AND PUBLIC AFFAIRS,
PRINCETON UNIVERSITY; AND DON NORRIS, PH.D., PROFESSOR OF
PUBLIC POLICY, UNIVERSITY OF MARYLAND, BALTIMORE COUNTY
Ms. Lofgren. We welcome all of you. And because we have a
vote coming soon, I will actually ask people to stay within 5
minutes, and your written testimony will be made part of the
official record. And if we could begin with Tanya Clay House.
STATEMENT OF TANYA CLAY HOUSE
Ms. House. Good morning and thank you, Madam Chair, and
Ranking Member McCarthy and the committee members. On behalf of
the civil rights community, I thank you for the opportunity to
speak with you today regarding this important issue of election
integrity and accessibility.
I am the director of Public Policy at People For the
American Way and the director of federal legislation for
Democracy Campaign on Voter Rights and Election Reform. People
For is a national nonprofit social justice organization with
more than 1 million members and supporters and more than a
quarter century of commitment to nonpartisan citizen
participation efforts.
Since our founding, People For has urged Americans to
engage in civic participation and sought to empower those
traditionally underrepresented at the polls, including young
voters and people of color. At People For, election reform is
our number one priority. And since the debacle of the 2000
election, People For Foundation and its key allies, including
the NAACP and the Lawyers Committee for Civil Rights Under Law
have led the well-known Election Protection Coalition to ensure
that every citizen has the right to vote and to have that vote
counted. This work, supplemented by litigation and People For's
legislative efforts, has provided our two organizations with a
depth of expertise on how we must continue to reform our
election process and to protect this most fundamental right to
vote.
The use of nonsecure and unauditable voting technology is
particularly troubling because it can and has resulted in the
disenfranchisement of thousands of voters across the country.
This problem was highlighted as a result of the implementation
of the 2006 Help America Vote Act deadlines which precipitated
the widespread replacement of older voting technology. Thus,
more voters and poll workers throughout the country used new
voting systems in 2006 than in any previous election.
With so many counties using the new voting systems for the
first time, the number of voting machine problems increased
dramatically over 2004. In fact, complaints about voting
machines outnumbered all other complaints to the Election
Protection Hotline with voters in more than 35 states reporting
various problems related to voting machines.
People For supports H.R. 811 as a strong effort to change
the status quo so that voters will have the confidence that
their votes will be counted as cast. And we are grateful for
your leadership, Madam Chair, on the issue of election reform,
and in particular voting technology. We further thank the
leadership of Congressman Rush Holt and Tom Petri and a
multitude of others on both sides of the aisle for H.R. 811.
This bill is notable for its efforts to accommodate not
only the need for additional security in our elections, but
also to demand appropriate accessibility for all voters. As a
civil rights organization, and a close coalition partner of
national organizations representing tens of thousands of voters
with disabilities and minority language voters, including the
National Disability Rights Network, MALDEF, the National
Counsel of La Raza, and the Asian American Justice Center,
People For is committed to ensuring that any new voting
standards maintain the current accessibility protections
afforded under HAVA, and all voting machines provide the
necessary language translations in all steps of the voting
process as required under section 203 of the Voting Rights Act.
For this reason, People For supports the provisions of H.R.
811 which allows States this flexibility to decide which types
of election systems best meet the needs of its voting
population, so long as that system is verifiable, auditable and
secure. These provisions acknowledge that the best system in
Utah may not be the best system in Los Angeles, and vice versa.
H.R. 811's commitment to both security and accessibility is
to be commended and has earned endorsements from a diverse set
of civil rights and election integrity groups, including Common
Cause, the Lawyers Committee, the Brennan Center, SEIU, and the
NEA. While accessible systems that are not fully secure and
auditable are unacceptable, secure election systems that are
not accessible to all eligible voters likewise cannot be
tolerated. American voters deserve and expect both security and
accessibility. And while no language is perfect, H.R. 811 is to
be commended for attempting to reach such a balance. My written
testimony will expand further on our support for H.R. 811.
Madam Chair, thank you again for your commitment to
addressing this most pressing need of voting technology. As has
been the case in the past three Federal elections, we expect
that many of the races in 2008 will be very close and Americans
deserve to know if their vote will be counted as cast and, if
necessary, counted by fair and independent observers.
As a member of the civil rights coalition that helped to
draft the components of HAVA, I am vividly aware of the
unfortunate problems that were caused by delayed financial
support and oversight by Congress. Therefore, People For is
committed to working with members to ensure that the proper
funding is provided and that a reasonable implementation
schedule is developed, so that election officials will have all
necessary resources. And this must be done as soon as possible.
Ms. Lofgren. Thank you very much.
[The statement of Ms. House follows:]
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Ms. Lofgren. Mr. Gilbert.
STATEMENT OF GEORGE GILBERT
Mr. Gilbert. I would like to thank both the Chairwomen, the
Ranking Member, and Mr. Ehlers for allowing at least one
election official to speak to you today. I think I am the one
that got selected because Conny McCormack couldn't come this
time. You are used to seeing her. A new face.
Elections officials feel like we are the target in all of
this. I hope I can be considered a trusted source in regard to
not only the 19 years of election experience I have had, but
also the fact that I spent 6 years here on Capitol Hill working
for Senator Culver and Senator Dodd.
When I went to the Board of Elections in North Carolina in
Guilford County, North Carolina, I was hired by a Republican
Majority board, and throughout the 19 years I have served under
both Democratic and Republican Majority boards. I left
Washington with a very deep level of confidence and respect for
our political system, and the last 19 years of my life have
been dedicated to preserving that.
That same attitude is held by the vast majority of
elections officials in this country. It is our job to maintain
the integrity and the accuracy and the openness of our
elections system, and we are committed to that.
