H. Rept. 110-582 - EMERGENCY ASSISTANCE FOR SECURE ELECTIONS ACT OF 2008110th Congress (2007-2008)
Committee Report
| Report Type: | House Report |
|---|---|
| Accompanies: | H.R.5036 |
| Committees: |
H. Rept. 110-582 - 110th Congress (2007-2008)
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House Report 110-582 - EMERGENCY ASSISTANCE FOR SECURE ELECTIONS ACT OF 2008
[House Report 110-582]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-582
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
EMERGENCY ASSISTANCE FOR SECURE ELECTIONS ACT OF 2008
_______
April 14, 2008.--Ordered to be printed
_______
Mr. Brady of Pennsylvania, from the Committee on House Administration,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 5036]
[Including cost estimate of the Congressional Budget Office]
The Committee on House Administration, to whom was referred
the bill (H.R. 5036) to direct the Administrator of General
Services to reimburse certain jurisdictions for the costs of
obtaining paper ballot voting systems for the general elections
for Federal office to be held in November 2008, to reimburse
jurisdictions for the costs incurred in conducting audits or
hand counting of the results of the general elections for
Federal office to be held in November 2008, and for other
purposes, having considered the same, report favorably thereon
with amendments and recommend that the bill as amended do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Emergency Assistance for Secure
Elections Act of 2008''.
SEC. 2. PAYMENTS TO CERTAIN JURISDICTIONS CONDUCTING 2008 GENERAL
ELECTIONS.
(a) Reimbursement for Conversion to Paper Ballot Voting System.--
(1) In general.--The Election Assistance Commission shall pay
to each eligible jurisdiction an amount equal to the sum of the
following:
(A) The documented reasonable costs paid or incurred
by such jurisdiction to replace any voting systems used
to conduct the general elections for Federal office
held in November 2006 that did not use or produce a
paper ballot verified by the voter or a paper ballot
printout verifiable by the voter at the time the vote
is cast with paper ballot voting systems.
(B) The documented reasonable costs paid or incurred
by such jurisdiction to obtain non-tabulating ballot
marking devices that are accessible for individuals
with disabilities in accordance with the requirements
of section 301(a)(3) of the Help America Vote Act of
2002.
(C) The documented reasonable costs paid or incurred
by such jurisdiction to obtain ballot marking stations
or voting booths for the protection of voter privacy.
(D) The documented reasonable costs paid or incurred
by such jurisdiction to obtain paper ballots.
(E) The documented reasonable costs paid or incurred
by such jurisdiction to obtain precinct-based equipment
that tabulates paper ballots or scans paper ballots.
(F) The documented reasonable administrative costs
paid or incurred by such jurisdiction that are
associated with meeting the requirements for an
eligible jurisdiction.
(2) Eligible jurisdiction defined.--In this subsection, an
``eligible jurisdiction'' means a jurisdiction that submits to
the Commission (and, in the case of a county or equivalent
jurisdiction, provides a copy to the State), at such time and
in such form as the Commission may require, an application
containing--
(A) assurances that the jurisdiction conducted
regularly scheduled general elections for Federal
office in November 2006 using (in whole or in part) a
voting system that did not use or produce a paper
ballot verified by the voter or a paper ballot printout
verifiable by the voter at the time the vote is cast;
(B) assurances that the jurisdiction will conduct the
regularly scheduled general elections for Federal
office to be held in November 2008 using only paper
ballot voting systems;
(C) assurances that the jurisdiction has obtained or
will obtain a sufficient number of non-tabulating
ballot marking devices that are accessible for
individuals with disabilities in accordance with the
requirements of section 301(a)(3) of the Help America
Vote Act of 2002;
(D) assurances that the jurisdiction has obtained or
will obtain a sufficient number of ballot marking
stations or voting booths for the protection of voter
privacy;
(E) assurances that the jurisdiction has obtained or
will obtain a sufficient number of paper ballots;
(F) such information and assurances as the Commission
may require to make the determinations under paragraph
(1); and
(G) such other information and assurances as the
Commission may require.
(3) Determinations of reasonableness of costs.--The
determinations under paragraph (1) of whether costs paid or
incurred by a jurisdiction are reasonable shall be made by the
Commission.
(4) Paper ballot voting system defined.--In this subsection,
a ``paper ballot voting system'' means a voting system that
uses a paper ballot marked by the voter by hand or a paper
ballot marked by the voter with the assistance of a non-
tabulating ballot marking device described in paragraph (1)(B).
(b) Reimbursement for Retrofitting of Direct Recording Electronic
Voting Systems to Produce Voter Verifiable Paper Records.--
(1) In general.--The Commission shall pay to each eligible
jurisdiction an amount equal to the documented reasonable costs
paid or incurred by such jurisdiction to retrofit direct
recording electronic voting systems so that the systems will
produce a voter verifiable paper record of the marked ballot
for verification by the voter at the time the vote is cast,
including the costs of obtaining printers to produce the
records.
(2) Eligible jurisdiction defined.--In this subsection, an
``eligible jurisdiction'' means a jurisdiction that submits to
the Commission (and, in the case of a county or equivalent
jurisdiction, provides a copy to the State), at such time and
in such form as the Commission may require, an application
containing--
(A) assurances that the jurisdiction has obtained or
will obtain a printer for and retrofit each direct
recording electronic voting system used to conduct the
general elections for Federal office held in November
2008 so that the system will produce a voter verifiable
paper record of the marked ballot for verification by
the voter;
(B) such information and assurances as the Commission
may require to make the determinations under paragraph
(1); and
(C) such other information and assurances as the
Commission may require.
(3) Determination of reasonableness of costs.--The
determinations under paragraph (1) of whether costs paid or
incurred by a jurisdiction are reasonable shall be made by the
Commission.
(c) Reimbursement for Provision of Backup Paper Ballots by
Jurisdictions Using Direct Recording Electronic Voting Systems.--
(1) In general.--The Commission shall pay to each eligible
jurisdiction an amount equal to the documented reasonable costs
paid or incurred by such jurisdiction to obtain, deploy, and
tabulate backup paper ballots (and related supplies and
equipment) that may be used in the event of the failure of a
direct recording electronic voting system in the regularly
scheduled general elections for Federal office to be held in
November 2008.
(2) Eligible jurisdiction defined.--In this subsection, an
``eligible jurisdiction'' means a jurisdiction that submits to
the Commission (and, in the case of a county or equivalent
jurisdiction, provides a copy to the State), at such time and
in such form as the Commission may require, an application
containing--
(A) assurances that the jurisdiction will post, in a
conspicuous manner at all polling places at which a
direct recording electronic voting system will be used
in such elections, a notice stating that backup paper
ballots are available at the polling place and that a
voter is entitled to use such a ballot upon the failure
of a voting system;
(B) assurances that the jurisdiction counts each such
backup paper ballot cast by a voter as a regular ballot
cast in the election, and does not treat it (for
eligibility purposes) as a provisional ballot under
section 302(a) of the Help America Vote Act of 2002,
unless the individual casting the ballot would have
otherwise been required to cast a provisional ballot;
(C) such information and assurances as the Commission
may require to make the determinations under paragraph
(1); and
(D) such other information and assurances as the
Commission may require.
(3) Determination of reasonableness of costs.--The
determinations under paragraph (1) of whether costs paid or
incurred by a jurisdiction are reasonable shall be made by the
Commission.
(d) Amounts.--There are authorized to be appropriated to the
Commission such sums as may be necessary for payments under this
section. Any amounts appropriated pursuant to the authorization under
this subsection shall remain available until expended.
SEC. 3. PAYMENTS FOR CONDUCTING MANUAL AUDITS OF RESULTS OF 2008
GENERAL ELECTIONS.
