American Enterprise Institute

March 9, 2007

[Edited transcript from audio tapes]

8:30 a.m.	Registration
9:00		Panel I: The Lessons from November
	Panelists:	Rick Hasen, Loyola Law School
		Gracia Hillman, Election Assistance Commission
		Todd Rokita, Indiana secretary of state
	Moderator:	John C. Fortier, AEI
	Keynote Speaker:	Congressman Vernon J. Ehlers (R-Mich.)
11:00		Panel II: What’s Brewing for Election Reform?
	Panelists:	Doug Chapin, Electionline.org
		Zachary Goldfarb, Washington Post
		Thomas Mann, The Brookings Institution
	Moderator:	Norman J. Ornstein, AEI
12:30	Adjournment

Proceedings:

Panel I: The Lessons from November

(Discussion in progress)

John Fortier:  ---Brookings series of panels, the AEI-Brookings Election Reform Project has a panel.  The keynote speaker, Mr. Ehlers from Congress and a second panel following that looking at the 2006 elections; not the results of those elections but how those elections were run.  How far have we come since Florida in 2000?  How have we done with the Help America Vote Act in 2002?  How has that implemented over the past four years?  And then in the later part of the conference, looking to the future.  Where are we heading in election reform issues? 

We have an impressive set of panels today.  We will start introducing our panel here today.  I will start to my right with Gracia Hillman who is Commissioner on the Election Assistance Commission since December 2003, or since the very beginning.  She has served as chairman of that commission and prior to that--her time on the commission was executive director of the League of Women Voters, the Congressional Black Caucus Foundation and the National Coalition on Black Voter Participation. 

Then we have Todd Rokita, who is the secretary of state of Indiana, the chief election officer of that state.  He was elected by other secretaries of state to serve on the Executive Board of the Election Assistance Commission Standards Board.  And with Indiana, a number of interesting developments in particular a new voter identification law.  We would like to hear how that is working and other developments in Indiana as well as with his work with the National Association of Secretaries of State, a broader, national perspective. 

And then on the end we have gearing up his PowerPoint presentation--that is Rick Hasen who is the William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles.  He is a recognized expert on election law, is co-editor of the Election Law Journal, which is one of our great academic resources on election law; also a co-editor of a case book as well with Dan Lowenstein.  He is also the editor of a recent book, The Supreme Court and Election Law: Judging the Quality from Baker v. Carr to Bush v. Gore published at NYU press in 2003.  Let me go in order that we have introduced.  We will start with Gracia Hillman; we will move to Secretary Rokita and then to Rick Hasen.

Gracia Hillman:  Thank you so much and good morning to everybody.  Before I begin, let me introduce my colleagues; at least I certainly see one, the chair of the EAC for 2007. Commissioner Donetta Davidson is here in the back of the room. And, Donetta, I cannot tell if our colleagues are here yet -- no?  Right.  We had this week two commissioners to start, Commissioner Caroline Hunter and Commissioner Rodriguez.  They were recently appointed and began their work with the Commission this week and they will be joining us later. 

Lessons learned from November:  Many, many discussion about this and I think it would be fair to say that every person who is engaged in the election process has learned a lesson this year, and if you spoke with 500 people you would probably hear at least 450 different lessons learned.  We are going through a transformation; every industry has gone through some major transformation at some point in its existence.  And that elections are going through such a major transformation at this point in its existence in this country is very significant. 

In 2000 there was a demand for change from the public, and the public would include academics and political and public officials as well as individual voters.  Congress accepted some responsibility to legislate that change and assigned a fair amount of that responsibility to the states and to the Election Assistance Commission and to the Department Of Justice for enforcement.  And if you look at the kind of changes that were legislated and have been implemented since 2003 and you look at it in the context of any kind of radical transformation, there would be nothing new here. 

What is different, however, is that there is almost no tolerance right now for the kind of time it takes to get things right.  The kind of change that was legislated by the Help America Vote Act was huge.  It not only included new systems that had not previously been widely tested; it included changes to develop statewide voter registration databases, which was a new activity for most of the states, if not 49 of the 50; and that was a huge project.  It was a huge, huge database project.  Any large organization that has been through a huge database change would appreciate that, and the fact that this database had to interface with local jurisdictions and other governmental organizations helps to magnify that.  So we should not be surprised that it would take more than three years.  Even if everything had begun right away after the Help America Vote Act had been signed, expecting that all of that could be transformed, in place and finely tuned in three years was, perhaps, a bit shortsighted.  And lessons learned---I mean, that is clearly a lesson learned. 

I think I will approach lessons learned from the four different levels, starting with the national level; for America, in general, what worked?  Clearly, increased awareness and increased dialogue and increased press coverage about all matters relating to election administration was a good thing for America.  I also personally think it is a good thing for America that we would use this time now to find a way for technology to enhance the way we conduct elections.  Now some of my colleagues, and myself included, we are not always pleased with the reports that come out in the media because I think some of it was very, very confusing to the electorate.  Most people want to be able to, A, know how to register to vote; B, know where to go to vote - walk into a polling place or request and exercise their absentee ballot or otherwise just vote without having to feel like they need to know 10 or 12 steps to be able to exercise their vote.  Hopefully, at the end of this transformation process, voters will have that level of comfort.  But right now, because there is so much discussion, I think a lot of voters are stepping back and saying “Well, wait a minute.  Perhaps there is more going on here than I realized.”  And so instead of the comfort level increasing the way we all hoped it would at this point in time, it has either stagnated and, maybe, in some cases dipped. 

So the challenges that remain are for the Election Assistance Commission and the states to work with its NGO partners and legislators - federal legislators and state legislators - to really capture what works well and what is not working well, whether it means that people feel that voting systems are not as robust and durable as they need to be; the issue of every ballot cast having a verifiable paper record, a voter-verifiable paper record; or whether it means various aspects like provisional voting being implemented in a way that does not confuse voters or otherwise put voters in a position of not understanding when and how their votes get cast and counted.

We need to capture what works.  We need to look at what is not working for all of America and continue pushing.  For state and local jurisdictions, obviously, what helped them were the resources that Congress brought to the table; and what also helped them were their experience and their commitment to their work.  But the amount of change they had to manage was incredible and I think it stressed the system in many ways. 

On the other hand, we have now election officials who are trained and doing their work differently.  But the challenges remain to work out the kinks and fully implement it, and, of course, it makes them ever so nervous to think that just as they are fine-tuning what they implemented in the past three years, there may be a new way of reform coming.  And I’m sure we will hear more about that later, but that can be pretty daunting to figure out just what are the implications and what are the timelines. 

With respect to non-governmental organizations, I do not want to appear to be jaded but I’m not sure what really worked for the NGO groups in the past three years with respect to election reform.  I certainly appreciate what worked with respect to access to voting for persons with disabilities but I think that the non-governmental organizations in general - and I do not mean every single one of them, but in general - have signaled a high level of dissatisfaction with either the type of reform that is in place or the way that the reform has been managed.  And for individual voters, lots and lots of tools in place to protect votes.  Increased voter education; voting systems that presumably would be more efficient to cut down on the length of time a person has to wait in line; tools like provisional voting; administrative complaint procedures. 

But all of this is only as useful as the knowledge that the voter has that these things exist, and it is an awful lot for a voter to absorb in a two-or-three-year period of time, and so I think it does lend to some confusion.  It puts a lot of responsibility, but, I think, rightfully so, on organizations like the Election Assistance Commission, organizations that include the Secretaries of State, local election officials and others including the nongovernmental organizations to really do the kind of voter education that clarifies where we are with this. 

I think, perhaps, the lesson learned from this past November for individual voters is that too much information lent to more confusion with respect to what is working and what is not working.  And I think the highly contentious and emotionally charged debate over the types of voting systems used really did make voters feel that the system in the main is not improving.  What benefit is it to me as a voter if the system I’m using is high-tech and it has bells and whistles and it works and it can count votes in 10 minutes if I do not believe that the integrity of the process has been maintained?  And I think that is an unfair perception but it is going to take a while to work through all of this for the voters to be able to separate concerns about the types of voting systems, the durability, the efficacy of those systems to give the EAC and others a chance to really test all of these processes out and to also resolve conflicting interests. 

There are many conflicting interests between all the various groups that are engaged in this process and it is going to take time. And I understand voters do not want to wait until 2010 and 2012 when there is going to be an early mandate.  But there were good lessons learned.  Whether they captured what worked well, whether they codified the challenges that remain, 2006 in the main worked fairly well for the United States with respect to voting.  Thank you.

Todd Rokita:  Thank you, John, and thank you, Gracia.  As I move forward making some remarks on behalf of not only the National Association of Secretaries of State but, also, and separately as Indiana Secretary of State, I want to take just a minute and introduce Leslie Reynolds, who is the Executive Director of NASS, the National Association of Secretaries of State.  She is the secretaries’ eyes and ears on the Hill when we are not here, and most of the time our mouth as well. 

