Electric Boogaloo

For most political controversies, progressives don't need a scorecard to tell the good guys apart from the bad. One would expect that simple dynamic to apply to electronic voting reform, which Democrats have pledged to address during this Congress. But in fact, the thorny issue of voting machines, in the context of a shared desire for a fair, accurate election in 2008 (following one infamous election meltdown after another during the last few cycles), has rendered the fault lines in the debate over reform anything but straight and clear. Simply put, with Democratic control of Congress making meaningful progressive election reform a possibility for the first time in years, the "good guys" are busy battling each other.

The immediate issue at hand is legislation introduced by New Jersey Congressman Rush Holt, and whether it provides sufficient safeguards for voters and ensures the integrity of upcoming elections. (Broader measures to bar deceptive practices, promote election-day registration, and other reforms are moving far more slowly in Congress.) Heated charges about misinformation, unholy alliances, and looming election-day disasters are flying back and forth among rival progressives and activists who generally share the same goal of fair elections. The Holt bill, now with 200 co-sponsors, was the focus of hearings in March, and, when Congress returns in mid-April, will be marked up by the House Administration Committee before likely heading for a successful floor vote. A companion bill, with some differences, is scheduled to be introduced in the Senate by Dianne Feinstein of California this month but faces a far steeper uphill fight to pass.

The Holt bill, at first glance, seems to offer sensible solutions that many progressives have long been clamoring for; it bans paperless Direct-Recording Electronic machines (known as "DREs" or touch-screen tabulators), requires voter-verified paper "trails" and ballots, and, for the first time, mandates routine random audits of voting machine results. David Becker, the attorney who heads People for the American Way (PFAW)'s Democracy Campaign, tells the Prospect, "We believe the Holt bill in general strikes the best balance of security of election technology while at the same time providing accessibility for voters with disabilities and the minority language community."

Yet the bill has triggered an internecine war among progressives. It enjoys the backing of a wide range of influential organizations, including PFAW, Common Cause, MoveOn, Verified Voting, and SEIU. (Most civil rights groups have yet to take a position on it.) But other reformers, numerous and vocal if generally lacking the clout and organizational muscle of the proponents, have attacked the bill from two directions -- some for failing to go far enough towards the outright banning of DRE machines, and others for encouraging the use of optical-scan machines (which are believed to be less accessible to some disabled or foreign-language voters) through stringent regulation of DREs. The debate is as vituperative as it is multifaceted: One civil rights activist, concerned that the bill would pave the way for wider use of optical-scan machines that could limit minority access, told the Prospect, "PFAW has made a pact with the devil!"

The progressives' internal controversy over the Holt bill, carried out in the blogosphere, congressional hearings and even, apparently, in behind-the-scenes shouting matches, should not be dismissed as a trivial food fight among reform insiders. As veteran civil rights lobbyist and PFAW president Ralph Neas recently described this fight, "Nothing less than the integrity of the 2008 election is at stake."

Critics of the legislation can be equally categorical in their proclamations. "Supporters of the Holt bill as proposed are playing 'chicken' with democracy," says Bobbie Brinegar. "Some of the key provisions are not practical and could blow up in everyone's face -- and get in the way of quality voting system reform." Brinegar was, until recently, the D.C. lobbyist for Verified Voting, a leading election integrity group. As if to underscore the complexity of the debate, Verified Voting actually endorses the Holt legislation.

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So just who are the opponents of the bill, and what are their main critiques? Of course, the most powerful opposition comes not from ideological activists but, rather, from establishment interests and election officials -- namely, most states' secretaries of state and the leaders of the National Association of Counties, who see the Holt bill as a chaos-inducing rerun of the 2002 Help America Vote Act (HAVA)'s touch-screen fiascoes. Given the Holt bill's originally proposed $300 million funding level (although final authorization figures might go as high as $1 billion), they consider its 2008 deadline for states to either upgrade or scrap all their DREs an unworkable recipe for disaster. They haven't forgotten how $800 million of the funds promised to states and localities under the original HAVA law were never appropriated.

But the most visible challenger to the "cult of Holt" (as some skeptics call it) has doubtless been Brad Friedman, the independent journalist who runs the popular Brad Blog that serves as the central news resource for the anti-DRE election integrity movement. "They are dead wrong on the issue of whether we should allow dangerous, disenfranchising DREs for use in our election systems," Friedman says of Ralph Neas, PFAW, and other prominent advocacy groups. "We don't want to institutionalize DRE machines for years to come," he contends. "They're antithetical to democracy." He argues that any bill that keeps them in place will only "set back the possibilities of real reform for so many years that the current status quo would be far preferable to the Holt bill as it's written."