(a) Payments.--
(1) Eligibility for payments.--If a State conducts manual
audits of the results of any of the regularly scheduled general
elections for Federal office in November 2008 (and, at the
option of the State, conducts audits of elections for State and
local office held at the same time as such election) in
accordance with the requirements of this section, the
Commission shall make a payment to the State in an amount equal
to the documented reasonable costs incurred by the State in
conducting the audits.
(2) Certification of compliance and costs.--
(A) Certification required.--In order to receive a
payment under this section, a State shall submit to the
Commission, in such form as the Commission may require,
a statement containing--
(i) a certification that the State conducted
the audits in accordance with all of the
requirements of this section;
(ii) a statement of the reasonable costs
incurred in conducting the audits; and
(iii) such other information and assurances
as the Commission may require.
(B) Amount of payment.--The amount of a payment made
to a State under this section shall be equal to the
reasonable costs incurred in conducting the audits.
(C) Determination of reasonableness of costs.--The
determinations under this paragraph of whether costs
incurred by a State are reasonable shall be made by the
Commission.
(3) Timing of payments.--The Commission shall make the
payment required under this section to a State not later than
30 days after receiving the statement submitted by the State
under paragraph (2).
(4) Mandatory immediate reimbursement of counties and other
jurisdictions.--If a county or other jurisdiction responsible
for the administration of an election in a State incurs costs
as the result of the State conducting an audit of the election
in accordance with this section, the State shall reimburse the
county or jurisdiction for such costs immediately upon
receiving the payment from the Commission under paragraph (3).
(5) Authorization of appropriations.--There are authorized to
be appropriated to the Commission such sums as may be necessary
for payments under this section. Any amounts appropriated
pursuant to the authorization under this subsection shall
remain available until expended.
(b) Audit Requirements.--In order to receive a payment under this
section for conducting an audit, the State shall meet the following
minimum requirements:
(1) Not later than 30 days before the date of the regularly
scheduled general election for Federal office in November 2008,
the State shall establish and publish guidelines, standards,
and procedures to be used in conducting audits in accordance
with this section.
(2) The State shall select an appropriate entity to oversee
the administration of the audit, in accordance with such
criteria as the State considers appropriate consistent with the
requirements of this section, except that the entity must meet
a general standard of independence as defined by the State.
(3) The State shall determine whether the units in which the
audit will be conducted will be precincts or some alternative
auditing unit, and shall apply that determination in a uniform
manner for all audits conducted in accordance with this
section.
(4) The State shall select the precincts or alternative
auditing units in which audits are conducted in accordance with
this section in a random manner following the election after
the final unofficial vote count (as defined by the State) has
been announced, such that each precinct or alternative auditing
unit in which the election was held has an equal chance of
being selected, subject to paragraph (9), except that the State
shall ensure that at least one precinct or alternative auditing
unit is selected in each county in which the election is held.
(5) The audit shall be conducted in not less than 2 percent
of the precincts or alternative auditing units in the State (in
the case of a general election for the office of Senator) or
the Congressional district involved (in the case of an election
for the office of Representative in, or Delegate or Resident
Commissioner to, the Congress).
(6) The State shall determine the stage of the tabulation
process at which the audit will be conducted, and shall apply
that determination in a uniform manner for all audits conducted
in accordance with this section, except that the audit shall
commence within 48 hours after the State or jurisdiction
involved announces the final unofficial vote count (as defined
by the State) in each precinct in which votes are cast in the
election which is the subject of the audit.
(7) With respect to each precinct or alternative audit unit
audited, the State shall ensure that a voter verified paper
ballot or paper ballot printout verifiable by the voter at the
time the vote is cast is available for every vote cast in the
precinct or alternative audit unit, and that the tally produced
by counting all of those paper ballots or paper ballot
printouts by hand is compared with the corresponding final
unofficial vote count (as defined by the State) announced with
respect to that precinct or audit unit in the election.
(8) Within each precinct or alternative audit unit, the audit
shall include all ballots cast by all individuals who voted in
or who are under the jurisdiction of the precinct or
alternative audit unit with respect to the election, including
absentee ballots (subject to paragraph (9)), early ballots,
emergency ballots, and provisional ballots, without regard to
the time, place, or manner in which the ballots were cast.
(9) If a State establishes a separate precinct for purposes
of counting the absentee ballots cast in the election and
treats all absentee ballots as having been cast in that
precinct, and if the state does not make absentee ballots
sortable by precinct and include those ballots in the hand
count described in paragraph (7) which is administered with
respect to that precinct, the State may divide absentee ballots
into audit units approximately equal in size to the average
precinct in the State in terms of the number of ballots cast,
and shall randomly select and include at least 2 percent of
those audit units in the audit. Any audit carried out with
respect to such an audit unit shall meet the same standards
applicable under paragraph (7) to audits carried out with
respect to other precincts and alternative audit units,
including the requirement that all paper ballots be counted by
hand.
(10) The audit shall be conducted in a public and transparent
manner, such that members of the public are able to observe the
entire process.
(c) Collection and Submission of Audit Results; Publication.--
(1) State submission of report.--In order to receive a
payment under this section, a State shall submit to the
Commission a report, in such form as the Commission may
require, on the results of each audit conducted under this
section.
(2) Commission action.--The Commission may request additional
information from a State based on the report submitted under
paragraph (1).
(3) Publication.--The Commission shall publish each report
submitted under paragraph (1) upon receipt.
(d) Delay in Certification of Results by State.--No State may certify
the results of any election which is subject to an audit under this
section prior to completing the audit, resolving discrepancies
discovered in the audit, and submitting the report required under
subsection (c).
SEC. 4. PAYMENTS FOR CONDUCTING HAND COUNTS OF RESULTS OF 2008 GENERAL
ELECTIONS.
(a) Payments.--
(1) Eligibility for payments.--If a State, county, or
equivalent location tallies the results of any regularly
scheduled general election for Federal office in November 2008
by conducting a hand count of the votes cast on the paper
ballots used in the election (including paper ballot printouts
verifiable by the voter at the time the vote is cast) in
accordance with the requirements of this section, the
Commission shall make a payment to the State, county, or
equivalent location in an amount equal to the documented
reasonable costs incurred by the State, county, or equivalent
location in conducting the hand counts.
(2) Certification of compliance and costs.--
(A) Certification required.--In order to receive a
payment under this section, a State, county, or
equivalent location shall submit to the Commission
(and, in the case of a county or equivalent
jurisdiction, shall provide a copy to the State), in
such form as the Commission may require, a statement
containing--
(i) a certification that the State, county,
or equivalent location conducted the hand
counts in accordance with all of the
requirements of this section;
(ii) a statement of the reasonable costs
incurred by the State, county, or equivalent
location in conducting the hand counts; and
(iii) such other information and assurances
as the Commission may require.
(B) Amount of payment.--The amount of a payment made
to a State, county, or equivalent location under this
section shall be equal to the reasonable costs incurred
by the State, county, or equivalent location in
conducting the hand counts.
(C) Determination of reasonableness of costs.--The
determinations under this paragraph of whether costs
incurred by a State, county, or equivalent location are
reasonable shall be made by the Commission.
(3) Timing of payments.--The Commission shall make the
payment required under this section to a State, county, or
equivalent location not later than 30 days after receiving the
statement submitted by the State, county, or equivalent
location under paragraph (2).
(4) Authorization of appropriations.--There are authorized to
be appropriated to the Commission such sums as may be necessary
for payments under this section. Any amounts appropriated
pursuant to the authorization under this subsection shall
remain available until expended.