So, Leslie, good morning.  Thank you for being here.  With respect to the EAC and former Chair Hillman, I want to also publicly say that - and this is on behalf of the Secretaries of State - a lot of times the secretaries are in very good alignment with what the EAC is doing and its initiatives, and sometimes we are not. But at all times we have all benefited from and appreciated an America---and the voting public and the tax payers have benefited from the professionalism of the EAC, and I thank you Gracia and the EAC for that.

I have formulated my remarks into some of the positives and negatives from 2006.  I absolutely do not believe - and I do not believe any secretary of state in this country believes - that our election system is broken.  I think the elections that we have had recently involving the new technology, putting 21st century practices to our process has resulted in the most accurate, accessible and fair elections this country and - although I do not have data to back that up - the world has ever seen.  For some reason, we have got on this thing where an electoral process in this country has be textbook-perfect.  And before you draw your judgments, let me explain my definition of the word “perfect” in that last sentence by saying what elections have not been in the history of this republic or the world.  And that is we have never seen a perfect election because at every one of our elections, humans have been involved and, at least, by biblical definition of the word “human,” we are not perfect; therefore our elections cannot be perfect.  But they have to be fair and they have to be accurate.  And what I mean by that is that if something goes awry at a precinct - a battery fails on a piece of voting equipment – that, by definition, results in an imperfect election. 

But what matters is do the poll workers know what the back-up process procedure was?  Was it utilized?  And every state has those back-up procedures built right into its law or its regulations.  And were the voters afforded access to that backup procedure?  And the example of a voting system failure - a battery dying.  And that is what I mean by fair and accurate.  And then if a problem occurred, it did not just occur in a predominantly African-American precinct or it did not happen to voters who were all women.  That certainly would be unfair and inaccurate and inaccessible. 

But what we should be judging all of this on is did the election afford an equal opportunity across voters, across the jurisdiction, to exercise their franchise?  And if you look at the electoral process in that context, through that lens, which is a reasonable and fair lens---again, as long as humans are going to be involved in putting on the election, then you will find, certainly, undeniably that our processes these days are much better, much more transparent, much more accessible, much more focused upon than they ever have been in our history.  And if we are going to be responsible as voters, as citizens of a free society, then we owe it to each other, we owe it to our fellow citizens to point this out to the media, to remind ourselves of what we need to do to improve the process; make it even more fair, more accurate, more accessible.  Strive always, as we do as humans, for that goal of perfection but knowing that if we continue on the track that I have at least seen over the last couple of years ever since Florida 2000, then all we are going to do at the end of the day is completely destroy and keep humiliating voter confidence, and we need to be building up voter confidence. 

Prior to Election Day November 6th, the headline in the Indianapolis Star was “Voting Fiasco, a Big What-If.”  The popular media in Indiana, as they did throughout the country, did their best to try to predict a universal meltdown.  And certainly there was a lot at risk with the mandated deadlines of 2004 and 2006, new statewide voter files being used many times for the first time throughout the country and the machines being used for the first time.  There was certainly a lot at risk and a lot of fodder to scare the voter but it did not happen.  Were there errors on election day?  Absolutely.  Were there any more errors on election day than there ever have been in the history of this country?  Absolutely not. 

In Indiana on Election Day, the errors we saw were related mostly to poll worker training or human error utilizing voting systems; the widespread glitches that were predicted simply did not happen.  In Indiana, we have used some form of electronic voting equipment since 1986.  I have personally done several recounts before becoming secretary of state and as secretary of state on these machines.  I have seen absolutely no evidence that machines where intentionally manipulated---simply manipulated to skew the results of an election. 

In Indiana, at least until national media count surfaced, there was no lock of voter confidence in utilizing this equipment.  We were used to it and the poll workers were used to it.  And as Gracia explained earlier, over time, the workforce of poll workers will become used to this new voting equipment all over the country. And time is what is needed, so we can continue to seed, root, and grow the tremendous change that has occurred over the last two, three, four years, more change than we seen since the Voting Rights Act of 1965, the biggest piece is civil rights legislation since that time as well.  It would be detrimental and irresponsible to make further changes in the [indiscernible] structure until you let these human poll workers, election administrators and human voters get used to what we just did to them. 

We also have to remember that as the EAC promulgates more voluntary “voter system guidelines” and as we make this push for more technology in our process, push a concept I truly believe in, we have got to stop being afraid of technology and using it in our electoral process just as we use it in almost every other part of our lives; quite simply, vote how we live in the 21st century.  But if we do not slow this train down a little bit,  first of all, we are going to be building systems that humans who only do this twice a year at a precinct or polling place can operate, and perhaps even no amount of training will get them there. 

And we are building voting systems now - I alluded to it in the last Standards Board Meeting – that probably could be used on the space shuttle.  And if they are not being used on the space shuttle, let’s try to keep it simple.  Every time we do a voting system guideline or voluntary or not, we are sending the industry these vendors out to go do more research and development that they do not get paid for; it costs them money. Then they have to bring the results to that research and development to market, and by the time they sell them we are changing it again.  So we are also putting at risk the entire industry, and the government is going a need the vending industry to put on an election.  I do not think the government---I do not know if anyone here---maybe they are---promoting the idea that government get into the business of making our voting machines. 

In Indiana we just saw how VTI, a voting system company, a very small one, only operating at three states and only four countries in Indiana’s 92 counties, just went out to business, and we have a primary election in May.  And we are doing our work around and we will have an election in May.  But it is my warning sign that the industry is delicate and fragile.  Hacking was not commonplace at polling place in Indiana at all for the 2006 elections, and the pre-election reports of hacking in the voting system simply did not translate into the real polling place environment, especially when you have two or more parties watching over each other to make sure that the processes are upheld. 

But poll worker training is worth a significant amount of investment in time.  And I would submit to this audience that they consider ways to focus on the people and the processes, and maybe there are some of these scientists in the room, or maybe they need to be in the room.  But logistics managers, supply chain kind of management that you see in companies all over the world employ maybe can be used with Indiana’s 30,000 poll workers and 5500 precincts.  It is logistics in a lot of ways that can help move the voter, move the ballot, get an accurate count. 

We have got to---and I will conclude, so I can offer our final colleague here some time speak and then take your questions.  But we have to remember that these voting machines are not the election.  They are a tool, and, again, a simple tool that should be used by people trained well to put on our elections to keep this society free.  It is the people that make this election, the workers and the voters that determine the success of the election and that determined the success in 2006, and not any machine.  So I thank you for your time and look forward to your questions in an academic and healthy and really practical debate as well.  Thank you.

Rick Hasen:  Okay.  Thanks to Norman and Tom and John and Tim and Matt and Molly, so much to thank them for all the hard work in putting this together.  I do appreciate it.  I’m pleased to be up here with this esteemed panel.  There is only one thing I’m going to disagree with John about, which is my last name is Hasen.  I will be, though, somewhat of a dissenting voice here on the question of whether or not the election system is broken.

And I thought it would be useful to start and ask how would we evaluate election administration in the 2006 election.  What is the standard by which we judge it?  And it seems to me that there are at least three standards that we might use.  We might use a meltdown standard; we might ask did the system lead to the kind of chaos that we saw in 2000?  A public confidence standard: What do voters think of the election process; and election administration competence standard, which we might think of as potential meltdown.  So these are all different ways that we might evaluate whether or not the 2006 elections were a success or a failure. 

On the meltdown standard, clearly the election in 2006 was a success.  We did not see the question of the balance of the Senate or the House go into overtime.  Now, the chances of a meltdown having national implications are quite small because it would require either the presidency to be at issue or control of the House or the Senate.  The chances of that happening are very small.  We came very close and we are lucky that the election administration in Virginia and Montana was beyond what we might call the “margin of litigation.”  If the election rose or fell on the outcome of the Florida 13th congressional district, we still would not know who would control that House because we still have a dispute. 

So the meltdown standard is---maybe that is what the media is most interested in but in terms of the chances of a meltdown in any particular election, they are pretty small.  And if that is our standard of success, then it is a pretty low standard and we are going to meet it most times.  Preparing for 2000 is like for preparing for a Category-V hurricane.  You need to do it because of the catastrophe but it is not so it happens all that often.  So that is the meltdown standard. 

What about public opinion?  When I was here - I do not remember if it was last year or the year before - I put up these slides.  These are from NES data that show the difference in Republican and Democratic voter views and confidence in the election process.  And what it shows is that in 1996 - we were lucky this question was asked before 2000 - Democrats and Republicans had pretty much similar views about confidence that the election process was fair.  But by 2004, only 2.9 percent of Republican respondents thought the presidential election was run in a very unfair way compared to 21.5 percent of Democrats.  And what seemed to be from this pattern was that losers had less confidence than winners because we saw these figures reversed in the Washington gubernatorial contest where after a court battle and recounts, Democrats were much more confident in the process than Republicans. 

