Does the Help America Vote Act of 2002 (HAVA) Mandate Voter Verified Paper Audit Trails?
John Ensign, U.S. Senator (R-NV), is the author of an amendment which was eventually incorporated into HAVA as Section 301(a)(2) about audit capacity. On May 29, 2002, during the legislative debate on HAVA, he sent a letter to Senator Mitch McConnell (R-KY) to clarify the intent of his amendment:
"This amendment is simple. It would give voters a receipt at the time their ballot is cast, and allow the voter to confirm, and, if necessary, change the vote before each ballot is cast. This receipt would then be set aside as a permanent record of that election. This would instill confidence in a new, paperless touch-screen voting machines and would also provide a backup record in the event of a recount."
Darryl R. Wold, former chairman of the Federal Election Commission, in his July 23, 2003 white paper "The HAVA Requirement for a Voter Verified Paper Record," wrote:
"The provisions requiring a 'paper record' that is to be used for a 'manual audit' for the 'voting system' make it apparent that HAVA requires a paper record that is seen, verified, and turned in by the voter...
An audit using a record of votes printed post-closing, of course, could not be considered a manual audit of the complete voting system - it would be a partial audit, at best, limited to the math performed by the computer. It would not be an audit of whether the voters' intent was accurately recorded by the computer - and that is the critical issue...
The distinction between an original paper record of an act and electronic records as indirect evidence is an important one in the field of audit, as indicated by the standards of the auditing practice promulgated by the American Institute of Certified Public Accountants...In this light, the significance of the HAVA requirement that the system produce 'a permanent record' for use in a 'manual audit' or a recount is again apparent. HAVA does not provide for a manual audit of an electronic record of votes cast (or of a printout of an electronic record, which is the same thing). HAVA requires a permanent paper record of votes cast, and that can only be read as meaning a contemporaneous paper record, that the voter has seen and verified."
Congressional Research Service's 2003 Report for Congress titled "Election Reform and Electronic Voting Systems (DREs): Analysis of Security Issues," stated:
"HAVA requires that each voting system produce a paper audit record for the system and that this be the official record for recounts. It also requires that voters have the opportunity to correct their ballots before that record is produced. However, it does not stipulate that that record consist of individual ballots or that it be verifiable by the voter."
The Ad Hoc Touch Screen Task Force, commissioned by former California Secretary of State Kevin Shelley, released a July 1, 2003 report titled "Report to the Secretary of State," which stated:
"The federal Help America Vote Act of 2002 (HAVA) require[s] a paper audit trail be prepared for each polling place. This is separate and apart from whether this paper audit trail is provided to the voter to verify his or her vote before their vote is cast...
While it may seem that this section of law requires a paper audit trail be printed, this provision has not been interpreted this way. The Secretary of State's Office... has interpreted this provision to mean only that a system have the 'capability' to print a paper record. In other words, if a DRE collects ballot images on a memory card, and a paper record can be printed later from the memory card, this has been deemed acceptable."
The Election Technology Council's "Frequently Asked Questions" Oct. 2005 section of their website included the following explanation:
"HAVA does not require that the paper ballot records be presented to the voter for confirmation of the ballot's accuracy. DRE systems present voters with the opportunity to verify vote accuracy on screen... HAVA requires that voting systems have the internal capability of producing a hard copy print out of all votes. DRE systems are capable of producing this record. This is a record intended for use by election officials in a recount situation, not a receipt for individual voters."