In
the fall of 2008, I was elected as a New Hampshire State
Representative from Strafford County District #7. In the following
2009 session, I introduced just one bill, HB 105: "AN ACT
relative to voting machines for the counting of ballots". The
first public hearing was at the Legislative Office Building in
Concord, NH at 11:30 a.m.; January 21, 2009
It basically
proposes a simple change which would have major ramifications for
restoring trust in the integrity of our electoral system: all ballot
counting machines would have to have open source software. It also
eliminates references to machines for casting ballots. Currently
towns in New Hampshire use computerized "optiscan" ballot
boxes which count the ballots as they are cast. These are subjected
to a security audit by the Secretary
of State's office, and the elections division does compile a
white list of approved systems for our state's towns and cities.
However, the software for our voting machines is still a proprietary
black box which our elections officials are not allowed to see. My
intention is that towns could still use their old ballot boxes if
they wanted to, but the official vote would have to be done
separately, either by ahnd or by an open-source counting machine with
open source software.
We
tend to have fairly short ballots in New Hampshire. (We are not like
my old home state of Calfiornia, where ballots had dozens of
different offices and refererenda on them.) Aside from the federal
offices, the only statewide office which is chosen at the ballots is
the Governor. We have no Lieutenant Governor, and the other
constitutional offices are elected by the state legislature (in
consultation with the governor.) We do not have statewide ballot
referendums, and Constitutional amendments are fairly rare. Although
we have a very large state house of representatives, otherwise we
don't have a very large number of elected offices. Towns and cities
have a lot of power in New Hampshire, and the municipalities all have
a plethora of boards, commitees and commissions, but most of the
municipal offices are filled by appointment (or by unanimous consent
at Town Meetings.) So it would be practical to count our ballots by
hand.
[February
6, 2009] The hearing was on the first day my committee met, on
January 21, 2009. About a dozen or so people showed up for the
hearing, even though I didn't do that much to publicize it aside from
putting up this web page and doing some networking on Second
Life and at the Harvard
Law School's Berkman Center for Internet & Society. I
discovered long before the hearing that there weren't really any
open-source voting solutions acailable, so if my bill passed in its
original form, we would have to count all our ballots by hand. This
would be fine by me, but not by the Secretary of State's office.
The Elections Division is trying to develop
something just like what I had in mind: a cheap open-source
vote-counting machine. But it is far from being a marketable product:
they haven't even built a prototype yet. A few days after my hearing,
I attended a meeting at the New Hampshire State Archives hosted by
Dr. Ron Rivest, the world's leading expert on open-source voting
machinery, a very upbeat and optimistic man who.agreed that my bill
was unworkable in its original form. Before the Executive Session,
Dave Scanlan from the Elections Divison and I worked up an amendment
whoch passed unanimously in commitee. It vitiated the original point
of my bill (to mandate open source software) but it made some useful
"housekeeping" changes. Those changes were left over from
the days when a few cities used lever-type voting machines, but the
changes are applicable even today, because they make it clear that
towns are free to count ballots by hand and/or to use a separate vote
counting machine.
The amended bill was placed on the "Consent
Calendar" with a committee report of "Ought to Pass as
Amended" or "OTPA", which means that (unless someone
unexpectedly moves to put it on the regular calendar) it will be
dealt with by voice vote on February 12, 2009 along with a whole
bunch of other bills. Except in the case of some rules changes, the
full house always votes on committee reports: the most common reports
are "ITL" [Inexpedient to Legislate, i.e., "kill it
dead and kill it now"], "OTP" [Ought to pass] and
OTPA. Usually there is just one report, a majority report, but
minorities can send reports too.
There are several other ways of killing a bill other
than accepting an ITL report, depending on how dead we want to kill
it. In 2008, for example, I testified in favor of HR
24, a bill to impeach Bush II & Cheney which not too
surprisingly was sent out of committee with something other a
unanimous Ought to Pass report. That bill was ITLed by the majority
of the committee with a minority report of OTP. It was finally Laid
on the Table by the full house, because the leadership wanted to keep
it around just in case Bush
II did something even more egregious than what he had already
done.
