1 1 U.S. ELECTION ASSISTANCE COMMISSION 2 * * * 3 PUBLIC HEARING AGENDA 4 5 6 U.S. Environmental 7 Protection Agency HQ 8 1200 Pennsylvania Ave., NW 9 Washington, DC 10 11 Wednesday, May 5, 2004 12 9:01 a.m. 13 14 15 Meeting of the U.S. Election Asistance 16 Commission, was held on Wednesday, May 5, 2004, at 17 1200 Pennsylvania Ave., NW, commencing at 1:30 p.m., 18 Chairman Soaries, presiding. 19 20 21 22 2 1 P R O C E E D I N G S 2 (9:01 a.m.) 3 CHAIRMAN SOARIES: Good morning everybody. 4 (No response.) 5 CHAIRMAN SOARIES: I'm Baptist. Good 6 morning, everybody. 7 AUDIENCE: Good morning. 8 CHAIRMAN SOARIES: Welcome all of you to 9 this public hearing sponsored by the United States 10 Election Assistance Commission. My name is DeForest 11 Soaries, Jr., and I am the Chairman of this new 12 Federal Agency for this year. 13 I would like to thank the Environmental 14 Protection Agency for hosting us and providing for us 15 accommodations and water and all of the hospitality 16 that they've provided. Their staff has been very 17 helpful, and we are grateful to them for this 18 facility. 19 I also would like to thank in advance all 20 of those who have come to serve on panels today. We 21 have great minds and outstanding talent coming to 22 help us understand more about this issue of 3 1 electronic voting, and people have come from near and 2 far and we are the beneficiaries of having been 3 rejected by no one. 4 We have the unenviable task of telling 5 quite a few people that we just did not have space 6 for all of those who sought to testify orally, but we 7 have received written testimony from scores of people 8 which will be a part of our focus as we issue our 9 report and a part of our consideration as we 10 deliberate this important subject. 11 I would also like to thank the very small 12 EAC staff for the work that they did. Many of them 13 have not slept recently, and we would like to 14 recognize them for their work. 15 Four-and-a-half months ago the four 16 Americans that you see seated before you embarked 17 upon this mission called the Election Assistance 18 Commission. 19 We knew that there were challenges that we 20 faced. There were realities that we inherited due to 21 the timing of our appointment and the nature of our 22 work, but greater than the challenges were the 4 1 opportunities to pursue this national consensus that 2 every voter matters, and that every vote counts. 3 So for four-and-a-half months we have been 4 working hard on administrative startup activities. 5 We've been working hard to facilitate the 6 distribution of federal funds that were made possible 7 by the Help America Vote Act to the States. 8 We've been busy visiting primary 9 elections. We've worked hard to meet with various 10 groups whose perspective is important as we do our 11 work and shape our own internal organizational 12 structure that we might be effective in maximizing 13 the use of the resources that we have. 14 We started out work by the publishing of 15 the States Plans required under HAVA for the release 16 of $2.3 billion that has yet to be released in 17 Requirements' Payments. Shortly those funds will be 18 released, which created some sense of urgency as we 19 began hearing from States. 20 It was clear that the use of those funds 21 would be subject to the kind of guidelines that we 22 issued. Much of our work is subject to a process 5 1 that is rather long-term within the scope of what we 2 know is a challenge for this November. But much of 3 what we do can have an impact on this November's 4 election, and that brings us here today. 5 We know, all of us know that voting in 6 America has evolved since the founding of this 7 Democracy. Not only has the Constitution been 8 amended to expand the persons who have the right to 9 vote, but also the manner in which we have voted has 10 changed over the last 200 years. 11 Early in the founding of our Democracy a 12 few men would gather downtown and would verbalize the 13 candidate of their choice, and that was an election. 14 There were times when each political party 15 printed the ballots, and you knew which party you 16 were voting for by the color of the ballot. And 17 there were other times when people would just write 18 their names on a book. 19 The concept of privacy in voting, the 20 secret ballot, emerged quickly as the standard for 21 this country. And the way we vote is what brings us 22 here today. Our commitment to universal suffrage is 6 1 juxtaposed to the technology that we now use to case 2 our private ballot. 3 And so the Election Assistance Commission 4 was formed in large measure in response to the issues 5 that really became front and center in November of 6 2000. 7 This Commission has responsibilities that 8 are well articulated in the Help America Vote Act, 9 but what is not in the Help America Vote Act is what 10 I'd like to describe so that you will understand more 11 about who we are. 12 We came together after having been 13 appointed by the President December 13th, and 14 immediately we made commitments that we hope are 15 transparent and self-evident in what we do today and 16 in the follow years. 17 The first commitment we've made is to be a 18 bipartisan commission in function and not just in 19 name. We are two Democrats and two Republicans, but 20 we believe in our hearts that the issue for which we 21 are responsible is so important to the country that 22 it is incumbent upon us to leave our partisan 7 1 identities and personal philosophies at the door. 2 From day one we have maintained a 3 bipartisan spirit. As one of my colleagues will say, 4 if you look in on our discussions it would be 5 difficult if not impossible to determine who was a 6 Republican and who was a Democrat. 7 There is a time when partisan differences 8 are healthy for the country, but there is also a time 9 when certain issues are urgent to the extent that 10 partisan differences should not stop us from making 11 progress. That is a commitment of this Commission, 12 and we are going to urge not only the panelists but 13 the people with whom we work after today to attempt 14 to rise to level of bipartisan spirit. 15 The second commitment we've made is to 16 move by consensus. We try not to lobby each other 17 and broker deals, but rather form consensus through a 18 deliberative process. In that process we attempt to 19 be civil in our tone. We attempt to be conciliatory 20 in our outcomes. We refrain from any personal 21 attacks. And we try to stay open-minded. 22 I described that hoping that those who are 8 1 on panels today will respect the fact that that's the 2 way we operate, and that is the kind of hearing we 3 would like to manage. 4 As Chair, I will try my best today to keep 5 us not only on time but to keep us within the 6 framework of civility. 7 The final commitment is to results. This 8 hearing is not an academic exercise, although we have 9 some great academicians. Rather, this hearing is 10 strategically called today six months prior to the 11 November election aimed at concrete actions that we 12 can take to not only, as I said, fulfill our long- 13 term mandates but also to help America vote in 14 November of 2004. 15 And so we are honored today to have great 16 minds, experienced professionals, and committed 17 advocates. There will be a tension between certain 18 views, but sometimes tension can produce healthy 19 outcomes if that tension is managed and articulated 20 in a positive way. 21 And so we are thrilled that you have come. 22 We have urgent business to do, and we are going to 9 1 ask each of you to either participate or observe with 2 a certain set of ground rules. 3 In the first instance I would like to ask 4 that everyone turn off their electronic devices. 5 There should be no computers in the room, but if 6 there are any other electronic devices: beepers, 7 watches, Blackberry, Blueberry-- 8 (Laughter.) 9 CHAIRMAN SOARIES: --because it will be 10 easier to proceed without that. 11 We are asking each panelist to make a 12 short opening statement. I will remind them that the 13 panelists will give an opening statement for seven 14 minutes, and then that leaves time for the four 15 Commissioners to ask questions. 16 I will try to keep us on track. Each 17 Commissioner will lead the questioning for a panel, 18 and then after that lead questioning then each 19 Commissioner will have a chance to ask a few 20 questions after that lead Commissioner. 21 I want to ask the audience not to make any 22 demonstrations of support--this is not a pep rally; 10 1 or against--this is not a protest. We would like the 2 audience to be careful to conduct itself in a manner 3 that coheres with the civility that we are attempting 4 to portray. 5 I would like to thank the media for taking 6 this issue seriously because our experience is that 7 the country cares about this matter of voting, and I 8 hope that you will find today as interesting as we 9 intend to find it because as a result of what we 10 learn we will craft our work to take actions that 11 will support all Americans as we prepare for a new 12 Presidential Election. 13 I would like now to invite my colleagues 14 to give an opening statement, after which I will 15 introduce our first presenter. 16 Vice Chair Hillman. 17 VICE CHAIR HILLMAN: Good morning. I join 18 my colleagues in thanking you for finding the 19 commitment and time to be with us. We can only 20 benefit by the input of such a diverse group of 21 people. 22 We welcome your input, and your presence 11 1 here motivates and energizes us. So on the one hand 2 I apologize to the people who are not able to find 3 seating. It is so hard to know when you hold a 4 hearing like this, especially for the first time, how 5 many people will really be interested enough to be 6 here. 7 On the other hand, it is a terrific 8 showing for us. And as I said, it energizes and 9 motivates us. 10 We, as the Chairman said, are very pleased 11 to have been able to come this far in the short 12 period of time that we've been assembled with the 13 many things that we have had to do, but our 14 commitment is to make certain that we move as quickly 15 as possible to meet the mandates of the law, to 16 fulfill our responsibilities and to move our mission 17 forward. 18 And so I again thank you for being here 19 and look forward to your input not only today but in 20 the months and years to follow. 21 Thank you. 22 CHAIRMAN SOARIES: Commissioner 12 1 DeGregorio. 2 COMMISSIONER DeGREGORIO: Thank you, Mr. 3 Chairman. It is indeed an honor to be here and to be 4 a part of this very important hearing. 5 I served for eight years as an election 6 official in St. Louis County, Missouri, and I bring 7 that perspective to this Commission. Back in 1990 I 8 had the closest Congressional rate in the country. 9 51 votes separated the winner or loser and it was a 10 punch card system. So I have been through a lot of 11 experiences because of that. 12 For eight years after I served as Director 13 of Elections I worked overseas in 15 countries and 14 advised Russians, and Indonesians, and others on how 15 to conduct their elections. 16 I was asked to serve on this Commission, 17 and as I saw the past few months the discussion 18 evolve in the country about the security of systems, 19 the use of systems, it became very apparent to me 20 that this Commission needed to have a hearing such as 21 this, and I was very pleased when my fellow 22 Commissioners and the Chairman, suggested that we do 13 1 something just like this. 2 It is important in any democracy that 3 there be freedom of speech and honest debate and 4 informative debate over issues such as this. I hope 5 that this hearing encourages a civilized debate. 6 When I was first appointed to this 7 Commission, there was a web site someone put out that 8 I had worked for the CIA overseas, which was not 9 true. But then I find in the past few weeks and 10 months that this same person is on CBS News, on CNN, 11 and quoted by The New York Times, and that does 12 concern me because I hope that in the discussion of 13 this very important issue that people stick to the 14 proven facts; that they give us informed opinions; 15 and that we stay away from rancor and personal 16 attacks and partisanship. Because the Nation is not 17 served by division, it is served by an honest 18 discussion. 19 I so hope the debate is civilized for a 20 very important reason, because we want to encourage 21 people to participate in our election process. We 22 want to have the largest turnout in American history 14 1 in November, and I hope the discussion of these 2 important issues is at a level that encourages people 3 to participate and doesn't discourage people from 4 participating because our Democracy will not be 5 served if people don't come to the polls. 6 Thank you, Mr. Chairman. 7 CHAIRMAN SOARIES: Commissioner Martinez. 8 COMMISSIONER MARTINEZ: Thank you, Mr. 9 Chairman. 10 Through the passage of the Help America 11 Vote Act of 2002 and our subsequent confirmation and 12 appointment, the U.S. Election Assistance Commission 13 was created to assist in the administration of 14 Federal Elections, and to otherwise provide 15 assistance for certain Federal Election laws and 16 programs. 17 Moreover, the EAC is to establish minimum 18 standards for election equipment, and to act as a 19 national clearinghouse with regard to Federal 20 Election administration. 21 It is this function of national 22 clearinghouse, Mr. Chairman, that I want to focus on 15 1 for just one minute this morning. 2 I think the big picture intent of what we 3 are trying to accomplish with this hearing today is 4 worth reiterating. While roughly 29 percent of 5 registered voters will be voting in November 2004 6 with electronic voting machines--and we will hear 7 some very compelling statistics from Mr. Brace, our 8 first panelist--and some 30 percent of registered 9 voters will be using punch card and lever machines, 10 and another 32 percent will be using optical scan 11 machines, one of the primary purposes of this hearing 12 is to begin gathering important information on the 13 use, the security, and the reliability of all voting 14 systems to be used in this coming November's 15 election. 16 There are no doubt unique challenges with 17 regard to each voting system, and unique challenges 18 we will hear today with regard to the use of DREs, 19 but it is important I think for our audience to 20 understand--our audience here today and the broader 21 audience through the media--to understand that this 22 Commission takes its role as a national clearinghouse 16 1 very seriously. 2 A significant step in that direction is to 3 produce timely Best Practices' guidance to states and 4 local governments regarding the use, the security, 5 and the reliability of all voting systems, including 6 optical scan, punch card, lever, DREs, and paper 7 ballots. 8 Releasing this Best Practices' guidance 9 before November in a timely fashion will in my view, 10 Mr. Chairman, contribute positively toward the most 11 fundamental task we have as a Commission. That is, 12 to ensure that the American public has full 13 confidence in the administration of our Federal 14 Elections. 15 With that, I look forward to the 16 discussion. Thank you. 17 CHAIRMAN SOARIES: Thank you, 18 Commissioners. Much of what we know about who votes 19 on what kind of voting device in this country we know 20 because of the work of our next speaker. We are 21 pleased to have as our opening presenter who will 22 give us an overview on electronic voting the 17 1 President of Election Data Services, our friend Mr. 2 Kim Brace. 3 PRESENTATION OF KIM BRACE, PRESIDENT 4 ELECTION DATA SERVICES 5 MR. BRACE: Thank you, Mr. Chairman. 6 Commissioners, it's a pleasure to be here this 7 morning, and I certainly don't envy your task ahead 8 of you in-- 9 AUDIENCE MEMBERS: Can't hear. 10 MR. BRACE: Yes. My name is Kim Brace, B- 11 R-A-C-E. I'm President of Election Data Services. 12 We are a provider of elections' information around 13 the country, and we have compiled information for the 14 past 30 years in terms of what types of voting 15 systems have been used around the Nation. 16 I have a full statement that I would like 17 to have entered into the record, and I will summarize 18 a couple of key points for your benefit and try to 19 keep us on track of the timetable. 20 In terms of the history of voting systems, 21 this country has had a long history, starting off 22 with paper ballots, as the Chairman mentioned. As 18 1 the country grew and became more urbanized, the task 2 of counting ballots, paper ballots, took longer. 3 With the industrial revolution, a mechanical way was 4 found to produce almost instantaneous election 5 results, the lever machine. 6 Lever machines were invented in 1890, and 7 their use in the elections grew over the next 70 8 years. It is interesting to note, in light of the 9 current controversy that we have over electronic 10 voting systems, that for those 70 years voters were 11 not receiving nor were election officials counting 12 physical ballots on lever machines. 13 Now precincts tended to be smaller in size 14 at that point in time because of the high cost of 15 lever machines, but by the middle of the 20th Century 16 the main source of polling place judges, housewives, 17 had begun moving into the workforce. As a result, 18 this loss in manpower, or womanpower, election 19 officials looked to cutting the overall number of 20 precincts and increasing the size of the remaining 21 polling places. 22 Punch-card voting systems, first 19 1 introduced in 1964, were a popular solution to this 2 problem. These were mainly used in urban and 3 suburban communities around this country, but in the 4 rural parts of this country they looked towards 5 continuing to use paper ballots but find an easier 6 way of tallying those paper ballots. 7 This led to the development of the optical 8 scan systems in the 1970s. With the advent of 9 computers and the need to replace the aging lever 10 machines, the 1970s also found the introduction of 11 the electronic voting systems. Early electronic 12 voting systems looked much like lever machines with 13 pushbuttons replacing levers on a large panel. 14 Newer DREs resembling ATM machines had 15 touch screen panels and key pads for entering write- 16 in votes. Voter preferences went directly into the 17 electronic storage usually without a paper record of 18 the voter's intent. 19 As I indicated, we have kept track of what 20 kind of voting system is used around the country. We 21 started in 1980. In 1980 we found just two 22 electronic voting systems in use at that time, the 20 1 Video Voter and Votronics in use in just seven 2 counties of this Nation. They accounted for just one 3 percent of the registered voters nationwide. 4 Our most recent survey that we have done 5 for the 2004 projected election shows that the number 6 of counties using electronic voting systems has grown 7 to 675 counties in this country. 8 These counties, located in more than half 9 of the states, amount for almost 50 million 10 registered voters, or 30 percent of overall 11 registered voters. 12 Our surveys look at a lot of different 13 voting systems, and when one looks at those and 14 analyzes the comparison of the percent of registered 15 voters, or the percent of counties, one finds 16 differences that are significant in terms of the size 17 of jurisdiction. 18 Right now we're looking at slightly more 19 than 48 million registered voters who are expected to 20 cast ballots this fall on an electronic system, 21 compared to 53 million that will use optical scan 22 systems, and 22 million that would still use some 21 1 form of punch cards. 2 About the same number of voters, 22 3 million, will use lever machines, while about 1 4 million voters will still use paper ballots. Voters 5 using paper ballots represent only two-thirds of one 6 percent of all registered voters in the country. 7 In 1980, over 1200 counties or 41 percent 8 of the counties used paper ballots. We have produced 9 in the statement, of which we have copies on the back 10 table, maps of both what the country looked like in 11 1980 as well as what the country looks like today in 12 2004. 13 Our information and our research indicates 14 that for 2004, while there have been a lot of changes 15 going on in the last four years, upwards of 74 16 percent of the voters in this country will use the 17 same type of voting system that was used in November 18 of 2000. 19 Now besides being the sole repository of 20 historical information on voting systems around the 21 country, we provide information for many of the 22 academic surveys and studies that you heard about 22 1 over the last three years. We also compile and 2 collect voting statistics which are allowed to be 3 pared to the voting information and allow people to 4 come up with what people have referred to as "error 5 rates" in different types of voting systems. 6 I believe the use of the term "error 7 rates" is a misnomer. Because many people have 8 assumed that when people go to the polls they will 9 vote for all offices on the ballot, or at least the 10 offices at the top of the ballot. 11 Empirical evidence, however, shows that 12 neither of these assumptions are correct. 13 14 15 16 17 18 19 20 21 22 23 1 Academic studies have shown that people 2 experience ballot fatigue as they move down the 3 ballot and don't vote for everyone. This phenomenon 4 is called many things, but I refer to is as "drop 5 off". Drop off is roughly equivalent to what others 6 say is the residual vote measures that you may have 7 heard about in recent studies. 8 As I indicated, we've looked at and 9 compiled and we did a study for the Congressional 10 Research Service going back to 1948 that looks at 11 drop off across the country in every county of the 12 Nation. And there is a summary table in the back of 13 my statement for you, but overall what one finds in 14 looking at election statistics is that drop off tends 15 to account for 1.5 to 2.5 percent in Presidential 16 Elections when the data is available, and ranges up 17 to 4.5 percent in non-presidential elections. 18 The problem is that not all states report 19 the actual number of persons that went to the polls 20 on election day. While the availability of this data 21 has improved over time, just 17 states reported that 22 number in 1948. There are still ten states that do 24 1 not compile this information and did not for the 2002 2 election. Those states are Alabama, Arkansas, Maine, 3 Mississippi, Missouri, Oklahoma, Pennsylvania, 4 Tennessee, Texas and Wisconsin. 5 CHAIRMAN SOARIES: Anybody from those 6 states see us after okay. 7 (Laughter.) 8 MR. BRACE: Yes. Now, drop off is a 9 combination of both what is called "over votes" and 10 "under votes". Over votes occur when electors cast 11 more votes than they're allowed for a particular 12 office. For example, they may have voted for two 13 candidates as opposed to one being allowed. 14 Our experience has shown that voters are 15 more likely to cast over vote situations when you 16 have a multiple vote for office; a vote for four, or 17 a vote for five. People don't keep track of how many 18 candidates they vote for and so they over vote. 19 Commissioners DeGregorio and I were just 20 out in Illinois earlier this year and observed a 21 large number of over votes in the Office for 22 Delegates to the National Convention, in a vote for 25 1 seven. In most instances we find that over votes 2 result from improper ballot design which is an 3 important point for election administrators. 4 On the other hand, under votes is more 5 likely to be intentional than over voting. Often if 6 voters don't have enough information about the 7 candidates, they may skip the contest and not vote in 8 that contest. 9 Offices where candidates are unopposed or 10 where candidates have just minor opposition, find a 11 large amount of under voting. 12 What we find and if the data is available 13 a normal election will produce a drop off rate that 14 is generally composed of about 90 percent under votes 15 and just 10 percent over votes. That's in a normal 16 election. Unfortunately elections tend to not be 17 normal in many instances. 18 Unfortunately, in many instances and in 19 many election jurisdictions around the country, over 20 votes and under votes are not reported. In fact, 21 I've been in offices on election day and overheard 22 vendors specifically discourage officials from 26 1 producing reports on over votes and under votes. 2 It's a shame for both the American public as well as 3 the election official. 4 If an election official does not study the 5 results of the election, that official is no better 6 than an ostrich with its head in the sand. Looking 7 for abnormal voting patterns or unusual over vote or 8 under vote relationships are important steps to 9 everyone's research effort, including the use of 10 potentially mapping that information out. 11 Therefore, members of the Commission, as a result of 12 our experience, I would recommend that the Commission 13 undertake the following steps. One of the greatest 14 problems with evaluating different types of voting 15 systems is the lack of data. Therefore, my 16 recommendations would be certainly that the 17 Commission collect more data specifically, more 18 detailed information on voting equipment in use 19 around the nation. 20 Secondly, actual number of persons that 21 voted in each election, the voter turnout and 22 certainly encourage those ten states to finally come 27 1 into the fray and collect those. 2 You should collect precinct by precinct 3 election analysis and election results including over 4 votes and under votes to enable a detailed analysis 5 of the returns for all precincts of the country. 6 You should also collect sample ballots so 7 that one can look at how those ballots appear to the 8 voters and how they might allude to why you see 9 abnormal data in the data that you're collecting. 10 Also I would encourage that the election 11 vendors that are producing software for doing 12 tallying of ballots facilitate this process by 13 putting out data files, not just print files. So 14 that the analysis of this kind of information can be 15 done by both the election administration in that 16 jurisdiction as well as other people. 17 I congratulate the Commission for 18 undertaking this important hearing on voting systems 19 and I would be happy to answer any questions you 20 have. 21 CHAIRMAN SOARIES: Mr. Brace, we want to 22 thank you not only for your presentation today, but 28 1 for the assistance you have given us since we started 2 our work and for the work that you do around the 3 country with election administrators. 4 MR. BRACE: Thank you. 5 CHAIRMAN SOARIES: Is there a question 6 that any Commissioner has for Mr. Brace? 7 VICE CHAIRMAN HILLMAN: I do have just one 8 point for clarification. When you were addressing 9 the issue of over votes and under votes and talking 10 about under votes not being reported, do you mean 11 that they're not counted in some instances? 12 MR. BRACE: In a number of voting systems 13 and tallying systems they do have capabilities of 14 reporting the number of under votes and the number of 15 over votes for each office. 16 What we find is that those kind of reports 17 tend to not be produced election day or post-election 18 day. In fact, if you go and look for and try to 19 compile that information, one finds that election 20 administrators have to go back and rerun the 21 information to generate those kind of reports. 22 It's information that is there. Certainly 29 1 the ballots as they are counted and cast will show 2 you whether or not there's an under vote for that 3 office or an over vote, and so it's something that 4 should be reported. 5 VICE CHAIRMAN HILLMAN: Let me see if I 6 can ask it a little differently because I'm still not 7 8 MR. BRACE: Okay. 9 VICE CHAIRMAN HILLMAN: If you can choose 10 four candidates out of seven 11 MR. BRACE: Okay. 12 VICE CHAIRMAN HILLMAN: -- and you only 13 choose two, and I vote for Soaries and DeGregorio, 14 does my vote in those instances that you just 15 described, do they count for those two candidates or 16 not? If I have chosen not to go to the maximum four, 17 is my vote counting for these two candidates or not? 18 MR. BRACE: Yes. In almost all instances 19 they are counted. Different election laws may be 20 different, but generally, yes, those two votes would 21 be counted. The two additional votes that you did 22 not partake in would be what I would categorize as 30 1 the under votes. 2 And, as I said, they may or may not be 3 counted from the system. 4 CHAIRMAN SOARIES: Commission Martinez has 5 a question that he says is a quick question. 6 MR. BRACE: Okay. 7 CHAIRMAN SOARIES: He's an attorney and so 8 we have to understand the 9 COMMISSIONER MARTINEZ: The question is 10 quick, I don't know what the answer will be. 11 CHAIRMAN SOARIES: And we are really out 12 of time. 13 COMMISSIONER MARTINEZ: We are out of 14 time. 15 CHAIRMAN SOARIES: And I want to make a 16 comment. 17 COMMISSIONER MARTINEZ: Right. Mr. Brace, 18 the idea of not reporting this information, I know 19 you've worked with and for many state and local 20 jurisdictions around the country. We'll have 21 obviously election administrators to talk to as the 22 day progresses. What's the general response as to 31 1 why these ten states are not reporting? They're 2 obviously it sounds like they're collecting it, why 3 are they not reporting it? 4 MR. BRACE: What you end up finding in a 5 number of those jurisdictions and those states is 6 that the data tends to be there. It's down at the 7 county level. The state itself is not collecting it 8 up to present data that can be readily available. 9 CHAIRMAN SOARIES: I want to say, Mr. 10 Brace, that since you gave us introductory 11 information early on this year and we began talking 12 about the error rate and the perceptions about what 13 the does and does not mean, what I've discovered is 14 that there is also confusion between what "error 15 rate" means in terms of over vote and under vote and 16 what "failure rate" means in terms of the malfunction 17 of equipment. And I think as we move forward, we 18 have to dissect that issue because if we talk to 19 people outside of the elections industry, error rate 20 is often synonymous with failure rate and not all 21 errors are due to failure. 22 MR. BRACE: You're quite correct, 32 1 Commissioner, yes. 2 CHAIRMAN SOARIES: Thank you so much for 3 your presentation. 4 MR. BRACE: Indeed. 5 CHAIRMAN SOARIES: We look forward to 6 hearing from the next panel. 7 Our next panel consists of some of the 8 academic luminaries of our time and scientific 9 experts of our country. We are honored to have them. 10 I would like them to come forward now so that I can 11 introduce them individually. 12 I think you can create a little more space 13 for yourself because there's an empty chair. 14 On behalf of this Commission let me thank 15 you gentlemen for being here. We were if my sons 16 were in the presence of MBA stars they would probably 17 have the feeling that is analogous to the feeling we 18 have being in your presence. You are the superstars 19 of your field and you have made contributions 20 already. And our desire is to take your expertise, 21 both the summaries you offer today and the written 22 testimony you've given us and to use this information 33 1 to guide us as we form a national consensus on the 2 issues of electronic voting. 3 We've asked you to help us consider the 4 four critical areas, the accessibility, the 5 usability, the reliability, and security issues that 6 relate to electronic voting. Each of you in your own 7 right as an expert could give a day-long 8 presentation. However, we've asked you to summarize 9 your thoughts if possible in seven minutes. We will 10 then ask you questions and then certainly reserve the 11 right to contact you in the future so that you can be 12 you can be heard through our work. 13 We have from the state of Georgia, Kennesaw 14 University, Dr. Brit Williams. 15 From Johns Hopkins University, Dr. Avi 16 Rubin. 17 From the Institute of Electrical and 18 Electronics Engineers, my neighbor, Stephen Berger. 19 And from the Massachusetts Institute of 20 Technology, Dr. Ted Selker. Welcome gentlemen and if 21 you would speak in the order that you appear on the 22 program, I would appreciate your cooperation. 34 1 Dr. Rubin. 2 PRESENTATION OF DR. AVI RUBIN, JOHNS HOPKINS 3 UNIVERSITY, INFORMATION SECURITY INSTITUTE 4 DR. RUBIN: Thank you, Mr. Chairman. Good 5 morning. 6 My name is Avi Rubin and I'm a professor 7 of computer science at Johns Hopkins University. My 8 area of specialization is computer security and 9 applied cryptography. 10 I've been studying electronic voting since 11 1997 and recently last year served on the 12 security peer review group for the SERV project for 13 overseas Internet voting. 14 Last year I also participated in the 15 analysis of the Diebold acuvote TSX and we since 16 published a paper about the security issues with that 17 machine and the top peer reviewed security conference 18 which is the IEEE security and privacy symposium. 19 By further way of introduction, I this 20 past March served as an election judge in the primary 21 in Baltimore County. I think we'll all agree that 22 security is very important in elections. There are 35 1 many other important things in elections as well; 2 accessibility for blind people; for people whose 3 primary language is not English, and ease of use of 4 the machines are all very, very important. But my 5 expertise is in security. And there are other people 6 that will speak to those issues and I will speak 7 about security. 8 Today's DREs increase accessibility which 9 is great. I like that, but they are insecure, which 10 I don't like. 11 I don't think that security and 12 accessibility are competing goals and I don't think 13 they inherently need to be. But I think with today's 14 deployed DREs, we're in a position that they are. 15 We must demand both accessibility and 16 security from our election machinery and I think that 17 that can be achieved. Let me outline my primary 18 concerns with today's DREs for you from a security 19 perspective. 20 The first and foremost is that there is no 21 way for a voter to verify that their vote was 22 recorded correctly. Machines have the votes inside 36 1 their internal processor inside the memory and even a 2 sophisticated computer security expert cannot look at 3 a machine and tell you what's going on inside of that 4 machine. Only the people who wrote the software know 5 what's going on inside the machine and even they 6 don't really know because it's impossible to develop 7 large software packages without introducing bugs and 8 flaws into them. 9 Another problem that I see with the DREs 10 is that there is no way to publicly count the votes. 11 There's no way for the votes to be counted in a way 12 that's publicly observable because, again the 13 counting is going on inside of a computer. 14 In the case of a controversial election 15 and many elections are controversial. We always have 16 losers in our elections and there are always 17 extenuating circumstances. And when an election is 18 controversial, there are laws in some states that 19 require the ability to do a recount. A meaningful 20 recount means that you are going to believe you have 21 more confidence in the recount than you had in the 22 original vote. And with fully-automated, 37 1 computerized voting equipment, there is no way to do 2 any kind of a meaningful recount. You can just 3 reprint the results and get exactly the same result 4 again. 5 We must trust these machines for several 6 things. We must trust them not to fail. We must 7 trust that they haven't been programmed maliciously 8 and we must trust that they have not been tampered 9 with. And that's a tall order. 10 One of the fundamental concepts in 11 computer security that I teach in my courses and 12 uncovered in all the text books is the concept of a 13 trusted computing base. 14 In a system we try to keep the trusted 15 computing base as small as possible so it has the 16 least amount of code and the least chance that 17 something can go wrong. 18 In today's DREs the trusted computing base 19 is approximately 50,000 lines of computer code 20 sitting on top tens of millions of lines of Windows 21 CE which is more computer code. Not all of the 22 vendors use Windows CE, but the Diebold machines that 38 1 we looked at do. And it is impossible to secure such 2 a large trusted computing base. 3 Future systems should involve the security 4 community that have a lot of experience, there's a 5 lot in the government and a lot in academia, a lot of 6 experience built up on how to design a security 7 system to have as small as possible a trusted 8 computing base. 9 We have techniques for building secure 10 systems, but they are currently not being utilized. 