I don't know of any local election official who does not
fully support these goals of accuracy, integrity, and security
in elections. Contrary to the bill's implications, our election
process today contains substantial portions of these
ingredients already. I would argue that it contains more than
it ever has in the history of our democracy.
Having said that, I will jump straight to my conclusions. I
think the most effective thing that this Congress could do do
improve all of these approaches to all of these goals is to
promote rapid technological development to strengthen the areas
of weakness in our current system. H.R. 811 not only fails to
accomplish that, but it effectively forecloses that option. By
mandating the manual counting of paper ballots as the ultimate
official record, the bill effectively locks everyone into
technology that became obsolete in the 19th century. Nothing
has changed in the last hundred years that makes managing or
counting paper any more secure or any more accurate than it was
in the 1890s.
The chief historical weakness of DRE voting systems has
been the lack of a secure independent ballot record for each
voter's vote. The chief weakness of the paper voting systems,
be they punch cards, optical scan or just a plain piece of
paper, is the fact that there are frequent ambiguous votes cast
on those ballots.
In North Carolina in 2006, we tried the paper solution of
an independent backup for electronic ballot records. Attachment
1 of my prepared testimony documents the rate--I would say not
surprising--high rate of printer failure. We feel that we can
reduce that rate, but no printer that I have ever heard of or
anyone has ever conceived of is going to eliminate the failure
of those printers to produce some of the ballot records. The
experience in North Carolina in Attachment 2, I show that we
lost roughly 2 percent of our audit records as a result of
that. To make the paper record the official ballot would simply
throw out those ballots which we know voters legitimately cast.
This experience was not isolated in North Carolina. Roughly
half or more of the States have already adopted some form of a
paper trail, and in every case the chief impact was to
introduce another point of failure into the voting system.
My attachments 3 and 4 document the ballot-marking errors.
When we talk about the ambiguous votes that are cast on optical
scan systems, one of the mantras in our industry is there is no
such thing as a perfect voting system. And it is true. It
always will be true. So I want you--if you guys will look at
that and see that we don't have a panacea that we can fall back
on here.
If you calculate the time it would take to count those
ballots manually, which I have demonstrated also in my
attachments, you basically see that what happened in Florida in
2000 is that they were asked to do the impossible; and that is,
to count millions of votes by hand in too short a period of
time.
Ms. Lofgren. We will make all those documents part of the
record, thank you. Dr. Felten.
Mr. Felten. Thank you Chairwoman Lofgren, Chairwoman
Millender-McDonald, Ranking Member McCarthy, and Congressman
Ehlers for the opportunity to testify today and give you my
perspective on electronic voting and H.R. 811.
Computers clearly have a role to play in our elections, but
figuring out their appropriate and best use is a difficult
question. We don't need to choose between an all electronic
system and a paper system. Instead, we should use computers and
paper together so that each one can do what it does best and
each can compensate for the drawbacks of the other. Such a
system combines paper and electronic elements and can be easier
to use, more reliable, and more secure than either an all
electronic or all paper system.
The starting point for understanding what kind of system we
should use is to ask which things computers do well and which
things are better done on paper. Computers do several things
well. They report election results quickly. They can be
accessible to disabled people. And they can help voters find
and fix errors before the ballot is cast. Though these promises
are not always met in practice, they are reason enough to give
computers a role in our elections.
But the one thing that today's computers cannot do is
provide a simple and transparent way to record and store votes.
What happens inside an electronic voting machine is very
complicated and cannot be inspected directly by the voter or in
most cases, indeed, by independent experts.
Because electronic records lack transparency, systems that
rely on them are subject to security attacks that can modify
votes undetectably, as with the the voting machine virus my
colleagues and I demonstrated in Diebold touch-screen voting
machines. Even in the absence of a security attack, problems in
all electronic systems are very hard to diagnose.
Our elections system must therefore be software
independent, meaning that its accuracy does not rely on the
correct functioning of any software system. Thus far, computer
scientists haven't found any way to ensure the correctness of
computer software programs, whether in a voting machine or in a
personal computer. And instead of pretending that we are able
to ensure the correctness of software, we need instead to have
a system that records and counts the votes accurately even if
the software malfunctions and the only practical way to do that
today is to use paper ballots.
By comparison to electronic records, paper ballots are much
more transparent. A properly designed paper record conveys the
voter's intent clearly and the voter can confirm this by
inspecting the paper record. Blind voters can do this with the
help of assistive technology. And unlike a volatile electronic
record, a durable paper record will not change unexpectedly and
mysteriously.
So looking at the strengths and weaknesses of electronic
and paper-based systems, we can draw two conclusions. First,
the primary record of a vote should be paper, because paper
recording is more transparent and voter verifiable.
Second, computers can sensibly be used for other parts of
the voting process, such as entering the votes, providing a
quick count subject to auditing, and helping reduce voter
error. This is the blueprint that H.R. 811 follows. It requires
the use of a durable voter-verified, private paper ballot. But
beyond this, it gives States and localities a choice of whether
and how to use computers in their elections.
Different jurisdictions will use computers differently.
Some will use a DRE touch screen with a ballot under glass
paper trail. Some may use optical scan. Some may use ballot-
marking devices. There are different kinds of paper trail
systems, even within each of these categories. As long as there
is a suitable ballot and appropriate technical standards are
met, each jurisdiction can use its own approach.
Computers can count and tabulate ballots quickly, so many
jurisdictions will want to get quick electronic counts when the
polls close. But because the paper ballots are the primary
records, we need to make sure that the paper records and the
electronic records match. The solution to this is a random
audit in which we count a large enough random subset of the
paper ballots and compare the results to the corresponding
electronic count. This, again, is the approach taken by H.R.
811.
There will be times, unfortunately, when the paper record
is lost or corrupted. This will be very rare in a well-designed
system, but we need to have a fallback in case that happens.
That is why it is appropriate to say if there is a suitable
showing with respect to problems or failures with the paper
record, we can switch to the electronic and use it as the most
accurate component.