Betty Hall, who sponsored HR24
in 2007 and 2008, is now a lobbyist after losing a State Senate
election. She showed up at our Executive Session (where the public
can listen in, but is not allowed to comment, unless we ask one of
the spectators to comment, which doesn't happen often, although Dave
Scanlan did get to answer some questions.) I think Betty was
disappointed that I had amended my bill to take out the Open Source
part. I am one of the radicals in the House, but I also respect the
process: I didn't want to waste my colleague's time on something
which wasn't going to fly.
[February
16, 2009] HB105, as amended, passed by a voice vote on February 12,
2009: I wasn't even my seat at the time: I was running around because
another election-law bill was unexpectedly going up for a roll call
vote. But I was in the hall, and I did get to shout out "Aye."
[April
27 2009] The Senate also passed HB105, but my State Senator and
friend Amanda
Merrill made a minor amendment. The bill is not ready to be
signed by the governor yet, but I am sure the House will approve her
amendment.
HB
105 – AS AMENDED BY THE SENATE
12Feb2009… 0129h
04/22/09 1381s
2009
SESSION
09-0433
03/04
HOUSE
BILL 105
AN ACT relative to
voting machines for the counting of ballots.
SPONSORS: Rep.
Horrigan, Straf 7
COMMITTEE:
Election Law
AMENDED
ANALYSIS
This
bill replaces the term "voting machines or devices" with
"electronic ballot counting devices." This bill also
eliminates references in the voting machine enabling laws to
machines or devices for casting ballots.
Explanation:
Matter added to current law appears in bold italics.
Matter
removed from current law appears [in brackets and
struckthrough.]
Matter
which is either (a) all new or (b) repealed and reenacted appears
in regular type.
12Feb2009… 0129h
04/22/09 1381s
09-0433
03/04
STATE
OF NEW HAMPSHIRE
In
the Year of Our Lord Two Thousand Nine
AN
ACT relative to voting machines for the counting of ballots.
Be
it Enacted by the Senate and House of Representatives in General
Court convened:
1
Electronic Ballot Counting Devices. Amend the section heading
preceding RSA 656:40 to read as follows:
2
Electronic Ballot Counting Devices; Adoption and Approval. Amend
RSA 656:40 and RSA 656:41 to read as follows:
656:40
Adoption. The mayor and aldermen of any city or the selectmen of
any town, subject to the approval of the ballot law commission,
may authorize the use of one or more [voting machines or]
electronic ballot counting devices for [computerized
casting and] the counting of ballots in
such city or town on a trial basis for any regular or special
election and pay the expense of such trial from any available
funds. The use of such [machines or] devices so
authorized shall be valid for all purposes. Any town, or the mayor
and aldermen of any city, may vote to lease or purchase [voting
machines or] electronic ballot counting
devices for the elections held in said town or city. Any town, or
the mayor and aldermen of any city, so acting shall notify the
secretary of state of the action taken in regard to [voting
machines or] electronic ballot counting
devices; and, after said action, [voting machines or]
electronic ballot counting devices shall be used in
said town or city in accordance with said vote or authorization.
[Notwithstanding any vote of adoption of voting machines,
the mayor and aldermen of any city or the selectmen of any town
may petition the ballot law commission to allow the use of paper
ballots in any one or more elections.]
656:41
Approval by Ballot Law Commission. The ballot law commission shall
act as a board to examine [voting machines and]
devices for [computerized casting and] the
electronic counting of ballots. The commission shall,
whenever requested, examine any [voting machine or]
device which may be capable of meeting the requirements for
elections held in this state. The commission shall approve such
[voting machine or] device in its discretion, and
no [voting machine or] device shall be used in
any election in this state unless it reads the voter's choice on
a paper ballot and is of a type so approved by the ballot law
commission. Any [voting machine or] device that
is altered must be re-approved before it is used in any election
in this state. For the purposes of this section, a [machine]
device shall be considered altered if any mechanical
or electronic part, hardware, software, or programming has been
altered.