11 When we looked at the Diebold machines, we found 12 gross, gross security and programming errors. We 13 pointed these out in our papers and presented them to 14 our peer community which has widely agreed with this 15 opinion. 16 The worst thing that I see is that when 17 I'm constantly asked, well how bad are the other 18 vendors, or how good are the other vendors, how do 19 they compare to Diebold, and I to say, I don't know, 20 because I can't get access to their code. 21 If people who have security expertise want 22 to analyze and tell the public how secure these 39 1 systems are prohibited from getting access to them, 2 then the public is left wondering what is being 3 hidden inside of there. I'm a strong proponent of 4 opening up these systems for scrutiny. 5 I don't think that we can achieve perfect 6 security. I know better. I know that we cannot 7 achieve perfect security in any useful system. But I 8 believe that there's a spectrum of really, really 9 terrible to very, very good. And my opinion after 10 looking at DREs and looking at the Acuvote TSX from 11 Diebold is that right now we're sitting very, very 12 close to terrible. And I think we can do a lot 13 better. 14 I am not against electronics in voting. I 15 think that we can have computers help us with the 16 voting process, but they need to be designed with 17 input from security experts, and I feel that security 18 experts in general have been shut out from a lot of 19 the decisions about the designs of these machines 20 when approached at all. 21 I do not speak in a vacuum. There have 22 been three other studies, one by SAIC, Robbin 40 1 Technologies, former NSA members and the State of 2 Ohio. 3 Every single study has cited serious 4 security concerns with the DREs. And many election 5 officials I hear and many vendors come out and say, 6 "our systems are secure" and they just repeat that, 7 but they don't show any evidence to back it up. I 8 haven't seen any studies showing what the security 9 measures are. 10 And I think that what we need is to 11 involve the security community the same way we're 12 involving the accessibility community and all the 13 others, it's all part of the puzzle that needs to go 14 together. 15 I will wrap up in a minute. I just want 16 to say that I think you will hear a lot of rhetoric 17 today from my experience. You are going to hear that 18 the procedures in place make the process secure. But 19 I don't think that there are any procedures that can 20 prevent say a malicious program inside of the 50,000 21 lines of code on top of the tens of millions of lines 22 of code that changes votes from one candidate to the 41 1 other. 2 The other problem I have with the claims 3 of the procedures solving all the security problems 4 with the machines is that it is very difficult to 5 design contingency plans. What happens if at the end 6 of the day the machines say, you know, 144,000 people 7 voted and we catch that with our procedure, but there 8 are only 19,000 voters registered. And that actually 9 happened in Fairfax County in the last election. 10 What do we do? Do we throw our hands up 11 if this happens on a national scale and say, well, 12 you know, we messed up? I think that if we built the 13 systems a little more carefully, we could avoid 14 having to rely on procedures that are our contingency 15 plans. 16 I've run out of time so I will be happy 17 during the question and answer to talk about the 18 problems that I see with the logic and accuracy 19 testing versus security testing which are completely 20 different things. And I also don't buy the argument 21 that these machines have worked right in the past so 22 we need so we believe they're perfectly secure. 42 1 If we know that the machines have worked 2 well in the past, then we know they've worked well in 3 the past. But we don't know that they're going to 4 work well in the future and I don't think we should 5 sit on our hands and not enhance them with security 6 to prevent a problem from happening in the future. 7 In conclusion, accessibility and security 8 are not mutually exclusive. We need to develop 9 systems that do not require completely trusting a 10 vendor with the outcome of the election. 11 We need to develop systems that are 12 auditable, including the ability to perform 13 meaningful recounts. And we need to develop systems 14 where votes know that their completed ballot is 15 recorded correctly. We also need transparency in the 16 process and no hidden code. Today's DREs have none 17 of that. 18 Thank you. 19 CHAIRMAN SOARIES: Thank you, Dr. Rubin. 20 We are going to hear from all of the 21 panelist before we do questions and answers. 22 So, Mr. Berger. 43 1 STATEMENT OF STEPHEN BERGER, INSTITUTE OF 2 ELECTRICAL AND ELECTRONICS ENGINEERS 3 MR. BERGER: Thank you very much, Mr. 4 Chairman. I appreciate this opportunity to address 5 the Commission. 6 I got involved in this process in 2001. I 7 have a professional background in telecommunications 8 development of standards particularly for regulatory 9 purposes and then qualification of products to ensure 10 that they meet the requirements. 11 12 13 14 15 16 17 18 19 20 21 22 44 1 From that background I've been involved 2 for some time in the IEEE Standards Association. The 3 IEEE is the largest standards' body in the U.S., I 4 believe, if not the largest one of them. We operate 5 under American National Standard processes to develop 6 consensus documents that represent the center of 7 technical thinking on any given subject. 8 After the 2000 election, some of our 9 members approached the Standards Association 10 essentially saying they felt the engineering 11 community needed to contribute what it could to the 12 improvement of the system. 13 We certainly agreed and started a 14 standards project at that point which continues to 15 this day. There are four things I would like to 16 primarily say to the Commission this morning. 17 The first is, as I've been involved in the 18 system, one of the very pleasant experiences is to 19 realize the tremendous contribution that's been made 20 to the system that we've inherited. 21 A number of people, deeply committed to 22 our Democracy, have worked tirelessly to deliver the 45 1 system that we have today. There is a lot of value 2 there. To be sure, it can be improved but there's a 3 lot to be appreciated and protected. 4 So I would commend to the Commission to be 5 very careful to retain the value that's been 6 delivered to us by those who have worked in days 7 before. 8 Secondly, and almost as a corollary to 9 that, I would observe that probably all the easy 10 problems have been solved. What remained are complex 11 compromises against often-competing requirements. We 12 certainly, as Dr. Rubin has said, want systems that 13 are secure, but also are accessible to people with 14 disabilities that have reliability but could be 15 actually afforded in budgets of jurisdictions all 16 across this country. 17 We received today compromises in those 18 competing requirements. We look for better 19 improvements. Innovation could allow us to more 20 satisfactorily address competing requirements. 21 I believe the best approach to achieving 22 that, as you have already identified, is consensus 46 1 processes where we bring together expertise from 2 various fields and allow all the stakeholders to 3 input to the process. 4 Let me say a few words on where we are in 5 standards in this area. As you well know, in 1990 6 the FEC established the first National Standard for 7 Voting Equipment. It was a tremendous contribution. 8 For the first time there were recognized requirements 9 across the Nation for our voting equipment. 10 Those standards didn't do everything to be 11 sure, but they made an important and large first step 12 in the process of unifying requirements. 13 Standards themselves don't do everything. 14 They have to be addressed into a quality system that 15 implements and monitors their effect and sees that 16 the desired outcome is achieved. And so we have 17 today the ITA system supervised by NASA that 18 implements the standards. 19 Of course in 1998 the FEC staff revised 20 the standards for the 2002 version, which is in force 21 today. We met with the staff shortly after that 22 document was revised and all agreed there was further 47 1 work to be done. 2 There were areas that could use yet 3 further development, particularly in the areas of 4 security, useability, disability access, and others. 5 And those are the focus of the IEEE effort today. 6 Two other comments I would make is that, 7 as we consider the voting system and the quality 8 system, if you will, it is important to recognize 9 that there are four levels that need to be addressed. 10 Certainly there are national requirements 11 such as we have today in the 2002 FEC Standard and 12 the ITA testing to that standard. 13 Then in every state there is a second 14 level of inspection as the states individually 15 evaluate the equipment for use in their own 16 particular use and style. 17 Following that, there is a third level of 18 acceptance testing to ensure that the equipment 19 delivered was represented in that that was evaluated 20 at the state and national level. 21 Finally, there is the Logic and Accuracy 22 Testing to ensure that the equipment on election day 48 1 is functioning properly and accurately. Standards 2 are needed at all those levels, and I would encourage 3 the Commission to pay careful attention to deal with 4 all four of those levels. Some of them have had a 5 great deal more attention than others. 6 It is also important in this area to 7 encourage innovation, but as in all important areas 8 of technology to have a carefully considered way for 9 introducing innovation. 10 We need very much a way of introducing 11 innovation that puts it through careful evaluation, 12 trial, development of specifications to safeguard 13 against possible vulnerability, and in phased 14 deployment so that we guard the system against 15 unintended consequences. 16 That does not exist in a unified way 17 today, and is very much needed. 18 So I will close with that introduction to 19 my comments. There is more detail in the written 20 version, but I thank the Commission for this 21 opportunity to address you. 22 CHAIRMAN SOARIES: Thank you very much, 49 1 Mr. Berger. 2 Dr. Selker. 3 STATEMENT OF DR. TED SELKER 4 MASSACHUSETTS INSTITUTE OF TECHNOLOGY 5 DR. SELKER: I am Ted Selker, and I am a 6 Professor at MIT at the Media Lab. I have been 7 involved with making many products at IBM, including 8 an accessibility package for the OS2 Operating 9 System, which has tens of millions of lines of code. 10 David Baltimore from Cal Tech and Charles 11 Best got together after the election in 2000 and 12 said, you know, maybe the technologists can help. 13 And in creating this forum for political scientists 14 and computer scientists and other technologists to 15 get together, we all learned from each other. 16 The most exciting thing we learned was 17 that in fact the electronic technology that is most 18 useful right now for understanding this stuff is the 19 Internet. We found that lots and lots of the data, 20 the forensics is public data and it is available on 21 the net, and we have done lots of studies to learn 22 such things as that the registration data base 50 1 problem is the largest problem in how we lost our 2 votes in 2000. 3 Probably between 1.5 and 3 million votes 4 were lost because registration data bases are in 5 error. 6 We don't have any way of checking how many 7 New Yorkers are registered in Florida. In fact, it 8 is not illegal. We don't know how we are choosing 9 who we are going to check the registration data base 10 and eliminate possible people that are not supposed 11 to be voting. 12 I don't know any changes that have been 13 made systemically, or even best practices, as a 14 result of the well-reported problems of Florida in 15 2000. 16 As we go through and understanding that a 17 lot of what's been going on is we've been starting 18 with assumptions. Many people have been spouting off 19 about technology and problems with technology and 20 other things in elections. That's not new. But we 21 have to replace that with testing. 22 What is exciting about the more data that 51 1 we have today is that testing is more feasible. We 2 really want to make these standards performance- 3 based. We want them to be better than they were 4 before, as a criteria. 5 If we look at the goal of protecting, 6 detecting, and correcting problems we have ways of 7 detecting the kinds of fraud that I'll be talking 8 about. 9 Parallel testing is the mechanism by which 10 you run elections, phantom precincts on the day of 11 elections using actual machines and show that the 12 input equals the output. 13 In many case, voting machines don't have 14 clocks in them. I just checked over a machine from 15 Ireland that did not have a clock in the machine. 16 That simplifies various aspects of the testing. 17 It does not mean that somebody couldn't 18 get a foundry, build a chip, put a battery inside 19 with what looks like an E-prong and put that into the 20 ballot module so that it could have a clock and know 21 to expose its Ester DG (?) on the day of election. 22 However, there are many other ways of 52 1 defrauding elections that might be easier. So that 2 is not the most expected approach for causing that 3 kind of mischief. 4 The real center of my comments probably 5 has to do with how do we vet the qualifications of 6 the people that we need to help us through this 7 process. We have to develop experts, experts that 8 can be trusted, experts that can help the EAC, I 9 hope, figure out what is good and what is wrong, what 10 are the critical things that have to be improved, 11 experts that can help the people that are making 12 decisions about what equipment to buy. 13 These local election officials today have 14 all sorts of problems. If you take a look at the 15 useability problem--and I'm an expert in 16 useability--if you take a look at the 13,000 ballots 17 that were thrown out for over-votes in Palm Beach 18 County in 1996, the Democrats and the Republicans 19 signed off on that butterfly ballot. 20 In 2000, again the Republicans and the 21 Democrats signed off on it. There were only 22 19,000--it was 300 or so ballots that had chad 53 1 problems. There were 19,000 over-votes because of 2 the design of the ballot. 3 Probably one percent of our electorate was 4 lost because of bad ballot design in this country, 5 and I don't know of anybody that is saying: How do 6 you run a simple test to see if this ballot is good? 7 Polling place practices were equally 8 flawed. I have watched polling place practices where 9 people teach their officials by telling them, or 10 teaching them concepts. Others by procedures. We 11 know that we have simple procedural understanding and 12 simple things to go on. You can make better choices. 13 One million votes were lost that way. 14 But I shouldn't dwell on these non- 15 technical matters. Let me just say that I believe 16 that the elections over the last few decades have 17 reduced the errors and the failures gigantically over 18 what it was before. 19 We don't have enough data to do more than 20 state it. We can show some examples. But in fact we 21 have to figure out how we move forward. As we look 22 at the machines that we are testing today, we are 54 1 thinking: Well, can we rely on parallel testing? 2 The doomsday scenario that people are 3 terrified of is what if we had to run another 4 election? Well people have had to run other 5 elections when they've had troubles in the past, but 6 if we refuse to take that we can go for verification. 7 Verification is an important idea. The 8 question is: Can people improve the election through 9 verification? 10 Now I know of no study--in fact, the most 11 recent one that I've been involved with, we had 3 12 people out of 1000 making mistakes when there was 1 13 person doing the task, a second person watching over 14 their shoulder and signing each time they did the 15 task that they had done it right, and the third 16 person doing the same thing. 17 Still, there was a .3 percent error. This 18 is an unacceptable level of error for testing for 19 fraud or for testing voting kinds of equipment. 20 The question is: If we had a perceptual 21 task--I'm in favor of having a task such as redundant 22 information. It uses the already available 55 1 electronics inside of the DREs of today. You can 2 produce an audio. That audio can be heard while 3 you're making the decision--a perceptual task that 4 happens while you're making the decision is one that 5 people universally can do. Cognitive and memory 6 tasks, you act after you vote by looking at another 7 action, another piece of paper, are not so easy. 8 In Wilton, Connecticut, where they tried 9 it, they had terrible problems. Twice as many ballot 10 workers. Twice as long for the voters. People, the 11 exit polls did not show confidence in the system. 12 So I am very excited about using a tape 13 recorder with a separate record and playback head. 14 You play back something that's already been recorded 15 onto it. If somebody tries to erase that, that tape, 16 you have integrity. We'll all remember that 19 17 minutes of erased tape for a long time. 18 In Wilton, Connecticut, there were 19 actually slots at the bottom of the ballot box that 20 the ballots could fall out. We're talking about the 21 first time in a very visible place where voting 22 verified paper trails were tried. 56 1 So I believe that audio verification is 2 available today. It is available with equipment that 3 we own, and it can do a better job in helping people 4 verify and validate that they have voted the way they 5 want. 6 The best thing about it, as well, is that 7 it can be read by a computer and by a person. This 8 is not true of most of the technologies that people 9 are considering today. 10 We don't know how to count receipts at the 11 100,000 level that we've tried to specify for 12 election equipment. I'm not sure that I should go on 13 very much longer. I just want to thank you all for 14 being here and I would welcome any questions. 15 CHAIRMAN SOARIES: Thank you so much. 16 Dr. Williams. 17 STATEMENT OF DR. BRIT WILLIAMS 18 KENNESAW UNIVERSITY, GEORGIA 19 DR. WILLIAMS: Well I'd like to thank you 20 for that glowing introduction. I wish my president 21 had been here to hear it. 22 (Laughter.) 57 1 CHAIRMAN SOARIES: You do fine with your 2 president. 3 (Laughter.) 4 DR. WILLIAMS: I think the one thing that 5 we all agree on is that there is ample room to 6 improve our existing voting systems, and that is the 7 goal that all of us have got before us. 8 But we have to keep in mind in doing that 9 that there are a lot of aspects to a voting system 10 other than just accuracy and security. We have got 11 to look at availability. We've got to look at 12 reliability, maintainability, useability, and even 13 affordability. 14 We could build the quintessential voting 15 system, but if nobody can afford to buy it it is a 16 futile exercise. So any change to a voting system 17 has to be evaluated on the basis of its impact on the 18 entire system, and I think that is the whole purpose 19 of the formation of this Commission. 20 What we need to guard against I think is 21 the tendency to go out and do something quick and 22 dirty that is a rapid, poorly formulated addition, 58 1 such as a paper receipt for instance, to an existing 2 voting system could have an adverse effect that far 3 offset any of its advantages. 4 And furthermore, actions like this are 5 unnecessary because we're not in any eminent danger. 6 To do the kinds of things we're talking about here is 7 not going to be fast. We're not going to implement 8 Dr. Rubin's recommendations in the short term. 9 In the short term--and by "short term," 10 I'm really talking probably four to six years--we're 11 going to have to dance with them what brought us. 12 And so we really need to look at what we can do with 13 our existing voting systems to compensate for these 14 vulnerabilities that we know are there. 15 I agree with Dr. Rubin that you can't 16 compensate for them 100 percent, but nobody 17 guaranteed me that that airplane I'm flying home on 18 is 100 percent safe, either. 19 So in that spirit, one of the hardest 20 things I have had to do--I submitted this long 21 discourse to you--and one of the hardest things I've 22 had to do is to say, now what am I going to use this 59 1 little precious seven minutes to talk about? 2 So what I've decided is to look at some 3 recommendations, some things that I think we can do 4 based on our experiences in Georgia that maybe we can 5 carry nationwide that would shore up some of the 6 immediate problems that we've got to deal with in 7 order to run elections in 2004 and 2006. 8 The number one recommendation I have is to 9 implement a nationwide secure voting system software 10 library. NIST currently has a secure law enforcement 11 software library. They use that, or the way that 12 library works is that if you have law enforcement 13 software, you submit it to NIST. NIST puts it in the 14 secure library. They compute a hash signature on 15 that, and then that signature can be used in a court 16 case or in a challenge to verify that software that's 17 in use in the field is in fact unaltered from the 18 software that's in that software library. 19 I think we could very quickly extend this, 20 since that technology is already in place, we could 21 very quickly extend this to voting system software. 22 The way it work would be that when the ITA completes 60 1 their qualification of a voting system, they submit 2 the software, not the vendor, but the ITA submits to 3 NIST for the secure software library the exact system 4 that they've just finished qualifying. 5 Then from there on, NIST handles it the 6 way they handle the law enforcement software. If 7 there's a challenge to that software, or if any 8 jurisdiction has any concerns about the validity of 9 their software, they could get that signature from 10 NIST, run the same signature against their own 11 software, and verify that there's been no 12 modification to the software they have. 13 We do that in Georgia. When we bring a 14 system into Georgia, we give it a software from the 15 ITA, not from the vendor, and we compute a hash 16 signature that I believe is the same identical 17 signature that NIST uses. It's in the paper I 18 submitted to you. 19 Then on a period and on a random basis 20 when we have people out in the field, we run 21 signatures against the installed software to verify 22 that it has not been altered from the software it is 61 1 served by. So this is something that the mechanics 2 and the mechanisms are in place. 3 Now there's a lot of software out there, 4 so I'm not suggesting that we go try to round it all 5 up. What I'm suggesting is that we start with the 6 new systems coming out. And then as jurisdictions 7 request to add new systems to the systems, to that 8 library, so that if a jurisdiction is running say a 9 version of ES NIST software and they want to include 10 it in the library, then they give NIST--they identify 11 it uniquely to NIST using either the qualification 12 number or the vendor version specific numbers. 13 NIST obtains that from the ITA's archives 14 and implements it into the secure library. The 15 second recommendation I have is probably as equally 16 important, but a little part of it is not going to be 17 as easy to do. 18 If you go and look at anomalies that have 19 occurred in recent elections, you will find almost 20 without exception that those could have been maybe 21 avoided, and at least minimized, by well trained poll 22 workers or well trained election officials. 62 1 Poor ballot design leads to all kinds of 2 problems. Poorly trained poll workers, where things 3 that could have been a simple problem escalate 4 because the poll worker didn't know how to handle it 5 quickly on the spot. 6 So to that end, again in Georgia--and 7 Kathy Rogers in her presentation is going to go into 8 some more detail on this program--we've developed a 9 64-hour program of training, and we have a State law 10 now that says by I believe it's 2005 that every 11 county office has to have a State-certified person in 12 that county office. That is, someone who has 13 successfully completed our 64-hour training program. 14 Now all states probably can't do that, but 15 all states have universities that have departments of 16 continuing education, and all states have technical 17 institutes. Maybe this Commission could give block 18 grants to those institutions to develop specific 19 programs for those local jurisdictions--not 20 generalized, here's generally how you run an 21 election, but here's how you run an election in this 22 county under these State laws with this equipment, 63 1 similar to the program we have in Georgia. 2 Now that's going to require some 3 additional documentation. Already the Office of 4 Election Administration out of your office has done a 5 lot of work in developing generalized election 6 management type documents. 7 What we need now is some way to take the 8 vendor documents and customize those into specific 9 documents that can be used by localities. Mostly 10 it's a cut-and-paste kind of thing, because the 11 vendor document has got every feature of the system 12 in there and nobody implements every feature of the 13 system. 14 So what you need is to pare those things 15 down, and then turn them into specific documents. 16 Here's the document for the person who is going to 17 build the ballots. Here's the document for the 18 person who's going to train poll workers. Here's the 19 document for the precinct manager. 20 I will stop at that. I very much 21 appreciate the opportunity to talk to you today, and 22 I look forward to working with you. 64 1 CHAIRMAN SOARIES: Thank you, so much. 2 Let me just share how much I appreciate your 3 discipline. We know that you have so much to say and 4 to offer, but you have given us time to ask you 5 questions and you have left room for the other panel 6 and I really appreciate that. But you have said so 7 much that I hope you know that we will be calling 8 you. 9 Our questions will be led by Commissioner 10 Martinez. 11 COMMISSIONER MARTINEZ: Thank you, Mr. 12 Chairman. 13 Let me add my thanks to all of you. I 14 appreciate your time and your commitment to be here. 15 Your verbal and written testimonies I think are very 16 much on the mark of what we were looking for in this 17 first public hearing. 18 Let me--what I will do is I will just ask 19 questions in the order that you all spoke. To the 20 extent that you can keep your answers to a relatively 21 short response so that I can leave time for my fellow 22 Commissioners to also ask you questions, but I do 65 1 have specific questions as I've had a chance to take 2 a look at your submitted testimony, et cetera. 3 So I will start, Dr. Rubin, if I could 4 with you. Thanks again for being here. 5 Ever since I was approached about serving 6 on this Commission, and perhaps even before then, but 7 certainly since around March of last year, I have 8 followed very intensely the debate that mostly rages 9 in the media between computer scientists and election 10 administrators. 11 It seems that even up to this very day 12 that computer scientists are talking at and over 13 election administrators and the same is coming back 14 at you. 15 I am interested, Dr. Rubin, my first 16 question is just to get--you served as a poll worker 17 and wrote I think a very interesting and compelling 18 account. It sounds like you did it at 5:00 o'clock 19 in the morning, so I applaud you for doing that, but 20 I think I read it actually at 5:00 o'clock in the 21 morning. But give me just your general impressions. 22 I know what your conclusion was, and I 66 1 read through your essay about that particular 2 experience. I mean you have entered--you know, what 3 you did is you took off the hat of computer scientist 4 and entered the world of essentially election 5 administration for a full day. I think you served 6 the entire day as a poll worker. 7 Talk a little bit about your general 8 impressions. What did that experience impart to you? 9 What has changed in your view in terms of the 10 vulnerabilities of DREs, and what has reinforced your 11 view of those vulnerabilities? 12 DR. RUBIN: Okay, one of the big 13 criticisms that I received from a lot of people after 14 our report came out was that I didn't know that much 15 about elections, that I was a computer scientist and 16 I needed to learn about elections, and I thought that 17 that would be a very good way to do it. So I 18 volunteered and served as an election judge. 19 It was interesting to me that the machines 20 in the site where I was were the very machines that I 21 had analyzed the code for. It was a very unusual day 22 for me because I saw voters coming in and universally 67 1 liking the machines. They really liked them, which 2 told me that there is something good about the design 3 here, something good about the human factors here and 4 that we need to preserve that, and I think these 5 comments were made earlier about preserving what is 6 good. 7 At the same time, I felt a little nervous 8 and almost hypocritical supervising machines that I 9 knew were not secure and that I was concerned would 10 not operate properly. 11 In the statement that I wrote up that you 12 referred to, I did mention that the experience 13 focused my opinion both on things that I had thought 14 were problems before that I thought were less of a 15 problem in practice, and things that had not occurred 16 to me that I viewed as being more serious problems in 17 the experience. 18 So what it did was, it was an excellent 19 thing for me to do because it focused me on what was 20 a realistic evaluation. I think ever since that 21 experience I've been able to speak with a lot more 22 authority about the security issues in these 68 1 machines. 2 One of the issues that we brought up in 3 our report was the fact that, when looking at the 4 code in the computers--and those of you who are 5 familiar with these computers know that you take a 6 smart card which has a ballot on it, and you put it 7 in the machine and it's designed to prevent you from 8 voting more than once. 9 Given that a smart card has a chip on it 10 and some protected storage, there are ways--and we 11 know in my community how to do that--and they didn't 12 do it right. It was actually as bad as you could 13 possibly imagine. No cryptology. No authentication 14 whatsoever. They could have been using matched 15 stripes for all they did with that. So we wrote 16 about that. 17 When I served as a poll worker, I was in a 18 precinct that had nine election judges and five 19 machines. In the entire day, 16 hours, we received 20 199 votes. 21 So when somebody went up to a machine and 22 voted, the card was knocked out and there was a loud 69 1 clicking sound, and we were already heading towards 2 them to take it away and thank them for voting and 3 give them a sticker, et cetera. 4 The attack we designed in our paper was 5 one where you could manufacture your own smart cards, 6 walk up to a machine and vote 20 times. Now in my 7 precinct that would not have worked, and so I pointed 8 that out in my statement that I wrote up. 9 However, one of the things I also noticed 10 was: At the end of the day the memory cards in each 11 computer were collected that had the tallies on them, 12 were taken out of all the machines after the totals 13 were printed up, and then put into one machine and 14 they were accumulated there together. 15 As a computer security person, I always 16 look for the point of highest vulnerability, and I 17 thought that was it because that was the point where 18 we had all the votes on one machine, and then they 19 were supposed to get modemed back to the back end 20 servers at the Board of Elections, or wherever they 21 go. 22 Now that was another part of the code that 70 1 we had analyzed, and they did the cryptography on 2 protecting that communication incorrectly. They used 3 a broken site in a mode that's insecure, so even had 4 it not been broken it would have been bad, and they 5 used one key that was hard-wired into all of the 6 machines, which is a no-no in computer security. 7 And so I became concerned thinking that, 8 you know, here we have something completely 9 ephemeral, these bits that are representing all of 10 the votes and, as a security person, that made me 11 very nervous. 12 I actually at the symposium that NIST put 13 on, it was when one of the secretaries of state that 14 was there came up and told me that I really should 15 serve as an election judge, I'm very, very grateful 16 for that advice. So I think, you know, that that 17 summarizes the experience. It's really helped me 18 focus a lot. 19 COMMISSIONER MARTINEZ: So is it possible 20 for election administrators to be a computer 21 scientist for a day? 22 DR. RUBIN: That would be harder. 71 1 (Laughter.) 2 COMMISSIONER MARTINEZ: That's harder to 3 do. 4 DR. WILLIAMS: Could I speak to that just 5 a minute? 6 COMMISSIONER MARTINEZ: Yes. 7 DR. WILLIAMS: That perception is not 8 quite accurate. Those votes that are accumulated on 9 that accumulator are for press release purposes only. 10 The official tally is done from the individual cards, 11 from the individual machines. They're taken back to 12 the central location, not transmitted by modem. That 13 accumulation in that modem transmission on election 14 night is purely for the benefit of the press and so 15 forth. The official tally is conducted from the 16 individual voter cards in the county office the next 17 day. 18 COMMISSIONER MARTINEZ: Thank you, Dr. 19 Williams. And I am going to ask you to follow up, 20 Dr. Rubin, so if you want to respond to that you can 21 do so. 22 DR. RUBIN: I appreciate that opportunity. 72 1 It is very interesting. You asked what were my 2 impressions and my feelings. 3 COMMISSIONER MARTINEZ: Yes. 4 DR. RUBIN: I've dealt with PCMA memory 5 cards, the ones we're talking about, very often and 6 the thought that from when the voters came in until 7 those cards were removed from those machines, there 8 was no physical record of those votes is what made me 9 very uncomfortable that day. 10 COMMISSIONER MARTINEZ: I see. Dr. Rubin, 11 generally speaking what are the types of--and I don't 12 know if you can do this without speaking the computer 13 scientist language which would go over my head, 14 unfortunately, but what are some of the general types 15 of security threats, the risks that you've identified 16 in the machines that you've looked at? 17 And if you can, what's the likelihood of 18 such a risk occurring? 19 DR. RUBIN: Okay, there are two different 20 levels to answer this on. One is specifics of the 21 Diebold Acuvote TSX, which I think are less 22 interesting because that's one machine that's 73 1 received a lot of scrutiny and I think there is the 2 issue of security of DREs in general. 3 COMMISSIONER MARTINEZ: Sure. 4 DR. RUBIN: And I'd rather address the 5 second one. If you want me to address the first one, 6 I-- 7 COMMISSIONER MARTINEZ: The second is much 8 more appropriate. 9 DR. RUBIN: My biggest concern is that in 10 a very large trusted computing base the threat that 11 somebody with access to the development environment 12 of the code base--typically the vendor--basically is 13 in a position to make the outcome of the election 14 come out however they like. And they can be 15 infinitely clever about how they do this, and it's 16 virtually undetectable. 17 So let me give you an example that comes 18 to my mind. Say that I am malicious and I am hired 19 by a vendor to build a voting machine and I'm one of 20 the programmers on it. I embed malicious code in 21 there that actually does nothing until something 22 happens. The thing that has to happen is a voter has 74 1 to walk in and touch the touch screen in a very 2 unusual fashion, say put four fingers on the screen 3 three times in a row. Call it the knock. And when 4 that happens, the machine changes its behavior and 5 takes the internal votes and shifts five percent of 6 them from one candidate to another. In addition to 7 doing that, then removes itself, removes the 8 malicious code from the machine. 9 To try to figure out how realistic and 10 difficult that was, I teach a graduate course in 11 computer security at Johns Hopkins and this past 12 semester I had 40 mostly Ph.D. graduate students 13 build mock voting systems and embed back doors in 14 them with a secret knock. 