PFAW Misleading on Holt Election Reform Bill

I'm sorry to have to keep banging this drum. I truly am. But it must be done, as People for the American Way (PFAW) continues to not only mislead the public about the Holt Election Reform Bill (HR811) and dangerous, disenfranchising DRE touch-screen voting technology, but they are now apparently also misleading about my position on the issue, by name.

I sent the following via email to PFAW's lead Election Policy attorney, David Becker, today along with CC's to Executive Director Ralph Neas, and a number of other Election Integrity organizations.

I would urge you to read the letter below, and contact PFAW with your own concerns and demand that they immediately stop misleading members of Congress and the public alike about the most important issue of our day.

PFAW's support of the Holt bill is currently the lynchpin, for Congress and a number of powerful organizations, concerning whether or not it will be passed as is, or whether much-needed amendments --- most notably, one that immediately bans the use of dangerous, disenfranchising, unverifiable DRE voting systems, with or without a so-called useless "paper trail" --- will move forward in Congress.

From: Brad Friedman
Sent: Monday, April 09, 2007 5:20 PM
To: 'David Becker'; 'Ralph Neas'
Cc: [REDACTED FOR PRIVACY]
Subject: IMMEDIATE CORRECTION REQUESTED: Misleading, Incorrect PFAW FAQ

David (and/or whoever is managing the "Democracy Campaign" FAQ page at the PFAW site) -

Thanks to Art Levine's American Prospect article today, I noticed for the first time, your misleading FAQ concering the Holt bill.

There are a number of out and out inaccuracies on that FAQ, as well as several wholly misleading points and --- the only thing which perhaps I have a say in --- a complete mischaracterization of my personal position concerning Election Reform in the very first Q&A on the page.

I am requesting an immediate retraction of that incorrect position statement, along with a statement noting your correction to it. The other items, obviously, I have little say about. But I will note the most troubling here in hopes that your conscience will lead you towards correcting the incorrect and/or misleading information you are currently making available to your members and the American public...

Concerning the point which concerns me directly, in the first Q&A, you say (in summarizing your general position on Election Reform with those of mine and Bev Harris' of BlackBoxVoting.or etc.):

Well, in this case, there are a lot more areas of agreement than disagreement. Everyone agrees that the status quo is unacceptable—that in 2008 we can’t have another Sarasota-like election where 18,000 ballots just disappear. We agree that there’s a need for election reform at the federal level. We agree that paperless voting has got to end—there has to be a paper trail that must be used for recounts and audits.

That is a wholly inaccurate summary of my position. I don't believe in "paper trails" in any way, shape or form. Alluding to Sarasota in the bargain, where "paper trails" on those DRE systems would not have helped --- according to every scientist I've spoken to on the matter, perhaps with the exception of Ed Felten, who failed to justify his position --- they would, in fact, have made matters worse.

As is, 18,000 voters failed to either notice or change their "undervotes" when they saw it on the screen in front of their face in Florida's 13th district race in Sarasota. There is no evidence to indicate they would have had any more luck in either noticing it, or changing it, on a tiny slip of paper printed out later after their on-screen confirmations.

Contemperaneous reports and affidavits from voters and poll workers during the election indicate that many voters, who knew about the problem prior to, and on Election Day, went out of their way to make sure they voted in that election due to the heads-ups concerning the "ballot design" issue prior to Election Day. And yet, when they got to the summary screen, there was no vote registered in the race. And that was among folks who knew about the problem and went out of their way to make sure they voted for certain in the race.

The only difference "paper trails", as currently mandated by the Holt bill, would likely have done, would be to have led the state and the Buchanan camp to declare that "the 'voter verified' paper trails you guys wanted show conclusively that 18,000 voters chose not to vote in that race. End of court case. End of congressional challenge."

"Paper trails" in that case, and in many others would NOT have been an improvement over what we have now in my opinion. They serve only as a panacea to the voter to make them think their vote will be counted as cast, when there is no way to verify that on a DRE system.

At least now, to paraphrase Don Rumsfeld, "we know what we don't know". We wouldn't, if "paper trails" on DREs were relied upon.

I am formally requesting that you clarify that point, and point out that PFAW is willing to settle for a "paper trail" representation of a voters vote, one that is not actually tabulated during the election, to be used in (most) audits and recounts in a limited capacity. While I, on the other hand, and many other Election Integrity advocates, are insisting on a paper BALLOT --- one which is actually tabulated --- for every vote cast in America.

On to the other most notable inaccuracies and misleading points in your FAQ...

Sarasota was hardly the only place with problems. So the status quo is unacceptable. Unverifiable, unauditable elections simply don’t work, and it’s time for change. The Holt Bill is a big step forward in correcting these problems,

The Holt Bill does not require either verifiable or auditable elections.

You are misleading your members and the public in suggesting that it does, even by characterizing it as "a big step forward" in that direction. As noted above, as the bill is currently written, it will lead to people believe the election is verifiable and auditable, when in fact it is not. At least people now generally know, after much hard work from many Election Integrity advocates fighting an uphill battle for years, that American elections as they currently are, are not verifiable. Tricking them into believing they are, by adding "paper trails" to Sarasota's DRE's, for example, is a dishonest method of rallying support for this bill.