3
Electronic Ballot Counting Devices. Amend RSA 656:42, I-V to read
as follows:
I.
The ballot law commission shall make such rules as may be
necessary to ensure the accuracy of [voting machines or]
electronic ballot counting devices, including rules
for the testing of [voting machines or]
electronic ballot counting devices prior to each
election and the submission of testing records to the secretary of
state. The ballot law commission shall make such rules as may be
necessary in order that [voting machines or]
electronic ballot counting devices [for
computerized casting and counting of ballots] may be used
in this state in such a manner that the election laws may be
complied with as far as possible. Said commission shall have the
power and authority in making rules to declare certain laws
relative to distribution and marking of ballots and other
requirements inconsistent with the use of [voting machines
or] electronic ballot counting devices
ineffective in towns and cities adopting such a method of voting.
The presiding officer at each polling place shall enforce the
rules of the ballot law commission made under the authority of
this section.
II.
Consistent with the rules of the ballot law commission the
secretary of state shall include protocols for the testing of
[voting machines] electronic ballot
counting devices in the election manual authorized by RSA
652:22. Each [machine] device shall
be tested after installation and prior to each election.
III.
Any company, partnership, proprietorship, or other person,
wherever located, which supplies, maintains, or programs [voting
machines] electronic ballot counting devices
which are used in elections in New Hampshire is subject to
regulation by this state.
IV.
Each person described in paragraph III shall designate, in
writing, an agent for service of all process, including, but not
limited to summonses, writs, orders, petitions, and subpoenas, and
shall agree in writing that the attorney general, in conjunction
with any election investigation, may inspect its records, machines
or other devices, and premises.
V.
Any such person described in paragraph III who fails to properly
program and test [voting machines] electronic
ballot counting devices shall be liable to reimburse the
state for the cost of any recount which is necessitated by such
failure.
4
Electronic Ballot Counting Devices. Amend RSA 656:43 to read as
follows:
656:43
Lease or Purchase. Any town or city authorizing the use of [a
voting machine or a] electronic ballot counting
device for [computerized casting and] the
counting of ballots shall pay the cost of lease or purchase. When
such a [machine or] device is purchased by a town
or city, the person from whom such [machine]
device is purchased shall give to the secretary of
state a suitable bond with sufficient sureties to keep such
[machine] device in good working
order for not less than 2 years at the seller's own expense.
5
Electronic Ballot Counting Devices. Amend RSA 659:23, II to read
as follows:
II.
The provisions of paragraph I shall not apply in cities and towns
which use one or more [voting machines or]
electronic ballot counting devices for [computerized
casting and] the counting of ballots, as
provided in RSA 656:40.
6
Electronic Ballot Counting Devices. Amend RSA 659:42 to read as
follows:
659:42
Tampering With [Voting Machines] Electronic
Ballot Counting Devices. Whoever shall tamper with or
injure or attempt to injure any [voting machine or]
electronic ballot counting device for the
[computerized casting and] counting of ballots to
be used or being used in an election or whoever shall prevent or
attempt to prevent the correct operation of such [machine
or] device or whoever shall tamper with software used in
the [casting or] counting of ballots or design
such software so as to cause incorrect tabulation of the ballots
or any unauthorized person who shall make or have in his or her
possession a key to [a voting machine] an
electronic ballot counting device to be used or being used
in an election shall be guilty of a class B felony if a natural
person or guilty of a felony if any other person.
7
Repeal. RSA 656:43-a, relative to voting machine replacement, is
repealed.
8
Effective Date. This act shall take effect 60 days after its
passage.
Bill Title:relative to voting
machines for the counting of ballots.
Official Docket ofHB105:
Date
Body
Description
01/07/2009
H
Introduced 1/7/2009 and Referred to Election Law; HJ
8, PG. 122
01/08/2009
H
Public Hearing: 1/21/2009 11:30 AM LOB 308
01/21/2009
H
Executive Session: 2/3/2009 1:00 PM LOB 308
02/05/2009
H
Committee Report: Ought to Pass with AM #0129h for Feb 12 CC
(vote 19-0); HC
11, PG.177
Ought to Pass with Amendment{1381s}, MA, VV; OT3rdg;
04/22/2009
S
Passed by Third Reading Resolution;
HB
105 – AS INTRODUCED
2009 SESSION
09-0433
03/04
HOUSE BILL 105
AN ACT relative to voting
machines for the counting of ballots.