15 They did that for half of the semester, 16 and the other half they received each other's--they 17 received several machines from other classmates not 18 knowing if we had given them one that had a back door 19 on it or not. 20 I was astounded to see the cleverness and 21 the ease with which the malicious code was hidden, 22 and how difficult it was to find. 75 1 The last part of your question is: What 2 is the probability that something like this would 3 happen? I believe that we have to look at the 4 incentives out there to tamper with the election. 5 You've got billion dollar contracts 6 dependent on the outcome of elections, and so I think 7 we've got very well funded and bad intentioned 8 adversaries to worry about. 9 DR. SELKER: Could I respond to that? 10 COMMISSIONER MARTINEZ: Dr. Selker, sure. 11 DR. SELKER: That particular idea of 12 having a funny user interface that somebody could 13 walk into is an extremely labor-intensive way to 14 change votes. That means that somebody will have to 15 go into a balloting booth in many, many places to 16 make a change. Unless, you know, maybe for a water 17 district it might be worthwhile, but for other things 18 it isn't. 19 So the leverage of the attack is really 20 one of the things that Avi and many of us have 21 focused on. So the thrust that I'm most concerned 22 about are ones that are systematic that will be part 76 1 of the whole system and will affect large elections. 2 And those ones can be tested for by parallel testing 3 and even before elections, and as well for the code 4 that persists after elections. And some of the 5 threats can be detected with other means as well. 6 COMMISSIONER MARTINEZ: Very quickly, Dr. 7 Rubin, back to you, and again as I ask you one more 8 question and then you can respond if you want to to 9 what Dr. Selker said. 10 And I do have other questions, and I am 11 running out of time unfortunately, but Dr. Rubin in 12 the continuum that you've described from one being 13 terrible to ten being very, very good, if in the 14 interest of our Democracy you and Diebold decided to 15 go into business together, what could we do to move 16 up that spectrum? 17 If you were advising Diebold, and I guess 18 you have suggested some things already, but just for 19 the record what are some things that--and I don't 20 mean Diebold specifically, I mean to stick with the 21 general DREs--what are some things that can happen? 22 I guess I'm trying to get to: From your perspective, 77 1 and I know there are some who believe this, but from 2 your perspective is a voter-verifiable paper ballot 3 the only way to fully secure--again understanding 4 that we could never have a 100 percent fully secure 5 system--but is that the only answer, is what I'm 6 trying to get to, from your perspective. 7 DR. RUBIN: I believe there's a short-term 8 answer to that and a long-term answer. 9 I think in the short term, meaning 10 November 2004, that a voter verifiable paper ballot 11 is necessary because it's the only way to get around, 12 it's sort of an end-run around all of the security 13 problems in the machines. 14 If the voters see their paper, and if it 15 is implemented correctly, and that is the ballot the 16 way they meant to vote it, and that is kept, then we 17 can have recounts. We get around the problem of not 18 being able to audit with recounts. 19 Then the voters have some confidence that 20 they're leaving the poll place with something behind, 21 which is their vote exactly the way they voted it. I 22 do believe that in the long, long term we should 78 1 explore other cryptographic options and combinations 2 of techniques. 3 I happen to think that the most bang for 4 the buck you can get is by adding paper, voter 5 verifiable paper, into the process because it avoids 6 so many pitfalls. Then the challenges are to design 7 the system so that it works so that, you know, you're 8 not dealing with paper jams. 9 I think I am much more worried about a 10 poll worker dealing with a very bad software bug on 11 election day than a jamming printer. 12 CHAIRMAN SOARIES: Commissioner Martinez, 13 if the other Commissioners are going to ask this 14 panel questions they've got to start now. 15 COMMISSIONER MARTINEZ: Okay. Thank you. 16 CHAIRMAN SOARIES: Commissioner 17 DeGregorio. 18 COMMISSIONER DeGREGORIO: Thank you, Mr. 19 Chairman. I know that because of limitations in time 20 I won't be able to ask each panelist a question, but 21 let me ask Mr. Berger who has been involved in the 22 Standards' process for many years, as he described, 79 1 and is a representative of IEEE and will be on the 2 Technical Guidelines Development Committee that will 3 be set up very soon to look at the standards that 4 this Commission will adopt eventually. 5 I am concerned because it is my 6 understanding that the 2002 Standards that were 7 developed by the FEC that you had a hand in--they 8 were updated--that there are very few systems out 9 there that meet those 2002 Standards right now. 10 What can you tell me that would encourage 11 me that these vendors of this equipment will be 12 tested and will meet these 2002 Standards for the 13 2004 election? 14 MR. BERGER: Well as you very well point 15 out, there is a process. You have to have 16 specifications. The vendor has to have time to 17 respond to them. And then their offerings have to be 18 evaluated, be certified, and then acquired and 19 deployed. 20 That takes time. It is something that 21 every field has. In this particular case, I think 22 one of the best features to put in the system is 80 1 fully engaging the vendors in the development of 2 those specifications. 3 We certainly don't want to turn over the 4 system to the vendors but they know what they can 5 implement quickly and what they can't. They have 6 insights as an important stakeholder to the process, 7 but perhaps most importantly if you use a consensus 8 process and the vendors see the handwriting on the 9 wall, if you will, the experience in many areas is as 10 the standard works through its final approval process 11 and implementation the vendors are very busy in their 12 product development having products ready for market. 13 That very often stands in contrast to 14 processes where you somewhat hold the development of 15 specifications behind closed doors, and then you 16 serialize that process. 17 I'd like to add a comment if I may, 18 quickly, to the previous discussion. It would simply 19 be this: We need to look around for other fields 20 that have something to offer in the issues we were 21 just discussing. 22 In an election audit, we are essentially 81 1 involved in an historical research. We are trying to 2 determine what the voter did at a point in time. 3 Recent history, to be sure. 4 It is well established in historical 5 research that you have the highest confidence that 6 you understand what occurred by multiple independent 7 witnesses and accounts that have been kept separate 8 so that they don't influence one another. That is a 9 principle that I think we need to think carefully 10 about in this field; that as quickly as possible, and 11 as independently as possible, we have independent 12 records of what the voter does so that audits can 13 compare separate accounts. That's a well established 14 principle, and I think it avoids the kind of 15 bottlenecks that Dr. Rubin pointed to. 16 CHAIRMAN SOARIES: Commissioner Hillman-- 17 COMMISSIONER DeGREGORIO: One last 18 comment, Mr. Chairman, while I have the floor--I'm 19 going to steal the floor-- 20 (Laughter.) 21 COMMISSIONER DeGREGORIO: --but I just 22 want to compliment Dr. Rubin for working at the polls 82 1 and joining the ranks of the million Americans or so 2 out there who work at the polls. 3 I read your commentary the next day, too, 4 and it wasn't five in the morning, but it may have 5 been eight o'clock in the morning, because I know 6 that when I was an election director we had 7 difficulty recruiting good workers. 8 I encourage everyone in this room to work 9 at the polls, if you can, and the media out there to 10 encourage people to become poll workers. 11 I know Ted Selker and I spent 15 hours at 12 the polls in Los Angeles last October, and so I think 13 it is important for people in the academic, 14 scientific, media, to get it from the inside and work 15 at the polls. 16 I do have one concern, though, when I see 17 emails that go out to encourage people to be poll 18 workers to not be real poll workers but to subvert 19 the system. I'm not suggesting that at all about you 20 or anyone else here, but I have seen some of that go 21 on in the past few weeks and it does concern me that 22 people are out there to pretend to be poll workers 83 1 but really want to subvert our electoral system and 2 process. 3 Thank you, Mr. Chairman. 4 CHAIRMAN SOARIES: Vice Chair Hillman. 5 VICE CHAIR HILLMAN: Thank you. 6 I have two questions, but one I would like 7 to ask each of the panelists to submit your response 8 in writing. That is, on the issue of a way for the 9 voter to verify that their votes were recorded 10 correctly. 11 I would just like to see from your 12 perspectives the difference between--I obviously know 13 how you can do it with a paper ballot--but with the 14 lever machine, the Opti Scan, and the DREs, the voter 15 verification question. Because I'm not seeing in my 16 mind the difference between the lever voting, which 17 has been used for decades, and the DRE once you hit 18 that lever and push that button it's been gone. So 19 for 90 years the issue wasn't discussed, and now it 20 is. So that will help me. 21 DR. SELKER: Could I speak to that for a 22 moment? 84 1 VICE CHAIR HILLMAN: Well I do have 2 another question, but if you could just submit your 3 responses to me, just a one-pager would be fine, I 4 would really appreciate that. 5 My other question: Dr. Williams, if you 6 could just briefly share your observation and your 7 thoughts about the role that the independent test 8 agency plays in this whole discussion about the 9 certification of the machines, and that as a useful 10 tool and any suggestions or thoughts that you would 11 have to the Commission about the work of that agency. 12 DR. WILLIAMS: Well of course one thing 13 they do is give us a uniform starting point. 14 CHAIRMAN SOARIES: Hold on, Doc. If you 15 could just pause so that the microphone can go up, 16 that way people can hear the first part of your 17 statement. 18 DR. WILLIAMS: Is it on now? 19 VICE CHAIR HILLMAN: It is. 20 CHAIRMAN SOARIES: There's a little time 21 delay here.I 22 DR. WILLIAMS: It gives us a uniform 85 1 starting point. I've got on my desk the 1990 2 Standard and the 2002 Standard, and when the ITA 3 tells me that they have evaluated a system with 4 respect to one of those two Standards, then I know 5 what that means. I know what they've done to it. I 6 know what the system had to do to come through that. 7 It tells me, for instance, that the system 8 is reliable; that the system is maintainable, that 9 the components in its are quality components; that 10 the engineering that went into it is quality 11 engineering; and that the functionality of it is a 12 voting system. 13 It also tells me that it has been at least 14 looked at from a cursory basis from the point of view 15 of security and fraudulent code and those kinds of 16 things. 17 Now, you know, every time you say that 18 everybody goes (fluttering hands) ohhhhhhh, you know, 19 you can't do that. Well, no, you can't. There's no 20 such thing as a 100 percent secure system of any 21 kind. But the more it is looked at by the ITAs and 22 so forth, it raise your confidence level. 86 1 So their evaluation brings your confidence 2 level in the system up to a point. 3 Then the next step in the Standards, and 4 we think, when we talk about the standards we tend to 5 talk about them as if they were federal-level 6 standards; they're actually standards at three 7 levels. That second level, then, is state 8 certification. 9 The next thing a state should do is bring 10 that qualified system into the state and do a review 11 on it at the state level, number one, to see if there 12 are any peculiarities in the state law, the state 13 code, the state regulations that need to be examined 14 that the ITA didn't examine. 15 Pennsylvania, for instance, has a very 16 unique way of voting, changing your vote in a multi- 17 member straight-party election called "The 18 Pennsylvania Method." No other state does it that 19 way. 20 21 22 87 1 DR. WILLIAMS: And then you should always 2 look at the system from the point of view of 3 usability and affordability at the state level 4 because the ITA's do not consider these two hardly at 5 all. 6 And certainly not affordability. They 7 don't even know what that costs. That's strictly a 8 local concern. 9 VICE CHAIR HILLMAN: Is that a transparent 10 process? I mean, would most people who would want to 11 know how the ITA is doing this process, is it 12 transparent to us or to elections administrators? 13 DR. WILLIAMS: Yes, I think it is. I 14 mean, certainly this is not any kind of secret 15 proprietary process. The standards are yours. They 16 are EAC standards. And the ITA's are intermediaries 17 for an asset. 18 Now, the problem you run into is how do 19 you fund this thing? See, we have no money. 20 So the way it's funded is the -- contracts 21 with the ITA for the evaluation. So up to the point 22 where that evaluation report is released, that's a 88 1 propriety relationship. 2 Now, once that report is through, it 3 becomes pretty much a public document although 4 officially it belongs to the vendor to pay for it. A 5 vendor would have to be out of their mind to refuse 6 to give it to you. 7 I mean, so those are very available. And 8 you can. Yes, it's a very open process. 9 VICE CHAIR HILLMAN: Thank you. 10 CHAIRMAN SOARIES: Thank you. I've got 11 two quick questions. 12 We did inherit FEC standards. And we are 13 working hard to position ourselves to enhance the 14 standards pursuant to many of the principles that you 15 made clear today. 16 I think we have to acknowledge as often as 17 we need to today that all of this costs money. And 18 I've been pressed by the media particularly to find 19 out what happens next. And just to give you just a 20 preview of what we'll say after this over, we've got 21 to raise money. 22 All of this costs money. And I know if 89 1 there's one thing we'll all agree on from every 2 perspective today -- that we need money to invest in 3 this process. So we do value the work that's been 4 done because much of it has been done by volunteers. 5 I don't know how many of you were involved 6 in the development of the '90 standards and then the 7 update to '02. But I'm just curious to know -- maybe 8 you, Mr. Berger, would know -- in the '90s there was 9 reference to a standard for paper verification. And 10 the '02 standard there's no such thing. 11 I'm just wondering if it was an oversight. 12 Was there a conscious decision made to make no 13 reference to paper verification in '02? What -- 14 DR. WILLIAMS: I don't recall that as a 15 conscious decision. That's something we could talk 16 with Penelope about. You know, Penelope was the 17 editor-in-chief of that. 18 But I don't remember any discussions in 19 any of the meetings I was in where a conscious 20 decision was made to leave that out. It sounds like 21 an oversight. CHAIRMAN SOARES: Okay. 22 MR. BERGER: I'll just say that I got 90 1 involved late in the process as the -- became 2 engaged. There was a mature draft at that point. We 3 took it and brought as much reflection and 4 recommendation to it as we could from the membership. 5 6 I don't recall any discussion of this 7 point either from the FEC or from any of our 8 reviewers. It didn't seem to be an issue at that 9 time. 10 CHAIRMAN SOARES: In many ways we are 11 faced with a task kind of catching up to the horses 12 and then building a coral around them. Technology 13 has outpaced the science, the research, the data. 14 And I'm wondering -- I'm wondering if any 15 of you from your other interactions with other 16 industries see any analogous challenge, where the 17 technology was in fact in use prior to the testing 18 for usability and security being on a par with what 19 we might call public expectations. 20 And then people such as ourselves had to 21 play catch-up to existing technology. I think about 22 the microwave ovens. You know, when the microwave 91 1 came out, my grandmother wouldn't use it because she 2 thought there was something sinful about things 3 getting warm that fast. 4 (Laughter.) 5 CHAIRMAN SOARES: And she didn't know 6 anything about the science. But I think most of us 7 assumed that that was preceded by science so that by 8 the time the consumer had access to it -- and I'm 9 wondering. Are there analogies? I just don't -- I'm 10 a preacher so I have been looking at this. 11 MR. SELKER: The microwave's a perfect 12 example. She was right. There were leaking 13 microwaves at the beginning. 14 CHAIRMAN SOARES: I knew my grandmother 15 was smart. 16 (Laughter.) 17 MR. SELKER: I mean there are people that 18 got in trouble by using, you know, microwave antennas 19 to heat themselves too. There are lots of examples 20 of people putting dangerous equipment out and 21 learning later how to coral it. I think it's very 22 typical for engineers to make things and sell them 92 1 before they test them. 2 CHAIRMAN SOARES: But then how does the 3 experience in those areas inform us as we devise 4 process? Much of what we do, by the way, when we're 5 in our office -- we just got offices. But much of 6 what we do on the phone is to think about process. 7 We're not really as focused on products as 8 people may want us to be. We are focused on process, 9 because we believe that our job was to put in place 10 guidance around process because if the process has 11 integrity, then the product will have more integrity. 12 MR. SELKER: Just to finish that, I just 13 finished studying some voting equipment from another 14 country. And I started off very skeptical and I 15 ended up with a report saying exactly how process 16 could make it absolutely secure. When it's released, 17 I'll share it with you. 18 CHAIRMAN SOARES: No, we can't wait that 19 long. Give us a -- 20 (Laughter.) 21 MR. SELKER: -- testing is very powerful. 22 MR. BERGER: If I may, there's a number of 93 1 parallels that I think the Commission would benefit 2 from observing and drawing advice from people who 3 were involved. 4 For example, at the Federal Communications 5 Commission if you go back to about 1980, when they 6 first required a missions testing of computing 7 devices, computers were all over the place. 8 And for the first time new requirements 9 that deeply affected that technology were put in 10 place. That's been a fascinating process to watch 11 over the last 25 years. And a lot of good lessons 12 have been learned. 13 By the way, all those test reports are 14 available publicly on the FCC Web site. Every FCC 15 equipment grant is publicly available. 16 Their processes, for instance, developing 17 the nation's intelligent highway system, upgrading 18 our entire highway system, is currently under way. 19 The Department of Commerce is very involved in that. 20 And five standards development 21 organizations are actively involved. The upgrade of 22 our light rail system and our subways is another area 94 1 where there is very active work. They produce 14 2 standards to date and are obviously dealing with an 3 infrastructure in place. 4 You pointed to one. The concern about 5 cell phones and safety health issues is one that's 6 been very active in recent years both nationally and 7 internationally, again, under the guidance of the FCC 8 and FDA. And there's a lot of parallels that I think 9 this Commission may benefit from. 10 And I am certain the staff involved there 11 would be happy to talk to you about their experiences 12 and their process in guiding the cell phone industry 13 to address the public's concern about safety there. 14 DR. RUBIN: I think I can give you an 15 enlightening analogy too. If you look at the 16 software industry and in particular the advent of e- 17 mail, Microsoft software came out and was very useful 18 and people loved it. So they kept adding features. 19 And they added mail programs. 20 And suddenly we started getting hit with 21 viruses and spam. And this has been a problem that 22 now we don't know how to do -- what to do about it. 95 1 So Microsoft has started -- Bill Gates came out with 2 a statement that they were going to devote security 3 as the top priority. They started hiring security 4 experts like crazy, redesigning their systems. 5 And now Bill Gates has gone on record 6 saying that by 2006 they will sole the spam problem. 7 So I think, you know, if we look at the 8 voting industry and say, well, if we have all these 9 security problems and I'm not looking for a job, but 10 we need to get security experts in there and have 11 them help with the design of the systems to make them 12 more secure. 13 CHAIRMAN SOARES: Our time is up. I'm 14 going to ask Commissioner Martinez to have the 15 closing comment question. 16 But if you could send us information about 17 any research that you know that has measured the 18 likelihood of voters looking at the paper, I'd 19 appreciate that. 20 When we buy gas, we have option to get a 21 receipt or not get a receipt. I don't know how many 22 people choose yes over no. And if any data exists 96 1 that could inform us about just the like -- when we 2 talk about paper, we assume that everyone will look 3 at the paper. 4 If there's any data that can help us know 5 more about the likelihood of it happening, I would 6 appreciate it. 7 CHAIRMAN SOARES: Mr. Martinez. 8 COMMISSIONER MARTINEZ: Thank you, Mr. 9 Chairman. My thanks to all of you. And I only 10 regret, I think -- I probably speak for the entire 11 Commission in saying that we wish we had more time to 12 continue this dialogue. 13 I do have one closing question, Dr. 14 Selker. And I'm still focused, Dr. Rubin, on your 15 continuum, which I think is very helpful, very 16 terrible to very good. And how do we move up that 17 continuum? 18 From your perspective what you said is in 19 the short term. We get there. We can go to verified 20 paper ballots is what I heard you say. Is that 21 accurate? 22 DR. RUBIN: Right. 97 1 COMMISSIONER MARTINEZ: Dr. Selker, are 2 there ways to get there? 3 What about the possibility of encrypting? 4 Is that something that could work today? Is that 5 technology available to somehow, you know, provide 6 some added security to the DRE's that are in 7 existence today. We don't have much time. Can you 8 just comment quickly on that. 9 MR. SELKER: Yeah. My position on paper 10 came from watching people look at paper receipts in a 11 Chicago election. I watched -- I went to 60 12 balloting places and people, when they were told with 13 the paper and with somebody telling them that they 14 had spoiled the ballot, 1 in 10 were willing to take 15 a new ballot. 16 So that's my concern. That's why I'm 17 promoting audio verification trails. For one thing, 18 they are cheaper, more reliable equipment, easier to 19 implement. 20 But encryption, I think not for 2004. For 21 2004 we have the equipment and we really need to have 22 oversight over the equipment that improves it. My 98 1 big concern is what if we add things that create 2 errors. And I'm very concerned about the paper 3 trails and errors. 4 CHAIRMAN SOARES: Thank you. I am, again, 5 appreciative of the fact that you thought it worth 6 your time to travel here and to offer this important 7 testimony. And we are grateful and the country is 8 better served because you've helped us with our 9 mission. Thank you. 10 We will now without delay call our vendor 11 panel. And when they are seated, we will introduce 12 our vendors. 13 (Pause.) 14 CHAIRMAN SOARIES: -- to cooperate. 15 Excuse me, audience. I'll try this one more time. 16 Will the audience please be seated or leave. Thank 17 you. 18 I want to first -- I want to thank the 19 panel for being here and let me apologize for some of 20 the shorthand descriptions of the names of your 21 corporations. Don't -- take it as affection and not 22 as disrespect. We feel like family. 99 1 I'd like to also thank you for taking the 2 time to come and share with us. I know that all of 3 you are being called upon more and more to share your 4 perspective, your experience. 5 But frankly without your presence here 6 today, this hearing would have been much less 7 credible. And our moving forward would have been 8 much more difficult. 9 So we really appreciate it. And we hope 10 to have a good working relationship with you as we 11 try to understand the issues. 12 We live in a free market economy. And all 13 of you involved in the private sector, which means 14 that someone had to take risk to do this business. 15 And that's always a challenge, but it's also a 16 welcome development because that's what makes our 17 country what it is. 18 Let me introduce the panel. And if you'd 19 speak in this order, I'd appreciate it. 20 We have Mr. Neil McClure from Hart 21 Intercivic. We have Mr. Mark Radke from Diebold 22 Elections Systems. We have Mr. Kevin Chung from 100 1 Avante International, Mr. William Welsh from Election 2 Systems and Software. We have Mr. Alfie Charles from 3 Sequoia Voting Systems. 4 And I will be the lead questioner for the 5 commissioners after your segmented presentations. 6 Mr. McClure. 7 MR. McCLURE: Thank you. I'd like to 8 thank you for having the opportunity to provide 9 testimony for the Commission today. 10 Hart Intercivic entered the DRE market in 11 the 2000 presidential election with the certified 12 system after over three and a half years of 13 development and testing. 14 We have identified as part of our 15 development process key attributes that we felt were 16 important to direct recording electronic systems and 17 embodied those in our system design and architecture. 18 Those attributes were product liability, 19 product quality, accessibility, usability, security, 20 and above all accuracy and integrity of election 21 data. 22 As most of us are aware, product 101 1 development processes are trade-offs that are driven 2 by market demands and customer requirements. 3 Since the introduction of the e-slate 4 system -- or DRE, we have released five major 5 functional upgrades to the system in that time 6 period. 7 It wasn't until 2003 where we saw an 8 emerging requirements for new securities. And this 9 did not come from a customer base. It came from a 10 market space. 11 We had architected the capability in our 12 system to provide security, higher level security, 13 into the system. But it had not been a requirement, 14 so we had focused our resources on more near-term 15 needs from our customers and market. 16 We're a software development company. And 17 our success is measured by our continuing product 18 enhancement and improvement for our customers and our 19 market. 20 However, the problem we are facing is the 21 market is not establishing requirements. They are 22 prescribing a solution. That solution is a voter- 102 1 verified paper ballot. And it's only meant to 2 address a single risk of a DRE while there are more. 3 And that risk is associated with the 4 device recording the voter's vote as they cast it and 5 accurately representing that in its memory. 6 So if this is a solution, then there must 7 be a problem. Well, the problem is -- the perception 8 is the DRE cannot be trusted. There are methods 9 available to provide for a measurable level of trust 10 in electronic devices. 11 And if a device is not able to meet these 12 levels of trust, then you provide other mitigating 13 remedies such as a voter-verifiable paper ballot. 14 The trust needs to be established in 15 relationship to the threats to a system. Security 16 analysis will identify threats for former risk 17 assessment and then evaluation and implementation 18 processes to implement the mitigation strategies. 19 With the voter-verifiable paper ballot 20 we're going from identification of threats to the 21 implementation stage. This type of reaction often 22 causes more harm than good. 103 1 There's been no real discussion, debate, 2 reference, publications that talk about a risk 3 assessment -- and all the risks associated with the 4 DRE. Yes, they do exist. 5 But an assessment will assign 6 probabilities and likelihoods, which will drive the 7 product development companies and the people involved 8 to put appropriate mitigation steps in place -- 9 security mitigation strategies to be based on the 10 risk assessment and just not on the existence of a 11 threat. 12 Because if we look at this problem, this 13 Trojan horse problem, we've heard some earlier 14 testimony about some classroom experiments. But in 15 reality in the presidential upcoming election in 16 Orange County, California, for example, there's 2,200 17 precincts, 1,723 polling places, 91 cities in special 18 districts, 5 languages, and ballot rotation on top of 19 that. 20 When you put all that together, you have 21 over thousands of ballot styles, a hugely complex 22 problem just to get it right. 104 1 And to think an attacker can come in on 2 some short-term notice and implement some sort of 3 Trojan horse -- and we talked about the length for 4 certification and other processes. There's a long- 5 term commitment and a well motivated attacker would 6 have to spend considerable effort on this problem. 7 But does a voter-verifiable paper ballot 8 address the risk that it's attempting to? We've 9 certainly heard a lot about different threats that 10 are out there for DRE's. Let me pose one to you. 11 A voter comes in and votes on a system 12 with a voter-verifiable ballot. It prints out the 13 paper. They review the paper and look at it and they 14 reject their ballot. This is under the proposed 15 implementation that we've seen out in the press and 16 from other papers. 17 Well, under that scenario the hacker 18 would, after a little social engineering, understand 19 that a lot of voters surprisingly don't pay attention 20 and that if somebody rejects their ballot, they're 21 paying attention. 22 So they print out the next one that's 105 1 correct. And so this way this defeats the purpose of 2 the paper ballot. The only way around that is to -- 3 if there is an instance where the paper does not 4 match the electronics, the system should be shut 5 down. 6 Don't give them three tries. Shut the 7 system down. Shut down the election. Something's 8 wrong. Why would we continue to collect votes if 9 there's a problem with the system? 10 So these are definitely challenges that we 11 would face in any implementation of this. But really 12 I think it comes back to a matter of trust. We need 13 to look towards -- if the requirement is that the DRE 14 is not perceived as trustworthy, we need to look 15 towards how do we develop a trustworthy device. 16 Well, society -- we do have trusted 17 computing devices. There are ways to achieve this. 18 And I believe that we have an opportunity to put 19 DRE's on the path of becoming a trusted computing 20 device. 21 As an example it would be a reasonable 22 first step to establish a requirement that by January 106 1 1, 2006, all DRE's meet level II of the Phipp's 140-2 2 cryptographic module standard. This is a federal 3 standard. 4 It will not bring the device up to a fully 5 trusted level as regarded in some circles. But it 6 would be a great first step to take to put it on the 7 path of becoming a trusted device. 8 In addition, there are some other 9 recommendations that would go to support this effort. 10 There are many reports in the media about 11 irregularities with DRE's. I don't see people 12 attributing these to attacks or security breaches 13 although they are used as support of the paper 14 ballot. 15 But there are quality issues. There are 16 product quality issues. These irregulars could be 17 traced back to product issues. 18 I think we ought to look at raising the 19 quality requirements, implementing national and 20 international quality management systems, and testing 21 requirements for all voting devices. 22 As part of the quality -- increased 107 1 quality requirements system testing should be 2 reviewed and how it is applied to DRE's. DRE's are 3 more appropriately used simulation in order to do 4 volume testing. This should be an ingrained part of 5 a DRE system. 6 And today we find that a lot of paper 7 practices have been applied to DRE's. Logic and 8 accuracy tests is a fine example. If you take a 9 logic and accuracy test prescription for a paper 10 ballot system, which is very appropriate, apply it to 11 a DRE, you end up with a cumbersome, complex process 12 that is inappropriate for an electronics system. 13 This also goes towards recount. And a 14 recount is really a term of art for a paper system. 15 Recount -- the intent of it for a paper system is to 16 verify and validate the outcome of an election. 17 If you apply validation and verification 18 to a DRE system, you get a different process. 19 There's a lot of discussion about nothing meaningful 20 to recount. Well, of course there's not if you're 21 applying a paper's process to an electronic system. 22 So there are other ways to provide 108 1 verification and validation that would include and 2 encompass the intent of a recount. 3 CHAIRMAN SOARES: Mr. McClure, you are 4 moving very close to the other panelists' time. 5 MR. McCLURE: Okay, I'll wrap it up right 6 now. Two last items. 7 Record retention can be improved for 8 electronic systems and also the Commission to support 9 a standardized electronic format for interchange of 10 data. 11 I'd like to thank you again for providing 12 the testimony. I think that we have an opportunity 13 to adopt an evolutionary approach to security in 14 addressing necessary processes supporting DRE 15 elections that will provide reliable, trustworthy 16 elections to be conducted using electronic systems. 17 We should move forward with electronic 18 voting in a deliberate and reasonable manner, 19 celebrate the efficiencies and enfranchisement of all 20 voters, and appropriately manage the risks. 21 Thank you. 22 CHAIRMAN SOARES: Thank you so much. 109 1 Mr. Radke. 2 MR. RADKE: Thank you, sir. Mr. Chairman, 3 Commissioners, my name is Mark Radke. And I'm 4 director of marketing for Diebold Electric Systems, a 5 subsidiary of Diebold, Incorporated. 6 We appreciate the opportunity to be with 7 you today to discuss the benefits associated with 8 Diebold's touchscreen voting solution. 9 To highlight the various advantages of our 10 touchscreen solution, we must first review the Help 11 America Vote Act -- was introduced to replace punch 12 cards, lever systems, and other election systems 13 technology. 14 The 2000 presidential election uncovered a 15 number of major issues that existed within the voting 16 process resulting in inaccuracies and 17 disenfranchisement. 18 And these include, and have been discussed 19 already today, the inability to determine voter 20 intent -- we all remember the person pulling the 21 punch card ballot up to the light -- overvoting, 22 undervoting -- again, in this case voting for not 110 1 enough people within a race or not voting in a race 2 at all -- and a lack of voter accessibility for the 3 blind, visually impaired, and non-English-speaking 4 voters. 5 How does Diebold's touchscreen voting 6 system assist in solving these major issues? 7 Selections made by each voter are clearly 8 indicated with an X, surrounded by a red box. And 9 there is no doubt concerning which candidate was 10 chosen. Voter intent is clear and concise. 11 Our touchscreen voting solution completely 12 eliminates overvoting. So this severe problem that 13 was experienced throughout the 2000 election is 14 immediately resolved. 15 The system does not allow a voter to vote 16 for more than the specified number of candidates 17 within a specific race. 18 Undervoting is significantly reduced as 19 selections are clearly indicated. Once the voter has 20 viewed the entire ballot, a summary screen displayed 21 what choices have and have not been made within each 22 race. 111 1 Simply touching an unvoted race on the 2 summary screen immediately returns the voter to the 3 unvoted race, enabling them to make a selection. 4 The ability to significantly reduce 5 undervoting was clearly experienced in the California 6 counties using the Diebold touchscreen system during 7 the October recall election. 8 During this election the overall undervote 9 percentage for the state of California on the recall 10 question was 4.63 percent. Counties using punch card 11 technology experienced a 6.32 percent undervote. 