Now, what do we know about 2006?  The most troubling survey that I have seen - and I think I have not had a chance to canvas everything yet - was an October 2006 by Pew, which asked the question “Are you confident your vote will be accurately counted?”  Seventy nine percent of Republicans were very confident compared to 45 percent of Democrats.  And if you look at the gap by race, 63 percent of whites compared to 30 percent of blacks were very confident; 29 percent of blacks compared to 8 percent of whites were not at all confident.  And this other chart from PEW, the percentage of black’s confidence in accurate vote counting. 

So in 2004, there were 15 percent of African-Americans who said they were either not too confident or not at all confident---15 percent.  That number has now doubled to 30 percent from 2004-2006.  So if we are using public confidence, there is a lot to be worried about.  Now, we need to see---my prediction would be that Democrats are going to be happier with election administration.  Now that they see the results of the 2006 election, the Republicans are going to be less happy.  But I have not seen any post-election surveys yet asking that question; we will have to see what happens in 2008. 

The third way – and, I think, one of the ways we definitely want to evaluate the question of whether or not the 2006 election was a success or a failure - is by using the election administration competence standard:  Were the elections administered not with perfection but in a competent way?  And what we saw were serious isolated problems, and the two largest problems were the problems in Denver with the electronic poll books and then further problems with county absentee ballots.  I think by any measure that election was run in a not-competent way.  Plus, we have the Florida 13 race with the unexplained number of under-votes using electronic voting machines and the controversy over that. 

I think that election alone raises serious questions about how we are going to conduct recounts with electronic voting machines.  We also saw less serious widespread problems all throughout the country - poll worker problems, machine malfunction, et cetera.  Those, I agree, are to be expected, and so long as we have rules in place and we do not see systematic errors, I agree that if we could get to that standard, we would be in pretty good shape. 

The other thing that I track as a law professor is the amount of litigation.  What we saw---and this is a chart I also put up the last time I was here comparing election litigation before and after 2000 in the Bush versus Gore case that went to the Supreme Court.  And so what this chart showed was that, on the average, in the period before Bush versus Gore there were about 96 election challenge cases a year. And that number shot up to 254 cases on average in the post-Bush versus Gore period.  I have just started my preliminary look at the numbers and there are at least 240 cases in the calendar year 2006.  So, that says that we are consistent with the higher trend that we have seen since the post-2000 period. 

I want to address, finally, two of the main issues I see lurking out there from the 2006 election.  The first is the extent to which litigation over election administration issues is taking place in the absence of good empirical evidence.  And I think the voter identification litigation, which we saw come to the fore in 2005 and 2006 in a number of states shows that courts are making decisions about voter ID in the absence of good empirical evidence either on the extent to which there is impersonation fraud, that is, people who are going to the polls and voting as someone else, and the extent to which there is deterrence of eligible voters caused by this voter ID loss.

There is a lot of talk about voter access versus voter integrity but very little empirical evidence on either of these two points.  So, how have courts dealt with that and what evidence is out there?  So first, there was a preliminary report that was submitted to the EAC saying that on the question of voter impersonation fraud, there really is very little evidence of voter impersonation fraud.  I think that the EAC’s handling of that report and it’s otherwise handling of the question of what had caused election crimes is troubling, and we can talk about that more in the questions and comments. 

There was also, on the other empirical question, the question of how much deterrence is there?  How many people are not showing up at the polls?  There is a preliminary study by the Eagleton Institute on deterrence of eligible voters showing that there is a decline in voting in states using voter identification loss especially among racial minorities.  That is a preliminary study but we need more work to see if that conclusion bears out or not, but it does raise a flag. 

Now, how have courts dealt with this?  The Supreme Court, I think, very troubling opinion in Purcell versus Gonzalez; not troubling necessarily for what the Court did, which was to allow Arizona's voter ID law to remain in place for the impending election.  But the Court suggested that in deciding whether or not a voter identification law is constitutional, the Court should balance the feeling that some voters might have that they are disenfranchised because of impersonation fraud, and the suggestion just came out of nowhere and there is really no evidence whatsoever out there about this feeling of disenfranchisement. 

I would also point to Judge Posner's very troubling opinion in the Seventh Circuit case involving the Indiana voter identification law.  Again, I am not saying that the result was wrong; the Court could have simply said, “We do not have a lot of evidence of impersonation fraud.  We do not have a lot of evidence of depressed turnout.  Therefore, we will let the state do what it wants to do.”  But Judge Posner put in a lot of dicta [sounds like] about the value of voting and about the voting crimes as the equivalent of littering that I just think really demeaned the value of the voter.  Also, it just was very troubling in terms of its [indiscernible] and how courts are going to address these issues in the future. 

So, courts, while they are not necessarily reaching the wrong results, are sending some troubling signals about how courts are supposed to  evaluate these kinds of claims.  The courts seem to be going by the seat of their pants rather than looking at any kind of empirical evidence. 

And, finally, the other big issue besides voter ID that came out of the 2006 elections are electronic voting issues.  We saw the Sarasota, the Florida 13 problems, and I have read the---anyone interested in this, I would advise you to read the Mebane and Dill paper as well as the Heron Paper.  Those are the two papers out there that present different views as to whether this might be caused by some kind of problem with the ballot design, how things were laid out, or some kind of problem with the machines; I think we still do not know.  We then saw Florida Governor's decision---Florida was the first one to outlaw punch cards.  After a tremendous investment it is now getting rid of all of its electronic voting machines.  We also saw a controversy at the EAC over the contract with the cyber-company that was supposed to verify these machines, and I think that was handled very poorly.  There is a lot of talk of possible congressional legislation involving voter paper trails that we need to keep our eye on.

And the final point, which, I think, sometimes gets lost in the discussion of whether we need a paper trail or not is the question of voter confidence.  It might be that these machines, in fact, are not hackable and that they are more accurate.  It could be that they are more accurate than other voting machines, but if the public has lost confidence in those machines we need to address the question of whether lack of public confidence alone should be a reason to not continue---have election administration continue to purchase those machines.  I am not saying that the alternative is an education campaign about how great and accurate these machines are.  But it is something we need to address.  If these machines are causing a decline in voter confidence, what should we do about that?

John Fortier:  Next, we will turn to some questions from out there but I think Rick has stirred it up enough that we might want some response here.  I guess, both on the issue of voter ID and paper trails.  Maybe we could get Todd and Gracia to say something to Rick's presentation, but also just generally about the issue.  These are issues that have---since the Help America Vote Act has been passed and been addressed significantly in state legislatures and we have new developments on the ground.  So, you can pick your poise and start, each of you on either issue.  But I would like to hear from both.

Gracia Hillman:  Drink from the well or drink from the Cool Aid, as it is, huh?  I think I will focus on the issue of public confidence in the voting systems.  When I woke up this morning, I really thought I was still dreaming or in some kind of a nightmare.  I wake up to the radio alarm and the first thing I heard was an NPR report or some report on public radio about Diebold and I thought, “My God, can I never get away from this?”  I need to program my radio to a music station so that when I wake up---but apparently Diebold is doing some public relations initiatives and admitted that when it got into the industry of voting systems in the United States, a lot of the systems used after 2000 had not been widely tested. 

So, what we are going through is a process and it is not just Diebold; going through a process where the systems used have to be used while they are being tested.  And the equation of the manufacturers being able to make adjustments along the way gets complex because of standards, processes that are in place.  Before the Election Assistance Commission, voting system standards were adopted by the Federal Election Commission and the testing and certification of voting systems was done by a non-governmental organization on a voluntary basis that did not receive any funding from anywhere to do it, and that was the National Association of State Election Directors. 

The Help America Vote Act mandated that the EAC implement, adopt what used to be called standards, now guidelines; adopt guidelines and set up a system for the accreditation of laboratories and the testing and certification of systems.  We did not pick up---and I do not think any federal agency would assume responsibility for any kind of testing or certification or accreditation done by a non-governmental organization or a non-federal agency. 

So our program started new.  It is a very complex set of guidelines.  Yet, and still, when we put out our first set of guidelines in 2005 we received over 6,000 comments from across the country from many different sectors.  So there is a process in place with a lot of transparency and a lot of public import with respect to what is it that the standards, the voting system standards, should provide for to ensure the integrity of that process. 

And then what is the process with respect to accreditation of laboratories?  We are working with the National Institute of Standards and Technology.  What a lot of people may not realize is that in our 2005 standards we did put in provisions that if a DRE has a voter-verifiable paper audit trail, there is a standard for the mechanism that produces that paper trail; that is already there.  The EAC did not take a position as to whether the state should or should not because the states made it very clear that that was going to be a decision that they would make and that is what the Help America Vote Act provides for. 

