The path to litigation and judicial selections to replace citizen elections

From: Nancy Tobi <nancy_dot_tobi_at_gmail_dot_com>
Date: Tue May 22 2007 - 06:29:28 CDT

The real threat from the Holt Bill as written is that it presents infinite
opportunities for litigation challenges and judicial resolution rather than
citizen determination our election results and outcomes.

Now for all you activists jumping with glee over the opportunity to sue the
pants off your corrupt state and local election officials, bear one single
thought in mind: Florida 2000.

This single litigative challenge to an election outcome from a single state
threw the nation into chaos and resulted in the Judiciary Branch (about as
nonrepresentational a branch as we have) selecting the President. Is this
the future you want?

Hold that thought and consider four things now:
1) The testimony of Jill Lavine regarding the time required to count DRE
toilet paper trails by hand
2) The results of a Cuyahoga County study regarding error rates in counting
toilet paper trails
3) An analysis of the conflicting and impossible mandates combined with the
nonsynchronous effective dates of the Holt Bill provisions
4) Another choice different from the false choices of "Holt Bill now or
something worse or nothing at all for 2008"

1) Jill Lavine's testimony:
http://www.eac.gov/docs/Transcript%20042006.TXT

My name is Jill LaVine, I'm from Sacramento, California.I'm the Registrar
and I have been working in elections for a little over 20 years.... A total
of 1,612 valid ballots were counted at the early voting locations. And at
this time I believe we were the first jurisdiction in the nation to go out
with the voter verified paper audit trail. This experiment was very closely
watched and it was controlled under some very controlled conditions. We had
experienced people at each staff. We had -- from the vendor at each of the
polling places.

The equipment had to meet of course all of the Secretary of State's
requirements and our requirements and expectations. At the end of this
project, knowing the California code requires that during the canvas of any
vote that 1 percent of the precincts chosen at random will be manually
recounted to verify the equipment, as part of the canvas, we chose one of
the units or one of the polling sites and recounted these ballots.

The precinct we selected had 114 ballots. Because it was possible for a
voter from any one of the 246 ballot types in the county to vote at the
early sites, it made this recount very difficult and our tally sheet
consisted of not just one page but several pages to accommodate all the
choices.

We had four teams of two sit at tables with tally sheets to handle all the
contests. The paper ballots were held together with large binder
clips. Because
they varied in length from 11 inches to over 20 inches, they rolled and it
was very difficult to handle. I was watching several of the teams. They
would put a brick on paper and paper weighted each end of these little
curled ballots and start counting, and as soon as it moved or something
bumped it, it rolled back up again and they'd be starting all over. The
vendor also used a heat sensitive thermal paper that left kind of an icky
residue on our recounters' hands, and so they said, can we have some rubber
gloves? So those were provided, too.

We allowed provisional voting for this early -- for this ballot project and
processing the provisional ballots was a very quick and easy process. We
also allowed for write-in votes in this process and that was very quick and
easy also, because in one case presentation of the reports made it very easy
to count those write-in votes. So knowing that this project was under
scrutiny, we verified the number of voters on the machine with the report.
We verified the report with the paper record. Then we verified the machine
totals with the paper records, so we did several cross checks to make sure
we got it all together. And when the counting was all completed we were
off by one ballot.

So what we learned is after printing out a report, that a fleeing voter who
actually voted who didn't, you know, push the cast button, cast ballot
button didn'tproduce a paper record for privacy reasons. So therefore,
going back to the report, we found the fleeing voter and then we actually
confirmed the number of that voter and we took that activity report and
everything came out right.

But it took 127 and a half hours to recount 814 ballots, or approximately an
hour and 15 minutes for each ballot.

The number from the machine count did match the paper of votes for the paper
ballots exactly. Now, we are very thankful that this project was a
November election, because had it been a primary election in California with
our eight parties and our three non-partisan crossover opportunities that
California allows, I think we'd still be counting. Also the paper audit
trail did not print in Spanish, so we recounted in English only. This is
before we had any true rules about what a paper audit trail should be and
we were kind of stabbing in the dark here.

We were grateful that there were no challenged contests and it was not
necessary to count any more than the 114 ballots. Otherwise, there would be
significant delays in those election results.