The bill makes many improvements to the status quo: verifiable paper ballots,

Those "verifiable" paper ballots, as both you and the Holt bill describes them, are not required to be tabulated under the Holt bill. Giving the indication that they are is dishonest and misleading and should be clarified.

While DREs with audit trails may not be the right technology for every jurisdiction, they can provide some voters, particularly those with disabilities and language needs, with enhanced access. Other civil rights groups, in their expertise, have time and again stated that electronic voting enhances access to the ballot for voters with disabilities and language needs.

You've just conflated "DREs" with the "electronic voting" that may enhance access for a voter with special needs. That voter may need a touch-screen interface for a number of reasons, but NONE of those voters require a DRE voting system.

While I know that many people may confuse the two ideas because they don't know better, I know for a fact that you guys know the difference quite specifically. Therefore, conflating those two ideas --- suggesting that "voters with disabilities and language needs" may need to vote on DREs, when non-tabulating touch-screen ballot marking devices would serve them just as well, without posing the dangers of DREs --- is inappropriate and dishonest.

You owe both your members and the public much more than to use such sneaky rhetorical sleight-of-hand on them in order to rally for a bill that you support.

Most civil rights groups view electronic voting technology as the best option for voters with language needs, particularly in jurisdictions which must provide translations in multiple minority languages pursuant to the Voting Rights Act, since it puts complete control of the translations in the hands of the voter.

With DREs now morphed into "electronic voting technology", you continue the same sleight-of-hand as in the above section I mentioned.

Further, you tell your readers that "it puts complete control of the translations in the hands of the voters" while nothing could be more inaccurate. Instead, it puts complete control of the translations into the hands of the computer programmers who may then be able to ethnically profile based on the fact that it is known that a Latino or other ethnic minority voter is now voting. The machine --- as evidence has shown --- can then behave differently based on that knowledge (eg. some races have been left off of DRE "paper trails" for Latino voters only in Florida and elsewhere).

You wouldn't tolerate such ethnic profiling elsewhere, so I'm not sure why you continue to be unquestioning supporters of it in the most sacred element of our democracy.

Translated paper ballots (of the sort used with optical scan machines) require that the jurisdiction identify exactly how many translated ballots in each language should be distributed to each polling place,

And yet I've been told, by both folks at PFAW and other Holt supporters, including Holt's office, that the answer to voters becoming unable to vote when a DRE breaks down is that the Holt bill includes a mandate for "Emergency Paper Ballots". Therefore, according to the Holt Bill, jurisdictions, by law, will already have to ensure that there are enough paper ballots, in all the needed languages, distributed to each polling place, to ensure that all voters will be able to vote if DREs break down.

As the guy who originally coined the phrase "Emergency Paper Ballots", I'm left scratching my head yet again wondering how you can, in one breath argue that paper-based ballots systems require some insurmountable language and distribution burden, yet then go on to argue that those paper ballots will be available in an emergency to voters anyway if needed.

Which makes the following ALL CAPS statement even more disturbing, and apparently dishonest...

WE DON’T ADVOCATE THE USE OF DREs NATIONWIDE, HOWEVER, WE BELIEVE JURISDICTIONS SHOULD HAVE THE FLEXIBILITY TO USE SUCH TECHNOLOGY IF THEY DETERMINE THAT IT BEST SERVES THEIR VOTERS, SO LONG AS THE MACHINES ARE FULLY VERIFIABLE AND AUDITABLE.

As you well know, a great number of Elections Officials prefer DREs for a number of reasons, among them that it tends to make their life easier, even if it makes our democracy impossible to accurately verify and make in any way transparent to citizens.

Will you be calling for jurisdictions to call on their voters to decide if "such technology...best serves" them? Or will the DRE-inclined Elections Officials be making that call?

I believe we all know the answer.

And yet, I'll take you at your word, since you include "so long as the machines are fully verifiable and auditable". If you truly believe that, then you will immediate call for a ban on un-verifiable and un-auditable DRE voting systems (that includes those with or without a so-called "paper trail") and join me in the call for the use instead of non-tabulating electronic touch-screen ballot marking devices, which create a truly "VERIFIABLE AND AUDITABLE" paper ballot for every vote cast, as needed for disabilities voters only.

Many disability rights and civil rights advocates believe that the accessibility touch-screen machines offer is critical and they would oppose a ban on such machines.

With DREs conflated into "electronic voting" and now into "accessible touch-screen machines", you play the disability and civil rights card to suggest that those groups need DREs, when what they actually need (disability groups anyway) are accessible touch-screen machines --- electronic ballot marking devices --- and NOT dangerous, unverifiable DRE systems.

Again, while I understand some who don't know the technology as well as you all do making that mistake, it's simply

inexcusable

for you guys to conflate the need for accessible touch-screen machines, with the wholly unneeded use of unverifiable DRE systems.

