HB 105:
State Rep. Timothy Horrigan's Bill Requiring Open Source Software for Vote-Counting Machines

Commentary by Timothy Horrigan



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

Click below to learn about:

  1. Bill's Status

  2. Bill Text (also shown below)

  3. Bill's Docket (also shown below)



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 hand 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 online. I discovered long before the hearing that there weren't really any open-source voting solutions available, 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.


 [April 29, 2009] The House concurred with the amendment.



 [June 11, 2009] The governor signed the bill on June 9, 2010. There was no ceremony or anything of that nature. I didn't even know about till I saw the new line on the bills docket. My bill was added to "Chapter 0070":

CHAPTER 70

HB 105 – FINAL VERSION

12Feb2009… 0129h

04/22/09 1381s

06May2009… 1481eba

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

06May2009… 1481eba

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:

70:1 Electronic Ballot Counting Devices. Amend the subdivision heading preceding RSA 656:40 to read as follows:

[Voting Machines] Electronic Ballot Counting Devices

70:2 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.

70:3 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.

70:4 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] an 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.

70:5 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.

70:6 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.

70:7 Repeal. RSA 656:43-a, relative to voting machine replacement, is repealed.

70:8 Effective Date. This act shall take effect 60 days after its passage.

Approved: June 9, 2009

Effective Date: August 8, 2009<




Docket of HB105  

Docket Abbreviations

Bill Title: relative to voting machines for the counting of ballots.
Official Docket of HB105:

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

02/05/2009

H

Proposed Amendment #0129h; HC 11, PG.206

02/12/2009

H

Amendment #0129h Adopted, VV; HJ 17, PG.414-416

02/12/2009

H

Ought to Pass with Amendment #0129h: MA VV; HJ 17, PG.414-416

03/18/2009

S

Introduced and Referred to Election Law and Veterans' Affairs; SJ 8, pg. 132

03/26/2009

S

Hearing; April 7, 2009, Room 101, LOB, 8:30 a.m.; SC17

04/15/2009

S

Committee Report; Ought to Pass [04/22/09]; SC20

04/22/2009

S

Sen. Merrill Floor Amendment{1381s}, AA, VV; SJ 12, Pg.238

04/22/2009

S

Ought to Pass with Amendment{1381s}, MA, VV; OT3rdg; SJ 12, Pg.238

04/22/2009

S

Passed by Third Reading Resolution; SJ 12, Pg.242

04/29/2009

H

House Concurs with Senate Amendment #1381s (Rep Pierce): MA VV; HJ 37, PG.1476

05/06/2009

H

Enrolled Bill Amendment #1481 Adopted; HJ 39, PG.1565

05/13/2009

S

Enrolled Bill Amendment #1481 Adopted; SJ 15, Pgs.348-349

05/13/2009

S

Enrolled; SJ 15, Pg.347

05/20/2009

H

Enrolled; HJ 42, PG.1647

06/11/2009

H

Signed by the Governor 06/09/2009; Effective 08/08/2009; Chapter 0070




This is what I originally introduced in the House:

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.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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 was 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


And this is what we passed:


HB 105 – AS AMENDED BY THE HOUSE

12Feb2009… 0129h

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

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:

[Voting Machines] Electronic Ballot Counting Devices

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.




See Also: