Clinton-Boxer Election Bill: So Bad in So Many Ways

Once again, the Washington Times' intrepid "Inside the Beltway" columnist, John McCaslin, tips us off to a piece of legislation that deserves attention -- but only so long as that attention serves to inform Congress of why the bill should be rejected.

In Tuesday's edition, McCaslin writes:

Sen. Hillary Rodham Clinton says she looks forward to working with newly crowned Democratic National Committee Chairman Howard Dean, starting with voting reform.

As people in Iraq and Ukraine "celebrate elections and voter participation," says the former first lady, "we must make sure every vote is counted in elections right here at home."

Which brings us to the Count Every Vote Act of 2005, which Mrs. Clinton is introducing this week with California Democratic Sen. Barbara Boxer. If it is passed, the legislation would provide a verified paper ballot for every electronic vote cast and require the Election Assistance Commission to ensure uniform access to voting machines.

"It's outrageous that some people in predominantly minority communities had to wait up to 10 hours to vote [in 2004], while people in other communities often voted in minutes," Mrs. Clinton says.

If her act sounds familiar, it is because she introduced similar legislation last year, but acknowledges that "it never saw the light of day."

"I couldn't even get a hearing for my bill before the Senate Rules Committee," she complains.

"Inside the Beltway" doesn't tell the half of it. According to a news release posted on Senator Clinton's official web site, the legislation she and Senator Boxer (along with Representative Stephanie Tubbs Jones are proposing would be a massive intrusion into the authority of states to set their own election rules, based on local conditions, traditions, and resources, as well as a huge unfunded and unjustified federal mandate that would have to be met by local governments who, all in all, do a damn fine job of administering elections.

Please don't take that last point as self-serving (regular readers will recall my position as chairman of the Charlottesville Electoral Board). As reported by the Associated Press on February 15:

Improvements to voting machines and election administration saved 1 million votes that otherwise likely would have gone uncounted in the 2004 elections, with states and counties that made the most comprehensive upgrades recovering the most votes, an academic analysis says.

The report, released yesterday by the Caltech/MIT Voting Technology Project, looked at a key measure of election integrity -- residual votes, or ballots cast during an election on which voters failed to mark a choice or machines did not record it.

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The report "provides some corrective to what's getting to be a common interpretation of this election, which is that the election was deeply flawed and things were worse in 2004 than in 2000," said Charles Stewart III, the report's author and a Massachusetts Institute of Technology political science professor.

"By this measure -- which is a measure that people were trying to improve on -- things were significantly better in 2004 than in 2000," he said.

(The complete report, Residual Vote in the 2004 Election, is available at the Caltech/MIT Voting Technology Project web site.)

Now, to the meat of the Clinton-Boxer bill. Here is the laundry list of changes the proposed law would bring, as stated in Senator Clinton's news release:

The Count Every Vote Act of 2005 will provide a voter verified paper ballot for every vote cast in electronic voting machines and ensures access to voter verification for all citizens, including language minority voters, illiterate voters and voters with disabilities. The bill mandates that this ballot be the official ballot for purposes of a recount. The bill sets a uniform standard for provisional ballots so that every qualified voter will know their votes are treated equally, and requires the Federal Election Assistance Commission to issue standards that ensure uniform access to voting machines and trained election personnel in every community. The bill also improves security measures for electronic voting machines.

To encourage more citizens to exercise their right to vote, the Count Every Vote Act designates Election Day a federal holiday and requires early voting in each state. The bill also enacts "no-excuse" absentee balloting, enacts fair and uniform voter registration and identification, and requires states to allow citizens to register to vote on Election Day. It also requires the Election Assistance Commission to work with states to reduce wait times for voters at polling places. In addition, the legislation restores voting rights for felons who have repaid their debt to society.

The Count Every Vote Act also includes measures to protect voters from deceptive practices and conflicts of interest that harm voter trust in the integrity of the system. In particular, the bill restricts the ability of chief state election officials as well as owners and senior managers of voting machine manufacturers to engage in certain kinds of political activity. The bill also makes it a federal crime to commit deceptive practices, such as sending flyers into minority neighborhoods telling voters the wrong voting date, and makes these practices a felony punishable by up to a year of imprisonment.

It's hard to know where to begin in addressing the horrid ideas found in this bill.