 I want you to know that we canceled that RFP and we've learned now with the
third time after that.
2) Study on toilet paper trails:

In April 2006, prior to the May 2 primary, the Cuyahoga County Commission
contracted with the Election Science Institute (ESI) to conduct a
comprehensive review of how their new voting system actually worked on an
election day. ESI's report, including the performance of the Diebold
Accuvote TSX voting system, was released by the Cuyahoga County
Commissioners:

"…members of the manual count team found that 10 percent of the paper
ballots were physically compromised in some way."

(Election Science Institute, 08/22/2006)
3) Analysis of conflicting and nonimplementable mandates and the
nonsynchronous effective dates of the Holt Bill provisions:

Holt Bill Provision, Effective date 2008: Only completely paperless systems,
like Georgia and Maryland, must meet the new equipment requirements for text
conversion and durable paper. All others using toilet paper roll DRE-printer
systems may stay in place until 2010, but still must meet audit provisions
in 2008.

Holt Bill Provision, Effective date 2008 : ALL jurisdictions must meet audit
provisions as defined in the bill.

HR 811 Audit requirements:
''(2) With respect to votes cast at the precinct or equivalent location on
or before the date of the election (other than provisional ballots described
in paragraph (3)), the Election Auditor shall administer the hand count of
the votes on the voter-verified paper ballots required to be produced and
preserved under section 301(a)(2)(A) and the comparison of the count of the
votes on those ballots with the final unofficial count of such votes as
announced by the State.

''(1) IN GENERAL.—If the Election Auditor finds that any of the hand counts
administered under this section do not match the final unofficial tally of
the results of an election, the Election Auditor shall administer hand
counts under this section of such additional precincts (or equivalent
jurisdictions) as the Election Auditor considers appropriate to resolve any
concerns resulting from the audit and ensure the accuracy of the results.

''(2) ESTABLISHMENT AND PUBLICATION OF PROCEDURES GOVERNING ADDITIONAL
AUDITS.—Not later than August 1, 2008, each State shall establish and
publish procedures for carrying out the additional audits under this
subsection, including the means by which the State shall resolve any
concerns resulting from the audit with finality and ensure the accuracy of
the results.

Now answer these questions about the Holt audit provisions:

   1. How does one meet the specifications for auditing the "voter
   verified paper ballots" in 2008 when they have been granted a 'delay' in the
   mandate to have a voting system that provides the 'voter verified paper
   ballots'?
   2. How does one conduct an "audit" using toilet paper rolls?
   3. How long does it take to count toilet paper rolls?
   4. Are 10% unreadable/spoiled toilet paper records (a la Cuyahoga
   County results) considered part of audit discrepancies that must be
   addressed? How does one address this for the purposes of an audit, which is
   designed to "verify" results?
   5. How does one reconcile discrepancies using toilet paper rolls?
   6. How does one complete the following reporting requirements after
   conducting an "audit" using toilet paper rolls?

''SEC. 325. PUBLICATION OF RESULTS. ''(a) SUBMISSION TO COMMISSION.—As soon
as practicable after the completion of an audit under this subtitle, the
Election Auditor of a State shall submit to the Commission the results of
the audit, and shall include in the submission a comparison of the results
of the election in the precinct as determined by the Election Auditor under
the audit and the final unofficial vote count in the precinct as announced
by the State and all undervotes, overvotes, blank ballots, and spoiled,
voided or cancelled ballots, as well as a list of any discrepancies
discovered between the initial, subsequent, and final hand counts
administered by the Election Auditor and such final unofficial vote count
and any explanation for such discrepancies, broken down by the categories of
votes described in paragraphs (2) and (3) of section 323(a).

What happens if a state does not meet Holt mandated requirements for
auditing and reporting in time to certify election results?