12 Counties using optical scan technology experienced a 13 2.68 percent undervote. This percentage almost 14 equals the 2.9 percent undervote in Florida during 15 the 2000 election. 16 Counties using Diebold's touchscreen 17 solution experienced a 0.73 percent undervote -- by 18 far the lowest of all technology used. It was also 19 175 percent better than its nearest touchscreen 20 competitor. 21 The state of Georgia has already conducted 22 over 450 successful elections using the Diebold 112 1 touchscreen voting system and experience the same 2 type of reduction in undervoting. And I suspect 3 Kathy Rogers from the state of Georgia will discuss 4 these details and statistics to you in just a little 5 bit. 6 Based on input from blind, visually 7 impaired, and physically challenged individuals, 8 Diebold has the most successful voting stations in 9 the industry. Our voting stations meet or exceed all 10 -- section 508 standards associated with the 11 Rehabilitation Act of 1998. This includes 12 requirements for reach, height, voice guidance, and 13 other important capabilities. 14 Our voice guidance capability enables 15 blind people to navigate through the entire 16 touchscreen ballot unassisted, voting in complete 17 privacy for the first time in their lives. 18 Every Diebold voting station offers voice 19 guidance capability so a voter can vote on any 20 touchscreen unit within a precinct -- no 21 disenfranchisement. 22 Voters with limited vision can magnify the 113 1 text and target areas on the touchscreen, enabling 2 them to vote without assistance. Enlarged target 3 areas are especially important for voters with 4 Parkinson's disease or other conditions that affect 5 dexterity. 6 The Accu-Vote TSX offers the capability to 7 quickly adjust the contrast of the ballot on the 8 touchscreen, enabling people with color blindness or 9 limited vision to more clearly view the screen. 10 The simple touch of the high contrast icon 11 on the screen changes the standard ballot to a very 12 sharp ballot presentation with black letters featured 13 on a white background. This capability is a Federal 14 Election Commission 2002 certification requirement. 15 Voter's in wheelchairs can vote 16 approaching the unit from the side or from the front. 17 The Accu-Vote TSX 10-pound voting tablet can be 18 removed from the voting station and manually 19 transported to a physically challenged voter driven 20 to the voting location in an automobile -- curbside 21 voting. 22 The voting tablet can also be placed on 114 1 the tray of a wheelchair, enabling a voter with 2 limited dexterity to vote more comfortably on the 3 touchscreen voting station. 4 A voter can make selections on the large 5 15-inch touchscreen using virtually any type of 6 object such as a finger, a head pointer, or even a 7 tongue depressor. 8 For several years Los Angeles County, 9 California, has successfully used the Diebold 10 Touchscreen Solution for early voting. The ability 11 to present over 5,000 ballot styles in 7 different 12 languages, including character languages, on each 13 voting station is a capability that is unmatched in 14 the industry. 15 Illiterate voters can also vote without 16 assistance, as Diebold's voice guidance system 17 enables voters to make ballot selections using a 18 numbered keypad. 19 The numbers from the March super Tuesday 20 election tell a compelling story. Zero -- I repeat 21 zero security-related at the more than 55,600 Diebold 22 touchscreen voting stations deployed across the 115 1 country by election officials. 2 Over 9 million voters had the opportunity 3 to use electronic voting solutions, including the 4 entire state of Georgia and virtually the entire 5 state of Maryland. 6 Almost 130,000 visually impaired men and 7 women had an opportunity to vote unassisted. 310,000 8 disabled people could vote more conveniently because 9 the voting booth could accommodate them. 61,000 new 10 Americans citizens had the opportunity to vote on a 11 ballot in their native language. 12 And also very importantly, 562,000 older 13 Americans were able to vote easily and intuitively. 14 That's a proof of performance that is strong and 15 irrefutable. 16 During a recent March primary election the 17 California secretary of state conducted parallel 18 monitoring, testing of touchscreen voting stations 19 used throughout the state. 20 The parallel monitoring process included 21 the secretary of state's staff pulling voting 22 stations from selected jurisdictions before the 116 1 elections began and testing each unit for the 2 duration of the primary election to verify its 3 accuracy. 4 The candidate selection process of the 5 staff was even videotaped to provide an irrefutable 6 audit of all activities. The completion of the 7 parallel monitoring-testing process concluded that 8 each and every Diebold touchscreen voting station 9 provided 100 percent accuracy. 10 While there have been questions and doubts 11 raised that generally are theoretical in nature, it 12 is clear that electronic voting systems are a 13 significant advancement over previous voting 14 technologies. 15 We've heard and read a lot of headline 16 references to such things as red teams, Internet 17 voting, security hacking, and numerous other items. 18 What's been missing from these laboratory originated 19 critiques has been the real world experience at the 20 voting booths, including the people, the procedures 21 that are in place to conduct the election safely and 22 securely. 117 1 One fact that must be clearly stated is 2 that Diebold touchscreen units are stand-alone voting 3 stations that are never connected to the Internet, 4 therefore eliminating the risk of Internet hacking. 5 They are also never networked within the precinct. 6 CHAIRMAN SOARES: Mr. -- 7 MR. RADKE: Do I have -- 8 CHAIRMAN SOARES: Yeah. We will read, and 9 most of us have read, your written testimony. If you 10 can wrap up your oral because we'd like to have the 11 chance to ask you questions. 12 MR. RADKE: I just have like two more 13 minutes, please -- or less. 14 CHAIRMAN SOARES: Thank you. 15 We have addressed many of the security 16 issues raised by the independent reviews through the 17 implementation of the changes that were discussed 18 earlier. 19 We have removed all hard-coated encryption 20 keys, passwords, and pens. All the elements are now 21 selected by each local board of elections and changed 22 by them as often as they choose. 118 1 We have enhanced the security of the 2 election result uploads. Again, Diebold Election 3 Systems has responded to the many various security 4 enhancements and has submitted those changes for 5 review by the independent agencies. 6 Another major topic that has been 7 discussed here today is the ability of individual 8 voters to verify their choices for candidates and 9 also issues. I want to stress that this is a matter 10 of public policy, not of technological capability. 11 Diebold Election Systems can and would be 12 glad to meet with standards that are established when 13 this public policy debate is resolved. We will have 14 the capability to retrofit the solution to both the 15 Accu-Vote TSX and the Accu-Vote TS voting stations. 16 And I want to speak this very clearly: 17 Today each vote cast within an entire jurisdiction 18 can be anonymously printed out and utilized for 19 manual recounts. 20 I would be remiss if I did not mention 21 that we did experience issues within selected 22 jurisdictions in California during the primary 119 1 elections. Primarily these issues involved the 2 operation of a separate peripheral device used for 3 voter -- coding. We sincerely regret that this issue 4 inconvenienced voters and affected precincts. 5 However, the touchscreen voting stations 6 deployed within these jurisdictions clearly, 7 accurately, and securely tabulated each ballot cast. 8 Voters surveyed in Salano County, California, gave 9 the Accu-Vote TSX a 97 percent approval rating. 10 Current county officials have stated their Accu-Vote 11 TSX-based election was very successful. 12 We are committed to supporting our 19 13 California customer counties in an effort to run 14 efficient elections in November and are confident in 15 our technology and its benefits. 16 In conclusion, we do believe Diebold 17 Election Systems can provide voters throughout the 18 country with an election solution that, when combined 19 with the experience, dedication, and oversight of the 20 state and local election officials, will provide a 21 safe, secure, and reliable election. 22 CHAIRMAN SOARES: Thank you so much. 120 1 Thank you. 2 Dr. Chung. 3 DR. CHUNG: Good morning, Chairman Soares 4 and Honorable Commissioners. 5 Avante's pioneered the voter-verifiable 6 paper voting system. Not in light of security. 7 Actually at the time we didn't consider security. 8 CHAIRMAN SOARES: Excuse me one second, 9 Dr. Chung. Could we just wait. I don't think your 10 microphone is working yet. Are we ready? 11 DR. CHUNG: Thank you. 12 CHAIRMAN SOARES: Could you start again so 13 that -- 14 DR. CHUNG: Good morning, Chairman Soares 15 and Honorable Commissioners. 16 Avante's pioneered the voter-verifiable 17 paper election system not because of a security 18 concern. Primarily we were trying to confirm to the 19 voters how their vote is counted and counted 20 correctly, how the -- because of the debate I'm going 21 to raise with 5 points together to mention our 22 experience on using such a system. 121 1 The first point is that we echo Professor 2 Rubins that if the DRE voting system is to be used, a 3 voter-verifiable paper audit trail is the only 4 reasonable means to assure voting security. 5 One of reasons among many benefits -- it 6 helped some voters to look at their choices on paper. 7 This is particularly important for those that are not 8 so familiar with the use of computers or summary 9 screens at the end. 10 Their recent election mishap in Brower 11 County, Florida -- 134 votes was making no selections 12 on a single contest election. And the difference 13 between the candidates -- only 12 votes. 14 Imagine that if we actually print out the 15 paper record and the voter has a chance to review it, 16 I'm sure most of them would have caught such a big 17 error in the system. 18 On the security side the VPAC helps to 19 expose all errors, all tamperings during and after 20 the ballot has been stored in the electronic memory. 21 The auditable paper record -- of course, we also 22 eliminate all legal challenges on the validity of the 122 1 voting results even for the closest of races. 2 Yes, we still will need good procedures 3 and practices so that a tamper-proof election can be 4 held even with the auditable paper records. 5 The second point I want to make is 6 accessibility. It is straightforward for any DRE 7 system with VPAC to provide -- of the paper record to 8 the blind voters. That's making VPAC accessible. 9 Avante did it. 10 American consultive line -- national 11 federations of lines of California, California 12 consultive line, many groups in Ohio, Connecticut, 13 New Hampshire, and so on have tested such features in 14 our system and found them to be accessible. 15 Like most of the site voters, line voters 16 also appreciate to know that their ballots are cast 17 and counted correctly as they cast them. 18 The third point I want to make is that 19 VPAC helps voters catch errors if they make them. 20 DRE has one undisputed advantage over all other 21 voting systems in that they guarantee zero percent 22 overvotes. 123 1 Avante votes record has proven in the last 2 five elections that we held with such a system that 3 with proper interface design DRE can also achieve 4 zero residual votes. 5 However, if not property engineered, DRE 6 has been documented to yield very, very high 7 undervotes as well. In the year 2000 election in Los 8 Angeles 12.3 percent of the voters voting on a DRE 9 system never voted for a U.S. senator, while in the 10 same race only 5 percent of -- never voted for a 11 senator. 12 Imagine if the paper record is printed. 13 The voter has a chance to look at them. Maybe they 14 will discover such errors as well. The four points 15 is the cost of the system -- of using such a system. 16 Proper use of VPAC will -- the lowest cost 17 of ownership for the jurisdictions in an actuary's 18 price list for the good of the society. 19 However, it requires that every DRE ballot 20 cast must print a paper record for recount. The cost 21 associated with printing it afterwards should be much 22 higher than printing by the voters there and looking 124 1 at it. 2 Many people worry about paper jams during 3 the elections. We all know people have been printing 4 paper receipts for ATM's for at least 10 or more 5 years. Certainly printers for VPAC should be 6 engineered so that paper jams rarely happen. 7 The VPAC printers can be made modular so 8 that the poll workers can fix it, change the paper 9 jam if you ever need to. 10 There are a lot of erroneous quotes, 11 including this morning, made by very smart people 12 about VPAC. Being the only vendor that ever used the 13 system for elections we like to quote some of the 14 comments for the same election the register makes on 15 the Avante vote -- we're using. 16 Quote: "At the post the machines and 17 printer perform flawlessly. Openly and closing the 18 post went very smoothly even though we had three 19 times the normal amount of machines. We had a 20 recount and it was not necessary to do anything with 21 the electronic machine as the printer results were 22 acceptable." 125 1 And here's what the Connecticut SOS 2 reports on the summary of that -- elections: "The 3 demonstration project of the electronic voting 4 systems went extremely well. 92 percent of the 5 voters rated the electronic voted system as either 6 excellent or good." 7 And they continue to say in a separate 8 letter issued to my office by the state's election 9 and -- commission, the commission stated a preference 10 for electronic voting systems as long as they have 11 some kind of voter-verifiable paper record. 12 We hold elections in four counties of the 13 eight in Connecticut and we are the only one that has 14 the voter-verifiable paper record in the systems. 15 In our elections in Sacramento County, 16 California, we have to do a survey. 96.5 percent of 17 the voters feel highly confident that their vote is 18 counted and recorded correctly. 19 In the same year the same election in 20 Georgia, a similar survey was done. 70 percent of 21 the voters feel confident that their vote was counted 22 correctly. 126 1 Now I want to -- the social benefits of 2 VPAC. Ever since paperless DRE voting systems have 3 been used, there has been many contentious recounts. 4 Many are still ongoing. 5 The monetary cost to both the 6 jurisdictions and the contesting can be both 7 documented and calculated. More important, if most 8 of us, definitely the historians, should be concerned 9 with the costs to our nations and our democracies, 10 with the endless contention in such a fundamental 11 issue of voting and counting the votes -- 12 13 14 15 16 17 18 19 20 21 22 127 1 One fact becomes very clear very quickly. 2 There are no recounts in DRE voting without Voter 3 Verifiable paper audit trail. Florida again made 4 election history by being the first state to admit 5 there's just no need to recount in DRE voting because 6 there's no meaningful recount possible. 7 One is left with the uncomfortable 8 position, like Congress's eloquence in the Act, are 9 we ready to accept that there will be no more 10 recounts in any elections? 11 CHAIRMAN SOARIES: Thank you, Dr. Chung. 12 Let me say this to the two final 13 panelists. Each of the previous panelists have taken 14 a little more time, and so I have got to give you 15 more time to be fair, if you need it. I will give 16 you an extra minute each, and we are going to extend 17 this panel to 12:00 o'clock to ensure that we have 18 adequate time for some dialogue with the 19 Commissioners. 20 I need to apologize to you, Mr. Welch. I 21 need a three-minute break personally, but let's 22 proceed. I have ready your testimony. Commissioner 128 1 Hillman will take the chair and I'll be right back. 2 STATEMENT OF WILLIAM F. WELSH II 3 BOARD MEMBER, ELECTION SYSTEMS & SOFTWARE 4 MR. WELSH: Thank you very much, Chairman 5 Soaries, and thank you for having this hearing today 6 and giving us the opportunity to have this forum and 7 have some meaningful debate on the issue, rather than 8 having it done in the media--although I'm sure the 9 media will make a lot out of what happens today. 10 ES&S has been in the business of elections 11 since 1969. In fact, that's all we do as a company. 12 We're strictly in the election business. Today we 13 have in the U.S. over 50 percent of the precincts and 14 50 percent of the registered voters are voting on 15 ES&S systems. 16 To date, we have installed or have 17 contracts to install over 50,000 DREs. Now the 18 results and benefits of moving to DRE--and by the 19 way, we make virtually every election system that was 20 ever made. We don't do lever machines and have not 21 ever done lever machines. We did do punch cards many 22 years ago but don't do them today. But we do paper- 129 1 based optical scanning systems and DREs. 2 The results and the benefits of moving 3 towards DREs have been, I think, outstanding. From 4 the voter's perspective it has made the election 5 process easier. I believe that it's made it more 6 accessible, and certainly in many cases it's made it 7 more fun. 8 It has also been made much more reliable 9 because we've eliminated the potential over-votes, 10 through the selection verification screen provided 11 the voter the opportunity to confirm the choices 12 before a vote is cast, and when it comes to capturing 13 voter intent electronic voting has no equal. 14 Electronic voting has also provided new 15 opportunities to voters that have been heretofore 16 disenfranchised with the existing technologies. The 17 audio function on our iVotronic DRE machines provides 18 to visually impaired voters the first vote 19 opportunity to vote unimpaired, excuse me, 20 unassisted. 21 The lightweight and portable feature of 22 our iVotronic makes it easy to be transported to 130 1 curbside or for wheelchair voting. Because the 2 iVotronic DRE supports ballots in many languages, 3 electronic voting is encouraging participation of 4 voters who might be disenfranchised where language 5 has been a barrier. 6 Where optical scan voting is utilized, 7 ES&S has announced an exciting new product, the ES&S 8 AutoMark, which makes it possible again for the very 9 first time on optical scanning systems for a visually 10 impaired voter to cast an optically scanned paper 11 ballot privately and independently. 12 All of these improvements accomplish one 13 very important and overriding goal that is enhancing 14 the voting experience for all. On the security issue 15 we know that because of the newness of this 16 technology and the natural skepticism that it brings 17 with change, some are questioning the security of 18 today's electronic voting options. 19 On this issue, I am reminded of a paper 20 that Dr. Michael Shamus, who is well known in the 21 election industry, a paper that he wrote on 22 evaluating the threat of electronic voting. 131 1 In that paper, Dr. Shamus wrote that the 2 effort expended in meeting the threats to the 3 election process should be rationally related to the 4 probability of the threat and the seriousness of its 5 effects. 6 No one would buy a safe that could be 7 easily opened, but everybody buys a safe that can be 8 cracked. The same is true for voting systems. The 9 issue is not whether they are secure, but whether 10 they present barriers sufficiently formidable enough 11 to give us confidence in the integrity of the 12 process. 13 At ES&S we believe strongly that 14 electronic voting has met that test. We also believe 15 that the security measures on the device itself are 16 important and have to be built into the entire 17 election process before the election, during the 18 election and after the election. 19 This includes all of the important 20 processes and procedures in training, education, and 21 other steps to recognize the extremely important 22 human aspect of carrying out an election. 132 1 This is still a business, even with all 2 the automation we're talking about that relies 3 heavily on human beings to do the jobs efficiently, 4 effectively, and trustworthy. 5 At ES&S we work very hard to ensure this 6 element of the voting process is carried out 7 successfully. I am skipping a lot of my speech to 8 make up some time. 9 CHAIRMAN SOARIES: Thank you. 10 MR. WELSH: At ES&S we also work very 11 closely with election administrators to train and 12 educate those who carry out elections about the 13 voting systems, the processes, and the procedures 14 that we have established to maintain the integrity of 15 the voting process. 16 It is the combination of the security 17 features which were built into our systems and the 18 onsite support services training and documentation 19 that ES&S provides to county and state election 20 administrators that results in a secure, reliable 21 voting solution. 22 The security and audit features of our 133 1 electronic voting systems that I have elaborated on 2 in detail in my written statement but I won't today 3 also show that we have a very strong record of 4 carrying out successful elections. 5 The procedures we suggest reduce human 6 error. I can say with confidence the systems that we 7 supply our customers are accurate, secure, and 8 reliable. 9 We understand that there is consideration 10 for a voter verified receipt to add an additional 11 layer of security. We believe this option is not 12 necessary as it will add, clearly, to the cost and 13 the complexity to what is already a secure process. 14 The parallel testing process that was used 15 in California in this last election, as well as 16 mentioned earlier today by Dr. Selker, would be a far 17 more effective and immediate solution to the security 18 issues raised by the previous technical panel than 19 adding a voter verified receipt. 20 Nevertheless, ES&S has developed and has 21 demonstrated several prototypes of potential voter 22 verified receipt technology. All these prototypes 134 1 provide the opportunity for voters to see on paper 2 the selections before a ballot is cast. 3 What final form those prototypes would 4 take and the technology that would be employed will 5 depend upon the specifications and the requirements 6 that right now do not exist that you may ask be added 7 to the equipment. 8 But should the decision be made to move 9 forward with the voter verified receipt, we stand 10 ready to deliver a technically feasible solution as 11 soon as possible. 12 However, in deference to Dr. Rubin's 13 comment, having something available and in widespread 14 distribution by November of 2004 is impossible. 15 Given the current certification process that we all 16 go through, the time to develop and the time to get 17 certified, we're talking a minimum of a year once the 18 relevant specifications are known. 19 So November I think is out of the 20 question. Parallel testing is something that can be 21 implemented today. 22 So again in conclusion let me thank you 135 1 for giving us the opportunity. You have an important 2 role. We want to be a participant in helping you 3 decide what is right for the voters of America. 4 We are firmly committed to maintaining 5 integrity in the voting process and enhancing the 6 voting experience for all. Thank you. 7 CHAIRMAN SOARIES: Thank you, so much. 8 Mr. Charles. 9 STATEMENT OF ALFIE CHARLES, VICE PRESIDENT OF 10 BUSINESS DEVELOPMENT, SEQUOIA VOTING SYSTEMS 11 MR. CHARLES: Mr. Chairman and members, 12 thank you for the opportunity to discuss these issues 13 with you today, and I commend the Commission and 14 their staff for putting this event together on what I 15 know was limited time and limited staff and limited 16 budget. So I commend you for that, and thank you for 17 inviting us to participate. 18 Sequoia Voting Systems has been providing 19 election equipment supplies and services for more 20 than 100 years. We have provided election officials 21 with lever machines, punch card technology, optical 22 scan voting equipment, and for the last 25 years 136 1 we've helped election officials conduct extremely 2 successful elections with two different types of 3 direct recording electronic voting systems. 4 There are currently more than 50,000 5 Sequoia DRE units installed across the country which 6 will be used to securely and accurately record more 7 than 105 million individual votes for candidates and 8 issues this November. 9 The voters that use these systems can be 10 confident that the votes they record will be cast in 11 the most thoroughly tested, accurate, reliable, user- 12 friendly, accessible, and secure voting technology 13 that has been deployed in this country today. 14 With more than 500 pages of Federal 15 Loading System Standards, reviews by two Federally 16 approved independent testing authorities, additional 17 state testing, the escrow of software source code, 18 the pre-election testing of each DRE machine, and the 19 increased level of security that DRE systems provide 20 over and above paper-based systems, voters can take 21 great confidence that the results of the November 22 2004 election will be based on the most complete and 137 1 accurate recording of voter intent in the history of 2 U.S. elections. 3 As we learned in the aftermath of the 2000 4 Presidential Election, the complexity of older voter 5 interfaces has unfortunately caused a large number of 6 voters to make errors and have placed election 7 officials in the precarious position of discerning 8 voter intent on ambiguously marked ballots. 9 Not only were older punch card and lever 10 systems more susceptible to error and abuse, but they 11 also prevented full access for a large number of 12 voters with disabilities, and voters who require 13 assistance in languages other than English. 14 There is little doubt that the current 15 generation of DRE systems provides considerable 16 advantages over the way in which previous elections 17 were conducted. We are greatly concerned that the 18 majority of the recent public debate about voting 19 technology issues focuses only on the small portion 20 of the topic. 21 Much of the discussion seems to focus on 22 somewhat sensationalist concerns while ignoring a 138 1 proper characterization of the benefits of the newer 2 technology and of the potential for error and abuse 3 that existed with the older systems that HAVA seeks 4 to replace. 5 The superiority of electronic voting 6 equipment at capturing and tallying voter intent was 7 clearly demonstrated during the recent state-wide 8 California recall election. 9 According to post-election studies 10 conducted by the University of California, the 11 percentage of votes not cast in the recount was 12 directly proportional to the complexity of the voter 13 interface. 14 During the recall, the official number of 15 votes not cast in the question at the top of the 16 ballot resulted in the following statistics, and Mr. 17 Radke mentioned some of these: 18 1.3 percent of the voters who used 19 electronic systems at the polls and paper absentee 20 ballots did not record a vote, or did not vote on the 21 recall question. 22 2.4 percent of voters using optical scan 139 1 systems did not register a vote. And 7.8 percent of 2 the voters using punch cards did not register a vote 3 on the recount. 4 That number equates to more than 273,000 5 voters in the election, compared to just 1.3 percent 6 of the votes cast using electronic systems. 7 The evidence is fairly clear. By 8 recording votes more accurately and reducing the 9 potential for voter confusion or error, electronic 10 systems help prevent the disenfranchisement of a 11 significant quantity of voters nationally. 12 The accuracy and ease of use of DRE 13 systems are clearly compelling, but the increased 14 percentage of votes counted will be of questionable 15 value if the voters do not trust that this is the 16 case. Unfortunately the recent public debate about 17 voting technology has not adequately informed voters 18 about the considerable number of independent reviews 19 and local checks and balances in place to ensure the 20 accuracy and security of the vote. 21 Many of the critics of electronic voting 22 allege the technology can be easily manipulated to 140 1 perpetrate election fraud. Well let's remember that 2 the commission of vote fraud requires motive, 3 ability, and opportunity. 4 With the advent of computerized voting 5 technology, the universe of individuals with the 6 technological ability and savvy required to interfere 7 with an election is but a fraction of the number of 8 people who are capable of stealing paper ballots, 9 illegally punching holes in punch card ballots, 10 making stray marks on optical scan ballots, or 11 improperly re-aligning the votes recorded on lever 12 equipment. 13 Simply by using DRE technology, we can 14 reduce the universe of people capable of committing 15 fraud dramatically. Once we have limited the number 16 of people capable of committing fraud, it is crucial 17 to develop and implement appropriate procedural steps 18 and physical security requirements to prevent those 19 individuals from having the access and opportunity to 20 successfully commit the fraud. 21 As with paper-based voting systems, DRE 22 hardware and software system design must be combined 141 1 with physical and procedural security that is strong 2 enough to prevent any individuals from committing 3 undetectable and unrecoverable acts of vote fraud. 4 As election administrators know, strong 5 procedures and safeguards are already in place to 6 ensure the security of elections throughout the 7 country, and are constantly being updated and refined 8 as new threats are identified. 9 We encourage this body to help publicize 10 the level of checks and balances currently employed 11 by election officials, and we encourage you to help 12 state and local officials develop a set of best 13 practices to ensure security. 14 While we discuss the process more fully in 15 our written submission to the Commission, this panel 16 and this audience should not under-estimate or ignore 17 the value of existing safeguards, many of which we 18 have listed earlier but involve all the several local 19 checks and balances, as well as system design. 20 As the Commissioners know, there is a 21 community of activists, election officials, and 22 interested observers watching this ongoing debate 142 1 very closely. While it appears at times that some of 2 the calls for increased security, accessibility, and 3 ease of use are mutually exclusive, that is not the 4 case. 5 Sequoia has developed two extremely 6 secure, accessible, and user-friendly electronic 7 voting systems that have been deployed with great 8 success for countless elections over the last two 9 decades. 10 Sequoia does not believe that voter 11 verifiable paper records are a mandatory component of 12 a secure and accurate election. However, we 13 recognize that perception is nearly as important as 14 reality when it comes to the confidence and integrity 15 of the vote. 16 As new auditing features such as the 17 contemporaneous paper record are requested or 18 required, we will meet that demand with an upgrade 19 that is as easy for poll workers and election 20 officials as possible, while ensuring the greatest 21 degree of accessibility for voters who need it. 22 Throughout the history of election 143 1 administration and reform, change has always caused 2 concern. Concern and experience have always led to 3 continuous improvements, and the issues facing this 4 panel are no different. 5 As the Commission considers the state of 6 election reform nationally and looks at the best ways 7 to improve the conduct of elections, please look at 8 all aspects of the administration of elections and 9 remember that for any improvement to work well it 10 must be easy for voters, poll workers, and election 11 officials. 12 We also request that once rules are set 13 they are allowed to remain in effect and work for a 14 substantive period of time. Continued revisions to 15 voting system standards and election laws will only 16 complicate the process further and risk significant 17 problems in the future. 18 In the end, when millions of voters and 19 more than 1 million precinct officials take to the 20 polls, we will all succeed or fail because of the way 21 in which we balance the combination of security, 22 accessibility, accuracy, reliability, and simplicity. 144 1 CHAIRMAN SOARIES: Thank you, so much. 2 I am deeply appreciative, again, of your 3 presence. It is heart warming to see competitors sit 4 so amicably at a table-- 5 (Laughter.) 6 CHAIRMAN SOARIES: --and we respect your 7 right to proprietary information. If we ask 8 questions that go beyond a border which should not be 9 crossed, we respect your right to say so. 10 We recognize that there may be matters 11 being litigated in various companies and would not 12 expect you to violate any principles of common sense 13 or corporate responsibility. 14 Generally, again we appreciate the fact 15 that this very public proposition is in large measure 16 being managed by private companies. Where I'm from-- 17 we're from New Jersey, Dr. Chung, people go into 18 business to make money. Therefore, somehow we accept 19 the responsibility to behave in such a way to balance 20 of the interests that companies have to make money 21 with the need the country has to have a process of 22 voting that has integrity. And our questions will be 145 1 within that frame. 2 Mr. McClure, I am going to try to ask a 3 few brief questions and then have the Commissioners 4 take over. 5 You mentioned risk assessment. I wasn't 6 clear from your testimony whose responsibility you 7 think that is. Whose responsibility is it to do risk 8 assessment work in this industry? 9 MR. McCLURE: I don't think anybody can 10 identify to take responsibility for the security 11 requirements outside of that contained in the Voting 12 System Standards. And as those standards increase in 13 their requirement levels of security, some element of 14 risk assessment needs to be included as part of that. 15 So whether that's part of the standards 16 development or with some augmented group of people, I 17 don't have an answer for you on that. 18 CHAIRMAN SOARIES: I see. All of us know 19 that much of what creates the pressure around issues 20 related to integrity is perception. We all know 21 that. As Commissioner Hillman noted, the perception 22 was that lever machines count our votes. And so for 146 1 90 years no one raised a question of having a way to 2 verify the fact that that happened. 3 And some of our concerns relate to our 4 responses to people who have perceptions of your 5 industry. One of the perceptions is that your 6 industry is quite incestuous, and that there is a 7 cross-breeding of roles that really create a basis 8 for suspicion. 9 So I would like to understand, having said 10 that, Mr. McClure, you are a vendor whose work will 11 be subject to standards, but you are also Project 12 Manager for the IEEE Project 1583 Voting Systems 13 Standards Project? 14 MR. McCLURE: Correct. 15 CHAIRMAN SOARIES: From the outside, 16 should someone be concerned about the fact that as a 17 vendor you are also managing a process that could 18 recommend standards under which your products could 19 be scrutinized? 20 MR. McCLURE: Actually, if you take a look 21 at the promulgation of any standard that's been 22 developed by IEEE or other bodies, those are put 147 1 together by interested parties in the industry, 2 whether it's vendors within the industry, whether 3 it's just technical observers or other people who 4 want to participate, that's generally were standards 5 come from. 6 And so the IEEE embraces a process of 7 consensus standards, and that involves a number of 8 different people from different disciplines. In 9 fact, one of the measures of the validity of a ballot 10 for voting on a standard is: Is it balanced? Does 11 it have representative across the spectrum of 12 potential contributors so it's not biased in any one 13 manner? 14 There are other vendors on that group, and 15 we are providing a lot of information to help educate 16 some of the security people that are involved. So it 17 brings a balance to that group, and it is a necessary 18 part to develop these kinds of public standards. 19 CHAIRMAN SOARIES: Good. Thank you. 20 DR. CHUNG: May I make a comment on that? 21 CHAIRMAN SOARIES: Sure, Dr. Chung. 