Improving our elections is going to cost some money, but I
think this is a bargain if it brings our elections up to the
level of security, reliability, accessibility, and privacy that
all citizens deserve. Computers cannot only stop being a
liability in election security, but they can become an asset if
we use them correctly. And passing H.R. 811 would be an
important step in realizing that promise. Thank you.
Ms. Lofgren. Thank you very much.
[The statement of Mr. Gilbert follows:]
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Ms. Lofgren. And, finally, Dr. Norris.
STATEMENT OF DON NORRIS
Mr. Norris. Madam Chairperson, members of the committee,
good morning. A very special good morning to Congressman Ehlers
whom I haven't seen in about 30 years. How are you?
I am very pleased to give testimony this morning on H.R.
811. If I still lived in Grand Rapids, he would be my
Congressman.
In the available time I will address what I believe are
serious limitations of the bill. My written testimony goes into
greater detail. First let me say I think the intent of the bill
to require voter verification of ballots cast is a noble and
worthy one. Unfortunately, I think the methods set forth in the
bill to achieve this is quite flawed--the paper trail
requirement.
In effect, as the bill is written it would require all the
United States to return to using paper ballots in elections. It
would put an end to electronic voting and it would
significantly stifle or indeed kill innovation in voting
technology. I have heard that from vendors.
Paper ballots are notoriously susceptible to fraud. One of
the main reasons we moved to machine voting in the 1900s was
because of fraud with paper. Paper ballots can and frequently
have been lost, stolen, or damaged. Entire ballot boxes lost,
stolen, or stuffed. And I would expect that we would have other
problems of a similar nature if we go back to paper again.
As a political scientist--I am not a computer scientist but
I have a long background in IT--I am far more concerned with
the probability of election fraud with paper than with an
electronic system, in part because it takes far less skill to
steal a paper ballot, to counterfeit a paper ballot and stuff a
ballot box than it does to diddle with a DRE.
Ordinary people can tamper with paper. It takes specialized
knowledge and skills about computer hardware and software to do
that with electronic voting.
One of the reasons that proponents give for wanting to
return to paper ballots is that, quote, the people are
demanding verification. In studies that I have done and studies
that I have seen, the evidence does not support that claim.
People--observable behavior, people go vote. They vote on the
equipment that we are giving them. They do not indicate that
they have a crisis of confidence in voting systems. And again
there are surveys and observable voting behavior to demonstrate
this.
There is evidence, however, that voters do not want to and
probably will not verify their votes when given the opportunity
to do so, evidence from actual elections and from usability
studies. Evidently people simply want to vote and get out of
the voting booth.
There are different ways to add paper to the election mix.
One is the VVPAT and the another is the optical scan. Both have
limitations. Indeed, as one of the speakers on this panel said,
there is no perfect elections system, regardless of technology.
Adding paper, whether VVPAT or optical scan, increases
time, it increases complexity, it increases the difficulty of
election administration and the probability of equipment
malfunction and so on and so forth. It also requires more
training for people in the field who are actually managing
elections.
Mr. Norris. Printers regularly jam and fail, optical ballot
systems can fail due to calibration problems, can and have
failed due to calibration problems.
I am not against, by the way, any of these technologies. I
am merely pointing out that they all have limitations.
Another reason proponents give for paper ballots is the
need to audit elections and recount and do recounts. In nearly
every election where recounts have been undertaken with paper
ballots, the voting tally that is completed manually by human
beings--that is, by us--produces inconsistent and sometimes
conflicting findings. Think of Florida 2000, think of
Washington State 2004.
Further, the claim that electronic systems are inherently
insecure is based on a faulty assumption that goes something
like this: Yes, computers can be diddled, but the assumption
is, given the right tools, the right amount of time and
unfettered access to an electronic voting machine, a
knowledgeable person can insert malicious software and produce
erroneous results or do other bad things. It is a far-fetched
scenario, and it is not something that has happened in an
actual election to date.
Security around electronic systems is far from perfect, but
it can be improved and made very, very robust.
I guess I have got just a few seconds left, so let me just
wrap up by saying that I don't believe there is a compelling
technical reason to abandon electronic voting. I don't think
there is a compelling policy reason to require paper. I think
it would be far better for this bill to require independent
voter verification, but to remove all references to any
particular technology and let the State and local governments
and the marketplace figure out how best to do this.
Thank you very much.
Ms. Lofgren. Thank you. We are going to limit ourselves to
3 minutes on the questions, so we can get to the final panel;
and I will start with my 3 minutes, which is to Dr. Felten.
I still talk about the testimony you gave before this
committee last September, about how easy it is to hack a
computer and the key from the minibar. I remember it was
Benedict Arnold who beat George Washington in your display.
Can you describe what the concern is as a computer
scientist on these computer systems?
Mr. Felten. Sure. The concern is that these things, being
computers, will do what they are programmed to do; that is,
they will do what the person who created the program wants them
to do.
And what we were able to demonstrate is that with as little
as 1 minute of access to a Diebold touch-screen voting machine
and with this key which is for sale on the Internet, you can
inject malicious software into a Diebold voting machine which
causes it--that causes it to count the votes incorrectly. And I
demonstrated this live, as you referred to, before the full
committee at a hearing in the fall.
So the concern is that these machines are vulnerable to
tampering. And I would add that in every election since New
Jersey has adopted electronic voting, I have had private access
to the voting machines used in my precinct. I could not have
lawfully opened them and tampered with them, but if I had I
wanted to, I could have.
Ms. Lofgren. And how hard would it be for--I mean, is this
creation of a virus so difficult that only--you know, really is
not something to worry about in your judgment? Could you
students do it?
Mr. Felten. Yes. Students did--our students did, in fact,
create the virus that I demonstrated. Any skilled computer
scientist, computer programmer, would be able to do that. It is
no more difficult than making a virus for a PC. There are many
thousands of people, especially in your district, that have all
of the knowledge.
