Federal legislation

There are three bills in Congress that address the use of open source or disclosed source software:There has been no federal electoral legislation since the passage of HAVA in 2002. At the time of writing, there are at least six bills -- excluding companion bills -- in the U.S. Congress that would substantially reform the conduct of elections on top of the reforms of HAVA. These six bills are: H.R. 550 (text is available at: https://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00550:), H.R. 704/S. 330 (text is available at: https://thomas.loc.gov/cgi-bin/query/z?c109:H.R.704: and https://thomas.loc.gov/cgi-bin/query/z?c109:S.330: respectively), H.R. 939/S. 450 (text is available at: https://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00939: and https://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.00450: respectively; note the two versions of these bills contain significant differences), H.R. 533/S. 17 (text is available at: https://thomas.loc.gov/cgi-bin/bdquery/z?d109:h.r.00533: and https://thomas.loc.gov/cgi-bin/query/z?c109:S.17: respectively; note the two versions of these bills contain significant differences), H.R. 278 (text is available at: https://thomas.loc.gov/cgi-bin/query/z?c109:H.R.278:) and H.R. 3910 (text is available at: https://thomas.loc.gov/cgi-bin/query/z?c109:H.R.3910:). VerifiedVoting.org maintains a comprehensive list of these bills and their differences here: https://www.verifiedvoting.org/article.php?list=type&type=13. H.R. 550 (known as ``The Holt Bill''), H.R. 939/S. 450 and H.R. 533 would each mandate the use of either open source or disclosed source software in election systems used for federal contests. These are narrow efforts to increase public scrutiny in that they only include source code for systems used in federal elections and it appears that there is little appetite in Congress for electoral reform on top of HAVA.Congressman Bob Ney, former chair of the Committee on House Administration -- which has federal election law jurisdiction -- has expressed the sentiment that possible election reform should wait for past legislative action to run its course. See: Speech by Congressman Bob Ney, given at Cleveland State University, Center for Election Integrity on November 30, 2005, available at: https://cha.house.gov/MediaPages/PRArticle.aspx?NewsID=1146. This sentiment appears to be the main cause behind why none of the six bills in Congress have gained much traction. While wise in some respects, this mindset neglects the fact that the time cycles involved in development of computerized voting equipment are much quicker than the timeframes included as deadlines in the statutes.

Both H.R. 550 and H.R. 939/S. 450 would mandate disclosed source for voting system software used in federal elections.The relevant language in both bills is: ``No voting system shall at any time contain or use any undisclosed software.'' See: H.R. 550 §247(c)(1) and H.R. 939/S. 450 §101(c). The one-word difference is that H.R. 550 would allow the disclosure to any ``person'' while H.R. 939/S. 450 only allows disclosure to ``citizens''. The emphasis in these bills is that the source code used to create software used in voting systems be made available to the public. It is unclear from the language of these bills what ``disclosed source'' would mean exactly; the term is not defined in either bill. H.R. 553 mandates open source, which includes public disclosure, and specifics that the EAC will set standards for such software.H.R. 553 §329(a) and §299G.

While these bills are motivated by similar concerns, the choice of disclosed or open code is significant. The disclosed source bills provide that software should be available for inspection. The later bill, which uses the term ``open source software'', leaves the specifics to the EAC to work out. The lack of definitions for these terms is unfortunate given the wide range of possible meanings and possible interpretations for such technical terms.See note . Specifically, disclosed source allows a very narrow subset of rights when compared with open source software licenses.See the Open Source Definition: https://www.opensource.org/docs/definition.php.