So in this complex quilt with conflicting interests, competing demands, it takes a while for things to kind of weave and come together, and we will be there; we will make sense out of this.  We just cannot do it with $14 million a year and in a two year period of time.  It takes a lot more than that.  Now the states, yes; the states have a lot more money to work with.  But with respect to the Election Assistance Commission we have had a budget that has averaged at about $12 million a year over the past two years, a little higher now.  So, we are going to get there but---yes, yes.  And I do not believe---well, let me say it differently. 

I believe setting a goal of perfection is a sure enough way to fail; rather, to strive for excellence.  Even competence might be a little low, but to strive for excellence is a good place to go, and every once in a while it is wonderful to be able to say, “Boy, that was perfect.  That was sweet.  That was perfect.”  But for the most part, excellence is an achievable standard that produces the kind of results that provide good customer service to voters. 

And my last point is we have blurred the lines between partisan political shenanigans - Who is stealing an election?  - and the competence or excellence of election administration; and those two things get blurred.  If a voting system is supposed to prevent the stealing of an election then the conversation needs to be held in a way---what does the voter think?  It means when says that the elections can be stolen.

John Fortier:  Todd, maybe, I guess, you can start with the voter ID law.  You have an Indiana new voter ID law which was upheld by the court, as Rick mentioned.  Rick had some points on voter ID laws in general.  From your perspective, the reasons behind it, how it worked on the ground.  And if you can say something broader about some of the other states as well, that would be helpful.

Todd Rokita:  Okay, thank you.  I was at the Seventh Circuit oral argument and when that three-panel court decided in favor of Indiana’s---or at least when they took argument on Indiana’s voter ID law then, subsequently, undecided in favor of it.  And all three of them, including and especially Judge Posner---I felt I was in front of some of the most intelligent human beings I have ever experienced and how lucky we were as Americans and the Seventh Circuit to have them.  And that was before the decision, not knowing which way it was going to go, and I want that on the record.  Because however you feel about the decision, it was not a decision that was made lightly and there are a lot of probing questions asked by all three of those panelists that focused on both sides of the issue, and it was well-vetted. 

I also want to propose, again, a different standard than the three outlined by the law professor; and, again, fair, accurate and accessible ought to be the standard that we are on.  What I heard in Rick’s discussion points to, I think, the major flaw in this argument.  He started out talking about a photo ID and was there really a need and the complete lack supposedly of evidence that would justify the need for the photo ID.  “At least we need to talk about that,” he said.  And that is what we should be focusing on next, getting that data.  But, then, when we talked about the machines, he indicates---I do not mean to pin this all on him -- I am hearing this same discussion all over the country from academics and the media.  When we get to the machine portion of the discussion it is, “Well, even if the electronic machines are more accurate and even if they do a better job, should we not go back to paper just simply for voter confidence?”  Well, you cannot have it both ways, and that is exactly what we just heard separated by about 15 to 20 breaths.

So if we are going to be academically true to both these arguments, maybe we should look at them both in terms of either strict empirical data, or voter confidence, or a blend of each but treat them both that way.  With regard to photo ID, the fact that matter is it improves voter confidence.  There is voter fraud; it does happen at the polls; it just does not happen in Indiana.  But whether it happens one time out of ten, two times out of ten, twelve times out of ten, or not; if the voter feels that something is wrong, like some voters feel that something is wrong with an electronic machine, and the result of that is they do not come and participate because they say, “Why invest my time - I am a busy person – in a process that does not reflect my intentions,” then that perception is reality.  And regardless of empirical data or not you need to account for that, and by removing that suspicion off the table, by requiring everyone in a uniform equal fashion to provide an easily accessible photo ID that they know they have to produce ahead of time, you do remove that argument from the table. 

You do improve voter confidence and you see voter turn-out actually go up in Indiana two points in 2006.  Now, was that because a photo ID was not driven by the fact that we have three hotly contested congressional races in Indiana?  Probably more the latter.  But my point is we are never going to know, and you are never going to know about prosecutions in Indiana or anywhere else for a number of reasons.  First of all, we cannot get good data down to that county level.  Even if prosecutors file charges, most of them settle.  There is no website you go to to get that information, unless you manually flip through all the paper records at every county court house in this nation and find a settlement document. 

Then there is the issue, like in many states like Indiana, where the prosecutors have complete discretion on what charges to file at any given criminal action.  And many of them simply just do not file charges, even though they reported to them because their dockets are full with people who have violently hurt each other or domestic issues or whatever else.  And it is just does not, for whatever reason, rise to the top; for some, it does.  And I applaud those that do take it seriously because it is out there.

Rick Hasen:  I just want to respond briefly on the voter ID point.  First, there is a major difference between the public confidence question on paper trails, and I have not taken a position on whether we need them or not but just flagging the issue.  Paper trails on the one hand and voter ID on the other---there is no constitutional right to cast a vote on an electronic voting machine and there are not interests on both sides.  It is a question of what is the best means of administering an election to count votes in a fair and accurate way; whereas on the voter ID question, there are constitutional issues on both sides.  There is the constitutional right to cast a vote in an election that is run free of fraud or as free of fraud as we can get it; and there is the constitutional right not to have unreasonable barriers put in front of the right to vote. 

And so public confidence alone should not be able to trump in that secondary where maybe as a policy matter it might trump in the first area.  And I should say that back in 2004 I actually came out and said that there is such a divide between Democrats, Republicans on the voter ID laws.  And, in fact, with the exception of Arizona where it was passed through an initiative, every state that has passed a voter ID law has done so with Republicans supporting it and Democrats have almost uniformly opposed it. 

There is such a divide that what we really need to do is come up with a compromise that deals with both access and integrity, and the compromise would be this: Mandatory voter ID coupled with universal voter registration conducted and paid for by the government, where the government pays for every piece of paper you need.  If it is a birth certificate, if it is transportation to get to the DMP, the governments takes care of getting you the ID and maintaining the voter rolls.  We get rid of the bounty hunters.  We have accurate voter rolls.  We do not worry about when people move.  It would be a way of dealing with both concerns about access and integrity, but as [indiscernible] the last time, I remember, I think, as Tom called it, a complete non-starter, so it may not be politically realistic but it is the only way to bridge, I think, this divide between Democrats and Republicans over the extent of fraud and the need to have a voter ID law.

John Fortier: Does anybody want to take on paper trails before we go to the audience here?  Just in terms of sort of what happened in 2006.  Many of the states that originally had introduced electronic voting systems retrofitted their systems.  A number of states had some problems with their paper trails but it seems that in many ways we are moving in that direction.  What do we take from 2006 in terms of paper trails?

Rick Hasen:  I’ll just say one thing, which is that as Commissioner Hillman said, we are asking election administrators to do the impossible, which is to roll out these systems.  We have elections so frequently in this country that there is really not a lot of time to test-drive things.  And so when you start retrofitting and changing, it is inevitable; whether you talking about paper trails or anything else there are going to be problems.  And I think that with the paper trails it is the same issue.  Denver was an example not of the paper trail issue but where, if you roll out a new system during a midterm election, that is the problem.  You need to be starting on the local level---small elections.  Whatever you are going to change, you need to try it then.

Gracia Hillman:  EAC has a very high level, maybe, of what you call the 30-thousand-mile perspective on paper trail but it really comes down to the states and local jurisdictions who have to design the ballots, make sure that the systems are programmed and actually implement the system; train their staff and co-workers how to operate the system.  Who can give the best feedback as to what is needed to produce a VVPAT that will contribute to voter confidence, since I think that is what it all boils down to, as well as address concerns about how would a recount be conducted if the voter has not been able to verify his or her vote.  The electronic machines can produce paper record of every single transaction that has happened on that machine.  The difference is that the voter will not have seen that at the time that he or she votes. 

So, that is what voter-verifiable is about.  So there were two different discussions, and if voter verifiable increases voter confidence, so be it.  But does it increase voter confidence as people are going through which printer or which mechanism works or how long is it going to take to get to the technology that is going to be as error-free as one would need in an election.

John Fortier: Okay, we are going to turn to the audience.  We have Matt Weil here with the mic and so when you raise your hand I will recognize you and then identify yourself before asking a question. I guess I will identify Roy Saltman here, but wait for the mic.

Roy Saltman:  Hi, I am Roy Saltman, author of the History and Politics of Voting Technology, published in 2006.  Ms. Hillman, thank you very much for your very worthy service to the government and the people in the Election Assistance Commission for the past several years.  You mentioned the need for paper trails to improve public confidence.  Does this mean that you insist in paper technology to guarantee the correctness of results, or would you be willing to accept guaranteed independent verification of results, regardless of whether the method involved paper or no paper?