Ms. Lofgren. I think I have heard from every one of them.
With that, I am going to yield to Mr. McCarthy for his
question.
Mr. McCarthy. Well, I thank you very much.
To Mr. Gilbert, if I may: You are an elections officer, and
I raise this question to the author of the bill because I do
have some letters I want to submit for the record.
Ms. Lofgren. Without objection.
[The information follows:]
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Mr. McCarthy. One is the National Conference of State
Legislatures, the National Association of Counties. In
opposition, we had the Executive Director of--the National
Association of Election Officials are opposed to this bill, and
I am just trying to get your feedback as to what would you
think the rationale--why the majority would be opposed.
Mr. Gilbert. I think the majority of them are opposed to it
on two grounds. One is the feasibility of actually executing
what it purports to do and the second is the cost.
We are very concerned that implementation date of 2008
would actually collapse the election system. We do not believe
that it would be feasible nationwide to implement the kinds of
changes, both procedural and technological, that this bill
proposes by 2008.
In terms of the paper trail, all you have to do is go out
there and try to count paper ballots sometime, and you will see
why we are opposed to it. We are the ones who do that. We have
counted paper ballots by hand before, and we know how
difficult--it is the most difficult aspect of conducting an
election.
You think we have complicated electronic technology; well,
electronic technology actually simplifies things. It simplifies
things at the precinct, it simplifies things for the
administration of elections in the office. When you start
throwing paper in, and particularly manual tabulation of paper,
it becomes much, much more harder. And we know we can't do it
accurately; I think that is the fundamental reason.
Mr. McCarthy. Well, I thank the whole panel for their time.
Ms. Lofgren. Madam Chairwoman.
The Chairwoman. I, too, Madam Chair, have a letter from
Conny McCormack. If I could please submit this for the record.
Ms. Lofgren. That will be added, without objection.
[The information follows:]
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The Chairwoman. She too, has strong concerns about this
bill and implementation.
I also have a letter from Judy Duffy, the Chair of the
Advocacy Committee of the League of Women Voters of the United
States, raising her concerns as well.
Ms. Lofgren. That also will be added to the record.
[The information follows:]
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The Chairwoman. And, Madam Chair, with so many questions to
raise and so little time, I am just going to ask for unanimous
consent that my statement be submitted for the record.
Ms. Lofgren. Without objection, so ordered.
[The statement of Ms. Millender-McDonald follows:]
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Ms. Lofgren. Mr. Ehlers.
Mr. Ehlers. Thank you, Madam Chair. I spent only a minute
in my last round. I am going to spend a few more this time.
First of all, Mr. Gilbert, thank you very much for your
comments. It is what I have been saying all along and perhaps
because I have had much the same experience you have had.
Dr. Felten, have you ever sat down and counted ballots?
Have you ever served as an election official?
Mr. Felten. I have not, no.
Mr. Ehlers. Okay. Let me, just to shorten things, express
concern.
I totally agree with the comments of Mr. Gilbert and Mr.
Norris that paper lends itself to fraud. That is the history of
elections with paper, and that is why we developed mechanical
voting machines.
Now we are in a different era; we are trying to develop
good electronic voting machines. I agree with you that we
haven't done that yet, Dr. Felten, but I am confident we can do
much better than we have, certainly with a mechanical lock, if
nothing else. I am sure we can do a little better.
I am surprised that you are willing to put much more faith
in a mechanical system, such as a printer, unless voters are
actually required to sit there and read through and verify. I
would still put more confidence in the computer, on average,
than I would on a mechanical printer. And I am just making that
observation, and I am not trying to set up an argument here.
I appreciate your comments, Mr. Norris. I do question your
wisdom in leaving Michigan going to Maryland, but that is a
separate issue.
Mr. Norris. That alone should probably disqualify my
testimony.
Mr. Ehlers. You had a lot of common sense in your comments,
and I appreciate it. I have no problem setting up the dual
trail requirement. I do have a problem in seeing that the paper
trail is the record for precisely the comments made by Mr.
Gilbert.
You know, I sat there and calculated--pardon me, counted
ballots. It is a very unsure operation. Humans are not
particularly good at that, and it is very, very difficult to
get accurate results with any large number of ballots.
So I am not--as I said before, I am not opposed to the
bill, but I would like to make some changes in it, and I will
propose those changes at some future time.
Ms. Lofgren. Thank you, Mr. Ehlers.
And thanks to this panel. It has been a long morning, but
we appreciate your sticking with us to give us your advice.
Now we will ask Noel Runyan, Dr. Harold Snider, Warren
Stewart and Commissioner Gail Mahoney to join us. And we are
going to ask--since we are going to be called to the floor for
a considerable period of time in a very short period of time, I
wonder if we could ask each of these witnesses to give their
statement within 3 minutes, as we have limited ourselves. Then
we will know that we will get to hear everyone, and your
official statements will be made part of the record.
I would just note that Warren Stewart is the Policy
Director for Vote TrustUSA, which is a nonpartisan
organization, and he has been published in the Harvard Law &
Policy Review.
Commissioner Gail Mahoney is from Jackson County, Michigan,
the Chair of the National Association of Counties, an
organization I once belonged to as a member of the Santa Clara
County Board of Commissioners, and a distinguished leader in
our Nation.
And--I will now run through my cheat sheets here--Noel
Runyan from my neck of the woods is an engineer, and he has
designed and manufactured the Audapter speech synthesizer and
has worked with the Santa Clara County Voter Access Advisory
Committee; and Dr. Harold Snider, President of Access for the
Handicapped.
