Analysis: HB 18 with amendments

Introduction

There has been much controversy over the last week regarding amendments that were offered to SB 392, the voting systems reform bill on the Senate side.  While we agree that the original bill without the amendments would have been the preferred form, we feel the amended bill would also serve as a vehicle to improve MD’s voting system.  We see this bill as a beginning of a process that likely will play out over several years which ultimately will move MD from the bottom to the top of the list of states with secure, accessible, auditable and transparent elections.  Should an amended version of SB 392 make it back out of committee, or should similar amendments be offered for HB 18, we would support these bills, given that the only other option would be to continue with our current paperless voting system.

MD-EIC’s analysis of the amendments

1) The amended Senate bill would include various options to achieve voter verification. These options, with our analysis, include:

·        “A separate, individual paper printout, that is not part of a continuous roll, of the voter’s vote that is produced by a touch screen or other electronic voting machine and which in each case allows the voter to verify the record in accordance with this section;”

We are not aware of any such device currently available that could be added to our current DRE’s, although it is reasonable to assume that vendors might produce such a device in the future. This option is actually allowed under the House Bill (HB 18) which passed unanimously and is supported by all the election integrity activists.  It is not our preferred verification option, but it would be an improvement over paperless DRE’s in some respects.  There are numerous technological and cost considerations that, fortunately, make this an unlikely choice for the future. 

·        “a paper ballot prepared by the voter for the purpose of being read by a precinct-based optical scanner;”

This is the Op-Scan solution that we have aggressively advocated throughout the legislative session. It is both cost effective and available. Ultimately, it is a solution that appears to be gaining ever wider support in both the SBE and Governor’s office.  It is important for the advocacy community to recognize that the amendments ALLOW for OpSCAN, they simply don’t mandate it exclusively. 

·        “a paper ballot prepared by the voter to be mailed to the applicable local board, whether mailed from a domestic or an overseas location;”

This allows absentee ballots under the recent “no excuse” provision passed last year, along with overseas ballots. 

·        “a paper ballot created through the use of a ballot marking device;”

This provision exists within the original version of HB18, and is needed in order to provide for an adequate disability access solution. 

·        “an independent and auditable record of all votes cast that is created (i) by (1) software that is independent of the Voting system software; or (2) an independent recording device; and (ii) contemporaneously with the voter’s vote.”

This is the option that seems to be the source of most concern among some groups within the advocacy community. We believe this option is the least likely to be implemented for the following reasons: First, it would add costs to an already expensive system at a time when budget deficit issues are of primary concern to everyone in government, not to mention the public at large.  Second, and of critical importance, such a system cannot be certified under present EAC requirements as expressed in the 2005 Voluntary Voting System Guidelines (VVSG 05), [click here] which took effect this past December, replacing previous FEC guidelines. Under Maryland law, any voting system purchased by the state must have been

(i)                 examined by an independent testing laboratory that is approved by the National Association of State Election Directors; and

(ii)                shown by the testing laboratory to meet the performance and test standards for electronic voting systems established by the Federal Election Commission. (Maryland Code §9-102)

Since FEC standards are now superseded by the new EAC guidelines, any so called “dual system” or “end-to-end” electronic voting system must be tested and certified in accordance with VVSG 05. However, no such criteria exists in the current VVSG. Such systems have been relegated to an “innovation class” [click here] that will be considered for VVSG 07, though it is unlikely such standards will be prepared in time to appear in the next publication. Even if they were, the standards for VVSG do not take effect until at least two years after publication. Therefore, any voting system that must be procured by 2010 would have to comport with VVSG 05. This effectively removes such systems from consideration under HB 18. 

 2) The amended Senate bill (unlike HB 18) does not include any audit provisions.

This is true, but does not necessarily lead to the conclusion that the bill is flawed. Audit provisions can, and likely will, be added in the next legislative session. In point of fact, both the original and amended audit language have their own flaws, the most egregious being that the audit requirement is machine based, and not election race based. A more comprehensive description of race based audits can be found here. Several members of the Elections Subcommittee of the House Ways & Means committee have already stated that they would be in favor of separate legislation on the subject of election audits, recognizing that a carefully designed audit program may be used as an instrument for sound election management.

Indeed, the amendment on audits offered by the Elections subcommittee reducing the audit requirement from 5% to 2% was a step in the right direction, and should not be viewed as a compromise. It is both cost effective and reflects the fact that every state- wide and congressional level election since 2000 could have been audited at a 95% confidence level with a 2% precinct based audit. With current research into election auditing still evolving, Maryland voters would be well served by a more studied approach to this important topic. Time is on our side since the first election audit under an upgraded voting system would not occur until 2010. 

3) The amended Senate bill does not specify paper as the Official Record of the Vote

The Senate amendments do not make an official declaration of a paper ballot as the “official record” of the vote, as does HB 18. This does not itself diminish the effect of the legislation. Current law also contains no such definition. We believe that, since the most likely option that would be implemented under the current bill is an Op-Scan system, the voter prepared ballot will remain the only reasonable choice for the official record. To solidify this policy, appropriate language should be included in the context of audit language in a separate bill. 

Conclusion

With implementation of a new voting system set for 2010, there is time to work toward a solution that is cost-effective and meets the standards that we all seek for accurate, accessible, auditable, and transparent election systems. MD-EIC will be working diligently with the state legislature, the Governor’s office, and the State Board of Elections on a continuing basis. We hope to encourage a partnership relationship between these important agencies and offices, and the concerned citizens of MD. This legislation provides a solid foundation in that regard, and the relationships that have been established give us the confidence to see this through to the end. The current legislation is not the end, but rather the beginning of a process. We ask that you support  efforts to achieve our mutual goals. Please act to support this important legislation.