H.R. 2239, “Voter Confidence and Increased Accessibility Act of 2003

May 3, 2004

Dear Member of Congress:

We are writing as members of the Rights Task Force of the Consortium for Citizens with Disabilities (CCD), to declare our opposition to H.R. 2239, “Voter Confidence and Increased Accessibility Act of 2003” and other recently introduced similar legislative efforts. We write in support of a March 3 “Dear Colleague” letter to you from Representatives Ney and Hoyer, and Senators McConnell and Dodd, encouraging you to let the processes established under the Help America Vote Act (HAVA) work to find solutions for issues relating to voter confidence.

CCD is a coalition of approximately 100 national disability organizations working together to advocate for national public policy that ensures the self determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society. The Rights Task Force of CCD focuses on civil rights and protections for people with disabilities, and for enforcement of rights provisions by federal agencies.

On October 29, 2002, President George W. Bush signed the “Help America Vote Act” into law (P.L. 107-252) (HAVA). This carefully crafted bipartisan legislation provides funds and solutions to the problems our electoral process incurred during the presidential election of 2000. States and local jurisdictions found that many of our citizens’ votes did not count due to faulty ballot style, hanging chads from punch cards, improper recounts, and being turned away from the polls.

The votes of citizens with disabilities were additionally compromised due to barriers of attitude, physical access, equipment, and the inability to vote in a private and independent manner. HAVA recognized these problems and is providing states and local jurisdictions funds to purchase new accessible machines and remove physical barriers at the polls so that all citizens can vote.

Specifically, Section 301 of HAVA ensures accessibility to voters with disabilities by setting minimum accessibility standards for voting systems, and timelines for those standards to be in place. In particular, HAVA requires that voting systems be accessible to individuals "in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters" and includes non-visual accessibility for the blind and visually impaired, that at least one accessible voting machine be in each polling place by January 1, 2006 in order to meet the minimum accessibility requirements, and that all voting systems purchased with Election Assistance Commission (EAC) funds on or after January 1, 2007 be accessible. Additionally, Section 231 of HAVA requires the EAC to provide for the testing, certification, decertification, and recertification of voting system hardware and software by accredited laboratories.

Whereas the CCD Rights Task Force understands the concerns of voter confidence and electoral integrity which H.R. 2239 attempts to address, we do not believe that the proposed solution solves these recognized concerns and may create new problems. In fact the bill nullifies some of the provisions that were so carefully crafted in HAVA. H.R. 2239 seeks to create a voter verified paper record for voting systems used in federal elections. The bill also makes harmful changes to the current HAVA accessibility provisions. Specifically, H.R. 2239 erodes the rights of voters with disabilities under HAVA by creating a waiver for HAVA’s requirement that each polling place have one accessible voting machine by 2006, and removing the requirement under HAVA that all voting systems purchased beginning in 2007 be accessible to voters with disabilities. In doing so, H.R. 2239 eviscerates the accessibility provisions of HAVA and all

that remains intact is a general definition of what constitutes an accessible voting system, but no requirement of when this is to be accomplished.

In addition to the discriminatory effects of H.R. 2239, the bill is ill-advised because there is no evidence that it would resolve the security problems it purportedly intends to fix, nor will it increase voter confidence. The use of Voter Verified Paper Ballots (VVPB) used to recount and authenticate voting systems, as proposed by HR 2239 may, in fact, have the opposite effect.

For example, accessible electronic voting machines store information in multiple formats and places within the system’s program. In order to tamper with an electronic voting machine an individual would first have to know all of the machine’s program and storage components, and then would have to infiltrate those numerous components of the machine undetected. Procedures for securing the machines, such as random testing at the factory, upon receipt by the jurisdiction, before the polls open, and during and after the election, ensure the integrity of the voting system.

On the other hand, the history of elections in this country has demonstrated that paper ballots can be easily tampered with or “lost.” Additionally, it cannot be assumed that just because a voter verifies their vote on a piece of paper, the machine is recording the same result. If in fact a machine is hacked into and reprogrammed to give a certain result, it can also be reprogrammed to produce a paper record of one result, but record a different vote. The key to security is to maintain a well-designed election protocol to ensure the integrity of the machine’s security.

The current Voting System Standards (VSS) in federal election law do not include standards for a VVPB. The last revision of the VSS took 5 years. In most states, it is a violation of law to use a voting device that has not been certified to the VSS. Therefore, requiring a VVPB will delay modernization of the nation’s voting system and, in fact, will result in Americans voting on the same antiquated punch card and voting systems they used in 2000 and postpone improvements to our voting systems for the 2004, 2006, and 2008 elections. For individuals who are blind or visually impaired, there is currently no certified paper verification system to provide them access to independently verify their vote.

Electronic voting technology is making voting possible for citizens that have traditionally been disenfranchised, such as many disabled individuals and those for whom English is not their native language. However, despite the fact that there has not been a single documented incident or evidence of security breaches in any election in which electronic voting equipment has been used in the nation, many voters are increasingly fearful of altered electronic vote counts. This is unfortunate because it detracts from the larger issue of voting system security for all voting machines. Currently, administrative procedures are in place nationwide to assure security, accuracy and reliability in the use of certified electronic voting equipment.

HAVA charges the Election Assistance Commission (EAC) and the National Institute for Standards and Technology (NIST) with studying our nation’s election system and recommending improvements to Congress. Before amending HAVA, Congress needs to give the EAC and NIST time to gather the facts, conduct tests, and develop voting systems standards that, if implemented, would properly secure all voting systems.