STATEMENTS OF NOEL RUNYAN, PRESIDENT, PERSONAL DATA SYSTEMS;
DR. HAROLD SNIDER, ACCESS FOR THE HANDICAPPED, INC.; WARREN
STEWART, POLICY DIRECTOR, VoteTrustUSA; AND COMMISSIONER GAIL
W. MAHONEY, JACKSON COUNTY, MICHIGAN, CHAIR, NATIONAL
ASSOCIATION OF COUNTIES
Ms. Lofgren. We will call first on Noel Runyan for his
abbreviated statement to be followed by Dr. Snider.
STATEMENT OF NOEL RUNYAN
Mr. Runyan. Madam Chairman----
Ms. Lofgren. Could someone turn on the mike, please? Thank
you so much.
Mr. Runyan. Madam Chairman and members of the board, I
would like to sincerely thank you for inviting me to testify
today on improving access to voting systems.
As an electrical engineer and computer scientist, I have
spent 36 years of working on human factors and access to
systems for people with disabilities. I have also spent the
last 4 years working on accessibility of voting systems.
When the HAVA bill was introduced, I thought it was really
exciting times for us because it would get rid of hanging-chads
overvoting, and it would allow a lot of folks to have the kind
of accessibility that we had learned to use on our own computer
systems and other information systems. And they promised that
the systems would be rigorously, federally tested to make sure
that they were secure and accessible and accurate.
So when I first went to vote in Santa Clara on the Sequoia
electronic voting machines about 3 years ago, I was very
disappointed when they--after 45 minutes of diligently working,
calling tech support, poll workers were not able to get the
system working with audio output so that I could use it, I had
to have somebody else vote for me.
Out of five elections now, in which I have used the Sequoia
voting system, in three of those, the poll workers were never
able to get the system working by themselves. And in fact, in
one of them, my wife asked for and was loaned the manual so
that she could read the manual and figure out how to get the
system working with audio for me. It seems that we shouldn't
all have to have a very brilliant wife that is a computer
scientist to go along with us to vote.
So I got very involved in studying the accessibility of
these systems, and very concerned about both their access and
security; and found that there were a lot of folks that weren't
getting full access to these systems, in some cases because
they were too complicated for poll workers and, in others,
because of very limited design capabilities for providing
accessibility--accessibility for people with physical
disabilities, cognitive disabilities, or with special or
alternative language needs.
And, as an example, many of them did not even have
simultaneous audio and visual or large print magnification, so
important for so many elderly folks that need to use it.
Ms. Lofgren. Right. Mr. Runyan, we are going to have to ask
you to wrap up so we can hear all four of you.
Mr. Runyan. I will try to wrap up very quickly here.
Ms. Lofgren. Thank you.
Mr. Runyan. But as we found, the systems needed to be made
more secure, and so we ended up having to look at using paper
which was not accessible.
It turns out that over the years, now we have developed
accessible ballot marking systems and that those are usable and
I would like to submit both my report--my access report and a
letter today, which we have had several people join onboard to
say, we as people with disabilities do support accessible paper
voting systems.
Ms. Lofgren. Mr. Runyan, we will make both those statements
part of the official record. And now we will call on Dr.
Snider.
[The statement of Mr. Runyan follows:]
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STATEMENT OF HAROLD W. SNIDER, PH.D.
Mr. Snider. Thank you, Madam Chairman. It is a privilege
and an honor to speak before the subcommittee, and I am very
grateful for your invitation to do so.
First of all, I want to repeat what I said to Congressman
Holt outside this hearing, not since the passage of the
Americans With Disabilities Act have we had a Member of this
House reach out to the disability community to take input on an
issue as we have had with Congressman Holt on H.R. 811.
I said to him that I have substantial disagreements with
him about H.R. 811, that are outlined in my testimony; and I
will look forward to involving in engagement with his staff to
try to work some of those out. We may be able to do it, we may
not, but there is a good-faith effort certainly on my part and
I am sure on his part to get that done. So I commend him
strongly for his efforts.
The real problem with H.R. 811 is, it unnecessarily slows
down the process of enfranchisement of people with disabilities
into the voting process by requiring that DRE, touch-screen,
machines also generate a verifiable paper trail that can be
verified by disabled and blind, visually impaired voters.
In the 30 years that I voted in almost 30 elections, two
every 2 years or so between 1972 and 2002, I met more
illiterate and ignorant poll workers who couldn't accommodate
my needs and who discriminated against me in the most horrible
ways you could imagine. And HAVA changed the playing field for
me and for other people with disabilities.
While I was an employee of the Republican National
Committee, I worked with disabled voters who were completely
apathetic about the voting process because accessibility was
denied.
The problem with H.R. 811 is, it slows down the
implementation of the provisions of HAVA to the extent that
people with disabilities won't get accessible voting until
perhaps the middle or end of the next decade of this century.
Ms. Lofgren. Dr. Snider, you only have about 30 seconds
left. I wanted to warn you.
Mr. Snider. And what concerns me most, people don't have
confidence in the technology that exists in the 21st century.
I hope that the Congress will keep the promise of HAVA
while fixing some of the problems which exist.
Thank you, Madam Chairwoman.
Ms. Lofgren. Thank you very much.
[The statement of Mr. Snider follows:]
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Ms. Lofgren. Mr. Stewart.
STATEMENT OF WARREN STEWART
Mr. Stewart. Madam Chairwoman, distinguished ranking
member, members of the subcommittee, thank you for inviting me
to address you on this very important hearing on H.R. 811.
The most critical components of this bill are the
requirement for a voter-verified paper ballot of every vote
cast; the establishment of routine random hand-counted audits;
the requirement that the audits be completed before the Federal
race is certified; and the increased transparency and public
oversight of the testing of voting machines that the bill
promotes.
Responding to widespread concern about the design of
existing audit trail printers, H.R. 811 would require that the
paper records be printed on durable paper capable of
withstanding multiple counts and recounts; and the bill also
would require a verification that the voter's selections on the
paper record be accessible to voters with disabilities. All of
these requirements are more--are desperately needed to restore,
protect and preserve the integrity of our elections; and it is
absolutely critical they be implemented in time for the 2008
elections.