(b) Hand Counts Described.--
(1) In general.--A hand count conducted in accordance with
this section is a count of all of the paper ballots on which
votes were cast in the election (including paper ballot
printouts verifiable by the voter at the time the vote is
cast), including votes cast on an early, absentee, emergency,
and provisional basis, which is conducted by hand to determine
the winner of the election and is conducted without using
electronic equipment or software.
(2) Completeness.--With respect to each jurisdiction in which
a hand count is conducted, the State, county, or equivalent
location shall ensure that a voter verified paper ballot or
paper ballot printout verifiable by the voter at the time the
vote is cast is available for every vote cast in the
jurisdiction.
(c) Process for Conducting Hand Counts.--
(1) In general.--In order to meet the requirements of this
section, a hand count of the ballots cast in an election shall
be conducted in accordance with the following procedures:
(A) After the closing of the polls on the date of the
election, the appropriate election official shall
secure the ballots at the polling place (or, in the
case of ballots cast at any other location, at the
office of the chief election official of the
jurisdiction conducting the hand count).
(B) Beginning at any time after the expiration of the
8-hour period that begins at the time the polls close
on the date of the election, the jurisdiction shall
conduct an initial hand count of the ballots cast in
the election, using the ballots which are eligible to
be counted in the election as of the time the polls are
closed.
(C) Any ballot which is eligible to be counted in the
election but which is not included in the initial count
conducted under subparagraph (B), including a
provisional ballot cast by an individual who is
determined to be eligible to vote in the election or an
absentee ballot received after the date of the election
but prior to the applicable deadline under State law
for the receipt of absentee ballots, shall be subject
to a hand count in accordance with this section and
added to the tally conducted under subparagraph (B) not
later than 48 hours after the ballot is determined to
be eligible to be counted.
(D) The hand count shall be conducted by a team of
not fewer than 2 individuals who shall be witnessed by
at least one observer sitting at the same table with
such individuals. Except as provided in paragraph (2),
all such individuals shall be election officials of the
jurisdiction in which the hand count is conducted. The
number of such individuals who are members of the
political party whose candidates received the greatest
number of the aggregate votes cast in the regularly
scheduled general elections for Federal office held in
the State in November 2006 shall be equal to the number
of such individuals who are members of the political
party whose candidates received the second greatest
number of the aggregate votes cast in the regularly
scheduled general elections for Federal office held in
the State in November 2006.
(E) After the completion of the hand count, the
ballots may be run through a tabulating machine or
scanner for comparison with the tally, if such a
machine or scanner is available.
(2) Use of other personnel.--An individual who is not an
election official of the jurisdiction in which a hand count is
conducted under this section may serve on a team conducting the
hand count or may serve as an observer of a team conducting the
hand count if the jurisdiction certifies that the individual
has completed such training as the jurisdiction deems
appropriate to conduct or observe the hand count (as the case
may be).
(3) Location.--The hand counts conducted under this section
of the ballots cast in an election shall be conducted--
(A) in the case of ballots cast at a polling place on
the date of the election, at the polling place at which
the ballots were cast; or
(B) in the case of any other ballots, at the office
of the chief election official of the jurisdiction
conducting the hand count.
(4) Information included in results.--Each hand count
conducted under this section shall produce the following
information with respect to the election:
(A) The vote tally for each candidate.
(B) The number of overvotes, undervotes, spoiled
ballots, and blank ballots cast (or their equivalents,
as defined by the State, county or equivalent
location).
(C) The number of write-in ballots and the names
written in on such ballots pursuant to State law.
(D) The total number of ballots cast.
(E) A record of judgement calls made regarding voter
intent.
(5) Public observation of hand counts.--Each hand count
conducted under this section shall be conducted in a manner
that allows public observation of the entire process (including
the opening of the ballot boxes or removal of machine-printed
ballots from their containers, the sorting, counting, and
notation of results, and the announcement of final
determinations) sufficient to confirm but not interfere with
the proceedings.
(6) Establishment and publication of procedures.--Prior to
the date of the regularly scheduled general election for
Federal office held in November 2008, a State, county, or
equivalent location shall establish and publish procedures for
carrying out hand counts under this subsection.
(d) Application to Jurisdictions Conducting Elections With Direct
Recording Electronic Voting Systems.--
(1) Requiring systems to produce voter verifiable paper
record.--If a State, county, or equivalent location uses a
direct recording electronic voting system to conduct an
election, the State, county, or equivalent location may not
receive a payment under this section for conducting a hand
count of the votes cast in the election unless (in addition to
meeting the other requirements applicable under this section)
the State, county, or equivalent location certifies to the
Commission that each such system produces a paper record
printout of the marked ballot which is verifiable by the voter
at the time the vote is cast.
(2) Treatment of paper record printouts.--In applying this
section to a hand count conducted by a State, county, or
equivalent location which provides a certification to the
Commission under paragraph (1), the paper record printout
referred to in such paragraph shall be treated as the paper
ballot used in the election.
(e) Announcement and Posting of Results.--Upon the completion of a
hand count conducted under this section, the State, county, or
equivalent location shall announce the results to the public and post
them on a public Internet site.
(f) Use of Hand Count in Certification of Results.--The State shall
use the results of the hand count conducted under this section for
purposes of certifying the results of the election involved. Nothing in
this section may be construed to affect the application or operation of
any State law governing the recount of the results of an election.
SEC. 5. STUDY, TESTING, AND DEVELOPMENT OF PRODUCTS AND PRACTICES TO
ENSURE ACCESSIBILITY OF PAPER BALLOT VERIFICATION
AND CASTING FOR CERTAIN INDIVIDUALS.
(a) Study, Testing, and Development.--The Director of the National
Institute of Standards and Technology (hereafter in this section
referred to as the ``Director'') shall study, test, and develop
products and practices that ensure the accessibility of paper ballot
verification and casting for individuals with disabilities, for voters
whose primary language is not English, and for voters with difficulties
in literacy, including the mechanisms themselves and the processes
through which the mechanisms are used. In carrying out this
subsection, the Director shall specifically investigate existing and
potential methods or devices, including non-electronic devices, that
will assist such individuals and voters in creating voter-verified
paper ballots, presenting or transmitting the information printed or
marked on such ballots back to such individuals and voters in an
accessible form, and enabling the voters to cast the ballots.
(b) Report.--Not later than June 30, 2009, the Director shall submit
a report to Congress on the results of the studying, testing, and
development of products and practices under subsection (a).
(c) Authorization of Appropriations.--There are authorized to be
appropriated to the Director such sums as may be necessary to carry out
this section, to remain available until expended.
SEC. 6. DEFINITIONS.
In this Act--
(1) the term ``Commission'' means the Election Assistance
Commission; and
(2) the term ``State'' includes the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, and the
United States Virgin Islands.
Amend the title so as to read:
A bill to direct the Election Assistance Commission to
reimburse certain jurisdictions for the costs of obtaining
paper ballot voting systems for the general elections for
Federal office to be held in November 2008, to reimburse
jurisdictions for the costs incurred in conducting audits or
hand counting of the results of the general elections for
Federal office to be held in November 2008, and for other
purposes.
Emergency Assistance for Secure Elections Act of 2008
PURPOSE OF THE LEGISLATION
In 2002, in response to the public's mounting concern about
election administration problems stemming from the
controversial presidential election in 2000, Congress passed
the Help America Vote Act (HAVA) P.L. 107-252 (42 U.S.C. 15301)
to improve the voting process in a number of ways. One
improvement to the election process involved the replacement of
punch card and lever voting machines with paperless direct
recording electronic (DRE) voting machines. Although these
machines are generally easy to use and, if properly equipped,
accessible to voters with disability and language assistance
needs, the 2006 election revealed that these machines suffer
from an essential flaw: the digital results reported from these
machines cannot be audited independently. The only output
available is a digital readout that relies on the accuracy of
the electronic software during the voting process and cannot be
recounted. As a result, many of these paperless DRE voting
machines are not properly equipped to independently demonstrate
voter intent during a recount or audit.