HR 811:
''(c) DELAY IN CERTIFICATION OF RESULTS BY STATE.— ''(1) PROHIBITING
CERTIFICATION UNTIL COMPLETION OF AUDITS.—No State may certify the results
of any election which is subject to an audit under this subtitle prior to:
''(A) to the completion of the audit (and, if required, any additional audit
conducted under section 323(d)(1)) and the announcement and submission of
the results of each such audit to the Commission for publication of the
information required under this section; and ''(B) the completion of any
procedure established by the State pursuant to section 323(d)(2) to resolve
discrepancies and ensure the accuracy of results. '

'(2) DEADLINE FOR COMPLETION OF AUDITS OF PRESIDENTIAL ELECTIONS.—In the
case of an election for electors for President and Vice President which is
subject to an audit under this subtitle, the State shall complete the audits
and announce and submit the results to the Commission for publication of the
information required under this section in time for the State to certify the
results of the election and provide for the final determination of any
controversy or contest concerning the appointment of such electors prior to
the deadline described in section 6 of title 3, United States Code. —In the
case of an election for electors for President and Vice President which is
subject to an audit under this subtitle, the State shall complete the audits
and announce and submit the results to the Commission for publication of the
information required under this section in time for the State to certify the
results of the election and provide for the final determination of any
controversy or contest concerning the appointment of such electors prior to
the deadline described in section 6 of title 3, United States Code.

Section 6 of title 3 US Code states:

   1. "The electors of President and Vice President shall be appointed,
      in each State, on the Tuesday next after the first Monday in November, in
      every fourth year succeeding every election of a President and Vice
      President."
      2. It shall be the duty of the executive of each State, as soon
      as practicable after the conclusion of the appointment of the electors in
      such State by the final ascertainment, under and in pursuance of
the laws of
      such State providing for such ascertainment, to communicate by registered
      mail under the seal of the State to the Archivist of the United States a
      certificate of such ascertainment of the electors appointed,
setting forth
      the names of such electors and the canvass or other
ascertainment under the
      laws of such State of the number of votes given or cast for each
person for
      whose appointment any and all votes have been given or cast; and it shall
      also thereupon be the duty of the executive of each State to
deliver to the
      electors of such State, on or before the day on which they are
      required by section 7 of this title to meet, six
      duplicate-originals of the same certificate under the seal of the State;
      3. The electors of President and Vice President of each State
      shall meet and give their votes on the first Monday after the
      second Wednesday in December next following their appointment at
      such place in each State as the legislature of such State shall direct.

Now answer these questions about the Holt audit and reporting provisions:

   1. Would we require a US Constitutional amendment now to change the
   date of our elections so that we can adhere to Holt auditing timelines?
   2. Can a state certify results for presidential electors in the
   Constitutional time frame of roughly 4 weeks, even if it has not met
   Holt-EAC audit and reporting requirements?
   3. What role, if any, does the EAC play with respect to "accepting"
   audit reports from the States or follow up if the States do not meet the
   audit reporting requirements?
   4. Does the EAC need to 'sign off' on States meeting this requirement
   before States can certify election results?`
   5. What are the consequences for States NOT filing a report with the
   EAC as required in Holt?
   6. How will states meet Holt's requirements to "resolve (audit)
   discrepancies" to the EAC if the discrepancies result from unusable DRE
   paper "trails"?
   7. Have we ever had a situation where any state has missed the
   constitutional deadline for certifying results in a presidential election?

Isn't the Constitutional timeline one of the reasons given in Bush v Gore
for aborting electoral process of vote counting resulting in the Supremes
decide the outcome of the 2000 presidential "election"?

    ________________________________

4) Another choice: *ALTERNATE SIMPLE AND STRAIGHTFORWARD AND IMPLEMENTABLE,
PRACTICAL, LEGISLATIVE PROPOSAL FOR REAL PAPER TRAIL AND CHECKS AND BALANCES
WITH INCENTIVES FOR REAL PAPER BALLOTS AND HAND COUNTS*