Gracia Hillman:  Thank you for the question because it gives me an opportunity to correct.  I am not insisting or advocating one way or the other about a voter-verifiable paper audit trail.  What I am saying is if states believe having a VVPAT will increase voter confidence, that is certainly an option available to them because it is the voter-verifiable piece of this that is the crux of the public debate right now.  I am a big fan of technology and I can see both perspectives, the need to fix it and get it right right now, not 10 years from now.  And sometimes it takes two decades to go through a transformation process versus the need to be able to have adequate time, adequate research and development, adequate testing to allow technology to provide the many ways that voting systems can support elections, including different means of independent verification. 

And so I am all for the research and testing.  I do not have a clue who else is here.  I know two people are here from Congress representing committee on the Hill, but I really do believe that up to $30 million that is in the Help America Vote Act, authorized, not appropriated, for research and development and testing and study needs to be seriously considered so that we can do some of this and not just leave it to an election date to be when the machines are tested.

And I just want to take a quick moment to introduce the two new members of the Election Assistance Commission.  Seated over here in the front row are Commissioners Hunter and Rodriquez.  This is their first week on the job and I want to say that I am trying to find out---and if anybody here has information, I want to know if there is any other federal commission with full-time commissioners, or any federal commission, even part-time, that has all women on the commission.  We are so pleased that the Election Assistance Commission, all four commissioners are women. Thank you.

John Fortier:  Okay, we have a question right here.  Wait is the mic.

Vladimir Caramorso [phonetic]]:  Thank you.  I am Vladimir Caramorso with RTVI Television.  I have a question for anybody on the panel.  Is there an international aspect to US election reform?  What I mean is are there other attempts to learn, for instance, from the experiences and practices of Western European democracies, attempts to import some practices from Western Europe?  And, also, do you think there should be such attempts and such interaction?   Thank you.

Todd Rokita:  Thank you for the question.  As a Secretary of the State I am very interested in what is happening in other countries.  A couple of quick examples come to mind.  First of all, I understand that Estonia and the United Kingdom, perhaps some other countries that I do not know about, are not just experimenting but piloting, if not more, a process to vote through the Internet. 

These are countries that are not afraid to technology, and to my point and my remarks, they are harnessing technology to use it for the voting process, much like they do to the rest of---other parts of their lives.  And a schizophrenia that still exists in this country when we want to be tied to a piece of paper; and maybe we do, and maybe these pilots in the other countries will end up failing.  But I find that very interesting as a secretary of state because I think as long as we are going to be tied in to a piece of paper and voting the same way, in effect, that we have ever since we stopped using voice votes to conduct our elections, will we ever be able to harness technology like the Internet or whatever is next or after the Internet or however the Internet evolves?  Secondly, it seems like every other country in the world---I cannot say every, but most other democracies or republics use a photo ID.

Rick Hasen:  I think there is also another set of lessons we can learn.  Back in 2004, I went to Australia and looked at their election system.  I interviewed Jean-Pierre Kingsley who until last month was the chief elections officer of Canada.  I think almost every advanced democracy besides United States uses non-partisan election officials to run their elections.  Again, I think Tom called this a non-starter when I mentioned it last time, which was National Non-Partisan Election Administration in this country. 

I do not think that is happening, but on the state level it can happen.  And I think the way it could happen is this:  The state should pass laws, and, maybe, in initiative states voters should pass voter initiatives that would establish the chief elections officer as an appointed position for a long term; appointed by the governor and confirmed by a 75%-vote of state legislature, which would require broad consensus among the major parties in virtually every state; to move towards a system where the allegiance of the person running the election is ultimately to the integrity of the election process, rather than to any particular party.  At the very least, a lesson we should learn and it is amazing to me that we have not. 

Chief elections officers of states should not be honorary, or otherwise, chairs of presidential campaign committees in their states.  It is the conflict of interest --- forget the appearance of impropriety; the conflict of interest is palpable and it should stop.  And there have been some bills proposed to do this.  In California it was done voluntarily by the secretary of state, and I would love to see the National Association of Secretaries of State get behind something like that.

John Fortier:  I am not going to ask Todd to respond to that, but we can--- I also meant to thank you for your question, Vladimir.  Vladimir is too modest; in addition to being a correspondent for [indiscernible] Television, he is probably the only person in the room who has run in an election, not as the state’s favorite candidate in Russia.  Anybody else want to raise their hand?  We will go to Curtis in the back there.

Curtis:  I want to support both of the things that Rick Hasen suggested.  I did a paper for the Carter-Baker Commission on Voter ID.  And the way you eliminate the barrier called registration and you eliminate the fear of fraud is a mandatory ID that cannot be forge, which I think is also [indiscernible].  The problem with all of that is the cost; the upfront cost to that is $14 billion, which essentially means we probably are not going to get it on the sole justification of the voting process. We will probably have to get it through national defense, but I think there will be cost savings and integrity savings that will be well worth the price within the voting system.

John Fortier:  Okay, I will go to another question.  Why don't we go right here?  The mic is just behind you.

Female:  I am with an election reform group in Virginia.  My question is for Mr. Rokita.  You said in your talk that public confidence in the election machines was high until the media started running reports.  I'm kind reminded of the way airline travelers felt about security until 9/11.  Is it not the job of the media to point out when something is wrong and there are vulnerabilities in the system?  And are we not best served by knowing those and would not public confidence be higher if we felt that our election officials were taking them seriously?

Todd Rokita:  Thank you for the question.  I completely agree with the media being involved as a way to maintain and foster a free society, and transparency is critical, especially in our electoral process.  But, the process is not being reported accurately and it is not a simple process.  And so you see in the popular media a lot of half-stories.  The reporters are on different beats all the time; they are not expected to be doing this job everyday.  And my point was as a result---and by the way, they have to sell newspapers and they have to compete [indiscernible] weeks.  And I deal with that as an elected official and chief election officer everyday.  I feel I know the business of the media, and they have advertisers that they have to attract.  And that is how you get headlines that are completely irresponsible, like “Voting Fiasco: A Big What-If.” I could go through a hundred headlines and news stories that do the very the same thing. 

Really, I believe, that the predominant purpose of attracting advertisers and viewers and readers---and that is what is wrong about this.  And that is when I say voter confidence is going down unnecessarily because the stories are driven by that, and not with a desire to explain the entire situation for the voter.  If the voter knew all the processes and back-ups that were in place that makes whether or not a voting machine works completely irrelevant to whether or not their votes were counted, voter confidence would not be affected as I believe it has been.

Rick Hasen:  I remember there was a USA Today headline about a week before the election that said “Vote May Not Be a Fiasco,” and that was news, which I felt was kind of---

Todd Rokita:  Very much appreciate it, then.

Rick Hasen:  I had an op-ed in the New York Times right after the election.  I said the problem with the news media is that they pay attention only in the period right before the election and it actually takes public pressure and public interest all the time, so that what happens is four years go by, or two years now with the mid-terms, and all of a sudden about the month and a half before the election my phone is ringing off the hook with people who want to know why has not anything been done?  And then a week after the election, assuming that there is nothing at overtime, the phone calls stopped.  And then they started again right before the next election, and it become cyclical. 

Public interest and presence is cyclical and the time to act is now, and maybe now is even too late.  But in between elections is when you need to fix things, not three weeks before the elections.  We do not have our good rules in place for a particular problem and it is a problem with not enough media attention or media attention concentrated in too short a period of time.

Gracia Hillman:  Let me just quickly add the repetition of erroneous information, that is, a lot of times the media use another news report as their source document and do not verify back.  And so if there was an error in the original article it gets repeated, repeated, repeated, and there is no time to catch it for correction.

Rick Sincere [phonetic]:  My name is Rick Sincere. I am a member of Electoral Board in the City of Charlottesville.  We have been using electronic voting machines since May 2002, and out of 2000 voters in our city we have only had three or four complaints about the machines from some activists.  And I would like to mention an anecdote; we had the annual meeting of the Virginia Electoral Board Association this past weekend.  The Speaker from Colorado was there, Scott Doyle of Larimore County.  He was talking about election centers and he off-handedly remark that voters in his county offered a choice between paper and electronic voting machines.  Someone asked him what the level of preference was, and he said people decided 4 to 1 to use the electronic machines; they were lined up to use those and did not want to use paper.  I just wanted to get a comment on that.

Rick Hasen: That is a big contrast with what happened on Sarasota County where in the same election that they had these problems they voted to get rid of their electronic voting machines. I think it depends very much on the local experience.  So in Los Angeles County we happened to have a terrific registrar of voters, Connie McCormack [phonetic] and she has been using electronic voting machines at early voting centers and it is very popular; people who have a lot of confidence.  I think so much is locally driven on this question.