If a voter casts a vote on a paperless electronic voting
machine, the only thing the voter verifies--the information
displayed on the touch screen surface for a few moments while
the voter votes--disappears forever the moment the voter hits
the ``cast vote'' button and leaves the voting booth. No
election official, no computer scientist, and no voting system
vendor can reconstruct what that voter intended because the
voter votes in secret. Because of the secret ballot, only the
voter can verify that his or her intention is recorded
correctly, and it is impossible for the voter to verify an
electronic record.
When questions arise, candidates, voters and election
officials alike are left to trust voting system vendors who
insist their trade-secret-protected software counts votes
accurately. This difficulty became glaringly apparent in the
2006 election, when reports revealed voting problems in
numerous jurisdictions, producing a lack of voter confidence
and uncertainty regarding election results.\1\ Furthermore,
recent 2008 primary elections have revived concerns about the
paperless touch screen voting machines.\2\
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\1\ Examples of news articles include: Tinsley, Anna M. and Anthony
Spangler. ``Vote Spike Blamed on Program Snafu.'' Fort Worth Star-
Telegram, March 9, 2006; Tinsley, Anna M. ``Judicial Candidate Files
Challenge.'' Fort Worth Star-Telegram, April 6, 2006; ``Pottawattamie
County Recorder's Race Leads to Recount.'' The Associated Press, June
8, 2006; Rabin, Charles and Darran Simon. ``Glitches Cited in Early
Voting; Early Voters are Urged to Cast Their Ballots with Care
Following Scattered Reports of Problems with Heavily Used Machines.''
The Miami Herald, October 28, 2006; McCormick, John. ``Voting Equipment
Glitches Lingering.'' Chicago Tribune, November 2, 2006; Smith, Tammy
M. ``New Voting Machines Pose Election Day Problems.'' Sun Herald
(Mississippi), November 7, 2006; ``Voting Problems Reported in NJ.''
New Jersey--WABC, November 7, 2006; Glendenning, Lauren. ``Voting
Glitch in Fairfax, Some Machine Malfunctions Could Fuel Arguments for
Recount.'' The Connection Newspaper (Virginia), November 8, 2006;
``Some Electronic Voting Machines Not `up to date'.'' Pittsburg
Tribune-Review, November 8, 2006; Burk, Jennifer. ``Bibb Voting
Glitches Nothing Out of the Ordinary, Carr Says.'' The Telegraph
(Georgia), November 9, 2006; ``Disabled Voters Disappointed with Touch-
Screen Problems.'' WISH-TV, November 10, 2006; King, Lauren. ``Count on
Recount in E. City Mayor's Race.'' The Virginian-Pilot, November 11,
2005; ``Arkansas Mayoral Candidate Disputes Tally of Zero Votes, Says
He Voted for Himself.'' The Associated Press, November 11, 2006;
``Hendersonville Voters Back Building Height Restriction.'' Tryon Daily
Bulletin, November 13, 2006; ``Another Voting Glitch in Baldwin
County.'' The Associated Press, November 14, 2006; Spoto, Maryann.
``Voting Mishap Blamed on Software Problems, Some Ballots Counted
Twice, Sparking a Call for a Check of Totals at Shore.'' Star-Ledger
(New Jersey), November 14, 2006; Peters, Paul. ``Communication
Breakdown.'' Missoula Independent, November 16, 2006; ``E-voting Glitch
Turns up in Texas.'' CNet.News, November 16, 2006; Toland, Bill. ``If
You Think the Computer `Flipped' Your Vote, You're Not Alone; Though
Solid Evidence is Hard to Pin Down, Complaints Abound About Voting
Machines.'' Pittsburgh Post-Gazette, December 10, 2006.
\2\ Zimmer, Beau ``Touch screen problems reported in Hillsborough''
Tampa Bay 10, January 29, 2008; Kidwell, David ``Chicago polls go
well--despite punches, broken machines, wrong ballots and `invisible
ink' '' Chicago Tribune, February 5, 2008; Walsh, Diane ``Voting
machines produced errors in primary'' The Star Ledger, February 20,
2008; Carmen, Barbara ``County's voting machines examined'' Columbus
Dispatch, March 16, 2008; Gier, Nancy ``Democrats reporting
irregularities in 14th District voting machines'' Daily Herald, March
8, 2008.
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In order to increase public confidence and secure the 2008
general election, the law must be revised to support paperless
jurisdictions' efforts to invest in voting systems that are
equipped with an independent paper copy of each vote--verified
by the voter him or herself--to serve as a check on any
electronic tallies reported by the voting machines. Support
should also be provided for jurisdictions that choose to adopt
additional safeguards such as manually auditing the 2008
general elections and/or conducting hand counts of the 2008
general election.
H.R. 5036 would reimburse paperless jurisdictions for
reasonable costs associated with converting to paper ballot
voting systems. Jurisdictions that transition to paper based
voting systems in time for the 2008 general elections would
have the option to continue to rely on the expediency,
convenience and accessibility of computer-assisted voting,
while preserving the critical ability to independently confirm
that the will of the voters is reflected in the final results.
H.R. 5036 does not mandate paper ballots and audits nationwide;
rather, it provides an incentive to states and counties that
want to implement a paper ballot voting system to prevent
unauditable, unresolvable problems by opting in to the
solution.
Additionally, H.R. 5036 includes reimbursement for
obtaining, deploying, and tabulating backup paper ballots in
the event of the failure of electronic voting systems. Eligible
jurisdictions must post notification and voter rights to backup
paper ballots at all polling locations and must count each
backup ballot as a regularly cast ballot.
In amending H.R. 5036, the Committee has taken into account
concerns raised by state and local officials and other
stakeholders concerning the audit system. As reported, the bill
allows jurisdictions to include at least 2% of all precincts,
auditing units, or Congressional districts and designate an
appropriate, independent official to oversee the administration
of the audit. Audits, which shall include all ballots,
including absentee, early, backup, and provisional ballots,
should be conducted in a public and transparent manner, with
the public able to observe the entire process.
H.R. 5036 does not alter the HAVA mandate requiring that
voting systems be equipped for individuals with disabilities in
each polling place. The Committee assured reliable voting for
all eligible voters by working extensively with prominent
organizations and advocates in the disability community to
ensure the standard of providing every voter access to a
private and independent ballot, established by HAVA, is not
violated. Diane Cordry Golden, Ph.D., Director, Missouri
Assistive Technology conveyed in testimony presented before the
House Administration Committee's Subcommittee on Elections on
March 15, 2007 that Congress should not restrict the rights of
the disabled to vote privately and independently with new laws.
H.R. 5036 does not change section 301(a)(3)(A) of HAVA, which
requires each polling place be equipped with a voting machine
that is accessible for individuals with disabilities, including
nonvisual accessibility for the blind and visually impaired, in
a manner that provides the same opportunity for access and
participation (including privacy and independence) as other
voters.
Improvements in technology and practices for voters who
have been disenfranchised historically are essential to ensure
all eligible voters are confident in their ability to vote
independently and have their votes accurately counted. As such,
the National Institute of Standards and Technology will study,
test, and develop products and practices that ensure the
accessibility of paper ballot verification and casting for
voters with disabilities, for voters whose primary language is
not English, and for voters with difficulties in literacy. It
should be noted that the Association of Assistive Technology
Act Programs are the Federally supported experts on accessible
technology for persons with disabilities. It is the Committee's
expectation that, in carrying out its responsibilities under
H.R. 5036, NIST shall take advantage of the ATAP's significant
and valuable expertise in assistive technology to make voting
systems accessible. The Committee is eager to review the
results of the study, tests, and development of products next
year.