It is essential that the authorization in this bill be
sufficient to cover the cost to counties of implementation. I
have developed a cost projection to determine the authorization
necessary for States to meet the proposed requirements, section
2 in H.R. 811; and I would be happy to discuss that with the
members of the committee at any time. In preparing my cost
projection, I organized the Nation's approximately 187,000
voting precincts into three broad categories based on the
voting system employed last November for in-precinct voting.
In the first category were those precincts in which voters
marked paper ballots by hand, or with ballot marking devices
provided for compliance with the disability access requirements
of HAVA. There were just over 46,000 such precincts in 35
States, including every precinct in 17 States. These precincts
would not be required to make any changes to comply with the
requirements of 811.
In the second category were those precincts where all
voters voted on direct recording DRE voting systems, just over
74,000 precincts in 27 States. I'm sorry about all the numbers.
To meet the requirements of 811, these precincts would need to
either replace their entire voting system with a paper-ballot
ballot marker system or retrofit their DREs with compliant
durable and accessible voter verified paper audit printers.
Finally, there were precincts in which most voters used a
paper ballot system and a DRE was provided merely for HAVA
compliance, and that is about 50,000 precincts in 23 States.
There would be basically three approaches for precincts in
the second two categories to meet the durability and
accessibility requirements of 811. One approach would be to
replace DRE systems with paper ballot optical scan systems and
ballot markers. In all DRE precincts, this would require the
purchase of one paper-based optical scan scanner per precinct
and one ballot marker. In mixed precincts, they would only
require the purchase of a ballot marking device.
The language of H.R. 811 allows the use of DREs, but only
if they are equipped to provide every voter with the
opportunity to review a software independent record of their
votes. Technology required for such printer exists, but there
are currently no add-on printers for DREs that meet these
requirements.
A third approach would be to take advantage of the
accessible features allowed by the computer interfaces of DRE
and attach printers that would generate durable paper ballots
that could then be scanned for counting and also for the
special needs verification for voters that need them.
I am going to be very quick.
I base my projection on a cost average--on an average cost
of 5,000 per precinct optical scanner and $5,000 for ballot
marking device. It is impossible to anticipate with certainty
the cost of compliant add-on printers for existing DREs since
they are not currently on the market, but each such printer
would likely cost less than the cost of a precinct scanner.
Ms. Lofgren. Mr. Stewart----
Mr. Stewart. I will be quick, sorry.
However, DRE voting systems require multiple voting
machines in each precinct, compared to only one scanner. So the
costs are roughly the same.
Let me just jump to the critical question here.
Ms. Lofgren. The study would be very useful and we would
like to make that a part of the record if we could.
Mr. Stewart. Just quickly to conclude. Based on my
research, the costs of bringing every precinct in the country
into compliance with the requirements of 811 would be more than
double the $3 million that is currently authorized in the bill;
and in order to ensure that States have everything they need to
meet the requirements, I urge the subcommittee to increase the
bill's authorization to $1 billion.
Ms. Lofgren. Thank you very much.
[The statement of Mr. Stewart follows:]
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Ms. Lofgren. And now we are going to turn to our last
witness. Commissioner Mahoney, thank you so much for being
here.
STATEMENT OF COMMISSIONER GAIL W. MAHONEY
Ms. Mahoney. Thank you and to both Chairwomen and to
Ranking Member McCarthy, and certainly to Congressman Ehlers
from the great State of Michigan where I come from.
My name is Gail Mahoney, and I am representing the National
Association of Counties today, all of your constituents back
home; and it is my pleasure to be here and to have the
opportunity to speak for NACo. To be the cleanup woman at the
end, I really should be allowed just a couple extra minutes,
but as long as----
Ms. Lofgren. Until the bell rings.
Ms. Mahoney. My testimony is in the record and all of the
documents that we have asked to be entered into the record. I
am just going to applaud, first of all, your leadership and
concern for trying to ensure public confidence in our
democracy.
I do support the goals of H.R. 811. Every voter must have
confidence that their vote counts, that the candidates that
they have chose will be counted, and that those things can be
audited. We do support it.
But the main thing is that the intent is going to totally
bring results that we don't want. I think voter confidence will
totally be eroded, because this bill, being rushed at this
point, will cause people to think less of the voter system if
we rush this for 2008.
There is no way the counties have the money; it is an
unfunded mandate.
I am from the great State of Michigan, like I said, and
certainly the State of Michigan cannot fund again. We do use
optical scan in Michigan, but right now there are counties that
have the DREs. There is no way by 2008 that those systems can
be changed to meet this deadline.
So we certainly do not want a deja vu to occur. The
deadlines that proceed the standards, the National Institute of
Standards and Technology would be issuing guidelines for
experimental new forms and ballot scanning technology 2 years
after it reaches the polling places in America, which requires
starting to use the equipment before it has even been mandated.
So we just want to ensure public confidence in the next
generation of voting equipment. We urge you to try to slow down
this legislation and give us an opportunity to have HAVA to
work as it was intended. And had HAVA had the support
financially and the time frame that was originally intended, we
would not be here today. We would not be attempting to scrap
billions of dollars of equipment that cannot feed your
constituents back home.
So, certainly, the waste of tax dollars. We will not be
ready.
And so we would just like finally to urge you to--a uniform
ballot and standard voting equipment would be impractical. It
will stifle innovation for the future and greatly magnify the
efforts of unintended consequences.
Our Nation should not look for a single dramatic solution,
but for a sustained effort to make improvements and eliminate
sources of error.
Thank you very much for the opportunity to testify before
you today on behalf of NACo.
Ms. Lofgren. Thank you so very much.