22 DR. CHUNG: I do have concerns about those 148 1 particular issues. Even though I recently joined the 2 committee just because I thought every's in there, I 3 must have a voice as well, for the standard for 4 industry traditionally has been set primarily to meet 5 the compatibility issues. Or, that if there has to 6 be the same material, it be the same, all the same. 7 Voting machine was not supposed to be 8 spec'd like a compatible system. We don't talk to 9 each other in our system. It's just to tabulate the 10 result out and that the result be able to be 11 reported. 12 I have a huge concern that IEEE actually 13 gets involved in specifications of setting something 14 that is merely on performance level. I would prefer 15 to see it to be set by NIST and under your 16 supervision. 17 CHAIRMAN SOARIES: Okay, thank you. 18 Mr. Radke, January 29th of this year your 19 company issued a press release that said: The same 20 Diebold Election System used in Maryland has proved 21 to be more than eight times more accurate than paper 22 balloting in other states. 149 1 How do you know that? 2 MR. RADKE: That would be based on such 3 things as under-voting statistics and so on. Again, 4 it's a statistical fact based on the information that 5 we had for those elections. 6 CHAIRMAN SOARIES: So when you use the 7 word "accuracy," you haven't really taken into 8 account the possibility of tampering and issues such 9 that Dr. Rubin raised? 10 MR. RADKE: Actually, no. We feel our 11 system is very secure and so that is not taken into 12 consideration. And quite honestly, no, there were no 13 reports of any tampering or fraud involved with that 14 election. 15 CHAIRMAN SOARIES: Would you help us 16 understand the circumstances surrounding the 17 installation of patches in Georgia in the 2002-- 18 before the 2002 primary-- 19 MR. RADKE: Yes-- 20 CHAIRMAN SOARIES: --where the allegations 21 were that those patches were neither certified by the 22 ITA nor cleared with Georgia election officials? 150 1 MR. RADKE: Actually, I believe Bret 2 Williams could talk to you more clearly about that 3 than I could, but I'll say what needed to be done 4 there was a change, a modification to the operating 5 system not to the tabulation software on our touch 6 screen voting systems. It did not affect the 7 tabulation process at all. 8 We had a situation where, quite honestly, 9 we had a few screens that had difficulties on some of 10 the units and it was affected by the operating 11 system. So since it did not affect the tabulation 12 process at all and did not affect that software, the 13 operating system was modified. 14 And after those modifications were done, 15 all the logic and accuracy testing was completed 16 after that was done. So all the machines, every 17 touch screen was tested before it was deployed for 18 that election. 19 CHAIRMAN SOARIES: Thank you. You made a 20 very strong statement about the parallel monitoring 21 system and the results-- 22 MR. RADKE: Yes, sir. 151 1 CHAIRMAN SOARIES: --in California where 2 in one jurisdiction it was 100 percent. 3 MR. RADKE: Actually, sir, touch screen 4 voting stations, a select number were pulled from 5 each jurisdiction and brought back to an area and 6 tested. So it was not one from just one 7 jurisdiction. It was from multiple-- 8 CHAIRMAN SOARIES: A sample. 9 MR. RADKE: Yes. In fact, all four of our 10 Acuvote TSX jurisdictions had equipment pulled from 11 them and were tested. 12 CHAIRMAN SOARIES: And did you say that 13 the secretary of state supervised that parallel 14 monitoring process? 15 MR. RADKE: His staff, yes, conducted part 16 of that; correct. 17 CHAIRMAN SOARIES: I'm trying to 18 understand. If the secretary of state of California 19 knows that parallel monitoring can produce those 20 kinds of results, that's the same secretary of state 21 who de-certified your equipment in four counties. 22 Correct? 152 1 MR. RADKE: Yes, sir. 2 CHAIRMAN SOARIES: How does that--can you 3 help us--we're not from California--can you help us 4 understand-- 5 MR. RADKE: I cannot speak for the 6 secretary of state. 7 CHAIRMAN SOARIES: Well he will be here. 8 I'll ask him. I was just wondering from a corporate 9 perspective. 10 Has your company learned any lessons as a 11 result of having the CEO express such a strong 12 political preference while being in the vendor 13 business in elections? 14 MR. RADKE: You have no idea how many 15 lessons we have learned from that. 16 (Laughter.) 17 MR. RADKE: Yes. In fact, our CEO, as 18 stated in the media, has pulled back from all fund 19 raising activities. It's a situation where he does 20 regret making that statement, and again has backed 21 away entirely from that situation. And basically 22 that's the story in a nutshell, quite honestly. 153 1 He has not been involved with any fund 2 raising activities for about a year now. 3 CHAIRMAN SOARIES: I'm glad to hear that. 4 Dr. Chung, has your company done any 5 research that measures the likelihood of a person 6 looking at the paper if the machine has a paper 7 trail? 8 DR. CHUNG: "Research" I wouldn't call, 9 but I was in all the elections that we hold. In the 10 10 days in the election in California, and in one 11 days I visited all the polling places, from what I 12 saw 80 percent or more of the people looked at the 13 paper record. 14 CHAIRMAN SOARIES: You wouldn't call that 15 "research" would you? 16 DR. CHUNG: I wouldn't call it research 17 because everybody would say I would be biased. 18 CHAIRMAN SOARIES: We don't have 19 sufficient research to come to scientific conclusions 20 from a useability standpoint. 21 DR. CHUNG: No. I would treasure next 22 time somebody do it. 154 1 CHAIRMAN SOARIES: Okay, good. 2 Mr. Welsh, I really have the same question 3 for you and for Mr. Radke. I am dealing with public 4 perception now. Much of what we respond to is coming 5 from people who are not inside the industry. 6 I think, if I am not mistaken, the 7 president of one of your companies is related to the 8 vice president of one of your companies. Is it 9 Yurosovich? 10 MR. WELSH: That is correct. 11 CHAIRMAN SOARIES: Is that true? 12 MR. WELSH: Bob Yurosovich. 13 CHAIRMAN SOARIES: Bob Yurosovich is-- 14 MR. WELSH: --works for Diebold. 15 CHAIRMAN SOARIES: He is the vice 16 president of Diebold? 17 MR. WELSH: President. 18 CHAIRMAN SOARIES: He's the president of 19 Diebold. And Todd Yurosovich? 20 MR. WELSH: Runs our customer service 21 operations. They both happen to be born and raised 22 in Omaha. Both were in the election business. 155 1 CHAIRMAN SOARIES: If you didn't work for 2 your companies, if you were just an average person 3 and you bumped into the fact that two brothers are 4 top executives in the largest providers of electronic 5 voting equipment in the country, just as an average 6 person would you want to know more about that? 7 MR. RADKE: Sir, could I answer that 8 question initially, and then I'll let Mr. Welsh 9 answer. 10 CHAIRMAN SOARIES: Yes. 11 MR. RADKE: Not knowing the testing that 12 goes on with the systems and all the checks and 13 balances involved in that, you might want to ask one 14 more question because of that, yes, but quite 15 honestly when that person would become educated in 16 knowing that there is the ITA testing that is 17 completed, the state testing of the systems and 18 acceptance testing and so on, and then the logic and 19 accuracy testing for every election, I think once 20 people realize that those are in place and there are 21 stringent checks and balances, and you do have 22 Democrats and Republicans running the polls at every 156 1 location and so on, I mean that's some very good 2 information they need to know. 3 CHAIRMAN SOARIES: Well the problem is 4 people keep hearing that the certification process is 5 inadequate and we need more funding and we need more 6 time. And so I think as information begins to 7 spread, the average person who is not in on the 8 details has questions, and I think they are putting 9 demands on us in light of this perception. 10 Again, the lever machine was the 11 beneficiary of public perception that assumed 12 integrity in outcomes. I think the electronic 13 machines are being scrutinized by a different kind of 14 perception, and our job really is to protect the 15 interest of the average person who doesn't look at 16 ITAs and certification. 17 And ESS, your web site makes some very 18 strong statements about never having any security 19 problems, and again perception. People don't know 20 the difference between an encoder and an encryption. 21 The Nebraska problem that you have, has 22 your company learned anything about the Adams County, 157 1 Nebraska, problem that created some ripple effect 2 around the country? 3 MR. WELSH: Well the Adams--I don't think 4 this microphone is working-- 5 CHAIRMAN SOARIES: It will be on in a 6 second. 7 MR. WELSH: The Adams County situation, I 8 am frankly not that familiar with and I'll say this. 9 I retired last year. I am still on the Board of 10 Directors of the Company, but I am not actively 11 involved in the day-to-day business. 12 So I am not in a position to tell you what 13 did or did not happen in Adams County. I'm really 14 not. If you would like a written synopsis of-- 15 CHAIRMAN SOARIES: Yes, if you could get 16 somebody who goes to work at your company-- 17 MR. WELSH: I will do that. 18 CHAIRMAN SOARIES: --to send me just a 19 little note on the Adams County, Nebraska, situation. 20 MR. WELSH: We'll do that. 21 CHAIRMAN SOARIES: Because it is very 22 difficult for the average person to separate what may 158 1 look like an isolated situation in one place from a 2 general level of confidence in voting. 3 I just want to ask Sequoia one question. 4 MR. WELSH: I can make one comment that I 5 would like to say about Adams County. They use 6 precinct--I mean they use optically scanned ballots. 7 So there was a paper record of the entire vote 8 process. 9 CHAIRMAN SOARIES: Yes. Sequoia has 10 developed something called the ABC Edge Touch Screen 11 With Voter Verified Paper Records. What standards 12 did you consider relevant in the development of that 13 technology? 14 MR. CHARLES: The voter verifiable 15 printer, or the product name for it is Verivote 16 Printer, is something that we developed based on 17 discussions that we've seen in the marketplace in 18 questions that were raised in the California Touch 19 Screen Voting Task Force. 20 We used our experience. We used the 21 existing federal standards as a guideline. And we 22 also used the draft California standards as a 159 1 template for how to put that together. 2 It is currently in federal testing right 3 now. What they are testing for is all of the 4 environmental requirements, all of the accuracy, the 5 reliability, all of those features. And the 6 functionality pieces of it are modeled along the 7 lines of what the California Secretary of State's 8 office has put together as draft regulations. 9 CHAIRMAN SOARIES: Okay. Commissioner 10 Hillman. 11 VICE CHAIR HILLMAN: As I did with the 12 previous panel, I have two questions but one of which 13 I would ask you all to submit in formation in writing 14 on. 15 That is, I would like to know your 16 experiences with the ITA Certification process--any 17 observations, suggestions, recommendations you would 18 have--and a comparison of that certification process 19 with state certification processes that you all may 20 have gone through. 21 My question revolves around customer 22 service. I spent most of my career in the nonprofit 160 1 and government sectors and we were always pointed to 2 the customer service attitudes of corporations as 3 examples of what we should build into our work. 4 I think maybe some of that has changed a 5 little bit over the years, but nonetheless customer 6 service always stands high when people are talking 7 about mission and product. 8 And as I think about who your customers 9 are, I wonder if there ever comes a time when there 10 is a conflict between what the voter wants or 11 expects, what the election administrator believes he 12 or she needs to do to properly administer the 13 election, and what your company is trying to achieve 14 either toward the bottom line or for the marketing of 15 your product. 16 And if each of you could just briefly 17 comment on that, I would appreciate it. 18 MR. CHARLES: If I can start, customer 19 service is essential in the election environment. 20 Not only is it important to make sure that you 21 provide the product and provide it on time or on 22 schedule so that election officials have what they 161 1 need, you need to anticipate problems that they may 2 have and prepare them for those. 3 We as a company have set a rule that we're 4 not going to bid on business or accept business that 5 we're not able to support. That has cost us some 6 business at times, but in exchange we have had an 7 extremely successful track record of providing 8 operational support to the customers that we have. 9 I think that the service we provide is the 10 foundation that election officials use to tabulate 11 votes and to have confidence. We need to make sure 12 that we provide all of the support that they need, 13 and the public needs to understand that that support 14 is not only essential to the conduct of the election 15 but for the preparation that takes place several 16 months before. 17 We are concerned when rules change at the 18 last minute or new requirements are set too close to 19 an election to allow election administrators to put 20 the processes in place and to test the processes and 21 procedures before an election. 22 I think that is something that if I can 162 1 stress anything to this panel, it is that we set the 2 rules well enough in advance that we can meet the 3 requirements and election officials can implement 4 them in a timely fashion. 5 MR. WELSH: In our particular case, when I 6 testified in front of Congress several years ago when 7 HAVA was just a brain child and being considered, one 8 of the points that I made in that presentation was 9 that you can spend all the money you want to spend on 10 technology and you're not going to get better 11 elections. Better elections only come through 12 education, training, and that includes the electorate 13 as well as those in an election administration. 14 I was very strong in my statement, and I 15 still feel this today, that jurisdictions probably 16 should be spending almost as much money on the 17 education and training aspects of the electoral 18 process as they do on the equipment and services and 19 systems. 20 CHAIRMAN SOARIES: You don't have to 21 speak, now. 22 (Laughter.) 163 1 DR. CHUNG: I don't exactly know your 2 questions, more in the sense is there ever a conflict 3 between let's say the jurisdiction asking us as a 4 vendor to do what might violate some possibly some 5 laws that we know of, I've never seen something that 6 we will help the jurisdiction that will not be good 7 for the voters, as your question put it. 8 So if there is ever, and it did happen to 9 us, is that we believe there's a conflict between 10 what the jurisdiction wants us to do and what we 11 believe is not allowed by law, in that case we will 12 ask them to sign an agreement that they take the 13 responsibility. We don't touch it. We will help 14 them to do it. Then if they do it, that's their 15 responsibility. 16 VICE CHAIR HILLMAN: So you said that did 17 happen? 18 DR. CHUNG: It will happen. It happen 19 once. 20 VICE CHAIR HILLMAN: Thank you. 21 MR. RADKE: I would have to say there's 22 actually two points I'd like to discuss here very 164 1 quickly. 2 Number one is the fact that, as you know, 3 election laws change and we have to react to that. 4 And I think it is imperative that everyone has a 5 clear understanding of what that means as far as the 6 certification process, implementation process, and so 7 on. And quite honestly we just wrestled with this in 8 California. That was one of the issues that we did 9 face, and that is why we had to go with the state 10 certification instead of an FEC certification for the 11 election that did take place in March. And that was 12 a difficult situation. 13 It has taken over nine months for us to 14 get software through for certification for 2002 15 standards, and that affected us with the State of 16 California. 17 The second point I'd like to make, and I 18 would have to agree with the statement that was made 19 before, voter outreach is critical to success. I 20 have to applaud the State of Georgia because we did 21 statewide implementation deployment there for the 22 2002 gubernatorial election, and they spent I believe 165 1 it was an additional $4- or $4.5 million on voter 2 outreach. And because of that, after the election 3 concluded they did a survey and found that 4 approximately 97 to 98 percent of all the voters had 5 absolutely no problems using the system. So it was a 6 phenomenal success from that standpoint. That was 7 159 counties at one time. 8 MR. McCLURE: As I understand your 9 question about customer service and some maybe 10 conflicts between voter needs and county officials, 11 Hart InterCivic has been in the election business for 12 100 years printing ballots, and their entry into the 13 DRE market was really based on a sterling reputation 14 of customer service over the years. You don't stay 15 in any one business and not treat your customers very 16 well. 17 When we developed the eSlatetm Voting 18 System, we actually identified five different 19 customers for an election system: Voters, poll 20 workers, election officials, state officials, and 21 federal level officials. So that has a pretty broad 22 scope of customer needs, and each part of the system 166 1 needs to be able to address the needs of those 2 customers. 3 As far as voter versus what's best for the 4 voter, county official, elected official, some of the 5 challenges that we have been faced with is knowing 6 some useability issues versus a county who has been 7 accustomed to running a process a certain way, and 8 where we have found ourselves brokering what was in 9 the best interests of a useability type of situation 10 versus adhering to a paper process that they used 11 previously. 12 So there had been some interesting 13 discussions and efforts with county officials and 14 outreach to voter to try and bring those two 15 together. 16 VICE CHAIR HILLMAN: Thank you. 17 CHAIRMAN SOARIES: We have a few moment 18 left. Do you have questions? We have got to ask in 19 such a way to facilitate quick responses because 20 we've got to get back in time after lunch. 21 COMMISSIONER DeGREGORIO: Thank you, Mr. 22 Chairman. 167 1 Kim Brace mentioned this morning that 2 there are 10 states that do not release data on over 3 and under voting. Do you all have a problem with 4 data from machines that you sell in these states, or 5 any state, releasing the data on over and under 6 voting? 7 MR. McCLURE: No. 8 MR. CHARLES: No. 9 (Panel nods.) 10 CHAIRMAN SOARIES: That was so easy to 11 say. Do you have like an association? 12 (Laughter.) 13 CHAIRMAN SOARIES: Are there certain 14 things that you-- 15 COMMISSIONER DeGREGORIO: Is that your 16 next question? 17 VICE CHAIR HILLMAN: Their heads worked in 18 unison. 19 COMMISSIONER DeGREGORIO: The next one may 20 be a little more difficult to reach a consensus on, 21 but there's been a debate about this open-source 22 software and whether it should be released or not. 168 1 Do you believe that a widespread review 2 would increase or decrease voting system security, 3 and why? 4 MR. McCLURE: One of the challenges when 5 applying an open-source code environment is what are 6 we comparing to. And probably the most relevant 7 example is Linux. 8 Linux is an operating system, and it's an 9 open-source system, and by its nature if you are a 10 user of Linux and find a bug you are responsible for 11 fixing it. 12 So if we apply that model to the voting 13 system industry, I'm not sure, number one, that it 14 applies; and, number two, there are a number of 15 concerns that if we were to expose our software--I 16 mean I believe personally that nobody sitting here at 17 this table has anything to hide, but what do we do 18 with the workload and the criticism of our software 19 and our code, whether it is unfounded or has some 20 basis? 21 Everybody has an opinion about good 22 software design. We happen to be following a 169 1 guideline that is in the federal voting system 2 standard. 3 CHAIRMAN SOARIES: Could I do this? This 4 is a very--this topic deserves a panel all by itself. 5 And if you could just allow me to lead for a second, 6 if you would just send us comments on the open source 7 versus closed source issue. 8 And if you would, include in that this 9 issue of commercial off-the-shelf software which is 10 not subject to certification, but which is subject to 11 modification for adaptation which then should perhaps 12 make it subject to certification. There's some 13 tension there between the commercial off-the-shelf 14 software that kind of slips in under the radar. 15 Again, this is the perception of many 16 people, when it in fact should be subject to 17 certification given the amount of modifications that 18 occur. I'm sorry. 19 COMMISSIONER DeGREGORIO: That's fine, Mr. 20 Chairman. 21 CHAIRMAN SOARIES: We'll never get there 22 if I don't do something. 170 1 (Laughter.) 2 COMMISSIONER MARTINEZ: One quick 3 question. 4 Mr. McClure, as a matter of routine 5 practice when you sell your system to a voting 6 jurisdiction, a county government or a municipal 7 government, do you send out your own company's 8 technicians to go and service that equipment during 9 an election? How does that process work? 10 MR. McCLURE: We're involved in the 11 installation process. And as part of an installation 12 contract, we will have election support as part of 13 that. But the system is set up that the day it's 14 sold, a county would not need our support for any 15 reason. They can run and operate the system on their 16 own. It's just as part of the change management we 17 continue to be involved. 18 We've been in Harris County for a couple 19 of years now. I didn't even know they had an 20 election going on there recently. So that our level 21 of involvement has dropped off with some of our first 22 customers. So it is mainly as a support, and it is 171 1 on county request. 2 COMMISSIONER MARTINEZ: Mr. Charles, is 3 that the same thing with your company? As a matter 4 of routine practice, do you send out your own 5 technicians? 6 MR. CHARLES: It will vary by 7 jurisdiction. Jurisdictions that are large enough to 8 have the technical expertise on site can do that. 9 Other times they will contract with us to assist in 10 the administrative process. 11 All of the tallying and those functions 12 are done by government officials, but some of the 13 more technical components may be done. We also offer 14 a training and certification process so that 15 technicians in counties that are large enough to do 16 it can come back to our manufacturing facility and 17 become factory-trained technicians to do their own 18 repairs, if necessary. 19 COMMISSIONER MARTINEZ: One of the 20 criticisms that I've heard is the level of discomfort 21 that is out there if the vendor is out there in the 22 field servicing their own product with their own 172 1 technicians during an election. So you understand the 2 nervousness that I think the average lay person would 3 have when they find that out, quite frankly. 4 So is there some guidance that you give 5 your technicians? I mean, a machine breaks down; 6 don't reload the software? Or don't do certain 7 things, to make sure that you're not putting 8 something in new, I suppose, that hasn't been through 9 some sort of a checks and balances process? 10 MR. CHARLES: I think that is the earliest 11 step. What technicians do on election day is really 12 trouble shoot and provide poll workers with the 13 guidance they need to work through a glitch. 14 A lot of times what a technician will do 15 is essentially in-field training. If a poll worker 16 doesn't understand how to operate something, that 17 technician will train them how to do that. 18 In an election, if there is a problem with 19 a machine, the machine is shut down. It's not 20 reloaded with new software. There's no field level 21 logic and accuracy testing, or any of those types of 22 things. Those incidents are rare, but never would 173 1 anybody do any sort of reprogramming at all of an 2 election. There is simply an operation that takes 3 place on election day. 4 CHAIRMAN SOARIES: Let me thank the 5 Commissioners for their restraint, and thank you for 6 your discipline. I want to say that, again, this 7 Commission understands the impact we could have on 8 your industry and therefore we are committed to 9 behaving in such a way to not provide disincentives 10 for private investment in your line of work. 11 At the same time, we understand the need 12 for public accountability on this very sensitive 13 issue and we hope to balance those two. When you 14 feel that we are behaving such that it is a 15 disincentive or threat to your doing business, we 16 need to know that. Because I think in our lifetime 17 we will need the private sector as a key partner in 18 making both happen. 19 Mr. Welsh, I want to thank you for coming. 20 I am honored to meet you and, no disrespect intended, 21 but the next time we have a meeting I would hope your 22 company would make a decision to send someone who 174 1 goes to work every day and can answer questions about 2 current and potential future activities, and we just 3 want that to be part of our record. 4 But you did a fine job. Your written 5 testimony is eloquent, and I am sure your tenure at 6 the company was successful. But every company has 7 chosen to send people who go to work every day. One 8 sent a CEO, and I just will communicate with ES&S our 9 disappointment with that decision, in spite of our 10 satisfaction with your presentation. 11 MR. WELSH: I am still active on the Board 12 of Directors. I'm just not active in day to day. 13 CHAIRMAN SOARIES: I understand. 14 For those who are guests, we are going to 15 break for lunch and I've got to give you some 16 critical information. We are going to start our 17 third panel sharply at 12:45. 18 (Whereupon, at 12:02 p.m., the hearing was 19 recessed for lunch, to reconvene at 12:45 p.m., this 20 same day.) 21 22 175 1 AFTERNOON SESSION 2 (12:45 p.m.) 3 CHAIRMAN SOARIES: We are ready to 4 reconvene. We are ready to begin our third panel. I 5 want to thank the audience. We have not begun yet, 6 but we are preparing to begin. 7 I would like to thank the audience for 8 their cooperation, those who were here this morning, 9 you were a perfect audience. I hope that we will 10 continue this afternoon in the same spirit of 11 civility and order. 12 I would like to remind you to turn off, or 13 at least turn to a silent mode your electronic 14 devices. That will be very helpful to us. 15 We have two of our four distinguished 16 panelists seated. We have number three now, and I 17 know I have seen evidence that number four is close 18 by. 19 We have as our first panel this afternoon 20 the practitioners of the voting process, persons who 21 have high respect among their peers and certainly 22 have the respect of this Commission. 176 1 Let me say as I prepare to introduce our 2 panelists that the Election Assistance Commission 3 takes seriously the word "assistance" in our title. 4 We perceive our role as one where we offer assistance 5 to the people on the ground who do the work. 6 And for those who may be new to the 7 process, please be reminded that it is not the 8 responsibility of the EAC or the Federal Government 9 to dictate to voting jurisdictions what kind of 10 voting equipment they use. 11 This hearing is being held today based on 12 an assumption that there will be jurisdictions that 13 use electronic voting. As Commissioner Martinez 14 mentioned in his opening remarks, we will also be 15 working on developing guidance for punch card 16 districts, for optical scan districts, and for lever 17 districts. 18 So the fact that we're focusing on 19 electronic voting should not be used to infer that we 20 recommend any particular type of voting device. 21 Rather, we are here to assist voting jurisdictions 22 and elected administrators and voters once they 177 1 decide what kind of voting device to use. 2 Our panel consists today of the Director 3 of Elections for the State of New Mexico, Denise 4 Lamb; the County Clerk and Registrar for Los Angeles 5 County, Connie McCormack; the Assistant Secretary of 6 State and Director of Elections Administration for 7 the State of Georgia, Kathy Rogers; and the Secretary 8 of State of California, Kevin Shelley. 9 Mr. Shelley was scheduled to speak first. 10 We will proceed, and we will switch his order to 11 accommodate whatever time he arrives. 12 Let us begin with Assistant Secretary of 13 State Kathy Rogers. 14 STATEMENT OF THE HONORABLE KATHY ROGERS, 15 DIRECTOR OF ELECTIONS ADMINISTRATION, 16 OFFICE OF THE GEORGIA SECRETARY OF STATE 17 MS. ROGERS: Thank you, Chairman Soaries. 18 CHAIRMAN SOARIES: We will need you to 19 speak as directly into the mikes as you can to 20 facilitate the technology. 21 MS. ROGERS: Thank you, Chairman Soaries, 22 and Commissioners of the EAC. 178 1 The 2000 Presidential Election served as a 2 wakeup call to a Nation of voters and to election 3 officials. Alarmed by the high number of under votes 4 recorded by voting equipment in Florida, Secretary of 5 State Kathy Cox compiled data on under votes 6 experienced with Georgia's then-existing equipment, 7 which was a huge mix of lever, punch, and optical 8 scan. Even paper ballots in two counties. 9 The findings were staggering. Not only 10 did Georgia have a higher under vote rate than 11 Florida, at 3.5 percent our under vote rate far 12 exceeded the national average of 1.9 percent, and was 13 reported by the Cal Tech/MIT Study to be the third 14 worst in America. 15 Further analysis documented extremely 16 large variations in the same county using the very 17 same equipment. The findings and the wake-up call 18 report were alarming enough that in 2001 the General 19 Assembly passed Senate Bill 213 which created the 20 21st Century Voting Commission. 21 This multi-partisan group was tasked with 22 studying the accuracy and reliability of all 179 1 nationally qualified voting systems and to provide a 2 report to the General Assembly. 3 Altogether, the State of Georgia conducted 4 a full year of study, evaluation, and due diligence 5 before we made our recommendation to adopt a 6 statewide uniform electronic system of voting. 7 Georgia is extremely fortunate to have the 8 Center for Election Systems at Kennesaw State 9 University as our independent technical capable 10 partner responsible for testing and certification of 11 all election equipment. 12 Upon completion of national testing, 13 experts at the Center for Election Systems under the 14 direction of Dr. Brett Williams reviewed the system 15 for compliance with state law and tested the system 16 for the presence of any unauthorized or fraudulent 17 code. 18 After the equipment has been certified, 19 the vendor is then allowed, and only then allowed, to 20 install equipment in the local jurisdictions. 21 Once it has been installed by the vendor 22 in the local jurisdictions, technicians from the 180 1 Center for Election Systems travelled to each county 2 to test the equipment independently and to verify the 3 accuracy and to verify that it's the same system 4 which was certified at both national and state level. 5 In the 2002 general election, technicians 6 from the Center for Election Systems tested and 7 touched over 22,000 individual touch-screen units, 8 over 9000 encoders, and 159 election management 9 servers. 10 To date, today our independent testers 11 continue to travel to each of Georgia's 159 counties 12 to independently test and verify that the system is 13 the system that was given to us by the vendor. 14 November 2nd, 2002, was an extremely 15 historic day for Georgia. For the first time, every 16 voter was afforded the opportunity to cast a ballot 17 in the same manner using the very same equipment. A 18 voter in one county did not receive the advantage of 19 better technology while his counterpart in a 20 neighboring county voted on antiquated voting 21 equipment prone to high error rates. 22 Voters who had previously never cast an 181 1 independent ballot shared with us their feeling of 2 pride and accomplishment at being able to utilize the 3 features of electronic voting that allowed them to 4 vote independently for the very first time. 5 The Carl Vincent Institute of Georgia at 6 the University of Georgia conducted a public opinion 7 survey following the 2002 general election that found 8 that Georgians overwhelmingly prefer electronic 9 voting to other methods. 10 More than 70 percent of respondents said 11 they felt very confident in the voting system. 97 12 percent of voters said that they experienced no 13 difficulties when using electronic voting. 14 Six years ago, Georgia's antiquated voting 15 platform at the top of the ballot U.S. Senate under 16 vote was 4.8 percent of all ballots cast. In 2002, a 17 direct comparison at the top of the ballot: U.S. 18 Senate race was a mere 0.87 percent. That is a more 19 than five-fold reduction in under voting. It is a 20 decrease of 71,000 ballots that showed no choice in 21 the top-of-the-ballot race. And it is clear and 22 convincing evidence that an electronic voting 182 1 platform that prohibits over votes and offers a 2 summary screen to the voter to check and review can 3 dramatically improve the accuracy of the vote count. 4 The paper receipt debate has generated a 5 great deal of inaccurate, false, and misleading 6 information. No system, whether electronic, 7 mechanical, or paper based can be made 100 percent 8 invulnerable to attack. But the facts are that our 9 current uniform system of voting is more secure than 10 any type of voting in the history of Georgia 11 elections. 12 We did not in the State of Georgia simply 13 sign a contract with a vendor and walk away from this 14 process. To the contrary, the Secretary of State's 15 office in Georgia has continued to provide oversight 16 and direction through every step of the process, and 17 we continue to do so today with the assistance of the 18 Kinnesaw Center for Elections. 19 Let us briefly consider the practical 20 realities of paper receipts: 21 How is each receipt collected? 22 How does the voter view it? 183 1 What is the official record of the 2 election? 3 If it's the paper, then what happens if so 4 much as one piece of paper is mangled or destroyed by 5 a mechanical printer? 6 Is the entire election then in jeopardy? 7 How do poll workers handle the complex 8 addition of a paper receipt? 9 Not only must poll workers be carefully 10 trained, but equipment must be designed to minimize 11 the technical and operational requirements. 12 Just as important, we should make certain 13 that the addition of a paper receipt, if implemented, 14 does not put us back into the same soup of 15 unacceptably high under vote rates that we have 16 worked so hard in Georgia to overcome. 17 In the vacuum of a computer science lab, a 18 new paper receipt prototype may appear very simple 19 and very foolproof, but in the real world of 20 elections with equipment that must be accessible to 21 voters with widely differing levels of education, 22 literacy, language proficiency, experience, and 184 1 physical ability or disability, it is crucial that 2 the user interface be simple, straightforward, and 3 intuitive. 4 Georgia spent enormous time doing its 5 homework before we implemented our system, and that 6 due diligence paid off with plummeting undervote 7 rates across all demographic groupings. 8 It would be tragic if a hurried and 9 inadequately researched requirement for a paper 10 receipt makes that voter interface so complicated 11 that it increases the voter confusion. 12 The Office of the Secretary of State of 13 Georgia is not opposed to any change which 14 contributes further to the umbrella of security. We 15 do, however, oppose any change which will erase all 16 of the giant steps that we have taken forward in the 17 last two years. 18 This Commission has a very difficult task, 19 to separate fact from fiction and assess the 20 strengths and vulnerabilities of voting system 21 alternatives. The claims and ascertations of 22 electronic voting opponents must be scrutinized with 185 1 the same ferocity that's been applied to the 2 statements and actions of equipment vendors and 3 election officials. 