SPONSORS: Rep. Horrigan, Straf
7
COMMITTEE: Election Law
ANALYSIS
This bill requires that ballot
counting machines use open source software. This bill also eliminates
references in the voting machine enabling laws to machines or devices
for casting ballots.
Explanation:
Matter added to current law appears in bold italics.
Matter removed
from current law appears [in brackets and struckthrough.]
09-0433
03/04
STATE OF NEW
HAMPSHIRE
In the Year of Our
Lord Two Thousand Nine
AN ACT relative to voting
machines for the counting of ballots.
Be it Enacted by
the Senate and House of Representatives in General Court convened:
1 Voting Machines; Adoption and
Approval. Amend RSA 656:40 and RSA 656:41 to read as follows:
656:40 Adoption. The mayor and
aldermen of any city or the selectmen of any town, subject to the
approval of the ballot law commission, may authorize the use of one
or more voting machines or devices for computerized [casting
and] counting of ballots in such city or town on a trial
basis for any regular or special election and pay the expense of such
trial from any available funds. The use of such machines or devices
so authorized shall be valid for all purposes. Any town, or the mayor
and aldermen of any city, may vote to lease or purchase voting
machines or devices for the elections held in said town or city. Any
town, or the mayor and aldermen of any city, so acting shall notify
the secretary of state of the action taken in regard to voting
machines or devices; and, after said action, voting machines or
devices shall be used in said town or city in accordance with said
vote or authorization. Notwithstanding any vote of adoption of voting
machines, the mayor and aldermen of any city or the selectmen of any
town may petition the ballot law commission to allow the use of paper
ballots in any one or more elections.
656:41 Approval by Ballot Law
Commission. The ballot law commission shall act as a board to examine
voting machines and devices for computerized [casting and]
counting of ballots. The commission shall, whenever requested,
examine any voting machine or device which may be capable of meeting
the requirements for elections held in this state. The commission
shall approve such voting machine or device in its discretion, and no
voting machine or device shall be used in any election in this state
unless it reads the voter's choice on a paper ballot, uses open
source software, and is of a type so approved by the ballot law
commission. Any voting machine or device that is altered must be
re-approved before it is used in any election in this state. For the
purposes of this section, a machine shall be considered altered if
any mechanical or electronic part, hardware, software, or programming
has been altered.
2 Casting Deleted. Amend RSA
656:42, I to read as follows:
I. The ballot law commission
shall make such rules as may be necessary to ensure the accuracy of
voting machines or devices, including rules for the testing of voting
machines or devices prior to each election and the submission of
testing records to the secretary of state. The ballot law commission
shall make such rules as may be necessary in order that voting
machines or devices for computerized [casting and]
counting of ballots may be used in this state in such a manner that
the election laws may be complied with as far as possible. Said
commission shall have the power and authority in making rules to
declare certain laws relative to distribution and marking of ballots
and other requirements inconsistent with the use of voting machines
or devices ineffective in towns and cities adopting such a method of
voting. The presiding officer at each polling place shall enforce the
rules of the ballot law commission made under the authority of this
section.
3 Casting and Lever Voting
Machines Deleted. Amend RSA 656:43 and RSA 656:43-a to read as
follows:
656:43 Lease or Purchase. Any
town or city authorizing the use of a voting machine or a device for
computerized [casting and] counting of ballots shall
pay the cost of lease or purchase. When such a machine or device is
purchased by a town or city, the person from whom such machine is
purchased shall give to the secretary of state a suitable bond with
sufficient sureties to keep such machine in good working order for
not less than 2 years at the seller's own expense.