Chris Charlotte:  Hi, Chris Charlotte with the Committee of Seventy from Philadelphia.  When we were talking about structural reform, to me one of the greatest weaknesses is the fact that we have---I believe in local administration but having local funding.  Over time we are going to end up seeing disparities in the quality of equipment and training.  Again, I mean the government bought everybody new equipment but I think there is going to be disparities in election opportunity between wealthy and poor counties.  What are your thoughts on that?  Do we ever see any possibility of per capita funding for voting by the federal government?

Gracia Hillman:  I think you are right about the levels of funding.  The country has gone -- the United States has gone through that over the years where, on the main, elections are not adequately funded.  And I do worry as to whether state legislators, governors and county officials are paying attention to the implications of fair, accurate and assessable---and the dollars that are required to ensure that, because there will be the cost.  I cannot speak to whether Congress will continue to fund on any kind of a regular basis or not; if you would look at it at right now, one would think not.  And so, the states really are going to have to figure out how to pick up that responsibility, and soon.  I mean, if we are already in the fiscal year 2008-2009 cycle, 2010 is not far away, and I think a lot of the Help America Vote Act dollars will have been spent by states by 2010.

John Fortier:  I will go to this side of the room, here in the front.  Sort of in front.

Nathan Cimenska [phonetic]:  My name is Nathan Cimenska from [indiscernible].  I do not know whether the federal government provides any money for poll worker training and the payment for the actual service on election date, but is there any thought of maybe asking for something like that?  Because it seems like the money is creating a lot of problems and I think it may also be creating a push towards all-vote-by-mail [sounds like] elections and I would like also to hear whether you guys think the all-vote-by mail is a good idea.  Thanks.

John C. Fortier:  As a moderator I will take a little privilege.  I do not think all-vote-by-mail is a good idea.  I have a book on absentee and early voting out recently and I am skeptical of it.  But now turning back to my role as moderator, would anybody else like to chime in?

Rick Hasen:  John, I agree with you completely.

Gracia Hillman:  On the issue of federal dollars to support poll worker training, the only piece of that that has been covered is recruitment and training of college poll workers to try to really engage campuses across the country to prepare the next generation of poll workers.  But right now there are no plans for the federal government to do that, although it is my understanding that is being discussed in some circles in Congress.  I just have not seen it yet in legislation.

Todd Rokita:  Let me just add, as a chief election official that trains trainers, my office uses Help America Vote funds to train our county clerks and their staff so they can train those 30,000 poll workers that I have talked about.  And it was not until recently I realized that where we could really use some help, funding and some academic research around is in how to teach.  I have learned recently that there are different ways that we learn; some of us learn better by reading; some of us learn better by writing something down; some of us actually learn by being able to, as we are being lectured to, fiddle with things in our hand and create little models. 

We actually used all three of those concepts when we taught our local election officials to use our new statewide voter file that have a funding paid for.  It is a brand new system in the entire state and everyone was nervous and scared about it.  And by utilizing the best method to reach someone, we were able to make the system work right out of the box.  If we again applied some of that thinking around how we are teaching our poll workers, I think we get better results and I would love to see some funding and some research around that because we are not teachers, and we are put in a position of having to teach.

John Fortier:  Okay, I will take two more questions here.  I will take this one and then I will come back.

Sally Cooper:  Sally Cooper with the Volunteer Election Reforms Task Force.  My question, I think, is for Rick Hasen--- but anyone.  And that is when something seems totally out-of-whack in an election, such as Florida, and there is a need to really go in and check the machinery, one assumes in this case not fraud, we will say, but something wrong with the machinery. And you have on the company side the need for proprietary elements and maybe there is something wrong with the source code; you are not sure what you need to dig.  So, because this is so essential, the election process for the health of our country, you need to dig, you need transparency.  So how do you balance best needing to dig on one side, proprietary on the other?

Rick Hasen:  Yes, I do not think that that is an insurmountable problem because courts deal with trade secrets all the time and they allow for limited inspections of things, confidentiality agreements.  And so one of the things that the plaintiff’s lawyers were trying to do in Florida was to have the court allow for this kind of inspection with an agreement not to disclose any of the trade secrets.  And as I understand it, the trial court rejected that and that is now up on appeal as to whether not that is going to be made. 

But I think courts should be very willing to allow for that kind of inspection.  If we are going to have a private system, you are right that the incentives are there that we need to keep things---keep the profit motive for these companies to stay in business, but we also need to ensure the integrity of our elections.

John Fortier:  Okay, we are going to take one more question.  Congressman Ehlers will be joining us shortly.  I do not think we are going to break, but let me see how that goes.  But let me take one question more here in the front.

Female Voice:  Thank you.  I am from Massachusetts as the select-woman member for Amherst.  I would like to ask the question I understand you are trying to address the issue as fairness and a fraud-free election.  But I am much more interested in offering accessibility to voters, and I understand that because of the budget constraint we can only open our polls from 7 am to 8 pm, which we have tried hard to extend from the original 7 am to noon.  So it is a big progress, but in my mind I feel that accessibility is just as important as the fairness issue in order to encourage voters to come out and vote to express their sentiment of elective officials. 

So, I wonder what you think in terms of following the Internet that we purchase online, and that really increase the consumer purchasing desire.  So, for example, you go online to book a flight so Southwest has great business this way.  In order to encourage voters to vote and give their two cents, I would like to see---follow the business model, make it convenient 24/7, anytime, vote it and express your sentiment.

John Fortier:  You have mentioned Internet voting. I will chime in one more time here.  My concerns with all-mail voting, which I mentioned before, are that we separate the voter from many of the protections of the polling place, whether it is protections that a voter has to cast a secret ballot so that their vote is not coerced or other protections in terms of the security of the ballot, which are better held at a polling place than if the ballot disappears out into your kitchen table or on the Internet.  And so I do -- even if we work out many security problems with the transmission of the vote, I think there still is that question of are you going to be pressured by someone else out there casting an Internet ballot.  That is not to say that there are not many convenience issues that we might address in other ways. 

There are all sorts of interesting experiments, as Scott Doyle mentioned about vote centers, which, of course, did have some problems in Denver but that was---but [indiscernible] successful in other parts.  Early voting also is something that, at least, in a limited way, I would be supportive of for a period of time where you can vote.  People like it, I think, as well as they do all-mail voting but my concern is that we not move too far away from our traditional protections at the polling place.

Todd Rokita:  John, thank you for that.  I completely agree with you for the same reasons.  I am not saying we need to go out and Internet-vote tomorrow.  My point was if we were always going to be tied to a piece of paper, is that hindering us from eventually getting to what I think is a wonderful goal to use the technology the way we live?  There are ways we can use Internet technology now, like in electronic poll books that might be used in a vote center.  Indiana is piloting in two of its counties the concept of vote centers.  This election cycle we are going to get empirical data and see if it works in Indiana or does not.  And so far all the signs are good. 

But if you take the concept of vote centers for a second and you harness the technology, use it the way we live, then you can start running poll workers in shifts without wearing them out because you need fewer of them.  In Scott Doyle’s county he uses half the poll workers that he did before going to vote centers.  And if you run the poll workers in shifts then you can practically keep the polls open longer, and we have moved one step forward in using technology to vote how we live.

Rick Hasen:  I agree with the concerns that John has raised but I also point out that there are a lot of downsides to what [indiscernible] has called “the hyper-federalization of our elections,” that we have something like 14,000 different election jurisdictions in this country.  But there is a benefit, too, which is that a small place can decide to try and experiment with Internet voting and we can see how it goes.  And, in fact, if I am remembering correctly, the Arizona Democratic Party ran its presidential primary in 2004 over the Internet.  And so there are issues about the Voting Rights Act.  There are all kinds of questions but at least we can try experimenting and see how thing go.

Gracia Hillman:  If I can just add that some states do use some forms of Internet voting for our overseas citizens and military because of tight time constraints as to when the ballot can go out and when it comes back.  And the Election Assistance Commission has been tasked by Congress to study that.  So I am sure, we will learn some lessons from that exercise as to the security and how it could be applied to domestic voting.

John Fortier:  Tom Mann, one of the co-directors of our project here.  Brookings has a question?

Tom Mann:  Thank you John.  This is for Gracia and Todd. Gracia, the EAC early on set up, really, a standard of consensual decision-making in which you all were able to agree on virtually everything that you decided, and it diminished some of the concerns of the possible partisanship and politicization of the process.  Are you encouraged that that will continue?  To Todd, it is really a question about NASS, and Leslie could answer it, as well.  It is clear there are partisan differences among the states in approach to voter ID laws and VVPAT and other issues.  Do those not rise to the level of debate within NASS?  Do you manage to keep either a non-partisan or by-partisan organization operating by avoiding the issues that divide parties, or what?