4 I would respectfully suggest that any new 5 standards adopted not only be carefully vetted in a 6 computer and technical environment, but that they be 7 proven to first do no harm in real-world election 8 settings with American voters and plenty of them. 9 No responsible election official would 10 come before you and claim that any system on the 11 market is the best that can ever be devised. A 12 culture of continuous improvement is one that we have 13 adopted in Georgia elections. 14 I am confident that this Commission will 15 exercise great care in evaluating electronic voting. 16 Thank you for allowing me to share my thoughts. 17 CHAIRMAN SOARIES: Thank you so much, 18 Secretary Rogers, and thank you for your hospitality 19 when we came to Georgia to visit for the primaries. 20 Please extend my heartfelt greetings to Secretary Cox 21 who could not be here. 22 We have been joined by the Secretary of 186 1 State of the small State of California. Secretary 2 Shelley, welcome to Washington. Welcome to the 3 hearing. We changed the order to get started, but we 4 would be happy to receive your testimony now. 5 STATEMENT OF THE HONORABLE KEVIN SHELLEY, 6 SECRETARY OF STATE OF THE STATE 7 OF CALIFORNIA 8 MR. SHELLEY: Thank you very much, Mr. 9 Chairman, and members. 10 For all the Monty Python fans that may be 11 here--anyone who remembers the show from the 1970s--I 12 will respectfully introduce my comments by saying: 13 And now for something completely different. 14 I want to thank this Commission for 15 holding these hearings, and for the difficult 16 challenges that lay ahead. 17 As California Secretary of State, I have 18 no greater priority than making sure as many votes as 19 possible are cast and very vote is fairly counted. 20 That is why we are working so hard to make sure that 21 every Californian can cast their vote with 22 confidence. 187 1 Unfortunately, many voters are entirely 2 either discouraged or too disconnected to make their 3 voice heard at the polls. We certainly cannot bring 4 these voters back to the polls if they are also 5 distrustful of the way their ballots are counted. 6 That is why I would like to briefly update 7 you on our efforts to restore voter confidence in the 8 integrity of the voting process. As many of you 9 know, just last week I followed the unanimous 10 recommendation of our panel of advisors and banned 11 the use of the Diebold TSX Touch Screen Voting 12 Systems in four counties. 13 Similarly, I followed that same panel's 14 unanimous recommendation to decertify all touch 15 screen systems in California until security measures 16 are in place to safeguard the November vote. 17 In particular, I am requiring counties to 18 install a voter-verified paper trail before November, 19 or to meet a series of security measures before I 20 recertify those systems. 21 These measures include everything from 22 ensuring the physical security of touch screen 188 1 machines, to prohibiting connections to telephone 2 modems during voting. 3 Many of these recommendations stem from 4 the Robber Report which previous speakers have 5 referenced. 6 I recognize these steps have been 7 controversial in some quarters. Some local election 8 officials do not agree that touch screens are 9 vulnerable. 10 I want to say here publicly that I greatly 11 respect and admire the work of these county 12 registrars. I am acutely aware of the fact that they 13 are on the front lines; that they are the ones the 14 public relies on to put on an election, and that time 15 and again they have come through for the voters. 16 And respectfully, to my good friend, Kathy 17 Cox in Georgia and Kathy Rogers who runs the election 18 day to day, I am proud to say in California that I 19 believe we have the finest local election officials 20 anywhere in the country. 21 It is with great reluctance that I 22 disagree, however, with the assessment of many as to 189 1 the security and reliability of touch screen systems. 2 But I want to be clear. 3 I do believe touch screen systems can be 4 reliable and secure, but the evidence to date 5 suggests that they are neither right now. Touch 6 screen systems can and should be more secure and more 7 reliable. 8 I know this panel will play a key role in 9 facilitating the changes needed. We have come a long 10 way since November 2000. California's March 2nd, 11 2004, primary election was the first election in 12 modern times in which no prescored punch card voting 13 machines were used in our State. 14 It was also the first election in which 15 over 40 percent of California voters were eligible to 16 cast their ballots on electronic voting machines. 17 Interestingly, that same 40 percent of our electorate 18 is also 40 percent of all the touch screens currently 19 in use in America. 20 Touch screen voting machines create the 21 possibility of making voting easier, and drawing the 22 disenfranchised to the polls. In particular, touch 190 1 screens have obvious advantages for the disabled and 2 non-English speaking voters. 3 Unfortunately, touch screens share many of 4 the problems we experience with our home computers. 5 Both are complex, prone to glitches, and vulnerable 6 to security challenges. 7 As much as I welcome the demise of punch 8 cards, we must recognize that the use of computer 9 systems in voting poses profound challenges to 10 election officials and regulators--far more profound 11 than any of us realize when the President signed HAVA 12 18 months ago, and perhaps more profound than we 13 realize even now. 14 I have come to Washington today, proud to 15 join this distinguished panel, to speak before you 16 and to speak about those challenges in the hope that 17 we can work together to address them. 18 I have had a number of opportunities to 19 speak with you, Mr. Chair, and Madam Vice Chair, and 20 I look forward to working with the other 21 Commissioners. 22 I am convinced the EAC can take a number 191 1 of measures that will greatly enhance the likelihood 2 that touch screens will fulfill their promise of 3 opening the polls to more voters and ensuring that 4 every vote counts. 5 Today I would like to address three 6 important issues. 7 CHAIRMAN SOARIES: Secretary Shelley? 8 MR. SHELLEY: Yes. 9 CHAIRMAN SOARIES: If you have the same 10 document I do, you are about a third of the way 11 through? 12 MR. SHELLEY: No, it's a short version. 13 CHAIRMAN SOARIES: Okay. Good. 14 (Laughter.) 15 MR. SHELLEY: But I got the hint. 16 (Laughter.) 17 MR. SHELLEY: Three important issues: 18 One, the need for an accessible voter 19 verified paper trail. 20 Two, improving Federal and State testing 21 procedures. 22 And three, the need for enhanced poll 192 1 worker training. 2 One, first I would like to address the 3 need for accessible voter-verified paper trails. I 4 was proud to be the first secretary of state to 5 require an accessible voter-verified paper audit 6 trail. I firmly believe that of all the changes that 7 can improve touch screens, this paper trail is the 8 most important. 9 We know that the possibility exists for 10 data to be corrupted or lost either due to security 11 breaches, human errors, or malfunctions. While the 12 likelihood of malfunctions is small, the likelihood 13 of security breaches and human error in my view is 14 much greater. 15 Is there anyone out there who would 16 attempt to hack an election? I would like to think 17 not. But the history of the Internet suggests 18 otherwise. And the irretrievable loss of election 19 results in even a single county in the Nation could 20 make the problems experienced with punch cards in 21 Florida look like a minor glitch. 22 A paper trail provides an iron-clad way to 193 1 recount votes, knowing that the paper record will 2 match the ballots actually cast. 3 Moreover, and perhaps even more important, 4 voters understandably feel more confident when they 5 can verify that their votes are being recorded as 6 intended. That increased level of confidence alone 7 justifies moving forward with a verifiable paper 8 trail right away. 9 In November 2003, I announced that I would 10 require an accessible paper trail by 2005. Last 11 week, in light of problems that occurred in the March 12 2nd, 2004, primary election, I modified this order 13 requiring that immediately any purchase of new touch 14 screen voting systems in California must have an 15 accessible voter-verified paper trail. 16 We are in the process of adopting our 17 first set of standards which will be in place by the 18 end of the month of May. I urge the EAC to follow 19 suit and initiate its process for the adoption of 20 federal standards immediately. 21 I know many say that we can't have a 22 voter-verified paper trail in place by November, but 194 1 I come here today to challenge that notion. I 2 challenge all of us, if we can work aggressively 3 together, to see if we cannot indeed have a paper 4 trail in place by the November 2004 election. 5 Many manufacturers and vendors we have 6 talked to appear poised to roll out this paper trail. 7 They're just waiting for standards if we can push 8 forward to make them happen. This panel must begin 9 that process. 10 Two, improving testing--very quickly, Mr. 11 Chairman. This panel performs an important function 12 at the federal level which is similar in many ways to 13 the functions of my office at the state level. 14 We are called upon to set standards for 15 voting equipment and to oversee testing. At both the 16 federal and state levels, I submit, that presently we 17 are poorly equipped to meet this challenge with 18 respect to touch screen equipment. 19 A brief story from the March 2nd election 20 illustrates the point. In the final weeks before 21 California's March primary election, every touch 22 screen system vendor sought approval of last-minute 195 1 changes to software, firmware, or hardware. 2 One vendor actually submitted ten requests 3 for last-minute changes. This 11th hour deluge of 4 requests for software, firmware, and hardware changes 5 was alarming. Very alarming. 6 Many of these changes had not received 7 federal qualification, and in some cases had not 8 even been tested for federal qualification. 9 Equally troubling, election equipment 10 vendors had no backup plan if last-minute 11 applications failed testing. 12 The result was a choice between using 13 equipment that had not been fully tested and 14 approved, or using no equipment at all. One of those 15 11th hour requests came from a manufacturer to permit 16 the use of a machine referred to as a precinct 17 control module. 18 CHAIRMAN SOARIES: Mr. Secretary, with all 19 due respect, so far your document matches my document 20 and you are now two-thirds of the way through. 21 MR. SHELLEY: I thought you had the long 22 version. 196 1 CHAIRMAN SOARIES: Okay. 2 MR. SHELLEY: Let me race to conclusion. 3 CHAIRMAN SOARIES: And you will have a 4 chance to-- 5 MR. SHELLEY: Let me race to conclusion. 6 Let me race to conclusion. 7 CHAIRMAN SOARIES: All right. On the 8 point of testing, we need to have a more aggressive 9 approach that we can set as the new constituted 10 Commission to work with the independent testing 11 authorities, to work with NIST, to work with all the 12 disparate federal entities that are kind of out there 13 in the stratosphere bringing them under your aegis, 14 if possible. 15 Obviously you need money. I know I stand 16 ready, as my colleagues do, to urge the Federal 17 Government to support you in that effort so you can 18 provide a truly regulatory function. 19 Let me say finally in conclusion, the 20 third component was poll worker training. Poll 21 workers have perhaps one of the hardest jobs in 22 America, which is to get in there at the crack of 197 1 dawn and work a full shift, you know, 15, 16, 17 hour 2 days. It's a very difficult and very demanding job. 3 I think the level of training hasn't kept 4 up with all this new technology, as we saw on March 5 the 2nd where, when we had failings in certain 6 counties, the poll workers weren't trained to handle 7 this. 8 I want to commend Kathy Rogers and Kathy 9 Cox, who I had the privilege of speaking to Ms. Cox, 10 the Secretary of State of the State of Georgia 11 recently. 12 I think they have a state of the art poll 13 worker program. Their college, their Institute is 14 something that I look forward to hopefully modeling 15 our own approach in California after. 16 But until we have standards practices 17 across the country to deal with these new 18 technologies, I think the human element can't quite 19 keep up with all of that technology that's being 20 imposed. 21 With that, let me conclude. Thank you 22 very much, and I'll be happy to answer questions. 198 1 CHAIRMAN SOARIES: Thank you so much not 2 only for coming so far to have restrictions imposed 3 on you, but coming in and sharing with us and 4 ensuring that we know as much as we can know about 5 your experience. 6 Connie McCormack, you have been described 7 by your Secretary of State as one of the finest local 8 election officials in the country. As I introduce 9 you, let me say the two of you being here really 10 helps us far beyond the issue electronic voting. 11 HAVA protects and preserves the 12 distinction between the role of the Federal 13 Government and the role of the State in voting. 14 What HAVA does not do explicitly is really 15 flesh out the role of the state and the local 16 election administrators, and some of the tension that 17 is resulting from HAVA around the country will inform 18 us as we communicate with Congress about the future 19 implications of HAVA. 20 So having said that, welcome to the local 21 election administrator for Los Angeles County. 22 STATEMENT OF CONNY McCORMACK, COUNTY CLERK AND 199 1 REGISTRAR, LOS ANGELES COUNTY, CALIFORNIA 2 MS. McCORMACK: Thank you, Mr. Chairman, 3 and members of the distinguished panel. I truly 4 appreciate the privilege of addressing your 5 Commission today. 6 I would like to offer the perspective of 7 someone who has been a registrar of voters and an 8 elections administrator for 22 years in 3 of the 9 largest election jurisdictions in the United States: 10 Dallas County, Texas; San Diego County, California; 11 and for the last 8 years in Los Angeles County, 12 California. 13 Los Angeles County is the most populous 14 county in the United States with 4 million registered 15 voters and 5000 precincts to set up and hire and 16 train poll workers for. 17 Over the past 22 years, I have had the 18 opportunity to oversee elections on four different 19 types of voting equipment. I started out with lever 20 machines in Dallas, Texas, moved to punch cards, have 21 now done optical scan, and have put in a touch screen 22 system. 200 1 I have first-hand experience three times 2 of doing that, and I can tell you that there is no 3 greater challenge for an election official in this 4 country than to change voting equipment. 5 In 1982, I converted from lever machines 6 to punch cards in Dallas, Texas. In 2000, I put in 7 electronic voting in Los Angeles County in 8 conjunction with the early voting environment. But 9 every one of those 4 million voters has the 10 opportunity to vote early in the elections starting 11 in 2000. 12 And just last year, November 2003, 13 instituted, replaced our punch card system that we 14 had used for 35 years through the recall election, 15 and a month later introduced in our big election, 16 November '03 election, a new optical scan system. 17 I think what your Commission is certainly 18 facing, and what the Nation is facing, and what 19 election officials both a state and local level are 20 facing--and there are thousands of us at the local 21 level; it doesn't matter if you've got 4 million 22 registered voters or 2000, the challenge is huge--and 201 1 the challenge in the next two years is to make a 2 change in almost all of those jurisdictions to become 3 HAVA compliant. 4 It is going to be a huge sea change in the 5 election voting process. And into this very 6 environment of constant change and about-to-happen 7 change is erupting this fire storm of a controversy 8 over this voter verified paper record concept, and 9 whether or not it's necessary or whether or not it's 10 advisable to reconfigure the existing current 11 technology to be able to generate as yet pretty much 12 an unspecified and largely untested contemporaneous 13 at the same time as the voter is voting a paper 14 record. 15 I think it would be instructive to take a 16 few minutes to reflect back on what has happened in 17 this country when we last had the last major paradigm 18 shift in voting equipment in this country. 19 That started in the late 1960s and went up 20 through the early '80s, so there was more time to do 21 it, but it was a huge paradigm shift. Because many 22 jurisdictions changed at that time from paper-based 202 1 manual tabulating systems, which we even had in Los 2 Angeles up until 1968, and changed to computerized 3 punch card voting systems. 4 Now this was the first time computers had 5 entered the election world in any major way. And 6 again it's only 35 years ago. I think it is 7 instructive to think about how people felt about that 8 back then. 9 Similar concerns were made--in fact, I 10 brought a copy of the Los Angeles Time, October 8th, 11 1969, story with a headline that screams: "HOW 12 ELECTIONS CAN BE RIGGED VIA COMPUTER". 13 It is a long story, and reading from this 14 article is enlightening. 15 CHAIRMAN SOARIES: Ray wasn't even born 16 then. 17 (Laughter.) 18 MS. McCORMACK: Well I won't say the same 19 for myself, but I wasn't yet a voter. 20 (Laughter.) 21 MS. McCORMACK: The vendor back then in 22 Los Angeles was IBM, so it was a very respected then 203 1 and continues to be now vendor of computer 2 technology. In this article, I think you would find 3 you could hear it almost ringing today. It reads: 4 "One IBM official stoutly denied it is 5 technically possible to tamper with the 6 vote counting process. But this view is 7 disputed by scores of experts in the 8 field. Most agree that there is a growing 9 number of computer experts knowledgeable 10 enough to devise ways of modifying the 11 program so as to alter the vote count. 12 There are relatively few people who have 13 sufficient access to the program to do 14 anything about it." 15 That sounds pretty familiar, doesn't it? I think 16 both sides of this raging debate right now are 17 seeking the same over-riding goal, and I think we 18 need to keep that in mind because all of us want the 19 same thing. 20 We want accurate casting, tabulation, and 21 reporting of all votes in accordance with the voter's 22 intention. That is what we all want. And the fact 204 1 is--and it is indisputable--the evidence is 2 indisputable, that touch screen DRE voting systems 3 have the proven track record of doing the best job 4 available of all voting systems to do just that. 5 While paper trail proponents are arguing 6 for a verifiable ballot, elections administrators 7 such as myself want to assure a verifiable system. 8 To lower the risk of failure and avoid the 9 triumph of unintended consequences, it is really 10 important in my view that pilot programs be 11 instituted and undertaken to verify whether or not 12 these paper trail systems would actually work as 13 anticipated and not inadvertently cause problems 14 while attempting to solve hypothetical ones. 15 The small-scale experiments to date, the 16 pilot programs we know about to date, deploying 17 prototype paper trail systems do not bode well for a 18 successful large-scale deployment. 19 Starting in November of 2002 in Sacramento 20 County, California--California always likes to feel 21 like we're out front of everything, so the Registrar 22 of Voters there put in a small-scale pilot program in 205 1 early voting with a paper trail on a computerized 2 touch screen system. 3 The Registrar wrote a report assessing 4 that experience. He found that voters were confused 5 that they couldn't take the paper replica with them. 6 Additionally, he found there were frequent instances 7 when the attached printers jammed and required the 8 machines to be taken out of service. 9 And I quote, "When the printed record 10 stuck, they had to be extracted with many creative 11 tools that were at hand, including a windshield wiper 12 and a back scratcher." 13 Last year in November 2003 in Wilton, 14 Connecticut, there were also--you heard earlier in 15 the technical panel--a few other examples of trying 16 out this technology. This is what I really adhere to 17 and really am focused on is you try to do more pilot 18 programs. 19 The Deputy Registrar in Wilton, 20 Connecticut, reported that the voter interface issues 21 were, "appalling," and that his created "numerous 22 problems for voters and placed great stress on the 206 1 poll workers." 2 Elections administrators really have 3 anticipated the major obstacles of moving this paper 4 trail issue from concept to reality, especially in 5 jurisdictions with long, complex ballots. 6 I brought with me today an actual ballot 7 of the November 2002 election in Alameda County, 8 California. California is known to have long 9 ballots, and I use Alameda as an example because it 10 was their first implementation of a touch screen 11 voting system county-wide. 12 This is the ballot (indicating). You can 13 see it is quite large. We have a lot of issues and 14 propositions on the ballot in California. As a 15 matter of fact, our current Secretary of State was 16 running for Secretary of State for the first time on 17 this ballot about 18 months ago. 18 CHAIRMAN SOARIES: It must have been a 19 good ballot. 20 (Laughter.) 21 MS. McCORMACK: A long ballot. Now the 22 actual experience of the voters in Alameda County 207 1 when they introduced the system, on the touch screen 2 they were able to review that ballot with all these 3 races in two different colors, and when they had 4 skipped a race inadvertently--if it was intentional 5 they could just skip it--but if it was inadvertent, 6 touch that color and go back and the review screen 7 really helped them to make sure that the under voting 8 was less, as Kathy has described. 9 However, if we're going to move this type 10 of a ballot into a paper trail and only print the 11 Measure A, not even the title of it, and only put 12 'yes' or 'no' on the ballot, and it's this whole back 13 thing (indicating), about two inches on this, but 14 this whole ballot, just to print out the voter's 15 choice in voter-verified small print, English only, 16 for this ballot is 37 inches long. 17 So now this is what elections 18 administrators are thinking about, is how do we put 19 this under glass? What kind of speed is the 20 scrolling going to be? Is it going to be fast enough 21 for certain voters, slow enough for others? And I 22 did bring this for the record. 208 1 CHAIRMAN SOARIES: Ms. McCormack, Ms. Lamb 2 came from New Mexico and it's a long trip. 3 MS. McCORMACK: Yes, okay. I'm on my last 4 sentence. 5 (Laughter.) 6 MS. McCORMACK: I thank you. I would just 7 like to briefly mention that there have been hundreds 8 of thousands of voter satisfaction surveys. Kathy 9 mentioned them earlier as well. 10 I think we need to talk about the survey 11 data, that it's overwhelming that voters are 12 confident in this equipment. These surveys are 13 empirical evidence that there's no crisis of voter 14 confidence, but rather a tiny vocal minority making 15 false claims to the contrary. 16 In conclusion, after 22 years of working 17 in this field, I can tell you I know one thing. 18 Election administration is a difficult endeavor. 19 Adding an unnecessary requirement to turn our 20 electronic systems into dual electronic and paper 21 systems would in my opinion create a number of 22 problems that could shatter the system and 209 1 significantly erode public confidence. None of us 2 wants to see that happen. 3 Thank you for your time. 4 CHAIRMAN SOARIES: Thank you so much. May 5 I see that paper ballot. And the large one, too. 6 (Ballot examples handed to the Chairman.) 7 CHAIRMAN SOARIES: Denise Lamb from the 8 Great State of New Mexico. 9 STATEMENT OF DENISE LAMB 10 DIRECTOR OF ELECTIONS 11 STATE OF NEW MEXICO 12 MS. LAMB: Thank you, Chairman, and it is 13 a great State. 14 I would like to thank you, like all the 15 speakers today have, for the opportunity to come 16 here. I really appreciate it. I am going to make my 17 comments brief because I suspect you have questions 18 and I will try to keep my comments to a minimum. 19 I would like to share some concerns with 20 you about the debate that is currently taking place. 21 Our State began its transition to first generation 22 DREs in the 1980s. 210 1 We have successfully used them in many 2 elections over the years. We have conducted recounts 3 recognized by the courts in our State, and we found 4 the systems to be reliable and sound. 5 The systems are completely accepted by 6 voters and, until recently, not a single voter ever 7 suggested that they could only be sure their vote was 8 counted by the provision of a paper receipt. 9 CHAIRMAN SOARIES: Denise, would you move 10 your mike a little closer to you so that we can hear. 11 Good. Thank you. 12 MS. LAMB: 22 of our 33 counties currently 13 use DREs, and only the smaller jurisdictions use 14 paper-based systems for precinct voting. 15 Consistently the most troublesome election 16 issues we have had in our State have been with paper 17 ballots in terms of counting the absentee ballots, 18 issues of voter intent, things of that nature. 19 This debate has been fraught with 20 misinformation and misrepresentation. We cannot lose 21 sight of the fact that the impetus for the second- 22 generation DREs, or touch screen systems, was not due 211 1 to HAVA. But because other systems are inaccessible 2 to the visually impaired, the disabled, language 3 minorities, and illiterate voters there were a number 4 of lawsuits that began well in advance of HAVA, 5 brought about I think rightfully so by the disabled 6 community for access to the polls. 7 During some of the discussions in my 8 State, I have been appalled at the insensitive 9 comments that I have heard from some individuals when 10 I point out the necessity of all voters having an 11 equal right to secrecy of the ballot and independence 12 in casting that ballot. 13 I think it is a sad comment on our 14 democracy that each extension of voting rights in the 15 United States has been bitterly opposed by groups or 16 individuals who have never faced the same obstacles 17 to voting as encountered by others. 18 In my opinion--and I believe it is one I 19 share with most election officials--too much focus 20 has been placed on technology in this debate. 21 Election administrators need management standards to 22 accompany the voting system standards. This is 212 1 something the election community has supported for 2 many years. 3 By "management standards," I mean 4 standards that can be used by every state that 5 include procedures for secure system storage, 6 maintenance, delivery, setups, startup, shutdown, and 7 polling place operations. 8 These standards could also address 9 parallel monitoring, restriction of access to 10 equipment, and ensuring that local election officials 11 maintain control over ballot creation. 12 We also need a centralized entity to 13 accept and distribute reports when equipment does 14 malfunction to ensure that this information is made 15 available to all election administrators across the 16 country. 17 Finally, I believe we need to take an 18 extra step that may be unpopular in the election 19 community. We need to conduct thorough post-election 20 audits as part of every state's canvassing process. 21 New Mexico has used a triple audit of its elections 22 for many years. The returns from each precinct, 213 1 including audit tapes, from every machine in the 2 state are examined at the state level with a 3 comparison of machine tapes to rosters of local 4 jurisdictions' canvass. 5 This allows the state to examine the 6 returns for residual voting patterns, programming 7 errors, and other possible malfunctions and polling 8 official errors. 9 After the state completes its review, 10 independent certified public accountants review the 11 materials to discover exceptions or anomalies. This 12 process takes time. It takes nearly three weeks for 13 our state. However, I believe that the confidence 14 that it can engender is worth the effort. 15 Again, I know you are pressed for time and 16 I'm keeping my comments brief, but I do really want 17 to thank you for the opportunity to speak to you 18 today. 19 Thank you. 20 CHAIRMAN SOARIES: Thank you so much. 21 Thank each of you. We have two state-level officials 22 and two local officials, actually three state-level 214 1 officials and one local official, and we are just 2 very appreciative of your willingness to come a great 3 distance and share at such a critical time. 4 We have the benefit on this Commission of 5 having a former local elections administrator, and we 6 have asked him to lead the questions for this panel. 7 COMMISSIONER DeGREGORIO: Thank you, Mr. 8 Chairman. 9 Secretary Rogers, I was in Wilmington, 10 Delaware, in February to observe their Presidential 11 Primary Election and they used the DRE system. They 12 have a system where at the end of the night they take 13 the results off the machines by cartridge. They also 14 print out the results. 15 They take those cartridges and they put 16 them in a device that reads the results. They took 17 these cartridges. They compared each one of them. 18 And I asked the question. I says, why would it 19 change? Why would you not get the results of these 20 cartridges, because they indicated to me that they do 21 an audit the next day to compare the printed results 22 to the cartridge results. 215 1 And I stayed for the next day and found 2 that in 3 of I think about 500 polling places the 3 cartridges did not produce results, but the printout 4 did. And so they just produced another cartridge 5 from the machine which compared to the printout, and 6 the results were the same. 7 In Georgia under your system, how do you 8 do a recount with the DREs? There is a concern that 9 these memory cartridges may not work. Have you had 10 recounts under your system? And are you merely 11 reproducing the results on these cartridges, or how 12 do you actually do the recount there? 13 MS. ROGERS: Our law currently states that 14 recounts are conducted in the same manner in which 15 the votes are tallied. So for all the optical scan 16 ballots, which is what we use for absentee ballots, 17 those are actually scanned back through the 18 tabulator. 19 The memory cards are uploaded again, tapes 20 are printed, reports are printed, and that is how the 21 recount is handled. 22 One little known fact is that our system 216 1 has the ability to print the images and we can do a 2 hand count. So that ability is there. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 217 1 Laser jet printers what could be 4 million 2 pieces of paper to hand count. So that ability is 3 there. The problem is that if we went into that type 4 of recount method, under our current election 5 structure we have runoff elections three weeks after 6 the primary. We would never be able to put the 7 candidates on the ballot, have our runoff ballots 8 ready for absentee voting and be able to go into the 9 next election if we actually printed out that piece 10 of paper. 11 But I would respectfully remind the 12 Commission that with lever machines there was never - 13 - and we had 67 -- 72 counties on lever machines. 14 There was no ability to recount. You simply read the 15 numbers off the back of the machine again. So this 16 is very similar to that. 17 With optical scan ballots you also have 18 the ability to upload the card again, but we do scan 19 those ballots. There is where you will get your 20 difference occasionally. I don't know, I'm like 21 Connie, I've worked with a multitude of different 22 voting systems in my career and have you heard the 218 1 term "marginally marked ballot"? A marginally marked 2 optical scan ballot is one in which a very tiny mark 3 may be made by the voter. It has always been my -- 4 the way I've seen it happen and during a recount is 5 that marginally marked ballot is the one that the 6 next time the machine may or may not count that as a 7 vote and that's what changes your vote totals. So 8 it's not that you're getting more accuracy out of 9 that, actually you are getting a reflection that the 10 voter wasn't sure. 11 COMMISSIONER DeGREGORIO: So what you are 12 saying to me is that since you've instituted these 13 machines you've never reproduced the ballots in a 14 recount; that you can do that, but you haven't done 15 so yet? 16 MS. ROGERS: Correct. We can do that. We 17 have reproduced some just for our own benefit just to 18 see how it worked and that it did work as part of the 19 testing of the system. But we have not required that 20 of our jurisdictions. 21 MS. McCORMACK: Paul, could I add to that 22 because I have done a recount on the same touch- 219 1 screen equipment that we have. For our early voting 2 we had a close race in the Malibu mayor's race was 22 3 votes apart in the year 2000 when we introduced the 4 equipment. And we did print out all of the images 5 and do a manual recount of that race. And one of the 6 other points in the equipment that Cathy and I share 7 is triple redundancy. There's the hard disk, then 8 there's the flashcard, and then there's the paper 9 record that's the accumulated paper record as well as 10 the capacity to print out an image. 11 Well, as Cathy mentioned, I used lever 12 machines for one election. It was my first election 13 as an election administrator. And I said to my 14 bosses, "these go." These are not where we want to 15 be. There are tremendous inaccuracy problems with 16 the levers not working correctly and we had some 17 significant problems with those and no way did we 18 capture those lost votes. They were lost votes. And 19 so we were not making comparisons to all the 20 different kinds of systems here, but you did mention 21 you wanted to. So I wanted to mention that we have 22 done that. 220 1 In other jurisdictions in California, 2 Riverside, for four years using this equipment has 3 conducted six different recounts, one including a 4 couple hundred thousand votes, printing out the 5 records. 6 COMMISSIONER DeGREGORIO: Thank you. 7 Secretary Shelly, first of all, we only 8 were able to get your testimony just moments before 9 you came into the room and I was only able to read it 10 through just once. I didn't have the advantage of 11 reading it again, but I know there at the end, which 12 you didn't get to, you make some very good 13 recommendations to us regarding training of poll 14 workers regarding the need for independence, of 15 independent testing authority and such things. 16 However, this weekend, not having your 17 testimony, I downloaded your report because I wanted 18 to be familiar with California and with the problems 19 that you addressed in your report. But in that 20 report I found a very interesting parallel monitoring 21 program that a couple other people this morning have 22 brought to our attention that they suggest may be 221 1 used in lieu of a paper trail. And the way I am 2 reading from your report, which was recommended to 3 you by a committee that you had, you directed a 4 program where there would -- in eight counties you 5 would randomly select voting machines to be set aside 6 for experts to vote on March 2nd. So similarly 7 actual voting conditions to determine the accuracy of 8 the machines to record, tabulate, and record votes. 9 And it was developed as a supplement to the current 10 accuracy testing program. The goal, as stated in 11 your report, was to determine the presence of a 12 malicious code by testing the accuracy of the 13 machines to record, tabulate and report votes using a 14 sample of DRE equipment in selected counties under 15 actual voting conditions on election day. 16 Now, in looking at the findings, okay, of 17 that parallel monitoring program, according to your 18 own report, it says, "the results of the 19 reconciliation analysis indicate that the DRE 20 equipment tested on March 2nd recorded the votes as 21 cast with 100 percent accuracy." 22 Now, someone suggested that this parallel 222 1 monitoring program could be considered as an 2 alternative to the paper trail that's been suggested 3 by you and others. Can you tell me about how you 4 feel about the results of this report and how did it 5 weigh into the decision that you made to ban certain 6 equipment for this election in California? 