656:43-a Replacement. If a city
or town decides to replace all of its [lever voting machines
or] devices for computerized [casting and]
counting of ballots, it may, as a substitute, use the regular hand
counted paper ballot system or one of the several approved voting
machines or devices for the counting of ballots which reads the
voter's choice on a paper ballot.
4 Casting Deleted. Amend RSA
659:23, II to read as follows:
II. The provisions of paragraph
I shall not apply in cities and towns which use one or more voting
machines or devices for computerized [casting and]
counting of ballots, as provided in RSA 656:40.
5 Casting Deleted. Amend RSA
659:42 to read as follows:
659:42 Tampering With Voting
Machines. Whoever shall tamper with or injure or attempt to injure
any voting machine or device for the computerized [casting
and] counting of ballots to be used or being used in an
election or whoever shall prevent or attempt to prevent the correct
operation of such machine or device or whoever shall tamper with
software used in the [casting or] counting of
ballots or design such software so as to cause incorrect tabulation
of the ballots or any unauthorized person who shall make or have in
his or her possession a key to a voting machine to be used or being
used in an election shall be guilty of a class B felony if a natural
person or guilty of a felony if any other person.
6 Effective Date. This act
shall take effect 60 days after its passage.
House Calendar Blurb:
The actual floor motion will be made on February 12
by Rep. Tim Comerford (R-Kingston), who sits next to me at the
committee table. Committee members take turns making the floor
motions after bills are reported unanimously (or almost unanimously.)
HB 105, relative to voting machines for the counting
of ballots. OUGHT TO PASS WITH AMENDMENT.
Rep. Timothy P Comerford for Election Law: The
committee finds that the original intent of this bill, using open
source software in vote counting machines, is not currently
feasible. However, notwithstanding the availability of said
software, there is merit to the bill as it clears up language in
state statutes relative to vote casting devices. The state does
not use vote casting devices or lever voting machines. The bill
simply removes reference to these devices and puts the RSA in line
with current practice. Vote 19-0
Amendment
to HB 105
Proposed
by the Committee on Election Law - C
Amend the bill by replacing all after the enacting clause with
the following:
1 Electronic Ballot Counting Devices. Amend the section
heading preceding RSA 656:40 to read as follows:
2 Electronic Ballot Counting Devices; Adoption and
Approval. Amend RSA 656:40 and RSA 656:41 to read as follows:
656:40 Adoption. The mayor and aldermen of any city or the
selectmen of any town, subject to the approval of the ballot law
commission, may authorize the use of one or more [voting
machines or] electronic ballot counting devices for
[computerized casting and] the counting of
ballots in such city or town on a trial basis for any regular or
special election and pay the expense of such trial from any available
funds. The use of such [machines or] devices so
authorized shall be valid for all purposes. Any town, or the mayor
and aldermen of any city, may vote to lease or purchase [voting
machines or] electronic ballot counting devices for
the elections held in said town or city. Any town, or the mayor and
aldermen of any city, so acting shall notify the secretary of state
of the action taken in regard to [voting machines or]
electronic ballot counting devices; and, after said action,
[voting machines or] electronic ballot counting
devices shall be used in said town or city in accordance with said
vote or authorization. [Notwithstanding any vote of adoption
of voting machines, the mayor and aldermen of any city or the
selectmen of any town may petition the ballot law commission to allow
the use of paper ballots in any one or more elections.]
656:41 Approval by Ballot Law Commission. The ballot law
commission shall act as a board to examine [voting machines
and] devices for [computerized casting and]
the electronic counting of ballots. The commission shall,
whenever requested, examine any [voting machine or]
device which may be capable of meeting the requirements for elections
held in this state. The commission shall approve such [voting
machine or] device in its discretion, and no [voting
machine or] device shall be used in any election in this
state unless it reads the voter's choice on a paper ballot and is of
a type so approved by the ballot law commission. Any [voting
machine or] device that is altered must be re-approved
before it is used in any election in this state. For the purposes of
this section, a [machine] device shall be
considered altered if any mechanical or electronic part, hardware,
software, or programming has been altered.
