Thirteen Significant Problems in H.R. 811, the New Holt Bill

Thirteen Issues with the Holt Bill (HR 811) As Written

Contact: Nancy Tobi, ntobi(at)democracyfornewhampshire(dot)com, 603.315.4500

(Click here for PDF file download)

1. The timeline for 2008 implementation is unobtainable by the federal government's very own guidelines with respect to the EAC Certification Program and voting equipment that would be available, tested, and certified to that program’s requirements. Because 39 states require some form of compliance with Federal Guidelines, they must use equipment to meet these EAC standards. However, there is no voting equipment on the market that can or will meet the text conversion (“Accessible Media”) or the VVPAT (archival quality paper) requirements under the EAC Certification Program by 2008.

2. Section 2 Special Rule for Votes Cast by Absent Military and Oversees Voters. Pre-empts state's rights to disallow fax and e-mailed ballots. States, such as NH, use state-issued paper ballots for the Military and Overseas voters in order to protect their voting privacy and the integrity of the state election.

3. Section 2(d)(1) The Conversion of Printed Content to Accessible Media is an unfunded mandate for voting equipment that does not exist and probably will not exist until at the earliest 2012-2016. Jim Dickson, lobbyist for American Association of People with Disabilities, has publicly stated that the AAPD and other disability groups oppose the Holt Bill on these grounds.

4. Section 247(c)(Item 9) The prohibition of undisclosed software does not provide any exemption for COTS software (commercial off the shelf). No existing voting equipment meets this requirement because they all use COTS, and many use Microsoft software. Microsoft will never share its code, and this requirement would make every piece of voting equipment in use today illegal, requiring jurisdictions to replace equipment at a high cost, unfunded by HR 811.

5. Section 247(c)(Item 13) Durability requirements for paper ballots require archival quality paper. No equipment currently on the market will work with this requirement and it could take several years to develop. Federal law only requires the paper to last 22 months. Why require it to be archival? Again, this requirement would make every piece of voting equipment in use today illegal, requiring jurisdictions to replace equipment at a high cost, unfunded by HR 811.

6. Section 247 (4) (a) Procedures for conducting testing and payment of user fees that establishes an escrow account. The EAC made it clear that they cannot pay the test lab under current law (“Miscellaneous Receipts”) because the payment must come directly from vendor. On its face, the law appears to be illegal. If the law is changed to accommodate EAC payments to test labs, there is the additional risk of expanding EAC powers and authority. EAC is a four-person commission presidentially appointed, and expanded power to the executive branch in the oversight of federal elections is inappropriate.

7. Section 4 Extension of Authorization of the EAC. The EAC under HAVA should have been sunsetted in 2006, when their mandate to fulfill HAVA was complete. Extension of this executive-appointed body raises the risk that Congress will expand the regulatory authority of the EAC, which expands the power of the Executive Branch over federal elections.

8. Section 321 Establishment of Election Audit Boards mandates a whole new state election function that may or may not exist in any given state, and which may or may not be suitable in any given state.

9. Section 322 thru 326 Number of Ballots Counted Under Audits uses unreasonable auditing protocols that are insufficient to uncover any discrepancies, fraud or failure. This also creates the State Audit Board, which is non-existent in several states, and is another unfunded mandate.

10. Section 328. Effective Date for Audits. Impossible effective date for implementation among states for whom no such audit function currently exists.

11. Section 7. Effective date for implementing the entire bill is also impossible for all the reasons given above with respect to available voting equipment to match HR 811 requirements.

12. Section 247. (3)(d)(4) Allocating $300 million. Estimates for accessibility devices alone reach $4 billion. This does not even address the matter of new VVPAT equipment, or new state functions for auditing and certification of voting equipment.

13. Section 247(a)(c) Any place that calls for an "appropriate election official" to make a decision should raise a red flag. Many states do not currently have voting equipment offices in place. Funding such a state function can run up to $1 million/year, as is seen in Georgia with the Kennesaw budget. How quickly can states be expected to find that appropriate official, set up an office and fund it? This is not a one- or two- year process; it asks more of our secretaries of state (or some other entity that does not yet exist) than has been expected to date. It is unnecessarily complex.