1) *In support of the principle of checks and balances, citizen oversight:*
* *REQUIRING BALLOTS TO BE OFFERED AND PROVIDED.—The appropriate election
official at each polling place in an election for Federal office shall offer
each individual who is eligible to cast a vote in the election at the
polling place the opportunity to cast the vote using a pre-printed paper
ballot which the individual may mark by hand and which is not produced by a
direct recording electronic voting machine. If the individual accepts the
offer to cast the vote using such a ballot, the official shall provide the
individual with the ballot and the supplies necessary to mark the ballot,
and shall ensure (to the greatest extent practicable) that the waiting
period for the individual to cast a vote is not greater than the waiting
period for an individual who does not agree to cast the vote using such a
paper ballot under this paragraph. Jurisdictions will ensure that a
sufficient supply of paper ballots be available, that notice of the option
is provided, that the ballots are treated with equal dignity provided to
other ballots, including canvassing/counting those ballots on election day,
and that consequences are provided for violations. The choice of the voter
as to the form of their ballot shall be prominently posted at the polling
place in all areas where informational posters are placed and in any event
shall be prominently posted at the point where the voter is required to
choose ballot form. Pollworkers shall verbally inform voters of their choice
as to each voter, and nothing shall be construed to prohibit citizens from
providing the same or other additional information concerning choice of
ballot and such informational activities shall not be considered
electioneering, so long as they do not expressly refer to the choices on the
ballot, but only to the voter's choice of a type of ballot. In the event of
violations related to the provision, canvassing, and handling of paper
ballots, any citizen eligible to vote in the jurisdiction will have standing
to go to court to require compliance and authority for the court to grant
immediate relief. Funding for training and documentation for election
officials and election workers in the proper hand counting methods and
election administration using paper ballots will be appropriated to support
this provision. Prior to election certification, appropriate protocols must
be implemented to ensure the integrity of election results as authenticated
by transparent vote counting methods.

(Compliance to be determined by each state in a state plan process that
supports the standards for democratic elections, those being citizen
oversight and security, and which process includes diverse stakeholders
group including citizen representation, published plans, and consequences
for noncompliance. State Plans will be published in the Federal Register.)

Effective Date State Plan: February, 2008

Effective Date Implementation: General Election November 2008

2) *In support of the principle of fiscal responsibility and stabilization
of state governmental administration, checks and balances, citizen
oversight:* BUYOUT funding for states wishing to replace DRE systems with
paper-based voting systems. (BUYOUT funding can be applied to paper ballot,
optical scan voting systems, paper ballot, hand count systems, or a
combination thereof. In the case of buyout funding as applied to hand count
systems, training costs may be included.)

(Compliance to be determined by each state in a state plan process that
supports the standards for democratic elections, those being citizen
oversight and security, and which process includes diverse stakeholders
group including citizen representation, published plans, and consequences
for noncompliance. State Plans will be published in the Federal Register.)

Effective Date: February, 2008

3) *In support of the principle of checks and balances:* Dissolution of EAC
and responsibilities reallocated to appropriate representational groups, as
described below)

Effective Date: January 2008

4) *In support of the principle of fiscal responsibility and stabilization
of state governmental administration:* Prohibition on any additional
unfunded mandates being added into the bill

5) *In support of the ninth amendment that no single right can trample or
trounce others:* Appropriations for real study, with real stakeholders
including citizen representation and broad range of disability activists,
election officials, and other solution makers, to find consensus, practical,
implementable solutions to support the often conflicting voting rights of
citizen oversight, security, accuracy, and accessibility.

Effective Date: Upon passage

EAC reallocation of responsibilities:

   - Generate technical guidance on the administration of federal
   elections. – HAND OVER TO NIST & STANDARDS BOARD WITH CITIZEN REPRESENTATION
   - Produce voluntary voting systems guidelines. – HAND OVER TO NIST &
   STANDARDS BOARD WITH CITIZEN REPRESENTATION
   - 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 DEPT. OF EDUCATION
   - Develop a national program for the testing, certification, and
   decertification of voting systems. – HAND OVER TO NIST & STANDARDS BOARD
   WITH CITIZEN REPRESENTATION
   - 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 BACK 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
   the previous fiscal year. – HAND OVER AS APPROPRIATE TO ENTITIES PICKING UP
   FUNCTIONS AS DESCRIBED ABOVE

-- 
Nancy Tobi
Co-Founder, Democracy For New Hampshire
Chair, NH Fair Elections Committee
Legislative Coordinator, Election Defense Alliance
nancy.tobi@gmail.com
www.DemocracyForNewHampshire.com
603.315.4500
-- 
Nancy Tobi
Co-Founder, Democracy For New Hampshire
Chair, NH Fair Elections Committee
Legislative Coordinator, Election Defense Alliance
nancy.tobi@gmail.com
www.DemocracyForNewHampshire.com
603.315.4500

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Received on Thu May 31 23:17:04 2007

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