The 2008 general election is quickly approaching and
options must be provided to increase the integrity of the vote.
Through H.R. 5036, jurisdictions are provided ample flexibility
to select which provisions they wish to implement. If the bill
is enacted promptly, jurisdictions should have adequate time to
purchase and implement the voting system upgrades and/or the
other provisions of this bill.
SECTION-BY-SECTION SUMMARY OF LEGISLATION
The bill, as reported, directs the Election Assistance
Commission to reimburse certain jurisdictions for the costs of
obtaining paper ballot voting systems for the general elections
for Federal office to be held in November 2008, to reimburse
jurisdictions for the costs incurred in conducting audits or
hand counting of the results of the general elections for
Federal office to be held in November 2008, and for other
purposes.
Section 1.--Short Title--This section establishes ``The
Emergency Assistance for Secure Elections Act of 2008'' as the
short title of the Act.
Section 2.--Payments to Certain Jurisdictions Conducting
2008 General Elections--This section authorizes such sums as
necessary for the November 2008 Federal Elections to reimburse
eligible jurisdictions that convert to paper ballot voting
systems or retrofit paperless Direct Recording Electronic (DRE)
Voting Systems with a voter verifiable record as well as
reimburse jurisdictions using DRE Voting Systems for costs
incurred in obtaining, deploying, and tabulating backup paper
ballots in the event of a failure of the DRE Voting System.
Section (2)(a).--``Reimbursement for Conversion to Paper
Ballot Voting System.'' This subsection authorizes the Election
Assistance Commission (EAC) to reimburse states for reasonable
costs incurred by a jurisdiction that does any of the following
before the November 2008 Federal Elections: replaces any
paperless voting system with a paper ballot voting system;
obtains non-tabulating ballot marking devices for voters with
disabilities; obtains ballot marking stations/voting booths;
obtains paper ballots; and obtains precinct-based equipment
that tabulates paper ballots or scans paper ballots. This
subsection also establishes the following requirements for a
jurisdiction to become eligible: used a paperless voting system
in the November 2006 federal elections; will conduct federal
elections in November 2008 using only paper ballot voting
systems; obtains a sufficient number of non-tabulating marking
devices that are accessible to disability voters; obtains a
sufficient number of ballot marking stations/voting booths to
ensure voter privacy; and obtains a sufficient amount of paper
ballots. To receive payments the subsection requires each
eligible jurisdiction to submit an application to the EAC
containing assurances that it has or will meet the eligibility
requirements set forth in this section. In Section (2)(a)(4) it
defines ``paper ballot voting system'' as a voting system that
uses a paper ballot marked by the voter by hand or a paper
ballot marked by the voter with the assistance of a non-
tabulating ballot marking device.
Section (2)(b).--``Reimbursement for Retrofitting of Direct
Recording Electronic Voting Systems To Produce Voter Verifiable
Paper Records.'' This subsection authorizes the Election
Assistance Commission (EAC) to reimburse jurisdictions for
reasonable costs incurred by retrofitting paperless Direct
Recording Electronic (DRE) Voting Systems with a voter
verifiable record, including obtaining printers to produce the
paper records. This subsection also defines eligible
jurisdictions as those that submit an application to the EAC
containing assurances that the jurisdiction has or will obtain
a printer and retrofit each DRE Voting System used to conduct
the November 2008 Federal Elections.
Section (2)(c).--``Reimbursement for Provision Of Backup
Paper Ballots By Jurisdiction Using Direct Recording Electronic
Voting Systems.'' This subsection authorizes the Election
Assistance Commission (EAC) to reimburse jurisdictions for
costs incurred in obtaining, deploying and tabulating backup
paper ballots (and related supplies and equipment) in the event
of a failing Direct Recording Electronic (DRE) Voting System.
This subsection also establishes the following requirements for
a jurisdiction to become eligible: post notification and voter
rights to backup paper ballots at all polling places as well as
count each backup paper ballot as a regular ballot and not a
provisional ballot. To receive payments the subsection requires
each eligible jurisdiction to submit an application to the EAC
containing assurances that it will meet the eligibility
requirements set forth in this section.
Section (2)(c).--``Amounts.'' This subsection authorizes
such sums as necessary for payments under this section until
all funds are expended.
Section 3.--Payments for Conducting Audits of Results of
2008 General Elections--This section authorizes such sums as
necessary for the Election Assistance Commission (EAC) to
reimburse states for reasonable costs incurred when conducting
manual audits, in accordance with the requirements set forth in
this section, of the results of any of the regularly scheduled
November 2008 Federal Elections (including any concurrent state
and local election).
Section (3)(a).--``Payments.'' This subsection authorizes
such sums as necessary to reimburse States for reasonable cost
incurred if they conduct a manual audit, in accordance with the
requirements set forth in this section, of the results of any
November 2008 Federal Election. In the event that a county or
other jurisdiction administers such audits this subsection
requires states to reimburse the counties or jurisdiction for
such costs immediately upon receiving the payment under this
section. In addition, the subsection requires the Election
Assistance Commission to make payments no later than 30 days
after receiving certification from States or counties that the
audit was conducted in accordance with all the requirements.
Section (3)(b).--``Audit Requirements.'' This subsection
establishes the following requirements that States must meet in
order to receive payments under this section: establish and
publish auditing procedures and standards 30 days before the
November 2008 general elections; designate an appropriate and
independent official to oversee the administration of the
audit; select precincts or alternative auditing units in a
random as well as uniform manner after the final unofficial
vote has been announced; select at least one precinct from each
county in which the election is held; conduct the audit to
include no less than 2 percent of the precincts, auditing
units, or Congressional districts involved; commence the audit
within 48 hours after the State or jurisdiction announces the
final unofficial vote count; ensure a paper based voting system
is available for every vote cast and that the tally produced by
counting all of the paper ballots or printouts by hand is
compared with the corresponding final unofficial vote count;
include all ballots including absentee, early, backup, and
provisional ballots in the audit; for States that establish a
separate precinct for purposes of counting absentee ballots the
State shall divide absentee ballots into audit units,
approximately equal in size to the average precinct, and
include at least 2% of those units; and conduct the audit in a
public and transparent manner.
Section (3)(c).--``Collection and Submission of Audit
Results; Publication.'' This subsection requires the State to
submit to the Election Assistance Commission a report on the
results of each audit conducted under this section.
Section (3)(d).--``Delay in Certification of Results by
State.'' This subsection requires that no state may certify the
results of any election prior to completing the audit,
resolving discrepancies discovered, and submitting the required
report.
Section 4.--Payments for Conducting Hand Counts of Results
of 2008 General Elections--This section authorizes such sums as
necessary for the Election Assistance Commission to reimburse
states for reasonable costs incurred from tallying the election
results by a hand count, in accordance with the section
requirements, of the votes cast on the paper ballots for the
November 2008 Federal Election.
Section (4)(a).--``Payments.'' This subsection authorizes
such sums as necessary to reimburse States or counties for
reasonable cost incurred if they conduct a hand count, in
accordance with the requirements set forth in this section, of
the votes cast on the paper ballots used in the November 2008
Federal Election. It also requires the Administrator to make
payments no later than 30 days after receiving certification
from States or counties that the hand count was conducted in
accordance with all the requirements.
Section (4)(b).--``Hand Counts Described.'' This subsection
provides a definition of a hand count and the standard of
completeness it should ensure. It defines a hand count as a
count of all the paper ballots cast in the election (including
paper ballot printouts, early voting ballots, absentee ballots,
emergency ballots, and provisional ballots) by hand to
determine the winner of the election without the use of
electronic equipment or software. To guarantee completeness the
State or county is required to ensure that a voter verifiable
paper ballot or paper ballot printout verifiable by the voter
is available for every vote cast in the jurisdiction.