Gracia Hillman:  Tom, the direct answer to your question about the consensus agreements and voting among the Commission is yes.  When it comes down to the straight decision making about what improves and enhances election administration in this country, very seldom from the EAC point of view are partisan concerns a driving force.  And that is were---and you heard me say before that the lines get blurred between partisan concerns about who is rigging or stealing in the election who is winning and losing; and what is necessary to be in place for election administration.  And the election administration piece of it is very seldom driven purely on the basis of partisan concerns.  That is not to say that we are not informed by our prior responsibilities and things that we have done; nor is it to say that we do not recognize constituencies who are depending on each of the commissioners to make certain that certain things are represented.

Todd Rokita:  And then from the NASS perspective, not unlike what Gracia just said about the EAC, we do not avoid issues; I can vouch for that.  They are discussed, but when NASS acts though a resolution or a statement or anything we do officially, what you can take home at night is that a large majority, if not all the secretaries of state are behind it.  And those issues that we cannot agree on or almost unanimously agree on we leave on the table; we do not necessarily discard and we see how those ideas evolve or not over a course of time to see if we can get to that large majority or near unanimity. Sorry, excuse me, I need another cup of coffee; of course, some water.  And we are very proud of that.  The secretaries of state are statespersons and we try to act that way.

Rick Hasen:  I just want to ask a follow-up question to the secretary, and this is the same question I asked Deb Markowitz when she was at the last of these events.  I thought that NASS passed a very unfortunate resolution calling for the EAC to be disbanded by Congress by the end of 2006.  And I’m wondering if there is any talk of repealing that because I think that although I am one of the people who has been critical of how the EAC has done some things, it is certainly needs to continue and it needs to be strengthened rather than gutted.

Todd Rokita:  Yes sir, you are an American and that is your opinion.  No, there has not been any further discussion.

John Fortier:  On that note---Congressman Ehlers is just about arriving in two minutes so what we are going to do is we are going to break.  We are going to take a short break.  We have coffee in the back, but do not leave.  Do not go far.  We should start right up shortly.  Thank you to the panel.  I appreciate you all.

[Congressman Vernon Ehlers]

Norman J. Ornstein: Okay, we are going to get started if you could sit. We are going to continue with our program. As you know, we have a 3-part program today. We have just completed a panel and now we are fortunate to have our keynote speaker for today, who is Congressman Vernon Ehlers, who represents the 3rd district of Michigan.  He is currently a ranking member of the House Administration Committee, a committee with jurisdiction over election reform matters, was Chairman in 109th Congress, and was involved very heavily in the passage of the Help America Vote Act, which also went through that committee. 

Congressman Ehlers is also a research physicist. And, if this says anything about the field we are involved in that some of the most involved members of Congress are research physicists, the rest of us--- it’s no wonder we don’t understand what is going on sometimes.  He also with that interest---has a great interest in technology, in issues related to election reform but also was one of the people behind the legislative system THOMAS, which all of us rely on today. 

We always take it for granted but if you talked to a lobbyist in the old days, one of the things that lobbyist could tell their clients and get them to pay lots of money for was, “I can get you a copy of the bill.”  Well, now we can all get a copy of the bill.  That is almost, in part, thanks to Mr. Ehlers.  And of course, the lobbyists are doing fine also.  Congressman Ehlers is going to address today some of the issues in the 2006 elections and look ahead to some of the issues that will be coming up through his committee coming forward in 110th.  Congressman Ehlers?

 Congressman Vernon Ehlers: Thank you very much. It’s a pleasure to be here. For those of you who read the early program I want to make clear to all of you that I am not Dianne Feinstein, and I took my wig off today just so I could be sure you would know.  It’s a pleasure to be here participating in this.  I have been involved in many elections over the years since I started out at the county commission level, and, of course, the county clerk had the responsibility. And so I worked very closely with the county clerk in that.  And when I got into state House and then to state Senate, of course, I maintained that interest in elections.  So this is not a new topic for me.

I have also learned over the years that every election has errors; some are fraught with errors.  And when he had the fiasco in Florida few years ago my first reaction is, “Well, that’s normal. It happens all the time.” But the rest of the country apparently was not aware of that and got highly upset about that. 

What also amused me is that the attack was immediately against punch card voting. Throughout the entire nation, there was an incredible number of punch card voting machines, ballots, etc. My own hometown used punch cards; absolutely no errors, no problems with the punch cards.  And just because one community in the United States did not take the trouble to clean out their punch card punching machines, the whole nation suddenly thought punch cards are awful and the Democrats were bound and determined to get rid of them with the legislation that was passed, namely, HAVA. I objected to that because I think communities should have the right to choose.  And if they want to use punch cards and they can care for them, make them work right, that’s fine.  Anyway, also one other comment about that, because of all the talk about a paper trail –- now, I happen to think that we should have redundancy in the voting process.

There should be alternative ways of trying to determine the vote, to try to zero in on any errors, machine problems, etc. But a paper trail is not necessarily the answer.  And yet, that is what has caught the popular imagination.  Ohio learned the hard way when they passed a law saying that every voting machine, electronic machine, had to produce some paper tape on the side and that paper tape was, by law, the official record of the election.  So, they had a year with no closed elections but they decided to do a trial on a major race and just see how accurate the paper trail was.  Their best estimate is that there is a 10% error rate on the paper tape that was produced by the machines that they had installed; whereas, the electronic machines had extremely low error rate. 

So paper trail is fine as long as you carefully define what you mean by the paper trail.  You just don’t hang a printer on the side of the computer.  A paper trail could be a paper ballot which is optically scanned.  And there are a number of other ways to do it.  The important thing is not a paper trail; the important thing is redundancy. And it can be electronic redundancy as well, and in many cases would be far better than the simple printer on the side of the computer.  I would also point out to all those who advocate a paper trail without specifying what type that punch card ballots are paper; rather heavy paper, but they are a paper trail and you know what has happened with those. 

Well, let me get into some of the details.  Election reform is a broad and difficult topic to capture in a short time and I would basically start off by discussing a very simple case that is current.  It is symbolic of the challenges that we face today.  Florida’s 13th Congressional district---and it had to be Florida again. In Florida’s 13th Congressional district, there is a big fuss about who really won.  Now I think it is pretty clear at this point that Vernon Buchanan, the Republican, won.  But we will have to go through the process to determine that for certain.  But Miss Jennings, who was the Democratic opponent, has refused to give up, has filed suit in the State Courts; they are working through that.  She wants to see source code for the computers that were used in the election. Obviously, the proprietor who owned the machines was not willing to do that. The compromise that was basically reached by the court was to get some outside experts in. 

Under the court’s supervision, they---these are computer science experts from the University of Florida, Florida and several other states, and they just issued the report very recently, just the past week or so.  And these are 8 experts from across the country, two of them are very, very knowledgeable in computer balloting.  They have examined hundreds of different computers.  And their verdict was there is absolutely no evidence of any error in the ballot count done by the machines; no error, I should say, with the source code.

That doesn’t necessarily settle it.  Ms. Jennings is still pursuing the issue in the courts and we may eventually have to have a contested case involvement of the Committee in which I am the ranking member at this time.  So we will see what the result is, but certainly, I think it has weakened her case considerably.  When the experts are saying it is not a source code problem, then the question is what caused it?  The interesting thing, too, is immediately the way the public picks up on in, and for whatever reason. 

I was amused.  I am a charter member of Common Cause.  Most people are surprised that there are any Republicans left who are members of Common Cause. But I joined when John Gardner founded it; I still think it is a good organization.  But I recently received a fund raising letter from them and the letter stated that more than 18,000 votes went missing in reference to the under-vote [sounds like] in Florida’s 13 district. Well, if you say that, that implies that the votes actually existed and somehow they disappeared.