That may sound radical, but the political landscape surrounding DREs has shifted dramatically in the last two years, making the call for banning them more respectable. Before the 2006 election, the conventional reform position was to prefer optical-scan machines but to pragmatically accept DREs with voter-verified paper "audit trails," as reflected in legislation passed in over half the states. Those favoring total bans on electronic machines were dismissed as paranoid kooks. Now, many mainstream experts, such as Johns Hopkins computer scientist Avi Rubin, have declared that DREs -- even with voter-verified paper records -- "cannot be properly audited." Academic experts like those at New York University's Brennan Center Task Force on Voting System Security have also confirmed empirically just how easily both DREs and optical-scanners can be hacked.

But the real shock to the conventional wisdom came with the open-seat congressional election in Florida's 13th district last year, in which Republican Vern Buchanan defeated Democrat Christine Jennings by a 369-vote margin, while 18,000 votes on paperless electronic machines in Sarasota disappeared. Those missing votes cost Jennings the election, which is now being challenged in court and faces a review by a special congressional panel. The breakdown was revelatory. Even if those Sarasota machines had a paper trail, many reformers realized, voting security couldn't be protected. "We used to feel that verified audit trails were going to be good enough," says John Gideon, the executive director of VotersUnite.org, a research and advocacy group and a former supporter of earlier versions of the Holt bill. "Now we will not support a Holt bill that does not ban DREs." As John Bonifaz, a voting rights attorney with the Demos advocacy group, points out, "Adding a paper trail to a DRE won't provide the kind of security our elections deserve," noting that you can't divine voter intent from a print-out from a machine that could be flawed.

Meanwhile, minority and disability rights advocates have approached the issue from a different direction, and in fact are divided among themselves as to whether or not to support the Holt bill. For them, the voting machine type that's of top concern is not DRE but optical scan.

Optical scan machines read and tabulate paper ballots that have been marked either by hand or by a ballot-marking device, and offer voters feedback if they overvote. Critics see minority-language voters facing a potential logistical and voting rights obstacle course in getting the right paper ballots. (Los Angeles County must offer ballots in seven languages). And no optical-scan machine currently has a feedback display that tells foreign-language voters in their language that they've overvoted or made other errors. Disability advocates, in turn, are worried about the sometimes trouble-prone ballot-marking devices and the roadblocks voters with disabilities face in getting the paper ballot from those devices into the optical scan machines. (Though recent machines incorporate privacy sleeves that hold the marked ballot.) Indeed, Paralyzed Veterans of America and other disability groups sued the state of California last year because Automark devices allegedly created barriers for blind and manually disabled voters.

Some advocates in these communities have offered at least nominal support for the Holt bill following compromises that ensure DREs aren't banned completely, while others oppose the bill -- in strange-bedfellow alliance with the DRE critics -- because they believe the legislation's regulations of DREs will lead to increased use of optical scan machines.

To be sure, while Holt supporters invoke the mantle of civil rights and concerns about accessibility, the civil rights groups are surprisingly cool to the legislation. "It's not a priority for us," says Peter Zamora, an attorney with the Mexican American Legal Defense and Education Fund (MALDEF). The Leadership Conference on Civil Rights coalition hasn't taken a position, although one leader who attended a meeting there on the Holt bill describes "yelling" between language-minority and African-American representatives over the bill's timeline. Most disability rights groups view the bill's 2008 deadline for mandated paper records as unrealistic and dangerous, with a few working to push it back. Moreover, some in the civil rights community still deride Brad Friedman and his allies (including the grassroots Progressive Democrats of America leadership) as "crazies" and conspiracy nuts.