Section (4)(c).--``Process for Conducting Hand Counts.''
This subsection establishes the general requirements for how,
where, and when the hand count shall be conducted. It requires
a hand count to commence, at the earliest, 8 hours after the
polls close. For any ballot not counted in the initial hand
count but deemed eligible (provisional or a late arrival
absentee ballot), it shall be subject to a hand count and added
to the official tally no later than 48 hours after the ballot
is determined to be eligible. This subsection also requires the
hand count to be conducted by no fewer than two individuals and
at least one observer, who all must be election officials of
the jurisdiction and be comprised of equal representation from
both political parties. In regards to the location, the
subsection requires hand counts to be conducted at the polling
place on the date of the election and for other delayed ballots
at the office of the jurisdiction's chief election official.
The hand count must also be conducted in a manner that allows
public observation of the entire process, including the opening
of the ballot boxes or removal of machine printed ballots from
their containers; the sorting, counting, notation of results;
and the announcement of the final determinations. Lastly, the
hand count should be conducted in a way to produce the
following information: number of votes for each candidate;
number of overvotes, undervotes, spoiled votes, and blank
ballots cast; number of write-in ballots and the names written
on such ballots; total number of ballots cast; and a record of
judgment calls made regarding voter intent. Following the hand
count this subsection allows for a jurisdiction, if it wishes,
to run the ballots through a tabulating machine or scanner for
verification.
Section 4(d).--``Application to Jurisdictions Conducting
Elections with Direct Recording Electronic Voting Systems.''
This subsection allows a jurisdiction using a Direct Recording
Electronic (DRE) Voting System to receive payments under this
section if it certifies to the Election Assistance Commission
that each system produces a paper record printout of the marked
ballot.
Section (4)(d).--``Announcement of Posting of Results.''
This subsection requires a State or county upon completion of
the hand count to announce the results to the public and post
them on a public Internet site.
Section (4)(e).--``Use of Hand Count in Certification of
Results.'' This subsection requires that the results of the
hand count should be used solely for the purpose of certifying
the results of the election and not be construed to affect the
application or operation of a recount.
Section 5.--Study, Testing and Development of Products and
Practices to Ensure Accessibility of Paper Ballot Verification
and Casting for Certain Individuals--This section authorizes
such sums as necessary for the Director of the National
Institute of Standards and Technology to conduct a study to
test and develop products as well as practices that ensure the
accessibility of paper ballot verification and casting for:
individuals with disabilities; individuals whose primary
language is not English; and individuals with literacy
difficulties.
Section 6.--Definitions--This section defines the terms
``Administrator'' as the Administrator of General Services and
``States'' as including the District of Colombia, the
Commonwealth of Puerto Rico, Guam, American Samoa, and the U.S.
Virgin Islands.
COMMITTEE CONSIDERATION OF THE LEGISLATION
INTRODUCTION & REFERRAL
On January 17, 2008, Mr. Holt, along with 36 members of the
House, introduced H.R. 5036, which was referred to the
Committee on House Administration, and additionally to the
Committee on Science and Technology for consideration of
matters under the jurisdiction of that committee.
HEARINGS
The Committee on House Administration held hearings during
the 1st Session of the 110th Congress on matters relating to
H.R. 5036.
On March 15, 2007, the Subcommittee on Elections held a
hearing titled: ``Election Reform Hearing: Machines &
Software.'' The following members were present at the hearing:
Subcommittee Chair Zoe Lofgren, Juanita Millender-McDonald,
Susan Davis, and Kevin McCarthy.
Witnesses
Panel 1:
1. The Honorable Eric Clark--Secretary of State, Missouri
2. Dr. Diane C. Golden--Director, Missouri Assistive
Technology
3. Dr. Ted Selker--Director, Voting Technology Project,
Massachusetts Institute of Technology
4. Mr. Kelly Pierce--Disability Specialist, Cook County
(IL) State Attorney Office
Panel 2:
1. Dr. Brit Williams--Professor, Kennesaw State University
2. Dr. David Wagner--Associate Professor, University of
California, Berkeley
3. Mr. Brain Behlendorf--Founder & Chief Technology
Officer, CallabNet
4. Mr. Hugh Gallagher--Managing Director, Election System
Acquisition & Management Services, Inc.
5. Mr. Matt Zimmerman--Staff Attorney, Electronic Frontier
Foundation
On March 20, 2007, the Committee on House Administration
Subcommittee on Elections held a hearing titled ``Election
Reform Hearing: Auditing.'' The following members were present
at the hearing: Subcommittee Chair Zoe Lofgren, Charlie
Gonzalez, Susan Davis, Kevin McCarthy, and Vern Ehlers.
Witnesses
Panel 1:
1. Ion Sancho--Supervisor of Elections, Leon County (FL)
2. Matt Damschroder--Director, Franklin County (OH) Board
of Elections
Panel 2:
1. Candice Hoke--Director, Cleveland State University
Center for Election Integrity
2. R. Doug Lewis--Executive Director, National Association
of Election Officials
3. Lawrence Norden--Counsel, Brennan Center for Justice
4. Tammy Patrick--Federal Compliance Officer, Maricopa
County (AZ) Elections Department
5. Pamela Smith--President, VerifiedVoting.ORG
In addition to these hearings, the late Chairwoman Juanita
Millender-McDonald and Ranking Member Vernon Ehlers hosted a
voting machine forum on March 15, 2007. This forum gave Members
of Congress and their staff an opportunity to learn more about
voting systems first-hand. The following companies were in
attendance: Avante, Automark, Diebold Election Systems, Hart
InterCivic, Inc., IVS--Vote by Phone, Perfect Voting System,
Sequoia Voting Systems, Inc., and Unisyn Voting Solutions.
MARKUP
On Wednesday, April 2, 2008, the Committee on House
Administration met to mark up H.R. 5036. The Committee ordered
reported favorably H.R. 5036, as amended, by a voice vote. A
quorum was present.
MATTERS REQUIRED UNDER THE RULES OF THE HOUSE
COMMITTEE RECORD VOTES
Clause 3(b) of House rule XIII requires the results of each
record vote on an amendment or motion to report, together with
the names of those voting for and against, to be printed in the
committee report. There were no recorded votes. The first
amendment introduced was an amendment in the nature of a
substitute by Ms. Lofgren. All of the following votes, until
the vote on the Lofgren substitute, were on amendments to the
Lofgren substitute.
Lofgren amendment in the nature of a substitute
Offered by Ms. Lofgren. The substitute addresses a number
of concerns that were raised by disability groups and state and
local government stakeholders during the timeframe between
introduction of the original bill and the mark-up. The
substitute makes several changes to the legislation, while
keeping the core purpose of the bill to providing a voter
verifiable paper and auditable paper trail. These changes,
particularly to the audit section, DRE retrofitting, and the
use of funding for backup paper ballots, were specifically made
to reflect many of the concerns expressed by the civil rights
and election official advocates. The substitute reimburses
jurisdictions for retrofitting paperless touch-screen voting
machines (DREs) with systems that produce a voter verifiable
paper record, obtaining backup paper ballots in the event of
failure of electronic voting systems, and conducting a manual
audit of federal, as well as any state and local, elections in
November 2008 in no less than two percent of the precincts.
The Lofgren substitute changes the original bill in the
following areas:
Reimbursement Authority--The U.S. Election Assistance
Commission (EAC) shall administer funds and reimburse
jurisdictions for the costs related to implementing the
provisions of this bill in lieu of the Administrator of the
General Services.