Let me give you some evidence.  This does not pertain directly to the Florida case, but the number of errors that the public manages to make is horrendous.  And I am well aware of that from my many years of experience at all levels of government and watching different elections.  It is just amazing, the number of errors made by the public and also, surprisingly, sometimes by poll workers; but mostly by the public.  And I was furious when the Florida event happened and we started talking about preparing a bill, which became the HAVA bill, Help America Vote Act.  When everyone talked about, “Well, we have to design a good system and we have to train the poll workers and have to train the voters to use it.  Which my response is “Utter, complete, total nonsense. You cannot train the public to do a task that they only do once or twice a year and expect them to remember the training and to vote perfectly.”  My emphasis has always been design the machines, whatever system you use, so that you do not have to be trained.  And, in particular, I immediately wrote a bill after the Florida issue to deal with the technical aspects because there are a lot of technical aspects, and set up a program where what used to be the National Bureau of Standards, now National Institute of Standards and Technology, which is in charge of setting standards in this country and leads the world in standard setting---let them set the standards that voting machines have to have.  And I laid out very specifically what I wanted those standards to include.  One factor was human - the human factor.  How can we design the machines, whatever type they are, to minimize human error because there are all kinds of human errors that occur?  A lot of attention has been paid to the district I referenced in Florida; approximately 13 percent or 18,000 votes.  There was a drop-off from the US Senate race to the Congressional race in that district of 18,000 votes.  That is a lot of votes.  And I was puzzled by it, too.  I have seen a lot of errors made by people, but that seemed to me a large error rate.  The minute I saw the ballot, I knew what the problem was.  If you look at the ballot design---unfortunately, we only have only page two here.  I discovered at the last minute that we [indiscernible] not [indiscernible] page one.  I apologize for that.  But page one was filled with names for the US Senate race, a lot of names.  And then, page two at the top, short space, the congressional race, below that, again, a long list of names for the governor.  A voter seeing the long list on page one and then seeing page two sort of scrunched up at the top---and this does not really portray really what it looked like, looking at the screen.  I can easily say many would skip over the US House race.  Another problem is the lack of putting the line above the first name.  I think that visually is a problem because if you saw that you would immediately recognize, well, there are two lines of voting.  This it looks like, well, there is a name up on top that is sort of part of the heading.  Then there is one person there.  Why bother to vote if there is only one person?  I do not know what went into the voters’ minds, but I can easily imagine voters messing up when they have a ballot design like that.  Just to show you it is not unusual, we had recent testimony before the Senate Rules Committee investigating this as part of the paper trail issue.  Los Angeles County registrar Connie McCormack reminded us that in 1976 there was a drop-off of 300,000 votes between the presidential and US Senate races just in LA County; 300,000 votes; 13.8 percent of the vote.  That is on higher under-vote than we have in the Jennings case.  Another example: the drop off from president to US Senate in Sarasota County, Florida in that year was 10.7 percent; twelve years later, again, in Sarasota County, there is a drop of 12.6 percent between the presidential and the US Senate race.  This is not unusual to have drop-offs.  People come in to vote for some--- their real interest in the president usually, but it could be a governor, and just say, “Why do I bother with the rest?  I do not care.”  So, that sort of thing does happen.  In addition---well, I will get to that a bit later.  I'm going to talk about the optical scan system and the paper ballots there and some of the errors there.  What about our legislative agenda?  The Sarasota cases, of course---initially the process is it initially goes to the state courts and then if the contestant, which is the loser in the election, is not satisfied with the results in state courts, they can appeal to the House of the Representatives.  A contested case election issue is formed in the committee, which I am the ranking member at the House Committee on Administration.  And then it our responsibility to deal with it and in a quasi-legal, but mostly legal, way.  But usually, I would say 90 percent of the contests are dismissed almost immediately.  They are generally not very well-founded.  If the Jennings case reaches us, obviously, it is a major one.  It will not be decided quickly or immediately.  I still do not know if it will reach us.  We will have to wait and see.  But because it may reach us, I cannot say too much about that particular case. 

The real problem with us---that every time it has happened, voter confidence is shaken.  That is, I think, a very tragic result because such an issue is made of it in the press and discussions in the public.  People say once again they have another reason not to vote: “Why should I vote?  I cannot trust the machines, anyway.  I cannot trust the ballots.  We do not know if they are counted right.”  I think, based on my experience---and I know there is a Secretary State of Indiana here.  There are probably a lot of other election people here.  In all of my experience, secretaries of state, county clerks, city clerks are extremely conscientious about the voting and the ballot.  They work very, very hard to get accurate results and once the vote is made, they work very, very hard to count it accurately looking at all possible errors. 

So, by all means, do not blame election officials.  They really try hard.  They really know what they are doing.  Let me talk just briefly a minute about –--one other thing; this is in regard to paper ballots, which I myself just assumed was a great answer to it.  In Michigan, Secretary of State Terri Land decided the best thing was to have a paper ballot which was counted by the computer and tallied by the computer.  So you vote on a paper ballot, you fill in the ovals, put it in the computer; the computer tallies it, records it, counts it, et cetera.  That struck me as a being a very good system because it tends to be accurate.  The voters are not doing a touch screen, which many of them are not familiar with.  They are actually filling out a paper ballot which historically is still the most accurate method; and then it is counted electronically, which ensures accuracy, speed, et cetera.  So, I always thought that was a great system until I started looking into this as a result of looking at this particular case.  Los Angeles Times did a story under the headline “Election 2000: Many voters simply did it wrong.”  And they looked at the results.  They reviewed 175,010 uncounted ballots; 61,000 of those were under-votes, but the interesting thing is 113,820 were over-votes.  People not only forget to vote for one particular office; they frequently vote for more people than they should and that can also be a problem.  If they do that, their ballot on that office is automatically discounted.  What was particularly interesting to me---and they were using an optically scanned paper ballot.  Of those who voted on paper optical scanned ballots, 3,616 people, whether they were voting for president, which is a primary office, there were 10 candidates listed.  Thirty-six hundred and sixteen people darkened nine of the 10 ovals and left President Bush’s blank.  Now, how do you interpret that as an election official trying to count that?  Is it perhaps that they just did not know how to do it and they were really voting for President Bush so the dark meant they were erasing all the other candidates?  Or, on the other hand, where they saying anybody but Bush?  How do you know?  All you can is discard the ballot.

Voters make a lot of mistakes, a lot of mistaken assumptions.  I was astounded two years ago---as I mentioned we had punched card ballots in my district and they always worked pretty well.  Then, to make it even better, they put a computer there, a card reader and computer.  After you voted, you put your ballot into that, and then it would pop out.  If it was okay, you just gave it to the registrar and they put it in the ballot box.  If it was wrong, it would send a message that you committed an error.  And I made an error on one.  I'm voting for judges.  There are four judges listed.  I thought we were supposed to vote for two.  We only had to vote for one.  I voted for two.  The think kicked back to me.  I did another ballot [indiscernible] it was fine.  And that is what I like about that type of system - you know immediately whether or not you are making an error. 

Now, by giving these errors with the optical scan, do not think that I am saying that is a bad system.  I'm just pointing out that what I personally think is the best system, a paper ballot filled up personally by the voter, counted by the computer and with the paper and the computer result available for recounting struck me as being the best approach.  And then, when you get 3,600 people making that mistake on the presidential vote, which is the easiest vote, generally, the first one, I begin to wonder if there is any [indiscernible].  But, also, I'm very upset with the people who automatically assume that computers are not a good safe way to do it; and that is part of what is behind the paper ballot.  In my experience in meeting with constituents on this, many of them either have a political agenda or they are elderly and they do not make use of the computer. 

Now, more and more elderly people are using computers.  But then, they simply do not trust them with ballot information, and that is another aspect of this.  So, I'm not sure where all of this is going to go.  I find it amusing that after all the fuss in Florida and the Supreme Court made a decision, I still have constituents - and I expect every congressman does - who are absolutely, totally, completely convinced that the Supreme Court stole the election from Al Gore and gave it to George Bush.  This in spite of the fact that a group of newspapers spent over $200,000 counting manually every ballot for president in the state of Florida and concluding that, yes, in fact, George Bush did win.  Also, ironically, concluded that if Al Gore had tried a recount [indiscernible] instead of just the areas he wanted, he might have won just because the out-state areas give him more votes than he expected whereas the areas he thought he would do well did not.  So, it is ironic that George Bush really did win the election.  Some people still do not believe it in spite of an outside group, namely, of highly reputable newspapers painfully counting every vote to see where they are. 

So, what concerns me is we spent $4 billion now from the federal government given to the states and the communities to buy new voting systems.  Now, suddenly, there is this big uprising that says, “Throw them away, throw them away,” or just hanging a paper printer on the side and that will settle the problem.  Neither one solves the problem.  We have good voting systems in place properly used in most states.  I would prefer, as I said earlier, much more emphasis should have been put on human factors.

I am not pleased that the bill I established to create the standards did not receive immediate attention simply because the chairman of the committee wanted it tied to HAVA, and I kept insisting we need the standards before we spend $4 billion.  And I lost the battle; they were tied together.  And so the standards preparation did not even begin until after HAVA had passed, and I do not think the standards were in place long enough and properly enough to make certain that all the equipment met the standards.  And particularly I'm worried about the human factors issue. 

Human factors apply not just to the design of the computer but, as you can see, ballot design as well; and it is very hard to set a standard for that.  Perhaps you can set some principles, but not standards.  Well, all of this -- just one final comment from Dan Keating of the Washington Post.  And as a Republican, I generally do not quote the Post that often.  But when there are occasions when they agree with me, I do.  The [indiscernible] from Dan Keating, and it is a very good---who presented the findings of the National Opinion Rese