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

[Abd ul-Rahman Lomax]

At 02:21 PM 6/14/2007, Kathy Dopp wrote:
>OK. I doublechecked re. the paper ballot provision for 2008.
>
>On 6/14/07, Kathy Dopp <kathy.dopp at gmail.com> wrote:
> > I believe that voters must still be supplied with paper ballots in
> > 2008, but I'll doublecheck this.
>
>As written, http://www.verifiedvoting.org/downloads/Capuano5%2007%2007.pdf
>the Capuano amendment would have added the paper or plastic option
>starting in 2010 to the requirement for emergency ballots upon machine
>failure starting in 2008.  As inserted, the amendment over-wrote the
>requirement for emergency ballots upon machine failure in 2008.
>Holt's office is working to correct that in a Manager's Amendment so
>that 2008 remains covered.
>
>i.e. the paper ballot provision was mistakenly removed in the amended
>version of HR811, but the managers of the House Admin committee are
>working to re-amend it to be sure it is reinserted.

I could not find any of this in the Library of Congress record of the 
bill's progress. What I find in the bill record is:

House Report 110-154
text of bill as reported in House
H.R.811.R.H
Sec. 2
[Sec. 247]
[the number of sections seems totally wonky, either there is 
something I don't understand or some mistakes have been made. There 
is another Section 247 which is different. In any case, the following 
is from the bottom of the page that is linked under Sect. 2

>`(13) MANDATORY AVAILABILITY OF PAPER BALLOTS AT POLLING PLACE-
>`(A) REQUIRING BALLOTS TO BE OFFERED AND PROVIDED- The appropriate 
>election official at each polling place in an election for Federal 
>office shall offer each individual who is eligible to cast a vote in 
>the election at the polling place the opportunity to cast the vote 
>using a pre-printed paper ballot which the individual may mark by 
>hand and which is not produced by a direct recording electronic voting machine.

Then, reviewing the record of committee votes, I found "The Lofgren 
Substitute," which apparently means an amendment offered as a 
substitute for previous amendments which failed, in order to address 
various concerns that had been raised:

>Lofgren Amendment in the nature of a substitute
>
>Offered by Ms. Lofgren. The substitute addresses a number of 
>concerns that were raised by the minority, interest groups and other 
>stakeholders during the timeframe between introduction of the 
>original bill and the mark-up. For example, the amendment addresses 
>many of the concerns regarding implementation dates and funding of 
>the legislation. All jurisdictions that used any paper-ballot-based 
>voting system in 2006, including thermal reel-to-reel systems and 
>accessible systems that used a paper ballot in any manner have until 
>the first election in 2010 to meet new requirements. Additionally, 
>funding for the voting system requirements has been increased from 
>$300 million to $1 billion. Furthermore, entities chosen by the 
>State to conduct the audits must satisfy the requirements of 
>`independence' set forth in the GAO's `Government Accounting Standards.'
>
>The Lofgren substitute changes the original bill in the following areas:
>
>Effective Date for New Requirements--January 2008 deadline has been 
>replaced with bifurcated deadline:
>All jurisdictions that used any paper-ballot-based voting system at 
>all in 2006 (including thermal reel-to-reel systems and accessible 
>systems that used a paper ballot in any manner) have until the first 
>election in 2010 to meet new requirements; All jurisdictions that 
>had no voter verified paper ballots at all in 2006 have until 
>November 2008 to meet all of the requirements (and they are not 
>entitled to a waiver).
>[...]

>Mandatory availability of paper ballots at the polls--adds that any 
>eligible voter shall be given the option by the election officials 
>of casting a vote by a pre-printed paper ballot not produced by a 
>direct recording electronic voting machine. The election officials 
>shall, to the greatest extent practicable ensure that the waiting 
>time to cast a vote on paper is not greater than the waiting period 
>to cast a vote on a machine. It further requires the posting of 
>notice regarding this right of voters to access the paper ballot, 
>and additional poll worker training regarding this requirement. It 
>exempts early voting, since voters exercising this option have a 
>separate opportunity to access a paper ballot. The amendment takes 
>effect in November 2010.
>
>Amendments to the Lofgren Substitute agreed to by voice vote
>
>The amendment offered by Mr. Capuano provides every voter voting in 
>a polling place the opportunity to vote using a pre-printed paper 
>ballot not produced by a direct recording electronic voting machine, 
>regardless of the circumstance. It further requires the posting of 
>notice regarding the right of voters to access the paper ballot, and 
>additional poll worker training regarding this requirement. It also 
>exempts early voting, since voters exercising this option have a 
>separate opportunity to access a paper ballot. The amendment takes 
>effect in November 2010.
>
>[...]
>
>The Committee then voted on the amendment in the nature of a 
>substitute, as amended, offered by Ms. Lofgren. The vote was 6-3 and 
>the amendment was agreed to.

The language of the Capuano Amendment, described above, is what is in 
the current text of the bill. However, what I've been unable to find 
is language in the bill that gives the Noveember 2010 deadline. 
Further, the 2010 deadline was in the Lofgren Substitute, it was not 
introduced with Capuano.

The paper ballot being available in 2008 is important because (1) it 
partially answers concerns about DREs, if people can use a paper 
ballot in the event a DRE is not functioning, or that lines are too 
long, or they don't trust the DREs, and (2) the expense is low, and 
paper ballots must be available at other times for other reasons anyway.