Let's look at the "voter verifiable paper trail." Last year, the principal authors of the Help America Vote Act of 2002 (known in the trade simply as "HAVA") distributed a letter to their congressional colleagues explaining why the "paper trail" is unneeded. The letter was signed by Senators Mitch McConnell (D-Kentucky)and Christopher Dodd (D-Connecticut) and Representatives Robert Ney (R-Ohio) and Steny Hoyer (D-Maryland), and thus lacks any hint of partisanship. The four legislators wrote in their letter, dated March 3, 2004:

Various proposals have been introduced in the House and Senate, but a common feature of these bills is they would amend HAVA to require that all voting systems, including electronic and computer-based systems, produce or accommodate a "voter verified paper record." Not only are such proposals premature, but they would undermine essential HAVA provisions, such as the disability and language minority access requirements, and could result in more, rather than less, voter disenfranchisement and error.

They continue:

The proposals mandating a voter-verified paper record would essentially take the most advanced generations of election technologies and systems available and reduce them to little more than ballot printers. While such an approach may be one way to address DRE security issues, it would, if adopted, likely give rise to numerous adverse unintended consequences. Most importantly, the proposals requiring a voter-verified paper record would force voters with disabilities to go back to using ballots that provide neither privacy nor independence, thereby subverting a hallmark of the HAVA legislation. There must be voter confidence in the accuracy of an electronic tally. However, the current proposals would do nothing to ensure greater trust in vote tabulations but would be guaranteed to impose steep costs on States and localities and introduce new complications into the voting process.

Last year, the Electoral Board and General Registrar of Arlington County, Virginia, prepared an article that listed several reasons why the VVPT (voter verifiable paper trail) is problematic. The article was reprinted in the October 2004 newsletter of the Virginia Electoral Board Association. (Regrettably, the VEBA newsletter is not available on line.)

The article points out how the VVPT concept is at odds with some of the other goals advocated by Senators Clinton and Boxer (and their allies). For instance, as noted above, their proposed bill "requires the Election Assistance Commission to work with states to reduce wait times for voters at polling places." Fine-sounding language, but think about this, as the Arlington County Electoral Board points out:

Mechanical printers appear to be the least reliable of computer system components: they jam, are slow, and a voting machine with a VVPT probably would need to be supplied with paper several times during Election Day.

They add:

For the VVPT to work and have a degree of accuracy, assurance would be needed that each voter would in fact verify every ballot. This would be time consuming, potentially more than doubling time spent at the machine.

While referring specifically to their own jurisdiction, the Arlington Electoral Board members note something else that is nearly universally true:

It may be helpful to remember that, for more than 50 years, no paper trail of voters' ballots has been available in Arlington for recounts. That was the case for the mechanical lever machines that were used from 1950 to 1991 and for the electronic push button machines used between 1991 and 2003. When those machines were in use, we know of no issues raised regarding the lack of a paper trail. In fact, one of the reasons for the original move to voting machines from paper ballots was to eliminate controversies regarding paper ballots. Historically, problems with paper ballots involved difficulties in achieving accurate counts, ballot box stuffing, and voter intimidation.

In Senator Clinton's news release, civil rights activist Ralph Neas says that "This bill provides practical, secure accessible solutions at the ballot box for Americans with disabilities, those who speak languages other than English, and other Americans who face hurdles in exercising their voting rights. It's a great bill."

But the internal contradictions of the bill -- involving VVPT, but other aspects as well -- undermine it. Turning again to the Arlington Electoral Board:

In multi-language jurisdictions, and Arlington may at some future date be required to produce the ballot in at least two languages, there would be the need for the VVPT to print in more than one language. Some ares of California, for example, now have ballots in a number of languages.

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As a local example of what might be involved with a VVPT, Arlington has long ballots in presidential election years, with large blocks of text for ballot questions. The paper audit for one ballot could potentially be as much as 24 inches long and even if we could assure that every voter would take the time to review the paper tape against the electronic selections, such a system would considerably increase the amount of time a voter spends in the voting booth, guaranteeing the ire and frustration of other voters waiting in lines that they already believe are too long.

Some of the other provisions of the Clinton-Boxer bill -- mandating Election Day voter registration and "no excuse" absentee voting -- are recipes for voter fraud. (For documentation, take a look at John Fund's Stealing Elections: How Voter Fraud Threatens Our Democracy.) There's far too little space available here to rebut each individual provision. Suffice it to say the bill would destroy the federal character of elections, which, as I have argued elsewhere, is the strongest defense against vote fraud.

Last year, similar legislation proposed by Senator Clinton was bottled up in committee. Let's hope this ill-considered grab-bag of half-baked ideas meets the same fate.