7 MR. SHELLY: Happily we'll do that, sir. 8 Let me first -- before answering though, I 9 just want to -- I need to briefly address a comment 10 that was made in the presentation by the panelists in 11 referencing some of the advocacy of the voter- 12 verified paper trail as being quote/unquote "the 13 false claims of a tiny minority." I can absolutely 14 assure you as a statewide elected official in a state 15 with 35 million people, I would not base my decisions 16 on the false claims of a tiny minority. And I don't 17 know any elected official who would. 18 But in terms of parallel monitoring, we 19 created that system for the March 2nd election and we 20 are very proud of it. And let me just articulate 21 briefly what I have suggested for the ruling as it 22 applies to this coming November election. I don't 223 1 believe the parallel monitoring is an appropriate 2 stand-alone alternative to a voter-verified paper 3 trail, accessible voter-verified paper trail and I'll 4 be happy to expand on that if need be. So what I did 5 in the ruling was I said, apart from the four 6 counties that were decertified because they weren't 7 federally qualified at Diebold TSX machines, the 8 other ten counties -- 11 -- for the other counties, I 9 said essentially, fine, that you can use your 10 equipment, the touchscreen systems if you have a 11 voter verified paper trail, or, if you need a number 12 of security directives, including parallel 13 monitoring. 14 So parallel monitoring is, we believe in 15 it. We believe it should be expanded from what we 16 used in the March 2nd election. We don't believe it's 17 an appropriate stand-alone security measure, but we 18 believe it's an excellent tool. And I'm very pleased 19 that both vendors and county election officials have 20 advocated for its use. There was some reluctance 21 when we first adjusted it for last March 2nd, and I'm 22 pleased, you know, that it's catching on. Because I 224 1 think it's a good tool for the future. 2 COMMISSIONER DeGREGORIO: So you're 3 suggesting it as an alternative? 4 MR. SHELLY: What we have done in our 5 directive is the following. I conditionally 6 decertified a number of our counties based upon the 7 following premise, that they can receive 8 recertification should they have a voter verified 9 paper trail. But acknowledging fully, as much as 10 like perhaps many of you, I don't know, hope that we 11 can have a standard at the federal level in place by 12 November. I acknowledge that that may not be the 13 case. So I did not want to be irresponsible and just 14 say, you can't use the machine unless you have a 15 voter verified paper trail because of that perhaps 16 limited possibility. 17 So we said, instead, if you can't achieve 18 that goal because we won't have a standard, you can 19 be recertified if you do a number of things. One of 20 the things is parallel monitoring, a number of others 21 are various security measures, no modems. Many of 22 the counties already do these and do them very, very 225 1 well. And I commend them for that. 2 We also, as one of the conditions for 3 recertification are requiring that the counties 4 involved with the touchscreens to provide the option 5 of voting optical scan, not in lieu of. And 6 essentially they already do this now for provisional 7 voters. So it just means you print some extra 8 provisionals or absentee ballots that they already 9 do. And we've indicated that we will, of course, 10 provide the funds for that and we've asked, actually 11 the vendors. But if that doesn't happen, we stand 12 ready through our Help America Vote Act resources to 13 do so as an unfunded mandate. 14 So, sir, we have suggested a series of 15 security measures that we believe will provide the 16 level of confidence in the election process this 17 fall. And essentially the option of voting on paper 18 in many respects is like a voter-verified paper 19 trail, because it addresses that lack of confidence 20 issue that the voter doesn't have the ability to see 21 his or her vote. 22 So for the voter that feel comfortable 226 1 voting the touchscreen they can vote on paper. For 2 the voter that does feel comfortable, they can vote 3 on the touchscreen with the security measures in 4 place, including parallel monitoring. 5 CHAIRMAN SOARIES: All right. Now, let me 6 just get this clarification. I don't want to stop 7 you. It sounds as if what you've described as a 8 decertification -- 9 MR. SHELLY: Conditional decertification, 10 yes. 11 CHAIRMAN SOARIES: -- of machines -- 12 MR. SHELLY: Yes. 13 CHAIRMAN SOARIES: -- but a 14 recertification of counties. 15 MR. SHELLY: Well, no, no, no. 16 CHAIRMAN SOARIES: I'm trying to -- 17 MR. SHELLY: I'm sorry. I'm sorry. No, 18 it's recertification of that same equipment. 19 CHAIRMAN SOARIES: Being used by the 20 jurisdiction? 21 MR. SHELLY: I apologize. I'm using the 22 wrong term. 227 1 CHAIRMAN SOARIES: No, no, I just want to 2 make sure I understand. 3 MR. SHELLY: I'm using the wrong verbiage. 4 COMMISSIONER DeGREGORIO: You mentioned 5 mandates, in state mandates. And certainly your 6 directives could be considered a mandate to the 7 election officials across California. 8 MR. SHELLY: Sure. 9 COMMISSIONER DeGREGORIO: Is the state of 10 California with its financial problems that exist 11 today prepared to assist local jurisdictions with 12 financial support to institute these mandates? 13 MR. SHELLY: Yes, because it doesn't come 14 from our general fund. To the extent that there is 15 an unfunded mandate, those funds, if they aren't 16 otherwise picked up by vendors comes from the very 17 resources that have been made available by the 18 federal government. 19 Now, a number of counties have done 20 something very wise and I appreciate that. And that 21 is, for example, in San Diego they had within their 22 contract that if there was a decertification any new 228 1 system that was certified for use or otherwise 2 determined to be used in that county the cost would 3 be picked by the vendor. 4 For example, in the decertification of San 5 Diego, the vendor in this instance, Diebold, in their 6 very contract with San Diego, has to pick up all 7 those costs. A number of other counties have the 8 same terminology within their contracts. 9 COMMISSIONER DeGREGORIO: Anybody estimate 10 how much this is going to cost? 11 MR. SHELLY: The backup paper ballots, 12 it's a million dollars. 13 COMMISSIONER DeGREGORIO: Statewide? 14 MR. SHELLY: Statewide. 15 COMMISSIONER MARTINEZ: For? 16 MR. SHELLY: The option to vote paper and 17 the backup paper is a million dollars statewide. 18 COMMISSIONER DeGREGORIO: Ms. McCormack, 19 we hear that election officials commonly use patches 20 that have not been certified by independent testing 21 authorities. If this is the case, then why did they 22 do that? 229 1 MS. McCORMACK: The entire certification 2 process, I think, I do welcome the fact that it's 3 being reviewed now at a higher level and it's been 4 such a discrepancy between administrations from what 5 we used to have with the certification process in 6 California now under the new Secretary of State. 7 And even in Secretary Shelly's own report 8 he indicated that he needed to beef up the 9 certification process. And I think we all welcome 10 that. 11 So I think in the past when we've had all 12 these changes and laws, and we do get changes in laws 13 all the time; we conducted the last three primary 14 elections in California on three different sets of 15 laws. One time it was closed primary, then it became 16 and open primary and in the last election we called 17 it "the slightly ajar primary" because it wasn't open 18 and it wasn't closed. 19 [Laughter.] 20 MS. McCORMACK: The nonpartisans had a 21 choice to go to one or the other. But then the 22 people who were registered with a party had to vote 230 1 with that. 2 It's very confusing for the poll worker, 3 for the election official and changes to software 4 that have to accommodate that. And in LA County we 5 have our own tabulation software we've been using for 6 about 30 years. And, of course, obviously it's been 7 through a lot of patches. And in the recall election 8 we did have a situation because we used the 9 touchscreens for early voting. And because there 10 were 135 candidates on that ballot, not in 11 alphabetical order, our sample ballots, which for the 12 punch cards, the punch number was in numerical order 13 which made it easier. If the voter looked at their 14 sample ballot and said, I want number 82 or 62 or 15 101, to go and find it, it made it more difficult on 16 the touchscreen. 17 We asked the vendor to make a change to 18 the software so that the number could be next to it 19 on the touchscreen and they did that for us. 20 You might remember we were doing that 21 whole election in a pretty rushed environment. Yes, 22 in retrospect we should have done a better job to 231 1 submit that and we should have done that. We didn't 2 do it -- not submit is a nefarious thing. We tested 3 it and made sure it worked accurately. We, at E 4 minus seven, seven days before every election, we 5 send up the software to the Secretary of State to go 6 in escrow. We've always done that and all the 7 counties do that. So it wasn't like we were trying 8 to hide something. Those changes to the software 9 were in escrow at E minus seven and we had fully 10 tested it. 11 So, yes, in retrospect I wish we had put a 12 letter together. In the past when we had put letters 13 together we would get an instant letter back that 14 very rarely required any kind of recertification or a 15 retest and to my knowledge never going back to the 16 federal testing lab. 17 So now I think we need to nail down and 18 this commission can help with that, some appropriate 19 process for that to happen, especially given the 20 timelines that we sometimes have to confront with 21 legislative that gets changed very rapidly, sometimes 22 as soon as two to three months before an election. 232 1 MR. SHELLY: Could I briefly expand on 2 that from my friend and colleague, Ms. McCormack, 3 because I think she raises a very important point. 4 That during the recertification process, for example, 5 during these last several months in California, a 6 number of county election officials have raised the 7 issues with me that there had not normally been an 8 expectation that for each and every new software 9 recertification that it would need additional state 10 approval. And I have to say, I understand and I'm 11 very empathetic to that point. I mean, the law did 12 require it, but frankly it hadn't been enforced by my 13 very office. It hadn't been enforced in previous 14 years and it hadn't been enforced during some of the 15 initial months of my tenure. So I think all of us 16 collectively, both on the federal level, the state 17 level, and the local level, need, I think, to really 18 figure out this certification process so that we can 19 avoid the mistakes that have been made previously. 20 COMMISSIONER DeGREGORIO: Ms. Lamb, as the 21 Chairman mentioned, New Mexico was on the forefront 22 many years ago of installing DREs. And you've had a 233 1 long history of DREs in New Mexico. This commission 2 is embarking on a process that's going to develop new 3 guidelines for voting system standards. And we fully 4 expect those guidelines to be more stringent than the 5 current guideline standards that exist that NASAF 6 came up with. How is your state going to meet these 7 guidelines if your equipment is so old? 8 MS. LAMB: Mr. Chairman and Commissioner, 9 what we will do is we will do what we always have 10 done and that is follow any federal laws or mandates. 11 We are in the process of transitioning out our older 12 first-generation DREs in any respect because they do 13 not meet the accessibility requirements of HAVA. And 14 so several of our counties began that process. Some 15 began even in anticipation before HAVA was passed to 16 make that transition. 17 Electronic voting machines like any other 18 electronic piece of equipment, while it doesn't 19 receive the daily kind of wear and tear that a PC 20 does at home. After a few years' use, you certainly 21 want to begin to upgrade that equipment anyway. 22 COMMISSIONER DeGREGORIO: Are you going to 234 1 use some of the $2.1 billion that we are going to 2 soon release to the states and New Mexico will get 3 it's share, and I assume you have some Title I money, 4 to replace this equipment? 5 MS. LAMB: I don't believe that the Title 6 I money applies for New Mexico. We don't have punch 7 cards or lever machines at this time. But we are 8 going to use the money to replace the equipment, the 9 older generation DREs that are not accessible to 10 visually impaired and blind. 11 And I do want to say that there is another 12 advantage that the newer generation equipment does 13 have for our state, in particular. 14 In New Mexico we have eight non-written 15 native American languages. That poses an additional 16 challenge when it comes to the voter verified receipt 17 issue for us. We haven't quite figured out yet how 18 you would supply a piece of paper in a non-written 19 language. 20 COMMISSIONER MARTINEZ: Mr. Chairman. 21 CHAIRMAN SOARIES: Yes, Commissioner 22 Martinez. 235 1 COMMISSIONER MARTINEZ: Thank you, Mr. 2 Chairman. Just a few quick questions. 3 Secretary Shelly, in your remarks just a 4 few minutes ago you talked about an unfunded mandate. 5 And I just want to clarify that. The mandate is 6 yours, I mean, we understand that; right. So you're 7 suggesting the use of federal HAVA funds to 8 compensate your local jurisdictions that have to now 9 do some additional things as a result of your 10 mandate. When you talk about an unfunded mandate, 11 it's not coming from the federal government, yet 12 you're suggesting the use of federal funds to pay for 13 that? 14 I mean, we're not the ones that are saying 15 -- I mean, I'm just trying to clarify -- 16 [Simultaneous conversation.] 17 MR. SHELLY: Is that an inappropriate use 18 of the funds? 19 COMMISSIONER MARTINEZ: No, no, that's for 20 lawyers to decide. But I'm wondering if that's -- I 21 mean, that's what you said. I mean, is that -- did I 22 understand that correctly? 236 1 MR. SHELLY: What I meant with Ms. 2 McCormack and a number of other elected officials we 3 talked about for any of these unfunded mandates, to 4 the extent that they are interpreted as such, I mean, 5 you know, if we know the legal terminology that are 6 mandated by this state or federal government or by 7 any government entity, and it's an unfunded mandate 8 and it's determined as such that then we would 9 reimburse those jurisdictions with the funds and we 10 would use those funds. 11 We determined in consultation with the 12 federal government that it was perfectly appropriate. 13 If it's not, that's certainly new to me today. 14 COMMISSIONER MARTINEZ: I'm not suggesting 15 that at all. I'm just making sure that's what I 16 heard you say. 17 MR. SHELLY: Yes. 18 COMMISSIONER MARTINEZ: And let me just 19 make the broader point as to why I'm asking the 20 question. 21 MR. SHELLY: Yes, certainly. 22 COMMISSIONER MARTINEZ: I mean, obviously 237 1 Title I monies or early-out monies were to replace 2 antiquated voting systems where a jurisdiction 3 decided to use those monies. So that's what she's 4 talking about when money is forced to replace voting 5 equipment. 6 MR. SHELLY: I'm not suggesting using 7 Title I. No, no, no, no. Discretionary funds. 8 COMMISSIONER MARTINEZ: I'm with you, I'm 9 with you. The Title II funds that we are about to 10 begin distributing are for broader purposes and 11 perhaps that's one of the purposes. I'm not opining 12 about whether it's appropriate or not. I was just 13 trying to make sure that I understand that that's 14 what you were saying. 15 From my perspective and it's not our job 16 to get on a soapbox here at this particular hearing, 17 but, you know, the Title II funds are not just for 18 replacing voter equipment. I understand how 19 important it is if a jurisdiction decides to use the 20 money for that purpose, but there's the people aspect 21 of voter -- of election administration that I've been 22 stressing quite a bit during my short tenure as a 238 1 Commissioner. 2 MR. SHELLY: Uh-huh. 3 COMMISSIONER MARTINEZ: And you actually 4 did it as well, and I applaud you for doing it, poll 5 worker training, poll worker recruitment, voter 6 education, nonpartisan voter education activities 7 where a jurisdiction switches from one voting system 8 to another. It's important to make sure that 9 nonpartisan voter education -- I'm sure you would 10 agree with that. 11 MR. SHELLY: Yes, of course, sir. 12 COMMISSIONER MARTINEZ: So from my 13 perspective I'm just asking the question, because now 14 we're reprioritizing the use of HAVA dollars to a 15 certain extent. And I'm not saying that's 16 inappropriate, I'm just wanting to find out and to 17 make clear that that is what you are suggesting 18 essentially? 19 MR. SHELLY: Well, I mean, there are Title 20 I, there are Title II, there's the 102, Title II, 21 Title III, I mean -- 22 COMMISSIONER MARTINEZ: Let this be clear 239 1 -- 2 MR. SHELLY: -- and there's the 3 discretionary funds that are within the discretionary 4 use of the secretary of state -- 5 COMMISSIONER MARTINEZ: What Congress has 6 funded, and I assume that the funding is not coming 7 in an infinite -- it's finite -- 8 MR. SHELLY: Yes. 9 COMMISSIONER MARTINEZ: -- right? 10 MR. SHELLY: Yes. 11 [Laughter.] 12 COMMISSIONER MARTINEZ: I didn't say that 13 very clearly, but we know what we're talking about. 14 The money is not going to keep coming. 15 MR. SHELLY: Yes, of course not. 16 COMMISSIONER MARTINEZ: You know, I think 17 to make our case work, but the point being, the point 18 being that we know where the funding is coming from 19 Congress, we know what pots are available today. 20 MR. SHELLY: Yes. Yes. 21 COMMISSIONER MARTINEZ: So the discretion, 22 for example, the pilot projects, and research and 240 1 grant opportunities 271, 281 of HAVA authorized, but 2 unfortunately not funded. So we don't have those 3 monies available to distribute. 4 MR. SHELLY: Yes. 5 COMMISSIONER MARTINEZ: What we have 6 available to distribute are Title I which has been 7 distributed in full. 8 MR. SHELLY: Yes. 9 COMMISSIONER MARTINEZ: And Title II which 10 is about to be distributed to states beginning Monday 11 when the 45-day public comment period ends. 12 MR. SHELLY: Yes. 13 COMMISSIONER MARTINEZ: And so we know 14 which funds we're talking about. And, again, I'm not 15 suggesting inappropriateness because that's for 16 lawyers to decide. I'm not here today as a lawyer. 17 So that's not what I'm suggesting. I just, again, 18 want to be clear that the cost that needs to be borne 19 by the local election officials in your state, it's 20 going to have to come from someplace. You're 21 suggesting it come from the vendors. If they say no, 22 for whatever reason, and they legally can say that, 241 1 if they can, I don't know that. Then the next pot of 2 money appears to be the HAVA fund is what I heard you 3 say. 4 MR. SHELLY: Yes. Sir, can I just -- let 5 me just -- 6 CHAIRMAN SOARIES: I love to hear lawyers 7 talk. 8 [Laughter.] 9 CHAIRMAN SOARIES: When they're not 10 talking about me. 11 [Laughter.] 12 MR. SHELLY: I think I understand your 13 question, sir. Let me -- if I can just briefly say, 14 you know, I considered, as Connie and others know, I 15 considered decertifying some of those other counties. 16 But I thought it was irresponsible. I thought it was 17 irresponsible for the disabled to prefer and have 18 used the DREs. I thought it was irresponsible for 19 non-English speaking voters. I thought it was 20 irresponsible for county election officials who have 21 to pull of an election in six months. But I thought 22 it was responsible to require the provision of the 242 1 option of voting on paper, parallel monitoring, a 2 technical security plan from the secretary of state, 3 full federal testing and qualification which hasn't 4 always been followed in the past, full state testing 5 and certification which hasn't always been followed 6 in the past, no last-minute changes which sometimes 7 would happen within 10 days. We put a 46-day 8 timeline on it. No wireless connection. Poll worker 9 training where the emphasis must provide adequate 10 hands-on training for each poll worker for the DRE 11 and any other device that was used. 12 We take it very seriously and not trying 13 to be cavalier in coming up with suggested 14 requirements that either (a) were too onerous or (b) 15 too costly; but rather would protect the integrity of 16 the process. And that's what we came up with. 17 The other alternative was outright 18 decertification and I didn't think that was 19 responsive. 20 COMMISSIONER MARTINEZ: No, I understand 21 that fully and I appreciate that answer. And I am 22 not passing -- despite the lawyerly tone of my 243 1 questions, I'm not trying to pass judgment on what 2 you've done, I'm just trying to clarify from my -- 3 MR. SHELLY: I understand, sir. It's a 4 very legitimate inquiry. 5 COMMISSIONER MARTINEZ: Right. Okay. I 6 appreciate that. 7 CHAIRMAN SOARIES: In the few minutes we 8 have remaining, I will abstain from asking questions, 9 but I will have a comment. 10 Commission Hillman, Vice Chair Hillman and 11 then we will close this session. 12 VICE CHAIRMAN HILLMAN: I have two 13 questions and I think that they both could do with 14 quick answers. For Cathy Rogers, about how many co- 15 workers have to be recruited to conduct a general 16 presidential election in the state of Georgia? 17 MS. ROGERS: We have approximately 3,000 18 precincts. You have a minimum of four poll workers 19 to a precinct and that number could go up potentially 20 as high as 12. So if you multiply that out, you've 21 got at least nine to 14,000 poll workers. 22 VICE CHAIRMAN HILLMAN: Did the 244 1 introduction of the electronic voting equipment make 2 it any different when it came to recruiting poll 3 workers to do those jobs? 4 MS. ROGERS: No, not at all. We had a lot 5 of election officials who were saying, oh, we're 6 going to lose our poll workers. They're going to be 7 afraid of the technology. But when we did the poll 8 worker training, and let me just say, poll worker 9 training is very, very important. But the secretary 10 of state's office in Georgia has taken on a new 11 endeavor of assisting our counties with that poll 12 worker training. They need extra funds. They need 13 extra training. They need help in training poll 14 workers. And I think that states are going to have 15 to step in and help their counties now. But with 16 that endeavor and we did not see that happen. A 17 very, very small percentage of poll workers did drop 18 off, but the same small percentage that I saw back in 19 1998 when I put in a new optical scan system. Some 20 people are just afraid of change and won't accept it. 21 But for the most part it was embraced. 22 VICE CHAIRMAN HILLMAN: Okay. Thank you. 245 1 A quick question for you Denise. Over the 2 years that you've been using the electronic voting 3 equipment, and let me just say that when I have the 4 opportunity to visit with you all in Sante For 5 example, I did have a wonderful introduction to the 6 inside/outside, upside down of the older DRE machine 7 with a wonderful explanation. That was provided to 8 me by an employee of the -- I believe of the 9 secretary of state's office. But I'm just wondering 10 over the years how have you all used vendor 11 technicians in the course of the elections? 12 MS. LAMB: Mr. Chairman, Commissioner 13 Hillman, we don't use vendor technicians during the 14 course of elections. We have the state send 15 technicians from each county to be certified and they 16 get certified by the state. I believe when you were 17 there they did certify a few people. 18 We require that the vendors have people 19 available by telephone in order to assist us if 20 there's a problem. With most computerized systems, 21 if you have a problem on election day, you are not 22 going to fix it on election day. You have to pull 246 1 that system out of service and have a backup system 2 available. And you also have emergency paper 3 ballots. That was the case, I think, even back with 4 lever machines. They had emergency paper ballots in 5 case there was a malfunction. And so we rely on our 6 own counties to have technicians to take care of the 7 machines, not only on election day, but during the 8 course of the year for maintenance as well. They 9 have technicians on contract. 10 VICE CHAIRMAN HILLMAN: Thank you. 11 CHAIRMAN SOARIES: We are out of time. 12 Let me say that there were two objectives that we had 13 in inviting you here and in reading your testimony. 14 One was to help understand the issues that you need 15 us to address, and I want to thank you because this 16 issue of certification and timeliness is something 17 that we accept in terms of a challenge. 18 The issue of national data on equipment 19 malfunctions is an issue that we take very seriously 20 as a clearinghouse as Commissioner Martinez said. 21 And to the extent that you've raised very important 22 issues, we accept that challenge immediately and will 247 1 respond to your concerns so that you will know which 2 of those issues translate into short-term remedies 3 and which of those issues translate into long-term 4 work. 5 But beyond the issues which instruct us, 6 we are looking for best practices. And the idea of 7 parallel monitoring may be something that people 8 would rather take to based on the success in 9 California. 10 The inclusion of Kennesaw University as a 11 disinterested third party that has both practical and 12 academic expertise is something that Georgia 13 contributes to the process. We won't get into it 14 today, but in Los Angeles, among other things, you've 15 done a great job of recruiting college students to be 16 poll workers which satisfies both the numerical need 17 and technology. It fills a technology gap because 18 the younger people know more about technology. 19 And so know that your contributions to our 20 process are both in the areas of issues and in best 21 practices. Because at the end of the day we can't 22 tell districts what to do. But what we should be 248 1 doing is positioning ourselves to not only write 2 checks, but to offer information the districts can 3 use based on experiences you've had to get it right 4 in November. Some are trying to push us into a very 5 narrow corner as if we were established to make one 6 decision. And that decision frankly is not even in 7 our domain. 8 We will not decide on what machines people 9 should buy. We will make decisions, as Paul said, on 10 standards and we will work as quick as we can to fit 11 up our capacity to do so. 12 Again, in closing, we consider ourselves a 13 resource to the people on the ground. You and others 14 like you, the National Association of Secretaries of 15 State with Leslie Reynolds have been very helpful to 16 us to date, very helpful to the standards that we 17 have and have pledged their support in the future. 18 The National Association of State Election 19 Directors, likewise, has borne great responsibility 20 and we consider ourselves your partners and we hope 21 that we will behave such that you will consider us 22 your partner. 249 1 Thank you so much. 2 Our research and human interaction panel. 3 Thank you so much for being here 4 panelists. If the audience would make a quiet 5 transition that would help us. We need the 6 audience's cooperation. We are prepared to begin. 7 As I've stated to our panelists and 8 audience -- I think next time we'll have our hearing 9 at the Defense Department. 10 [Laughter.] 11 CHAIRMAN SOARIES: Order in the military. 12 Ladies and gentlemen, audience, thank you 13 for your cooperation. We are going to now begin our 14 panel where we consider research and human 15 interaction factors. We are happy to have Dr. Sharon 16 Laskowski, National Institute of Standards and 17 Technology who has a primary role in helping us with 18 the report we recently submitted to Congress on human 19 factors. 20 We have Dana DeBeauvoir from Austin, Texas 21 who was a country clerk and practitioner with 22 expertise in this regard. 250 1 And joining us momentarily will be Alice 2 Miller the Executive Director of the D.C. Board of 3 Elections. 4 Welcome Dr. Laskowski, and thank you so 5 much for your help predating this moment and for your 6 presentation that you have come prepared to give. 7 DR. LASKOWSKI: Good afternoon. As you 8 know I'm a computer scientist at the National 9 Institute of Standards and Technology. I wish to 10 thank the Election Assistance Commission for this 11 opportunity to speak about how to improve the 12 usability and accessibility of voting products and 13 systems and the role of NIST in this endeavor. 14 NIST has been asked in the Help America 15 Vote Act to assess that research standards and 16 guidelines in the areas of human factors, usability 17 and accessibility in terms of their applicability to 18 voting products and systems. As a result of this 19 investigation, we have compiled a set of 20 recommendations that, if followed, should measurably 21 improve the usability and accessibility of voting 22 systems. 251 1 In the usability field, the definition of 2 a system encompasses the users and all the elements 3 required to accomplish some goal within a specific 4 environment. The human factors and usability for 5 voting systems focus on the process of the voter 6 casting a ballot as intended. And also the 7 interaction of the poll worker with the voting 8 system. 9 This primarily involves the user interface 10 the voter is presented by the product such as a DREE 11 and the environment and related equipment at the 12 polling place. 13 In this context we have not examined 14 issues such as the accuracy of the product, counting 15 the votes, the quality of the hardware, the software, 16 or the underlying security of voting systems as these 17 in general do not involve user interaction. 18 From a usability perspective, the voting 19 system is defined by the voters themselves, the 20 physical environment in which they vote, such as the 21 polls or home for Internet-based voting; the 22 psychological environment associated with voting, for 252 1 example, stress induced by long lines at the polls or 2 time pressure associated with personal deadlines; the 3 equipment, both hardware and software used for 4 voting, such as paper ballots, optical scanning and 5 DREs; the ballot itself; the quality of support 6 provided if required by the voter by poll workers; 7 and any documentation and training provided to the 8 voter, poll workers and other election 9 administrators. 10 Usability is a measure of the 11 effectiveness, efficiency of satisfaction achieved by 12 the users. Effectiveness includes accuracy and 13 completeness such as the number of user errors. 14 Efficiency includes resources such as time expended 15 by the voter. And satisfaction includes the 16 subjective comfort and acceptability of the results 17 to the voter. 18 Accessibility is defined as the degree to 19 which a system is available to and users by voters 20 with disabilities. These are standard definitions 21 that have been formulated to provide the means for 22 explicit measurements for usability and they are 253 1 certainly applicable to voting systems. 2 This means that we can measure usability 3 voting products such as DREs. Currently we are 4 unsure about the extent to which usability problems 5 exist because for the most part voting products and 6 systems have not been tested for usability. 7 To give a simple example, for touchscreen 8 ballots, if a voter selects a candidate by mistake 9 and wants to deselect that choice, it's certainly 10 possible with a touchscreen we do not know whether 11 any of the current implementations causes voters 12 confusion and errors or not. It is possible to 13 create standards which address usability and 14 accessibility. 15 For an independent testing authority, ITA, 16 to qualify a voting product as conforming to such a 17 standard tests must be designed to measure these 18 levels of usability and accessibility. 19 When a requirement involves human 20 interaction, the way in which it is to be tested 21 depends on the type of requirement. For example, a 22 desired requirement could be tested by inspection. 254 1 But a performance benchmark needs to be tested with 2 actual users. This implies that the standards have 3 to be written with the testing in mind. These 4 standards should also be relatively independent of 5 specific implementations. 6 In addition, aspects of the voting system 7 beyond the user interface itself such as the ballot 8 design and documentation also needs to be examined 9 with usability and accessibility in mind. 10 The NIST recommendations are, and there 11 are ten of them: 12 1. Develop voting system 13 standards for usability 14 that are performance-based, 15 high level, that is 16 relatively independent of 17 the technology, and 18 specific, that is precise. 19 2. Specify the complete set of 20 user related functional 21 requirements for voting 22 products in the voting 255 1 system standards. 2 3. Avoid low-level and general 3 product design 4 specifications for 5 usability. Only those 6 product design requirements 7 that have been validated as 8 necessary to ensure 9 usability should be 10 included as shell 11 statements and standards. 12 4. Build a foundation of 13 applied research for voting 14 systems and products to 15 support the development of 16 usability and accessibility 17 standards. 18 5. To address the removal of 19 barriers to accessibility 20 the requirements developed 21 by the Access Board, the 22 current voting system 256 1 standards and the draft 2 IEEE standards should be 3 reviewed, tested, and 4 tailored to voting systems 5 and then considered for 6 adoption as updated VSS 7 standard. The feasibility 8 of expansion to include 9 both self-contained and 10 closed products and open- 11 architecture products 12 should also be considered. 13 6. Develop ballot design 14 guidelines based on the 15 most recent research 16 experience of the visual 17 design communities 18 specifically for use by 19 election officials and in 20 ballot design software. 21 7. Develop a set of guidelines 22 for facility and equipment 257 1 layout. Develop a set of 2 design and usability 3 testing guidelines for 4 vendors and state supplied 5 documentation and training 6 materials. 7 8. Encourage vendors to 8 incorporate a user center 9 designed approach into 10 their private design and 11 development cycle including 12 formative or diagnostic 13 usability testing as part 14 of private development. 15 9. Develop a uniform set of 16 procedures for testing the 17 conformance of voting 18 products against applicable 19 accessibility requirements; 20 and 21 10. Develop a valid, reliable, 22 repeatable, reproducible 258 1 process for usability 2 conformance testing of 3 voting products against the 4 standards described in the 5 first recommendation with 6 agreed-upon usability 7 pass/fail requirements. 8 In general, the single, most critical need 9 NIST has identified is a set of usability standards 10 for voting systems that are performance-based and 11 support objective measures and associated conformance 12 test procedures that can be used for qualification 13 and certification of voting products. 14 We also recommend that in the short term 15 states perform their own usability testing before 16 procurement as well as after procurement with their 17 own ballots to mitigate any potential usability 18 problems that might occur. 19 We expect that these recommendations will 20 be taken into consideration by the technical 21 guidelines development committee when it becomes 22 operational under the EAC as described in the HAVA. 259 1 Thank you. 2 CHAIRMAN SOARIES: Thank you so much. 3 You can tell who the computer scientists 4 are out there. They were on the edge of their 5 chairs. 6 [Laughter.] 7 CHAIRMAN SOARIES: The rest of us were 8 writing down words to look up in our dictionaries. 9 [Laughter.] 10 CHAIRMAN SOARIES: Thank you so much, Dr. 11 Laskowski. I have questions for you after. 12 Ms. DeBeauvoir. 13 Ms. DeBEAUVOIR: Perfect. Thank you so 14 much. 15 Mike on, mike? Thank you. 16 CHAIRMAN SOARIES: Okay. Here it comes. 17 Ms. DeBEAUVOIR: I began my first election 18 in 1987 when I was a baby clerk conducting a punch 19 card election for Austin, Texas which is about -- 20 it's now 700,000 voters. When I first conducted that 21 punch card election and saw what it looked like 22 behind the scenes I was pretty disturbed and 260 1 immediately started working on my jurisdiction to get 2 us out of it. 3 Three years later I convinced my 4 commissioners first to switch to an optical scan 5 central count which is a huge undertaking for a large 6 county like us, but it was the cheap way to get us 7 out of punch card voting. 