Authorized Funding--Authorized funding amounts have been
changed to ``such sums as necessary.''
Retrofitting Paperless Touch Screen Voting Machines
(DREs)--Section 2(b) has been added to authorize the EAC to
reimburse states for reasonable costs incurred by retrofitting
paperless DREs with systems that produce a voter verifiable
record and obtaining printers to produce the paper records.
Paper Ballots--Section 2(c) emergency paper ballots have
been replaced with backup paper ballots.
Election Auditor--The entity selected to oversee the
administration of the audit shall now be selected by the State
and the entity must meet a general standard of independence as
defined by the State.
Minimum Percentage of Audits Conducted--Audits shall be
conducted in no less than two percent of the precincts,
auditing units, or Congressional districts involved, rather
than a minimum of three percent.
Application of Audit Section to Jurisdictions Conducting
Elections with Direct Recording Electronic Voting Systems
(DREs)--Section 4(d) has been added to allow a jurisdiction
using a DRE to receive payments under the audit section if it
certifies to the EAC that each system produces a paper record
printout of the marked ballot.
Alternative Ballot Sampling Methods Approval by the
National Institute of Standards and Technology--has been
removed.
Ehlers' amendments to the Lofgren substitute
The first vote of the mark up was on a bloc of three
amendments offered by Mr. Ehlers to amend the Lofgren
substitute. The first amendment, Ehlers Amendment # 1, adds
language that allows for audits to commence 48 hours after
states or relevant jurisdictions involved announce the
unofficial vote count. The second amendment, Ehlers Amendment
#2, adds language that requires no hand count to commence until
at least 8 hours after the polls close and requires the ballots
to be in a secured location until the hand count commences.
Lastly, the third amendment, Ehlers Amendment #4, adds language
that ensures hand counting teams when conducting a hand count
of the election results have equal representation from both
political parties of the candidates who received the two
greatest numbers of aggregate votes cast. The amendments en
bloc were passed by a voice vote.
Following the passage of the en bloc amendments, the
Committee then held a vote on the final amendment offered by
Mr. Ehlers, Ehlers Amendment #3. This amendment adds language
that requires that after the hand count is complete that the
ballots be run through a tabulating machine or scanner for
verification of the tally, if such a machine or scanner is
available. During debate on the amendment the Committee agreed
to amend Ehlers Amendment #3 to remove the requirement and
instead give states the option to run the ballots through a
tabulating machine or scanner for verification of the tally. As
a result, Ehlers Amendment #3 was changed to include ``may run
the ballots through a tabulating machine or scanner for
verification of the tally, if such a machine or scanner is
available.'' The amendment, as amended, was agreed to by a
voice vote.
The Lofgren substitute, as amended, was then adopted by
voice vote.
COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) rule XIII of the Rules of
the House of Representatives, the Committee states that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
GENERAL PEFORMANCE GOALS AND OBJECTIVES
The Committee states, with respect to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, that
the goal and objective of H.R. 5036 is to provide an incentive
to States and counties that want to implement a system to
prevent non-auditable, non-resolvable problems in the November
2008 general election.
CONSTITUTIONAL AUTHORITY
In compliance with clause 3(d)(1) of rule XIII, the
Committee states that Article I, Section 4 of the U.S.
Constitution grants Congress the authority to make laws
governing the time, place and manner of holding Federal
elections.
EARMARK IDENTIFICATION
Pursuant to clause 9 of rule XXI, H.R. 5036, the Emergency
Assistance for Secure Elections Act of 2008, does not include
any congressional earmarks, limited tax benefits, or limited
tariff benefits as defined in clause 9(d), 9(e), or 9(f) of
rule XXI.
PREEMPTION CLARIFICATION
Section 423 of the Congressional Budget Act of 1974
requires the report of any committee on a bill or joint
resolution to include a committee statement on the extent to
which the bill or joint resolution is intended to preempt state
or local law. H.R. 5036 is intended to apply in all States and
preempt laws to the contrary in their application to Federal
elections.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
Summary: H.R. 5036 would amend the Help America Vote Act of
2002 to require the Election Assistance Commission (EAC) to
reimburse states for the costs of converting to voting systems
that produce paper ballots. The legislation also would
reimburse any jurisdiction for the costs of conducting manual
audits or hand recounts of the federal election to be held in
November 2008. Finally, the legislation would direct the
National Institute of Standards and Technology (NIST) to study
systems for verifying paper ballots.
CBO estimates that implementing H.R. 5036 would cost $685
million in 2009, assuming appropriation of the necessary
amounts. Enacting the bill would not affect direct spending or
revenues. H.R. 5036 contains no intergovernmental or private
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would impose no costs on state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5036 is shown in the following table.
The costs of this legislation fall within budget functions 250
(general science, space, and technology) and 800 (general
government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------
2009 2010 2011 2012 2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Ballot Verification:
Estimated Authorization Level............................. 554 0 0 0 0
Estimated Outlays......................................... 554 0 0 0 0
Hand Count of Paper Ballots:
Estimated Authorization Level............................. 95 0 0 0 0
Estimated Outlays......................................... 95 0 0 0 0
Manual Audits of Elections:
Estimated Authorization Level............................. 10 0 0 0 0
Estimated Outlays......................................... 10 0 0 0 0
Other Provisions:
Estimated Authorization Level............................. 25 0 0 0 0
Estimated Outlays......................................... 25 0 0 0 0
Reporting Provisions:
Estimated Authorization Level............................. 1 0 0 0 0
Estimated Outlays......................................... 1 0 0 0 0
Total Proposed Changes:
Estimated Authorization Level......................... 685 0 0 0 0
Estimated Outlays..................................... 685 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the end of fiscal year 2008, that the
necessary amounts will be appropriated, and that outlays will
follow historical spending patterns for similar programs. CBO
estimates that implementing H.R. 5036 would cost $685 million
in 2009, assuming appropriation of the estimated amounts.
Ballot verification: Section 2 of H.R. 5036 would authorize
the appropriation of whatever sums are necessary for grants to
states to pay for the cost of providing a permanent paper
record of each voter's ballot. Activities covered would include
purchasing or upgrading voting systems, and counting backup
paper ballots from certain types of electronic voting machines.
Based on information from the EAC about the number and types of
voting machines currently in use, CBO estimates that
implementing this provision would cost $554 million in 2009,
assuming appropriation of the necessary amounts.
Hand count of paper ballots: Section 4 would authorize the
appropriation of whatever sums are necessary for the EAC to
reimburse states for the costs they incur to hand count votes
cast on paper ballots used in the November 2008 elections.
Using information from the EAC about the number of ballots cast
in the 2006 elections, CBO estimates that, if all states found
it necessary to conduct a hand count of ballots, the costs
nationwide could reach nearly $270 million. However, for this
estimate, CBO assumes, based on information from the EAC, that
fewer than 20 states would have closely contested elections
that would need hand counts. Under that assumption, CBO
estimates that implementing this provision would cost about $95
million in 2009, assuming appropriation of the necessary
amounts.
Manual audits of elections: Section 3 would authorize the
appropriation of whatever sums are necessary for the EAC to
reimburse states for costs they incur to conduct manual audits
of two percent of the results of regularly scheduled general
elections in November 2008. CBO expects that such audits would
entail a review about 3,500 of the almost 180,000 voting
precincts in the United States. Using information from the EAC
regarding the average number of voters per precinct and an
average audit cost per ballot of $2.20, CBO estimates that
implementing this provision would cost about $10 million in
2009.
Other provisions: Implementing H.R. 5036 would increase the
responsibilities of the EAC. The agency expects that it would
need additional staff to distribute funds, manage the new
programs, monitor spending, and prepare audits. Based on
information from the EAC, CBO estimates that additional costs
for those activities would total $25 million in 2009.