Further, you fail to point out that a number of civil rights and disabilities groups have called for a "an immediate ban" on the use of DRE systems, including Lida Rodriguez-Taseff of the powerful and well-respected Miami-Dade Election Reform Coalition.

Q: Doesn’t the Holt Bill make the EAC a permanent fixture?

A: No. The EAC was created by HAVA (the Help America Vote Act), and that Act did not make the EAC temporary. The Holt Bill does not change the status of the EAC at all, except to LIMIT its discretion by establishing explicit statutory standards that it, and all jurisdictions, MUST follow.

And now I become incredibly concerned about what you all seem willing to do and/or say in order to see this bill get passed.

As you well know, HAVA, which created the EAC, only funded it through 2005. As currently written, the Holt bill will make funding for the EAC permanent, under federal law for the first time.

Yes, it adds some limited oversight to their operation, but how you can suggest that "The Holt Bill does not change the status of the EAC at all" is a remarkable statement which only further serves to suggest you are not acting in good faith in your public support of this bill.

PLEASE change this (and so many other points in your FAQ) to at least give an honest representation of the bill to your readers so they can decide, for themselves, what this bill really does and doesn't do.

Q: Does the Holt Bill allow a loophole for some states to conduct electronic recounts of the computer records, rather than recounts using the paper ballots or paper trails?

A: Absolutely not. The bill is explicit that ONLY voter verified paper ballots may be used in any and all recounts, as well as audits.

Absolutely wrong. Though I've discussed this with David, and others at PFAW, your intepretation of the language in question in the Holt bill here is not accurate. The language in question, as part of the section on how audits must be carried out under the Holt bill's federal mandate is quite direct, as follows:

SEC. 327. EXCEPTION FOR ELECTIONS SUBJECT TO AUTOMATIC RECOUNT UNDER STATE LAW.

This subtitle does not apply to any election for which a recount is required automatically under State law because of the margin of victory between the two candidates receiving the largest number of votes in the election. Nothing in the previous sentence may be construed to waive the application of any other provision of this Act to any election (including the ballot verification and audit capacity requirements of section 301(a)(2)).

In other words, in a case where the election is close enough that a state-mandated automatic recount is triggered, the audit provisions in Holt bill may be completely ignored. Even though ballot "verification" and "audit capacity requirements" must not be. That means no hand count of the paper records is required in such a case, as per Holt, only that the ability to audit the paper trails (as per section 301(a)(2) which requires a permanent paper record be produced) be followed.

Therefore, in states such as mine in California, where a mandated recount does not actually require a hand-count of the paper trails in the closest races --- where a hand-count is arguably the most needed --- no such hand-count is required by Holt.

Last week, a race in Orange County, CA was decided by just 3 votes when the judge in the election contest determined that paper absentee-ballots had to be recounted by hand, but for the Election Day votes cast on DREs with "paper trails", the only thing that needed to occur was pushing the button again on the DRE to get the same printout report they received on Election Day. Nothing currently in the Holt bill would keep that from happening in California, even on federal races.

Again, you are misleading your members, readers, supporters and the public at large in the above Q&A.

Finally, you have not only misstated my position, but also, apparently, that of VoteTrustUSA's concerning the Holt Bill in your last Q&A where you say:

Q: Who are the Holt bill’s supporters?

The Holt bill has attracted broad and growing support from voter advocates, civil rights, and progressive organizations. In addition to People For the American Way and People For the American Way Foundation, supporters include ... Vote Trust USA ... and others.

As has been explained to me directly, on several occassions, by VoteTrustUSA Executive Director Joan Krawitz, VoteTrustUSA as any organization cannot endorse any bill or initiative without the agreement of it's member organizations who are currently split on whether or not to support the Holt Bill.

I realize that VT's Policy Director Warren Stewart has been lobbying on Capitol Hill and in Congressional testimony in favor of Holt, and that it would seem to be in contradiction with Joan's several "on the record" statements, but it would seem appropriate to check in with Joan to determine if, in fact, VT has officially decided to endorse the Holt Bill. It is my understanding that they have not, have not posted any such endorsement statement, and the record should be clarified to that extent.

Again, while I insist that you clarify my personal position in your published statement on your FAQ page, along with a responsible explanation of what you had published previously and why the change is being made, it would similarly be the right thing to do to modify all of the material mentioned above --- with notated corrections/explanations --- so that the American public can be correctly informed on this debate over comprehensive election reform.

On that point, I certain agree with PFAW and it's Executive Director, Ralph Neas who said recently on Air America, that "comprehensive election reform is the top legislative priority facing the country right now."

As I have made clear before, I take no joy in challenging you guys publicly on these points. I believe the work that PFAW does for this country, in general, is absolutely vital, and almost always positive. On this matter, however, you guys are not only wholly and dangerously wrong, in my opinion and those of many computer scientists, Election Integrity advocates, disabilities and civil rights groups, but far worse, are now misleading members of Congress, your own members, and most disturbingly, the American voting public about what is actually at stake in this debate.

Thank you for your immediate and appropriate attention to these matters.

Respectfully,

Brad Friedman
Creator/Managing-Editor, BradBlog.com
Co-Founder, VelvetRevolution.us

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