[The statement of Ms. Mahoney follows:]
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Ms. Lofgren. And we are going to limit ourselves again, if
we could, to 3 minutes of questions; and I will ask Mr. Runyan,
who is from my county, what you would recommend be deployed in
those precincts that have paperless DREs currently deployed.
Mr. Runyan. What would be deployed in terms of Holt or what
would be----
Ms. Lofgren. What do you recommend in terms of
accessibility as well as accountability?
Mr. Runyan. Well, I think, as Secretary of State Debra
Bowen had pointed out, that one of the better solutions today
is a blended solution with optical scan and accessible ballot
marking systems; and that would be, as is in my report, my
general recommendation for most areas.
Ms. Lofgren. And do those systems already exist?
Mr. Runyan. Yes. Right. There are systems like this. They
have been tried. They are certified and they have been used in
several different States.
A good model is New Mexico, where they completely threw out
the DRE machines and replaced them; and it was actually cheaper
than what they were going to have to do to upgrade their
systems.
Ms. Lofgren. I am going to yield to Mr. McCarthy in view of
the time.
Mr. McCarthy. I just want to thank all the panelists for
coming and testifying. I do want to thank the Chairwoman for
holding this examination of H.R. 811 and for the panels that we
had earlier this week and last week.
I think something that I take from this, kind of from all
the witnesses, whether they support or oppose, there is still
work that needs to be done on this bill.
Ms. Mahoney. Absolutely.
Mr. McCarthy. For it to be more money, for it to be what
you mandate. And it sounds like everybody wants to work towards
it, that, yes, there is a place people want to get to, but it
doesn't seem like this bill is done yet. And we have an
election fast approaching.
And what is an interesting point--and one of our first
individuals that was testifying today was the Governor of
Florida, and as he begins to move on the improvements he has
made down there, regardless of where this bill goes, he is
moving up his election. And to make a dramatic shift prior to
an election, especially when you have a Presidential election--
you have a lot of the States moving their primary up--I do
think we have a goal of what to work towards.
The bill has some concepts in there I think people want to
work on, and I look forward to working with everyone, trying to
produce a bipartisan bill and something that everybody can
agree to.
Ms. Lofgren. Madam Chairwoman.
The Chairwoman. First of all, I would like to have everyone
who is here today know that this panel has submitted a letter
to the appropriators, asking for the remaining $800 million;
and of course, as we have heard today, that may just be a drop
in the bucket. But at least this committee has gone forward
with the whole notion of trying to get the rest of the money
from HAVA.
Mr. Stewart, in your testimony, you stated that the
jurisdictions would be able to implement these changes before
2008. What are you basing that on? Whereas Conny McCormack, the
Registrar Recorder/County Clerk in my County of Los Angeles,
sent me a letter stating that mandating major changes to the
2008 election cycle would invite significant problems.
Mr. Stewart. I would point to the fact that Governor Crist
is intending to make changes which are like the H.R. 811
changes before his primary in February. The fact that New
Mexico switched from DRE voting to optical scan in the course
of about 2 months, it is not optimal. They received their
scanners in August of 2006, and they were using them in early
voting in October.
I would point to--in my written testimony, I make reference
to the former EAC Commissioner, Ray Martinez, who spoke to the
Financial Services Subcommittee of the Appropriations Committee
a couple of weeks ago and described his experience. He was
engaged as a consultant for the State of New Mexico in
overseeing that implementation. It wasn't optimal time, but
they did succeed and had a successful election in doing that.
I would also look at other States that have made that
change relatively quickly. I would say, moving to a less
complicated system like an optical scan system, which is easier
for poll workers to be trained to use, would also facilitate
the implementation of this bill.
The Chairwoman. Just a statement: Commissioner Mahoney did
say that there would be challenges if this bill would come into
play for 2008, especially for county election officers.
Thank you, Madam Chairwoman.
Ms. Lofgren. Mr. Ehlers.
Mr. Ehlers. Thank you, Madam Chair.
First of all, I want to apologize to the panel for rushing
your testimony. We don't like it that way, but the floor rules
around here. When we have to be down there to vote, we have to
be down there to vote.
I do appreciate the comments and the testimony offered. We
had a couple of hearings on this bill last year. We have now
had this hearing. I think we have heard ample testimony. It is
pretty clear what the different individuals and groups think,
and it is also very clear that this is something that is going
to be very difficult to rush just because of the difficulty of
implementing something like this very quickly, particularly
since we haven't even ended paying for the last changes made.
Given our current budget situation, it is going to be hard
to scrape up a lot of money out of the Congress to rush this
through. That doesn't mean it can't be done, but it is going to
take State and local money to do it if you want it done by that
date. The direction, I think, is pretty clear.
As I mentioned earlier, I will be preparing some amendments
or a substitute to try to include a number of the comments that
have been made here. Thank you to all of you for being here.
Thank you, especially, Commissioner Mahoney; we appreciate you
being here and representing the great State of Michigan.
Actually, I am amazed at how well we have done in Michigan
under HAVA with the optical scan. The only problem I know of
last year was caused by the incompetence of a certain city
clerk who then proceeded to lose her own election. So
incompetence has its own reward.
So we appreciate the work you have done. We appreciate your
comments and that applies to everyone who is here. Thank you
very much.
Ms. Lofgren. Thank you very much.
The Chairwoman. Madam Chair, I have a point of personal
privilege.
Thank you so much for this hearing today. We had excellent
panelists, and I agree with the Ranking Member of the full
Committee in saying they had to rush through, but we got the
idea. So thank you very much for this.
Ms. Lofgren. Thank you very much. And I just appreciate
everyone who has taken their time to share their expertise.
And I would note, Mr. Stewart, the analysis that you have
done will be enormously helpful. I am not aware of anyone else
who has done that, and we don't actually have a hard copy of
it, so if we could get that from you, that will be so useful.
