[EM] Legal Analysis of HR811 & Brennan Center Think-Tank Analysis of HR811

[Abd ul-Rahman Lomax]

I want to preface this additional comment by 
stating my interest. My overall concern is the 
reform of how societies make collective 
decisions; in this, election methods and election 
process are details, even small details. (In 
direct deliberative process, which is of critical 
concern to me, election methods are not terribly 
important. For example, deliberative process 
will, if the members care, converge on the 
Condorcet winner and is actually even more 
sophisticated than that. However, it's important 
that the election method community be aware of 
the larger issues, and so I've become involved 
with that community. And the whole topic of 
fairness of elections and election process

I'm not an expert on election methods or process; 
I have some experience and now some study by 
exposure to the writing and opinions of those who 
*are* experts, but my comments should be taken as 
being made by, to some degree, an outsider who 
thinks independently. As an outsider, my ideas 
come, sometimes, from a new perspective and could 
thus be useful; on the other hand, I may be 
missing critical information and may err in this or that.

On this particular issue, HR 811, I have been 
familiar for some time with some of the issues, 
and I have strong opinions, based to some degree 
on experience, about the whole topic of DREs, 
which I consider to have been a serious mistake 
from the beginning. However, HR 811 is not 
establishing the use of DREs, it is regulating 
them and setting up a means that would, properly 
monitored, allow us to measure the performance of 
DREs, which measurement could eventually lead to 
a ban, if appropriate. It's my opinion that, 
while HR 811 does not prevent all possible forms 
of election manipulation through DREs and how 
they are programmed, it makes it highly likely 
that such manipulation on a significant scale, 
enough to shift election results, would be 
discovered. This does not, by itself, solve the 
problem. We will still need to be vigilant and to 
act to ensure that discovered problems are 
addressed, that perpetrators of fraud are 
identified and prosecuted, and that if there are 
incompetent election officials, they are likewise 
identified and replaced. HR 811 gives us tools 
that can allow this to be done, it does not 
itself do it. It is not the complete solution, 
but it is a very important start, and that is why 
I've decided to support it fully.

How did I come to this position? Well, Kathy Dopp 
reported the controversy to the Range Voting 
list, in which I am an active participant. I 
looked at the blog I'm quoting because it was 
cited by a critic of HR 811 as an example of 
telling arguments. I looked at the blog and, 
instead of cogent arguments, I found polemic 
exaggeration, and, indeed, misrepresentation. I 
did not go to the blog as a supporter of HR 811, 
I was not hostile to criticism of it.

Now, that a proponent of a view uses false 
arguments supporting it is no proof that the view 
is false. Those of us who support Range Voting 
have our own enthusiastic supporters who argue 
vociferously, pulling in every argument they can 
imagine, including ones which are utterly bogus, 
and even insulting those who disagree with them.

However, it is telling that six of the "seven" 
serious problems in the blog in question, cited 
by a less polemic writer as a source for 
information on the problems, disappeared or faded 
greatly in significance when examined in detail 
and carefully. Are there any *other* problems? 
The one remaining problem was the allegation that 
paper ballots need not be available to voters until 2010.

At 02:48 AM 6/14/2007, Kathy Dopp wrote:
>On 6/13/07, Abd ul-Rahman Lomax <abd at lomaxdesign.com> wrote:
> > I reviewed, on the Range Voting list, a blog that criticized HR 811.
> > On that blog, it was claimed that the requirement of HR 811 that
> > voters must be, on request, provided with a paper ballot to fill out,
> > would not take effect until 2010. I could find nothing about this in
> > the text of the bill, the latest I could find, as reported out of
> > committee, which would otherwise be effective for November 2008 elections.
> >
> > Does anyone have more information on that point?
>
>It's right in the bill.

 From http://www.bradblog.com/?p=4650

>6) Massive voter disenfranchisement caused by 
>broken machines will remain in 2008 and beyond.
>
>An excellent provision in HR 811 when it was 
>introduced was a requirement for emergency paper 
>ballots to be available in case machines break 
>down ­ as they always do, and as we saw week 
>after week during the 2006 election cycle. 
>Recent elections have seen untold numbers of 
>registered voters turned away from the polling 
>place because the DREs broke down or 
>malfunctioned. So, having emergency paper 
>ballots on hand is absolutely essential.
>
>But that provision is no longer present in the 
>current official version. (Oddly, it was still 
>in the version approved by the committee, and 
>the question remains why it is no longer in the 
>official version destined to go to the floor.)

I'm not at all sure what is going on here. While 
how the committee-approved bill allegedly 
differing from that is going to the floor is 
mysterious, it seems to be moot, for it appears 
that the provision regarding emergency paper 
ballots is entirely replaced by a provision that 
voters may request a paper ballot, which seems 
entirely adequate to me. However, the writer then 
makes his comment about implementation date, which is the issue I asked about.

>Instead, the bill now requires that paper 
>ballots be offered to any voter who wants one. 
>This provision would allow voters to choose 
>paper ballots when the machines are broken ­ or 
>for any other reason. That’s good. However 
>unlike the original provision, this option won’t 
>take effect until 2010, and it won’t ever apply 
>to early voting, even after 2010.

Now, this writer is clearly disposed to 
complaining about any uncrossed t and undotted i 
in the bill, so to speak, so he is looking for 
problems, and thus perhaps disposed to err in 
thinking he has found one. But was there any 
basis to this other than a misreading? Is this 
idea being promoted by others? Or has, indeed, 
some new implementation date exception been added 
somewhere in the text. Given that it could be 
*crucial* in 2008, I don't think we should assume 
that everything is hunky-dory without very 
carefully looking into the charge, or at least 
attempting to find the source of it.

I'll rummage around a bit.