Reporting provisions: H.R. 5036 also would authorize the
appropriation of whatever sums are necessary for NIST to study
and report to the Congress on ballot verification methods for
individuals with disabilities. Based on information from NIST,
CBO estimates that implementing this provision would cost $1
million in the 2009.
Intergovernmental and private-sector impact: H.R. 5036
contains no intergovernmental or private sector mandates as
defined in UMRA. The bill would benefit state, local, and
tribal governments by allowing them to apply for reimbursement
from the EAC for certain costs they incur during the 2008
general election.
Estimate prepared by: Federal costs: Matthew Pickford;
Impact on state, local, and tribal governments: Elizabeth Cove;
Impact on the private sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
MINORITY VIEWS OF THE HONORABLE VERNON J. EHLERS, THE HONORABLE DAN
LUNGREN, AND THE HONORABLE KEVIN McCARTHY
H.R. 5036: Emergency Assistance for Secure Elections Act of 2008
The Committee on House Administration ordered H.R. 5036
reported favorably by voice vote. H.R. 5036 provides optional
grant programs for states or jurisdictions that seek to convert
to a paper based voting system or a voting system that produces
a paper record, to have an ample supply of emergency paper
ballots, and to conduct post election audits or tally election
results by hand for the 2008 election. While we applaud the
Committee for retreating from its support of overly
prescriptive legislation in the area of elections, H.R. 5036
contains provisions that pose concern regarding potential
consequences for states or jurisdictions that choose to
participate.
VOTING MACHINES
Over the past two centuries, we have made significant
improvements to our election process. The Committee and the
Congress were successful in working in a bipartisan manner to
improve our nation's voting systems with the passage of the
Help America Vote Act of 2002 (HAVA). Under HAVA's provisions
pertaining to voting machine replacement, states and local
election administrators had the flexibility to determine what
qualifying voting system was preferable in their specific
locale based on demographics. Some states, like Michigan,
purchased optical scan voting machines while other states and
jurisdictions purchased paperless Direct-Recording Electronic
Voting Machines (DRE) to satisfy HAVA requirements.
We are pleased with the successful deployment of HAVA-
compliant voting machines across the nation. Over the past
several years, numerous elections have been conducted without
evidence of voting machine malfunction. In the 2006 election
cycle, the only significant allegation that voting machines
malfunctioned was proven to be without merit. The allegation
arose from the election results for the Congressional race in
Florida's Thirteenth Congressional District which showed a
significant amount of undervotes. The undervotes were alleged
to be caused by machine malfunction rather than poor ballot
design or abstention by voters for that race. The Committee
established a Task Force that directed the Government
Accountability Office (GAO) to conduct an investigation of the
voting machines used in Florida's Thirteenth Congressional
District. After a 10-month long investigation that involved
extensive testing of the voting machines, the GAO concluded
that the voting machines operated properly and accurately
recorded election ballots.
H.R. 5036 would provide an incentive for states and
jurisdictions that currently use paperless DRE voting systems
to change to voting systems that are paper based or can produce
a paper record. The proponents of H.R. 5036 argue that voter
verifiable paper records would provide increased confidence in
our voting systems. While we are not opposed to a state or
jurisdiction's choice to convert to a voting system that
provides a voter verifiable record, we question the necessity
and utility of this bill.
Over the past year, election officials, state and Federal
legislators, county and city clerks, election machine vendors,
and interested parties from across the country have voiced
concern to the Committee about implementing changes to the
administration of Federal elections during a Presidential
election year. During our Committee hearings last year for H.R.
811, ``The Voter Confidence and Increased Accessibility Act of
2007,'' testimony presented demonstrated the severe burden that
would be placed on election officials if they were required to
change their voting systems for the 2008 Presidential election.
With the November elections a mere 7 months away, we are
skeptical of states and local jurisdictions converting to a
different voting system, even if sufficient funds were
available. It appears that the only states or jurisdictions
that qualify and would likely seek reimbursement would be
states that have already committed to converting to a paper
based voting system for the November 2008 elections, e.g.
Florida. It is reckless for the Federal government to encourage
states to hastily switch voting machines in a Presidential
election year.
MANUAL AUDITS
H.R. 5036 provides reimbursement for the costs of manual
audits of any of the regularly scheduled general elections for
Federal office in November 2008. While we support auditing
election results, we are not convinced that the manual audits
contained in H.R. 5036 should be so extensive or overly
prescriptive. Although the administration of manual audits is
optional, we have reservations about establishing an
unsubstantiated threshold for the number of precincts and races
that are subject to an audit. States and local jurisdictions
should be given flexibility to conduct audits without
specifying a percentage of ballots to be counted and should
also have the option to exempt certain Federal elections from a
manual count, if the election was decided by a substantial
margin of victory. Further, under the audit structure,
elections subject to an audit cannot be certified until after
completing the audit, resolving discrepancies discovered in the
audit, and submitting the audit report to the Election
Assistance Commission. Requiring an audit to be completed
before reporting the official election results for some states
could be an impediment to a timely and efficient recount of a
presidential election. States and local jurisdictions are
responsible for administering Federal elections and have the
wisdom of how and when to perform audits.
HAND COUNTING PAPER BALLOTS
H.R. 5036 also allows states and jurisdictions to receive
funding if they elect to hand count paper ballots to determine
election results for all Federal elections, rather than using a
tabulating machine or scanner to count ballots. While we
respect decisions by certain states and jurisdictions to tally
votes by hand based on their demographics and resources, we do
not support providing a Federal subsidy to encourage states to
switch to hand counting. Further, hand counts have been
documented to be the most inaccurate means of tabulating
ballots as they are more prone to human error. We also have
concerns with the increased potential for fraud in counting
paper ballots by hand. Mr. Capuano during Committee markup
expressed his concerns regarding hand counting paper ballots.
Specifically, he noted:
``The only elections I have ever seen stolen is when
there's nothing but a hand count . . . that's the only
elections I've ever seen stolen.'' . . . ``A hand count
can get stolen, and I can tell you how to do it.'' ``.
. . Local officials are perfectly capable of making
these decisions . . . [those] people have been running
these elections for a long time . . . they know how to
do it . . . we don't have to hold their hand at every
step along the way.''
We should strive to make reforms to our elections process
that improve the voter confidence, however, we are skeptical
that providing financial incentives to states and local
jurisdictions to perform a hand count of paper ballots in lieu
of a tabulation using the electronic tabulator will increase
voter confidence in the outcome of an election. In fact, it may
decrease it.
We are pleased that the Committee adopted the amendment
offered by Mr. Ehlers that requires states or jurisdictions to
wait at least 8 hours before the polls close before performing
a hand count. We want to ensure that poll workers responsible
for the hand count are not required to work through the night
after having worked at least 12 hours at the polls all day on
Election Day. The Committee also accepted the amendment offered
by Mr. Ehlers, to provide that the team of individuals
conducting the hand count shall consist of an equal numbers of
representatives from each of the major political parties. This
amendment is crucial to ensure fairness and integrity when
counting ballots by hand.
CONCLUSION
When contemplating Federal election reform, the Committee
should be mindful not to roll back the progress made through
the enactment of the Help America Vote Act (HAVA), and at the
same time, not to jeopardize the successful administration of
our 2008 General Election. Providing a grant program to induce
states and local jurisdictions to make widespread changes to
the electoral process, especially in such a short time frame,
may have unintended consequences. We suspect given the current
fiscal climate that the Federal government will be unwilling to
expend additional funding to reimburse states or jurisdictions
that elect to participate in the grant programs outlined in
H.R. 5036.
Vernon J. Ehlers.
Daniel E. Lungren.
Kevin McCarthy.