Mr. Stewart. Would you prefer it on disk or by e-mail?
Anyway, I can work it out with your staff.
Ms. Lofgren. Thank you very much and thanks to all of you.
The subcommittee will hold the record open for 5 days for
members andwitnesses who wish to submit additional materials in
writing.
And, again, thank you so much. The hearing is adjourned.
[Whereupon, at 12:17 p.m., the subcommittee was adjourned.]
[The information follows:]
Insert:
I am writing to ask you to oppose the Holt Bill in its entirety. HR
811 contains many dangerous provisions that, if implemented, will
surbvert our democratic processes and our ability to have citizen
oversight over our elections:
It has a huge unfunded mandate (estimated $4 billion
to pay for the text conversion device alone) that will send our
cities and towns deeply into debt.
It mandates nonexistent, untested and uncertified
equipment (text conversion device) for use in the 2008
elections.
It makes permanent the EAC and thereby centralizes
electoral regulation and control, giving unprecedented and
undemocratic power to the White House over the nation's
elections.
The EAC as an entity composed of four presidential appointees, even
in an officially non-regulatory role wields inappropriate power over
our national elections through its voting equipment certification
program and its ``voluntary'' voting system guidelines. According to a
recent GAO report, up to 44 states require compliance with federal
voting system guidelines, which effectively makes the EAC program
regulatory. In addition to the affront this manifests to our concept of
decentralized power, the EAC voting system guidelines and certification
program place an emphasis on technology over democracy, proposing high
tech, high cost, pie in the sky solutions that are unworkable and will
destabilize our election systems nationwide. This is a national
security threat we can not afford. The EAC must be abolished per the
HAVA directive to sunset it in 2006. Any necessary and positive
functions it serves can be reassigned as shown below.
The untenable and unworkable nature of the Holt Bill proposals are
evidenced in its universal rejection by all state and local election
officials as represented by the National Association of Secretaries of
State, the National Conference of State Legislators, and the National
Association of Counties. They unilaterally understand the unfunded
costs required to implement this bill, the unrealistic timelines, and
the threat it represents to state sovereignty.
One analysis indicates that in order for our state to comply with
the EAC-recommended and Holt-mandated text conversion requirement, it
would have to do some or all of the following in time for the 2008
elections:
Completely redesign its ballot, possibly in a
technology-friendly but non-voter-friendly manner
Revise its election laws to support the new ballot
design and technology
Purchase entirely new election equipment for the
entire state
The destabilizing effect these actions would have on the state of
New Hampshire and the ability of its citizens to exercise their
Constitutional right to vote in free, fair, and open elections would be
multiplied as each state across the nation attempts to comply with
these requirements according to its own particular election
configurations.
Although I am not your constituent, I am asking you to represent
the nation by opposing this bill completely, to not offer any
amendments, but rather to work with us on better and more realistic
solutions that will further election integrity for our nation.
Suggestions for alternate legislation may be found in the
references below.
Sincerely,
Nancy Tobi.
The EAC's functions, as described on its website, are listed here
in bulleted format, with suggested handover to other entities in ALL
CAPS:
* Generate technical guidance on the administration of federal
elections.--HAND OVER TO NIST & STANDARDS BOARD
* Produce voluntary voting systems guidelines.--HAND OVER TO NIST &
STANDARDS BOARD
* Research and report on matters that affect the administration of
federal elections.--HAND OVER TO STANDARDS BOARD & CITIZENS GROUP
* Otherwise provide information and guidance with respect to laws,
procedures, and technologies affecting the administration of Federal
elections.--HAND OVER TO STANDARDS BOARD & CITIZENS GROUP
* Administer payments to States to meet HAVA requirements.--HAND
OVER TO GENERAL SERVICES ADMINISTRATION
* Provide grants for election technology development and for pilot
programs to test election technology.--ELIMINATE THIS FUNCTION
* Manage funds targeted to certain programs designed to encourage
youth participation in elections.--HAND OVER TO FEC
* Develop a national program for the testing, certification, and
decertification of voting systems.--HAND OVER TO NIST & STANDARDS BOARD
* Maintain the national mail voter registration form that was
developed in accordance with the National Voter Registration Act of
1993 (NVRA), report to Congress every two years on the impact of the
NVRA on the administration of federal elections, and provide
information to States on their responsibilities under that law.--HAND
OVER TO FEC
* Audit persons who received federal funds authorized by HAVA from
the General Services Administration or the Election Assistance
Commission.--HAND OVER TO GAO
* Submit an annual report to Congress describing EAC activities for
previous fiscal year.--HAND OVER AS APPROPRIATE TO ENTITIES PICKING UP
FUNCTIONS AS DESCRIBED ABOVE
References:
Request by Voters: Alternate legislative recommendation
http://www.wethepatriots.org/HAVA/requestbyvoters.pdf
Concept proposal for federal election reform legislation
http://electionarchive.org/ucvInfo/US/EI-FedLegProposal-v2.pdf
Nancy Tobi podcast interview with Bob Fitrakis of Ohio's
FreePress.org: (Audio podcast: Why mandated equipment in Holt
does not exist and will not exist in time for their mandated
2008 timeline and what this means to the nation) http://
www.democracyfornewhampshire.com/node/view/3661
Why the Election Assistance Commission must be abolished:
Centralized executive power and bloodless coups http://
www.democracyfornewhampshire.com/node/view/3657
What's wrong with the NEW Holt Bill (HR 811)? (13 bulleted
points)
http://www.democracyfornewhampshire.com/node/view/3572
National Association of Counties and National Conference of
State Legislatures urge Congress to oppose federal election
reform (why state and local election officials and legislators
oppose the bill) http://www.democracyfornewhampshire.com/node/
view/3687
NASS Approach to Federal Legislation (why top state election
officials oppose Holt) http://www.democracyfornewhampshire.com/
node/view/3687
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