3 Electronic Ballot Counting Devices. Amend RSA 656:42,
I-V to read as follows:
I. The ballot law commission shall make such rules as may be
necessary to ensure the accuracy of [voting machines or]
electronic ballot counting devices, including rules for the
testing of [voting machines or] electronic ballot
counting devices prior to each election and the submission of
testing records to the secretary of state. The ballot law commission
shall make such rules as may be necessary in order that [voting
machines or] electronic ballot counting devices [for
computerized casting and counting of ballots] may be used in
this state in such a manner that the election laws may be complied
with as far as possible. Said commission shall have the power and
authority in making rules to declare certain laws relative to
distribution and marking of ballots and other requirements
inconsistent with the use of [voting machines or]
electronic ballot counting devices ineffective in towns and
cities adopting such a method of voting. The presiding officer at
each polling place shall enforce the rules of the ballot law
commission made under the authority of this section.
II. Consistent with the rules of the ballot law commission the
secretary of state shall include protocols for the testing of [voting
machines] electronic ballot counting devices in the
election manual authorized by RSA 652:22. Each [machine]
device shall be tested after installation and prior to each
election.
III. Any company, partnership, proprietorship, or other person,
wherever located, which supplies, maintains, or programs [voting
machines] electronic ballot counting devices which
are used in elections in New Hampshire is subject to regulation by
this state.
IV. Each person described in paragraph III shall designate, in
writing, an agent for service of all process, including, but not
limited to summonses, writs, orders, petitions, and subpoenas, and
shall agree in writing that the attorney general, in conjunction with
any election investigation, may inspect its records, machines or
other devices, and premises.
V. Any such person described in paragraph III who fails to
properly program and test [voting machines]
electronic ballot counting devices shall be liable to
reimburse the state for the cost of any recount which is necessitated
by such failure.
4 Electronic Ballot Counting Devices. Amend RSA 656:43 to
read as follows:
656:43 Lease or Purchase. Any town or city authorizing the use
of [a voting machine or a] electronic ballot
counting device for [computerized casting and]
the counting of ballots shall pay the cost of lease or
purchase. When such a [machine or] device is
purchased by a town or city, the person from whom such [machine]
device is purchased shall give to the secretary of state a
suitable bond with sufficient sureties to keep such [machine]
device in good working order for not less than 2 years at the
seller's own expense.
5 Electronic Ballot Counting Devices. Amend RSA 659:23, II
to read as follows:
II. The provisions of paragraph I shall not apply in cities and
towns which use one or more [voting machines or]
electronic ballot counting devices for [computerized
casting and] the counting of ballots, as provided in
RSA 656:40.
6 Electronic Ballot Counting Devices. Amend RSA 659:42 to
read as follows:
659:42 Tampering With Voting Machines. Whoever shall tamper
with or injure or attempt to injure any [voting machine or]
electronic ballot counting device for the [computerized
casting and] counting of ballots to be used or being used in
an election or whoever shall prevent or attempt to prevent the
correct operation of such [machine or] device or
whoever shall tamper with software used in the [casting or]
counting of ballots or design such software so as to cause incorrect
tabulation of the ballots or any unauthorized person who shall make
or have in his or her possession a key to [a voting machine]
an electronic ballot counting device to be used or being used
in an election shall be guilty of a class B felony if a natural
person or guilty of a felony if any other person.
7 Repeal. RSA 656:43-a, relative to voting machine
replacement, is repealed.
8 Effective Date. This act shall take effect 60 days after
its passage.
AMENDED ANALYSIS
This bill replaces the term "voting machines or devices"
with "electronic ballot counting devices." This bill also
eliminates references in the voting machine enabling laws to machines
or devices for casting ballots.
[February
6, 2009] The hearing was on the first day my committee met, on
January 21, 2009. About a dozen or so people showed up for the
hearing, even though I didn't do that much to publicize it aside from
putting up this web page and doing some networking on Second
Life and at the Harvard
Law School's Berkman Center for Internet & Society. I
discovered long before the hearing that there weren't really any
open-source voting solutions acailable, so if my bill passed in its
original form, we would have to count all our ballots by hand. This
would be fine by me, but not by the Secretary of State's office.