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Reply #33: NYVV's interpretation re permanent paper records is reasonable [View All]

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payin attention Donating Member (6 posts) Send PM | Profile | Ignore Thu Feb-26-09 01:48 AM
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33. NYVV's interpretation re permanent paper records is reasonable
Here's why: HAVA is sloppy with respect to the term "voting system," and elements 301(a) seems to violate the expansive definition that is provided in 301(b) and cited by VotersUnite.

As VotersUnite correctly notes, HAVA provides in section 301(b) a definition of "voting system" that includes not only equipment, but also practices and documentation. That would seem to mean that if a "voting system" utilized only lever machines for the recording of votes, that voting system would be able to meet the requirement for a permanent paper record with the manually-copied tally sheet.

Except that...HAVA does not use the term "voting system" in a consistent way

Just look at the infamous section 301(a)(3)(A) and (B), which states:

(3) Accessibility for individuals with disabilities.--The
voting system shall--
(A) be accessible for individuals with disabilities,
including nonvisual accessibility for the blind and
visually impaired, in a manner that provides the same
opportunity for access and participation (including
privacy and independence) as for other voters;
(B) satisfy the requirement of subparagraph (A)
through the use of at least one direct recording
electronic voting system or other voting system equipped
for individuals with disabilities at each polling place;
and


In this language, HAVA creates two definitions of "voting system," one explicit, and one required by context. On one hand, the opening language of 301(a)(3) says, "The voting system shall..." in the of the expansive 301(b) sense of the term. But then 301(a)(3)(B) seems to envision "voting system" as a specific item of voting equipment; i.e., each polling place must have "at least one direct-recording electronic voting system or other voting system."

If you are not used to reading legislation, just re-read the above HAVA language carefully, and you can see that it says "The voting system shall satisfy the requirements of subparagraph (A) through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.."

Or more simply, "The voting system shall use at least one direct-recording electronic voting system."

Huh? How can one direct recording electronic "voting system" in each polling place mean the 301(b) sense of "voting system?" For example, the 301(b) definition includes any component of the voting system used to "define ballots." But for a DRE used in a polling place, the ballot has been defined by the election management system. I think the bottom line is that the drafters of HAVA screwed up, and we don't know what the heck "voting system" means in the context of the paper-record requirement in 301(a)(2). It could mean individual devices or the whole shebang of equipment, documentation, and practices.

So when NYVV says that 301(a)(2)(B)'s requirement for a permanent paper record means that levers are out, they are being reasonable. Here's a link to HAVA. The entirely of section 301 is pasted below the link.

http://www.fec.gov/hava/law_ext.txt

SEC. 301. <<NOTE: 42 USC 15481.>> VOTING SYSTEMS STANDARDS.

(a) Requirements.--Each voting system used in an election for
Federal office shall meet the following requirements:
(1) In general.--
(A) Except as provided in subparagraph (B), the
voting system (including any lever voting system,
optical scanning voting system, or direct recording
electronic system) shall--
(i) permit the voter to verify (in a private
and independent manner) the votes selected by the
voter on the ballot before the ballot is cast and
counted;
(ii) provide the voter with the opportunity
(in a private and independent manner) to change
the ballot or correct any error before the ballot
is cast and counted (including the opportunity to
correct the error through the issuance of a
replacement ballot if the voter was otherwise
unable to change the ballot or correct any error);
and
(iii) if the voter selects votes for more than
one candidate for a single office--
(I) notify the voter that the voter
has selected more than one candidate for
a single office on the ballot;
(II) notify the voter before the
ballot is cast and counted of the effect
of casting multiple votes for the
office; and
(III) provide the voter with the
opportunity to correct the ballot before
the ballot is cast and counted.
(B) A State or jurisdiction that uses a paper ballot
voting system, a punch card voting system, or a central
count voting system (including mail-in absentee ballots
and mail-in ballots), may meet the requirements of
subparagraph (A)(iii) by--

<[Page 116 STAT. 1705>]

(i) establishing a voter education program
specific to that voting system that notifies each
voter of the effect of casting multiple votes for
an office; and
(ii) providing the voter with instructions on
how to correct the ballot before it is cast and
counted (including instructions on how to correct
the error through the issuance of a replacement
ballot if the voter was otherwise unable to change
the ballot or correct any error).
(C) The voting system shall ensure that any
notification required under this paragraph preserves the
privacy of the voter and the confidentiality of the
ballot.
(2) Audit capacity.--
(A) In general.--The voting system shall produce a
record with an audit capacity for such system.
(B) Manual audit capacity.--
(i) The voting system shall produce a
permanent paper record with a manual audit
capacity for such system.
(ii) The voting system shall provide the voter
with an opportunity to change the ballot or
correct any error before the permanent paper
record is produced.
(iii) The paper record produced under
subparagraph (A) shall be available as an official
record for any recount conducted with respect to
any election in which the system is used.
3) Accessibility for individuals with disabilities.--The
voting system shall--
(A) be accessible for individuals with disabilities,
including nonvisual accessibility for the blind and
visually impaired, in a manner that provides the same
opportunity for access and participation (including
privacy and independence) as for other voters;
(B) satisfy the requirement of subparagraph (A)
through the use of at least one direct recording
electronic voting system or other voting system equipped
for individuals with disabilities at each polling place;
and
(C) if purchased with funds made available under
title II on or after January 1, 2007, meet the voting
system standards for disability access (as outlined in
this paragraph).


(4) Alternative language accessibility.--The voting system
shall provide alternative language accessibility pursuant to the
requirements of section 203 of the Voting Rights Act of 1965 (42
U.S.C. 1973aa-1a).
(5) Error rates.--The error rate of the voting system in
counting ballots (determined by taking into account only those
errors which are attributable to the voting system and not
attributable to an act of the voter) shall comply with the error
rate standards established under section 3.2.1 of the voting
systems standards issued by the Federal Election Commission
which are in effect on the date of the enactment of this Act.
(6) Uniform definition of what constitutes a vote.--Each
State shall adopt uniform and nondiscriminatory standards that
define what constitutes a vote and what will be

<[Page 116 STAT. 1706>]

counted as a vote for each category of voting system used in the
State.

(b) Voting System Defined.--In this section, the term ``voting
system'' means--
(1) the total combination of mechanical, electromechanical,
or electronic equipment (including the software, firmware, and
documentation required to program, control, and support the
equipment) that is used--
(A) to define ballots;
(B) to cast and count votes;
(C) to report or display election results; and
(D) to maintain and produce any audit trail
information; and
(2) the practices and associated documentation used--
(A) to identify system components and versions of
such components;
(B) to test the system during its development and
maintenance;
(C) to maintain records of system errors and
defects;
(D) to determine specific system changes to be made
to a system after the initial qualification of the
system; and
(E) to make available any materials to the voter
(such as notices, instructions, forms, or paper
ballots).

(c) Construction.--
(1) In general.--Nothing in this section shall be construed
to prohibit a State or jurisdiction which used a particular type
of voting system in the elections for Federal office held in
November 2000 from using the same type of system after the
effective date of this section, so long as the system meets or
is modified to meet the requirements of this section.
(2) Protection of paper ballot voting systems.--For purposes
of subsection (a)(1)(A)(i), the term ``verify'' may not be
defined in a manner that makes it impossible for a paper ballot
voting system to meet the requirements of such subsection or to
be modified to meet such requirements.

(d) Effective Date.--Each State and jurisdiction shall be required
to comply with the requirements of this section on and after January 1,
2006.
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