Many civil rights and disability advocates believe Friedman and others are downplaying the shortcomings of optical-scan machines in their campaign against DREs. Indeed, Lida Rodriguez-Taseff, the chair of a model local reform group, the Miami-Dade Election Reform Coalition, contends, "It's sad to see that white middle-class reformers are leaving behind minority communities in their drive for secure and reliable voting" -- by promoting optical-scan systems that could disenfranchise foreign-language speakers and the disabled. While she supports a ban on DREs, her group is also working to ensure that, in Florida, where Governor Charlie Crist is pushing the state to adopt optical-scan machines, requirements are put in place for those scanners to give voters feedback about any ballot errors in multiple languages, not just English.*

For their part, Friedman and other critics of DREs, such as John Gideon, forcefully challenge what they see as the myth that DREs are easier for minorities and the disabled. As Friedman notes about the proponents' claims that DREs improve minority access, "They keep talking about how 'they're happier' and 'better served' with no science to back that up.'' In the most telling rebuttal to those claims, Gideon looked at minority votes in New Mexico after the state switched from DREs to optical scanners: the study showed that the undervote rate -- i.e., ballots coming in with races unmarked -- plummeted 85 percent among Native Americans and 69 percent in Hispanic precincts. (Optical scan critics have counter-argued that the full-face ballot on this type of DRE machine may have been at fault in that case.) Still, Friedman, a California resident blithely challenging some of the most respected liberal lobbying groups in Washington, isn't afraid to scoff at sacred cows: "Everyone's afraid of the civil rights community."

Yet the views of disability rights advocates in particular hold a special moral authority in this controversy. As one civil rights activist puts rather caustically, "everyone loves the blind and the disabled," far more than foreign-language immigrants in today's political climate. As many as eight million disabled people reported having experienced problems accessing or voting at polling places, according to a 2004 Harris Interactive poll. But even the disability rights community is divided on reform legislation. Some -- but hardly all -- leaders, such as Jim Dickson of the American Association of People with Disabilities, are skeptical of the Holt bill for reasons similar to most elections officials: "It's extremely dangerous to make massive changes in the election system this close to a presidential election," says Dickson. Some leaders also argue that the bill could force election officials to adopt purportedly less accessible paper-based optical scanning systems.

In truth, according to Cristina Galindo-Walsh, an attorney with the National Disability Rights Network, "Each of the systems out there now presents accessibility problems." Indeed, over 30 disability rights and blind leaders have circulated a letter, drafted by blind computer specialist Noel Runyon, calling for an immediate ban on DREs because they're neither "fully accessible to all voters nor secure" and advocating for the use of touch-screen ballot-marking devices instead. Runyon, who has personally struggled for as long as an hour or more to use balky DREs, says that ballot-marking devices such as Automark work better than most DREs: "They give full accessibility for all kinds of impairments and can also supply language independence."

It's ironic, though, that while the anti-DRE critics complain that the Holt bill could enshrine the trouble-prone DREs forever, plenty of other observers -- some critics of the bill, others supporters -- say it creates such tough standards for DREs to meet that it will prevent them from being widely used. Holt proponent Warren Stewart, the policy director for VoteTrustUSA, a network of groups favoring electronic voting reform, says bluntly, "The bill has in place the kinds of restrictions that will make it extraordinarily burdensome and expensive to use DREs." The bill requires DRE manufacturers to reveal their source code for their machines' software and firmware, and demands that that they produce a voter-verified "durable" paper record that can be counted in audits and recounts (unlike the flimsy rolls used now). Election officials offering paper ballots -- and touch-screen ballot-marking or comparable devices for the disabled required under HAVA -- as part of their optical-scan systems wouldn't have to change anything under the proposed requirements. Given that no DRE machine used in the country now meets Holt's proposed standards, the bill thus effectively promotes use of the usually (though not always) more reliable precinct-based optical scanning approach.

If that's the case, progressives seeking fairer and more accurate elections might as well accept that the Holt bill as written is more likely to help democracy than hurt it. At the same time, if they really care about voting rights and honest elections, all should work hard to make sure that any reform bill actually has enough money appropriated -- as much as a $1 billion will be needed -- and sufficient safeguards for all voters to ensure that states adopting new systems do it right this time. We may not get another chance.

* UPDATE: Last week, Florida's secretary of state agreed to add multiple-language error feedback to any optical scan machines the state certifies as part of the governor's drive to ban DREs. Lida Rodriguez-Taseff, the chair of the Miami reform coalition that pressed for the change, announced today, "Fully accessible paper-based systems are not only possible, but are certainly doable in very tight timeframes like those being imposed in Florida. Therefore, other advocates in Florida and across the country should leave behind their fears that demanding language accessibility is somehow going to destroy the possibility of switching to paper-based systems."

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