8 I will say that we were such a large 9 jurisdiction that I was very close to having to 10 butterfly my ballot in order to get everything on 11 there. And even back then I knew that was going to 12 be a scary proposition. 13 Two and a half years ago I again 14 transitioned our county to a DRE touch-button system. 15 So I may be the only one here to talk about that 16 particular piece of equipment. And I did an 17 extensive voter education campaign in all of those 18 transitions. And I think what I've learned from the 19 previous transitions and now this one, and especially 20 the more current conversation, what I would like to 21 do is add to further the conversation about how 22 voters feel and what we can do about voters while I 261 1 also concur with many of the statements that Connie 2 McCormack made. 3 I've also been through the thinking 4 process about how I would put a large ballot into a 5 voter verified paper piece of ballot and it looks 6 very similar in Austin, Texas as in Los Angeles. 7 Now, I think what's important for voters 8 is we've got to educate them because right now 9 there's this sort of free-floating thing happening 10 out there and we've got to find ways to educate 11 voters so that they focus on exactly what the problem 12 is so that then we know exactly what the solution is. 13 The engineers in the audience would refer 14 to that as "risk assessment" and "risk mitigation." 15 Because what I want to talk about is the kinds of 16 things that voters mention to me. They stop me in 17 the supermarket all along and ask me some of these 18 kinds of questions. 19 They ask me, well, you know, can we stuff 20 the ballot box like we used to do with paper ballots? 21 Can ballot stuffing occur? The answer to that 22 particular risk assessment is a mitigation tool that 262 1 is procedural. Okay. 2 They ask about post-election tampering. 3 They want to know if there is any way you can tell at 4 the counting station if somebody is doing something 5 behind the scenes or any of that. The mitigation to 6 that risk has to do with real time audit logs, with 7 segregation of duties, with opening up the doors and 8 letting the general public watch what you're doing 9 and having trained personnel who are your own people. 10 11 The other thing that they ask me about is 12 hacking. Hacking has been probably the thing I get 13 asked the most about. You know, we can just hack 14 into the system and change votes. If there is no 15 external communication pathway, then we are wasting 16 our time talking about hacking. And in most systems 17 they are closed. So it's not possible to hack it. 18 Internet voting is very scary. But not a 19 closed system. So we can just bypass hacking and 20 let's go to some of the other forms of tampering that 21 have been mentioned to me. The one that's probably 22 been mentioned the most by voters is the Trojan Horse 263 1 or Bomb or something that's been planted in the 2 software and then it's going to react later, either 3 in a time clock or triggered buy some particular 4 action. The mitigation to that particular risk is, 5 you know, a lot of different steps that we currently 6 don't have really good tools for. And this is one of 7 the things that I believe that the Commission can be 8 helpful for in the future. And that is, that if -- 9 one of the things that was mentioned earlier is, if 10 we were to use hash code testing to prove that the 11 version of the software that I am using on the 12 system, you know, that I'm conducting that election 13 on and it is only that software version, then that 14 helps take care of that problem. 15 Once, again, the risk assessment -- I 16 mean, the mitigation matches the assessment problem. 17 I'm going to move very quickly because I 18 want to give you the opportunity to ask questions. 19 Probably the one risk that I think I take 20 most seriously is some form of an inside job. And 21 I'm still not sure exactly how, you know, this would 22 occur. But, you know, let's just say that I would 264 1 consider that a higher probability than some of these 2 other examples of risks. And the way you do that is, 3 I think first of all you have to do very, very 4 serious logic and accuracy testing. I have submitted 5 in my materials to you a procedure that we could 6 teach county clerks and elections administrators -- 7 from counties who perhaps don't have as much 8 technical experience as my county does -- how to set 9 this up and do it themselves so that they not only 10 proof their ballot, but they prove that it really 11 does count. 12 There's also, we could use cyclical 13 redundancy testing at the central counting station 14 prior to counting votes and we can demonstrate the 15 use of sum checks. Sum checks are in the equipment 16 right now. You can't see them. So let's demonstrate 17 them. Let's figure out a way to show people that 18 this is what is happening. Then, coupled with 19 criminal background checks on all temporary and 20 permanent employees, now you've got a significant 21 layering of mitigators on top of that so that you've 22 increased your confidence that, you know, inside job 265 1 is going to be much, much more difficult to 2 accomplish. 3 And finally switching or doubling votes. 4 I actually had in an optical scan environment an 5 attorney who requested a recount because he was 6 convinced that the vote totals for the two candidates 7 had been switched because the plug was plugged in 8 upside down. 9 Now, it was a three-prong plug. 10 [Laughter.] 11 Ms. DeBEAUVOIR: This is a real story, 12 this is a real story. It really did happen. And we 13 had to go hallway through this thousands and thousand 14 of ballot count -- recount before this guy finally 15 understood that, no, you know, it's not switching 16 votes at all. 17 [Laughter.] 18 Ms. DeBEAUVOIR: I have seen some fun 19 stuff. 20 I think what we really need to ask 21 ourselves is, what risks do we really face? And I 22 think we do need to do further risk assessments. But 266 1 just in those few that I've mentioned, the ones that 2 voters talked to me about, in none of those cases is 3 a voter-verifiable paper ballot the answer. In none 4 of those higher risk, the ones, the problems that 5 everybody talks about does voter verifiable ballot 6 prevent it. And what I would say to you is that it 7 is not acceptable to me as somebody who has to deploy 8 equipment into the field that the only protection I 9 have for knowing that I've got a safe and secure 10 system is a voter -- and not even all of them, but a 11 sampling of voters who are going to tell me after the 12 fact that I've got something wrong. No, I want 13 prevention from the fact, not detection after the 14 fact. 15 CHAIRMAN SOARIES: Thank you. Thank you 16 very much. We know that Ms. Miller was detained and 17 if she can get here before 2:30, we would be happy to 18 hear from her. But we do have her written testimony. 19 Dr. Laskowski, you talked about a level of 20 uncertainty that exists around usability and my mind, 21 when you say that, goes to the first time I voted in 22 my district on a touchscreen machine when I was 267 1 alarmed, I was pleased, and I was quite experimental. 2 I saw a keyboard at the bottom of the machine and I 3 had never seen a keyboard in a voting machine before 4 so I typed in my name. And I didn't know how to 5 untype it and so I pushed "vote" and I ended up being 6 elected to an office because I was a write-in 7 candidate for whom there was no opposition. 8 [Laughter.] [Applause.] 9 CHAIRMAN SOARIES: So I wish I could have 10 verified that before I pushed "vote." 11 [Laughter.] 12 CHAIRMAN SOARIES: That is a true story. 13 [Laughter.] 14 CHAIRMAN SOARIES: When I hear persons 15 from your field talk about usability studies, I guess 16 what I would have called that before meeting you was 17 market research. But it's different. Could you help 18 us understand the difference between market research 19 for a product and usability studies from a science -- 20 from a science aspect? 21 DR. LASKOWSKI: I think the biggest 22 difference is that in usability engineering process, 268 1 when you're doing a usability evaluation, you want to 2 work with an appropriate sample of your users with 3 the actual product and observe the interaction with 4 the product because that's how you detect errors. 5 The error you described was one leading to 6 failure to cast your vote as intended. You can also 7 occasionally observe errors that don't cause the 8 failure that the user can correct. But in doing 9 those kinds of observations that tells you a couple 10 of things. It tells you what sorts of errors and 11 just by looking at say, spoiled ballots or residual 12 errors at the end, that doesn't give you that kind of 13 detailed information as to what is the actual sources 14 of the errors. It also tells you ways you can 15 mitigate or improve the user interface to alleviate 16 those errors. 17 CHAIRMAN SOARIES: So the challenge that 18 we have, if accepted, to include in new standards, 19 the requirement for performance-based usability 20 testing? 21 DR. LASKOWSKI: Yes, if we look at best 22 practice in the industry -- 269 1 CHAIRMAN SOARIES: Right. 2 DR. LASKOWSKI: -- the software industry, 3 for example, we see that they do testing. They're 4 all testing with users on critical tasks, et cetera, 5 looking for these kinds of things and so we know that 6 that can ensure a certain level of usability and 7 indeed that is the most reliable way of identifying 8 those kinds of errors. 9 CHAIRMAN SOARIES: Yeah. I guess my 10 question is, there's a consensus of concern at this 11 table as it relates to the ITAs themselves. 12 DR. LASKOWSKI: Ah, yes. 13 CHAIRMAN SOARIES: And you're working on a 14 process that we'll end up partnering on. What are 15 the implications for certifying ITAs, if any -- 16 DR. LASKOWSKI: Currently the ITAs do not, 17 as you know, do usability testing. 18 CHAIRMAN SOARIES: Right. 19 DR. LASKOWSKI: It's not part of the 20 mandatory and part of the current BSS, it's the 21 usability -- 22 CHAIRMAN SOARIES: But if it were to 270 1 become a part of it -- 2 DR. LASKOWSKI: -- and so they would have 3 to have -- first, a well-defined test methodology 4 would have to be developed to support the testing so 5 that an ITA could be certified as qualified to 6 perform that as having suitable personnel and a set 7 up in laboratory to perform those tests. 8 CHAIRMAN SOARIES: So given the pool of 9 candidates for potential ITA certification to become 10 ITAs, does that narrow the pool? Does it have an 11 impact on the possible number of candidates? 12 DR. LASKOWSKI: Well, they would have to 13 hire probably additional personnel or lab personnel 14 and lab facilities. 15 CHAIRMAN SOARIES: So it shouldn't have a 16 negative impact on -- 17 DR. LASKOWSKI: It's in line with their 18 current process. 19 CHAIRMAN SOARIES: Okay. 20 DR. LASKOWSKI: It's no different than the 21 current process except that there's additional skill 22 involved. 271 1 CHAIRMAN SOARIES: Good. 2 DR. LASKOWSKI: But there are lots of 3 usability professionals around that can advise them 4 on how to do that type of thing. 5 CHAIRMAN SOARIES: Ms. DeBeauvoir, much of 6 what we are talking about, again, is in the gray area 7 of perception, and perception is impacted by 8 communications and some of what we are having to 9 think through is, how do we communicate to the 10 public? On the one hand one can communicate in a way 11 that causes the public to think that we are just 12 na ve and defenders of the status quo. On the other 13 hand one can communicate in a way that predicts 14 Armageddon and just scares people to death. 15 Ms. DeBEAUVOIR: Yes. 16 CHAIRMAN SOARIES: How do you balance that 17 in this area? 18 Ms. DeBEAUVOIR: The whole issue of voter 19 education, well, for one thing, it's going to cost 20 money. And we are going to need professionals to 21 help develop those communication tools with voters. 22 There's one thing that I think we could do 272 1 right off the bat that would so help voters. And 2 that is, in all of the area equipment that's out 3 there right now, they're required to have a summary 4 screen. If we really focused people to teach them 5 how to use the one tool they already possess that's 6 basically the same thing as a voter verified paper 7 ballot, that would be a huge improvement right there. 8 Just focus on getting them to understand and use that 9 summary screen. 10 Now, what that says to them is it puts the 11 power back in their hands to, you know, accept 12 responsibility for their ballot, to make their 13 choices and it's something tangible and easy message. 14 You could get it across in a 60-second commercial. 15 And I think there are other examples of 16 things that we really need to focus on. But that 17 whole concept of voter education is, you know, we 18 need professionals to help us reach out and talk to 19 voters. 20 The other thing too is that I think you 21 have to create a climate where it's okay to ask 22 questions. And that happens in the polling places, 273 1 early voting on election day, we have to have really 2 warm and nice people in the polling places so that 3 voters feel comfortable saying, you know, I don't get 4 this. That's a hard thing for a lot of people to do 5 and we need to really encourage that climate. 6 CHAIRMAN SOARIES: My last question, 7 Denise Lamb talked about eight native American 8 languages that are unwritten which really is 9 exacerbated in the general population by high levels 10 of illiteracy. And what I'm wondering is if 11 illiteracy or a limited reading proficiency is a 12 usability issue or is it a different issue? 13 DR. LASKOWSKI: I would view it as a 14 usability issue for a specific segment of the 15 population. But when you start thinking about making 16 more accessible user interfaces, things like audio, 17 the blind also work in these examples as well. 18 CHAIRMAN SOARIES: Commissioner. 19 COMMISSIONER DeGREGORIO: Thank you, Mr. 20 Chairman. Ms. Laskowski, first let me compliment you 21 and NIST for your work. Of the four Commissioners I 22 have interacted with NIST the most over the past few 274 1 months and been very impressed by the leadership that 2 I have seen in NIST and Dr. Susan Zebun is here and 3 Alan Eustis is here who work on the voting program 4 with NIST and Craig Burkhart from the Department of 5 Commerce which NIST is under is also here. And this 6 report that you all have put together is an important 7 document, a very important document. We hope to have 8 it on our web page by the end of the week so people 9 can download it and read it themselves because the 10 recommendations are important, very important. 11 It's amazing to me how much money has been 12 spent on election equipment in the country and just 13 no research has been done, really, according to your 14 report and to what I see in other places into really 15 these human factors. And I found it fascinating 16 several segments, several pages of your report where 17 you describe the differences in DREs and how they 18 treat over votes and under votes. 19 A week from today we are going to go 20 before a committee of the house to plead for funds 21 for next year. And a significant portion of the 22 funds we are going to ask for will help support the 275 1 putting together guidelines and standards and to do 2 some of the research that you suggest here. What do 3 you think would be a reasonable time if we do get the 4 funding that we could probably -- that you could 5 probably conduct some thorough research by scientists 6 into this area and come up with a study that would be 7 used by vendors in election jurisdictions across the 8 country? 9 DR. LASKOWSKI: I think that within one to 10 two years you could have a fairly good foundation and 11 a structure for which to do testing and some basic 12 investigation on what are the values of the 13 parameters we are talking about in terms of 14 performance with respect to usability and 15 accessibility and that would serve as a springboard 16 for sort on ongoing iterative kind of investigation, 17 ongoing research as the technology changes and as we 18 learn more. 19 COMMISSIONER DeGREGORIO: I mean, I think 20 if there was a human factors report written years ago 21 about punch cards and butterfly ballots, I mean, this 22 issue might have been discussed years ago and people 276 1 might have encouraged people not to do that, not to 2 have butterfly ballots because of the confusion that 3 it presents to the voter as they cast a ballot. 4 Ms. DeBeauvoir, Texas is one of those 5 states that Ken Brace mentioned this morning that 6 doesn't report over votes and under votes. How about 7 in your county, do you report the over vote and under 8 vote? 9 Ms. DeBEAUVOIR: I report over votes and 10 under votes and now that I am in a DRE environment I 11 only report under votes because there are no over 12 votes. 13 COMMISSIONER DeGREGORIO: Okay. Why do 14 you think election officials in Texas are reluctant 15 to report some of these results? 16 Ms. DeBEAUVOIR: Oh, the reluctance is 17 purely because voters start asking questions and they 18 get confused and then they get, you know, angry and 19 upset. And it has tended -- more information has 20 tended to produce more confusion. So it was a 21 service to voters to just try to just make it 22 concise, you know, here's who won and here's exactly 277 1 how many votes they got. There was nothing else in 2 it but that. I kind of gave up and said, I'm going 3 to report it all. 4 CHAIRMAN SOARIES: Well, thank you so much 5 for sharing with us as the other candidates. 6 VICE CHAIRMAN HILLMAN: We have a couple 7 of minutes, can I ask a question? 8 CHAIRMAN SOARIES: I'm sorry. 9 [Laughter.] 10 VICE CHAIRMAN HILLMAN: That's all right. 11 You're doing such a good job of moving this train 12 down the track, some of us are getting left behind. 13 CHAIRMAN SOARIES: I'm sorry, I apologize. 14 VICE CHAIRMAN HILLMAN: That's quite all 15 right. 16 [Laughter.] 17 VICE CHAIRMAN HILLMAN: Two quick 18 questions. Following up on the NIST report, the 19 human factors report as it's being referred to, other 20 than scientists, who has input into the assessment of 21 all the factors that are considered in the 22 development of the report and how do they -- 278 1 How do they get that opportunity? 2 DR. LASKOWSKI: I'm not sure I understood 3 your question. In terms of the authors of the 4 report, or-- 5 VICE CHAIR HILLMAN: The development of 6 the report. Other than scientists, who has input 7 into the development of the report, and how do 8 they--how is the broader community able to have input 9 into some of the findings and recommendations put 10 forward? 11 DR. LASKOWSKI: Who had input, or who-- 12 VICE CHAIR HILLMAN: Had input. 13 DR. LASKOWSKI: Well what we did is we 14 made a point of talking to as many of the different 15 stakeholder communities as we could. 16 So for example we talked to people from 17 the National Federation of the Blind to see what kind 18 of testing they had done, et cetera, and various 19 advocacy groups. 20 We went to the conferences where there 21 were vendors showing their machines, and we talked to 22 the vendors and tried out the machines, et cetera. 279 1 We talked to various election officials to 2 get their points of view. So we tried to do as much 3 footwork as we could to talk to others outside the 4 scientific community from their perspective, because 5 when you talk about useability and accessibility, you 6 have to understand all the players involved to make 7 sense of it. 8 VICE CHAIR HILLMAN: Thank you. And a 9 quick question for you. Having heard everything that 10 we have heard today, and what I have heard before and 11 what I have read, I mean we have election officials 12 who know the challenges, who have tried to address 13 the challenges, and the vendors and, you know, the 14 standards that have been set and so on and so forth, 15 I just wanted to ask your opinion as to why you 16 believe the concern about the voter being able to 17 verify what he or she has cast on the ballot has 18 taken on the life, that will be my word, the life it 19 has taken on. 20 Because it does appear that there have 21 been conversations about this maybe even prior to 22 2000, but certainly since 2000, and there have been 280 1 considerations, and there have been mistakes, and 2 there have been errors, but in the end, you know, 3 when we are talking about customer satisfaction, the 4 voter satisfaction, just any opinion that you have on 5 that. 6 MS. DeBEAUVOIR: I do think it started 7 small and has snowballed. I think that with the lack 8 of--voters don't really understand all of the 9 procedures that surround an election. They don't 10 know. They just think somehow it magically appears 11 in the polling place, and then at ten o'clock at 12 night they know who won, and they really don't give 13 it that much thought. 14 Until they get involved and start working 15 in a polling place, it does not occur to them that 16 there is so much pre-election and election day 17 procedural work that has to happen, and it has to 18 happen correctly, that I think they don't know. 19 And by not knowing that, they don't know 20 the checks and balances, which means then they are 21 just operating on trust. So I think we have to 22 substitute that. 281 1 Now lack of trust with more information. 2 They need to understand all of the ins and outs, and 3 the paper audits, and comparisons that are done as a 4 standard practice, and that goes for every state, 5 every type of system used. 6 VICE CHAIR HILLMAN: Thank you. 7 CHAIRMAN SOARIES: Commissioner? 8 COMMISSIONER MARTINEZ: I'll ask one quick 9 question, Mr. Chairman, of Ms. DeBeauvoir. And in 10 the interest of full disclosure, I just moved from 11 Austin, Texas, and the last time I voted was in the 12 Texas March primary with your system. 13 My question is: Although I guess certain 14 logic is that DREs simplify the voting process, in a 15 certain sense it might be an easier, aesthetically 16 perhaps system for a voter to use, is it more complex 17 when it comes to behind the scenes in your poll 18 worker training? Do you have to redesign training 19 modules and maybe have more poll workers because of 20 the complexity of manipulating the system and 21 ensuring its integrity? Is that true? 22 MS. DeBEAUVOIR: The answer is 'yes' and 282 1 'no.' In the initial part when you're first doing 2 implementation, there's a start-up period where you 3 do have to rewrite all of your training materials, 4 and training manuals, and get everything in order. 5 And that includes for the trouble shooters for 6 election day, for early voting, for the people who 7 are working the counting station, for the people who 8 are getting all the supplies ready for the judges to 9 pick up, for each aspect of that you have to 10 completely rewrite and revamp. 11 One that work is done, though, DREs 12 simplify the job for administrators. So after the 13 training has taken place, and after the poll workers 14 have had the opportunity to operate a couple of 15 times, then it is actually an easier environment. 16 CHAIRMAN SOARIES: Thank you so much for 17 your contribution, and we look forward to working 18 with both of you in the days to come. 19 MS. DeBEAUVOIR: My pleasure. 20 DR. LASKOWSKI: Thank you. 21 CHAIRMAN SOARIES: Our final panel will 22 consist of the people who work in organizations that 283 1 provide advocacy for voters. I would like to call 2 our Advocacy Organization Panel to come and prepare 3 to make our closing presentations. 4 I would like to thank the audience once 5 again. Some of you have been here all day. Thank 6 you for your cooperation and your presence. 7 (Pause for audience noise.) 8 All right, audience, don't make my take 9 back my thanks. All right, is everyone here? Okay, 10 we are going to begin our panel. If the remaining 11 panelists arrive, we certainly will accept them. I 12 would like to say welcome to our panel. Audience, 13 thank you very much. Let me begin by assuring this 14 panel that the fact that you are last on our agenda 15 does not mean you are last on our minds. Each of us 16 on this Commission have in some way been groomed and 17 impacted and inspired and in some ways trained by 18 either your specific organizations or organizations 19 who do what you do. 20 I will say this now. I didn't say it 21 earlier, but one of the reasons we are able to 22 maintain a spirit of bipartisanship on this 284 1 Commission is because most of us come from the 2 nonprofit community. Most of us come from advocacy 3 roles, and none of us are what we might call 4 professional politicians. So it warms our hearts to 5 have you here, and we felt that it was the most 6 appropriate way to end this discussion which at times 7 became very technical, and very machine-specific to 8 really look at the impact of all of this on people's 9 lives and on the quality of life in our communities. 10 It is with great pride and joy that I 11 introduce this our final panel. Jim Dickson is the 12 Vice President for Governmental Affairs with the 13 American Association of People With Disabilities, and 14 also is Vice Chair of the Leadership Council for 15 Civil Rights. 16 Kay Maxwell is the President of the League 17 of Women Voters of the United States. It was with 18 your organization when I was 16 years old that I was 19 involved in my first voter registration campaign. I 20 am so happy to meet you, Kay Maxwell. 21 Angela Arboleda is with the Civil Rights 22 Policy Analyst, National Council of La Raza. 285 1 And Melanie Campbell, Executive Director 2 and CEO of the National Coalition on Black Civic 3 Participation, where our Vice Chair was a keynote 4 speaker yesterday and I was working on getting ready 5 for this hearing. 6 And Chellie Pingree, President of Common 7 Cause. A distinguished group of advocates, and we 8 are thrilled you're here and anxiously await your 9 remarks, beginning with Jim Dickson. 10 STATEMENT OF JIM DICKSON, VICE PRESIDENT FOR 11 GOVERNMENTAL AFFAIRS, AMERICAN ASSOCIATION 12 OF PEOPLE WITH DISABILITIES 13 MR. DICKSON: Thank you, Mr. Chairman. 14 Thank you for conducting this hearing with a civil 15 tone. 16 I have two disabilities. I am blind and I 17 am blunt. 18 (Laughter.) 19 MR. DICKSON: I have been voting for 36 20 years. This January, because of touch screen voting, 21 I voted secretly and independently for the first time 22 in my life. That was an incredibly empowering 286 1 experience. It made me proud to be an American. 2 But I need to tell you about the 3 experiences that I have experienced relying on third- 4 party assistance, which is the only alternative for 5 disabled people to use. The experiences that I am 6 going to relate happened to me, but I can tell you 7 because I have worked in elections for 22 years full- 8 time that these experiences happened to millions of 9 other American voters: people who are disabled, 10 people who have limited English proficiency, and 11 people who are low-literate. 12 I had a poll worker say to me, in my very 13 first chance to vote I might add: "You want to vote 14 for WHO?!" And loud enough so it could be heard in 15 adjoining polling booths. 16 In another election, I had a poll worker 17 say to me: "You voted for President and Governor. 18 We're really busy and nobody knows who these people 19 are down on the ticket, so aren't we through?" 20 On yet another occasion--and I want to add 21 because of my career I've moved around. All of these 22 have happened in different jurisdictions. 287 1 On another occasion, I had a poll worker 2 say to me when we got to the referenda: "Nobody 3 understands these. You don't want me to read them, 4 do 'ya?" I had to fight with the poll worker to hear 5 the referenda. 6 On another occasion, I had a poll worker 7 say to me: "We are really busy. Why don't you come 8 back later?" 9 These experiences happen to tens of 10 millions of Americans. We have a crisis in this 11 country of low voter participation, and one of the 12 reasons is because tens of millions of us cannot vote 13 a secret ballot. We have had to rely on strangers, 14 trust that they mark the ballot accurately, and we 15 have had to put up with the insults and indignities 16 that I have just described. 17 There are two secretaries of state in this 18 country who are in the forefront of this electronic 19 debate: Secretary Blackwell in Ohio has taken what I 20 think is a thoughtful, careful, deliberate approach, 21 and it has resulted in for the first time in the 22 Buckeye State hundreds of thousands of people will be 288 1 able to vote secretly and independently for the first 2 time. 3 He looked at the systems. He hired 4 independent examiners. Very importantly, he 5 required that the systems be looked at as hardware, 6 as software, and in the context of elections. 7 There were improvements called for. Those 8 improvements were made. And as a result, based on 9 action by the Ohio Government, on Monday 31 counties 10 in Ohio are going to be using touch screens for the 11 first time this fall. 12 Unfortunately, Secretary Shelley's actions 13 have resulted in 2 million Americans losing the 14 ability to have--2 million Californians, 2 million 15 Californians who had a secret ballot will not have it 16 this fall because of his decertification. 17 The secretary is being rosy eyed to think 18 that the standards he just promulgated can be met in 19 six months. I have talked to county election 20 officials and their plan is to go to central count 21 optical scan. 22 We know that central count optical scan 289 1 counts fewer votes than even punch cards. We know 2 that central count optical scan is three to four 3 times more likely to not count the vote of a person 4 of color than a person who is white. 5 The secretary's action means that, at a 6 minimum, at a minimum, there are going to be 350,000 7 Californians who are going to leave the voting booth 8 in March and will not have their vote counted. And 9 this has been done in the name of a theory, a theory 10 that has no fact. 11 When computer scientists say to us: How 12 do you know the system hasn't been hacked? That 13 reminds me of the question: When did you stop 14 beating your wife? 15 It is not a way to carry on public 16 discourse. It is not a way to build confidence in 17 our voting system. 18 This piece of paper is what California 19 election officials are going to have to count if they 20 get a paper trail. I have been in polling places and 21 in election offices when votes have been tabulated. 22 This (indicating) is the prototype. 290 1 What is going to happen when we count 2 votes when a poll worker who is sleep-deprived, who 3 has been up for 15 straight hours, drops the roll 4 (dropping roll of paper)? 5 Thank you for your attention. 6 CHAIRMAN SOARIES: There goes our civility 7 right down the tube. 8 (Laughter.) 9 CHAIRMAN SOARIES: Thank you, Jim. 10 STATEMENT OF KAY MAXWELL, PRESIDENT 11 U.S. LEAGUE OF WOMEN VOTERS 12 MS. MAXWELL: Thank you, Mr. Chairman, for 13 the opportunity here today to present the views of 14 the League of Women Voters. 15 The immediate issue facing this Commission 16 and our Nation is the 2004 General Election. We 17 simply cannot afford a replay of 2000 when millions 18 of Americans questioned the outcome and the 19 legitimacy of the Presidential Election. 20 The 2004 election is in danger. Most 21 Americans will vote on the same machines that they 22 did in 2000. Reforms to ensure proper and accurate 291 1 voter registration rolls are far from complete, and 2 citizen concern about the security of voting systems, 3 access to the vote, and the counting of votes 4 threatens the upcoming election. 5 The League believes that effective steps 6 must be taken immediately, and we call on you, the 7 Election Assistance Commission, to promulgate 8 emergency best practices for the 2004 election. 9 We favor such steps as enforceable 10 statewide security plans. 11 Physical protection of voting systems to 12 guard against tampering. 13 Standards to govern voting machine 14 preparation, testing, and vote counting. 15 And polling place practices to ensure that 16 machines work properly and that all voters do have 17 equal access. 18 In addition, specific security measures 19 are needed for each significant type of voting 20 machines that Americans will use in 2004. Punch 21 cards will be used by 20 percent of the voters. 22 Lever, by 15 percent. About 30 percent on optical 292 1 scan. And electronic, by about 30 percent. 2 Each type of system rates a particular 3 security and access concerns that must be addressed. 4 It is vitally important that the debate about the 5 2004 election not scare voters away from the polls. 6 Telling people that their vote won't count can 7 discourage voter participation. 8 We have to encourage people to vote, while 9 at the same time we work to improve access and to 10 ensure that every vote will count. 11 Now the League believes that DREs can be 12 an important part of election reform efforts. Well 13 managed systems such as that you've heard described 14 in Georgia have strong public support, improve 15 access, and reduce errors in casting and counting the 16 vote. 17 But important questions have been raised 18 about DRE security, and the management and 19 operational practices that affect DRE performance in 20 the real world. 21 We take these questions seriously and 22 believe they must be dealt with by this Commission 293 1 and by state and local election administrators. 2 It is important to carefully examine each 3 issue and to craft solutions that meet specific 4 problems. There is no panacea or silver bullet for 5 the problems we face. We must rigorously match 6 problems to solutions. 7 DREs must be properly tested, maintained, 8 managed, and operated. Otherwise, they will have 9 substantial problems. And there are examples of DREs 10 being mismanaged. So it is vitally important to 11 ensure that DRE systems, as well as other systems, 12 are properly managed. 13 At the same time, we should not assume 14 that only one type of voting machine is vulnerable to 15 attack, mismanagement, or operational problems. 16 Issues about the accuracy and reliability of DREs may 17 also apply to optical scan and other systems. 18 We must ensure the certification, testing, 19 and accuracy of the software and hardware used in all 20 voting systems. 21 Now because the election is just months 22 away, we must focus on the problems and possible 294 1 solutions we face immediately. More systemic 2 solutions may be needed, but now, six months before a 3 Presidential election, is not the time to make major 4 changes in our large and diverse election systems. 5 Murphy's Law has not been repealed. Now 6 is the time to make management and operational 7 changes that can be absorbed before the November 8 election, and there are several important principles 9 to keep in mind. 10 First, fix the things that are broken. 11 Improved operational and management practices can 12 deal with the reported problems of many DRE systems, 13 but if particular machines or some types of machines, 14 or machines by a particular manufacturer are the 15 problem, then those machines should not be used. 16 Quite a bit can be done to improve their 17 reliability and security in time for the 2004 18 election, and my written statement does out line 19 several key action areas. 20 Second, the use of certified systems that 21 meet federal guidelines and standards is a 22 fundamental safeguard. There have been reports of 295 1 the use of uncertified systems, and that of course is 2 simply unacceptable. 3 Third, voting systems must not result in 4 discrimination. Older voting machines have varying 5 rates of error depending on the characteristics of 6 voters, including socioeconomic status and 7 educational levels. 8 And as you've heard today, election 9 systems can currently provide full equality to people 10 with disabilities or limited English proficiency. 11 And technology is developing. We don't 12 have all the answers today that we will need to 13 improve the election system for 2006 and 2008. It 14 may be that the systems we should be using in the 15 future have not yet been designed. 16 Access issues need to be addressed. 17 Security issues and security solutions are also still 18 developing. 19 Now some of Ray's concerns about DREs pose 20 a particular solution, the so-called voter-verified 21 paper trail. We urge the Commission to look at this 22 proposal carefully and in detail. There are many 296 1 questions that must be answered before we go down the 2 VVPT route. 3 In my written statement, eight issue areas 4 are mentioned. In examining these types of 5 questions, the League has not been persuaded of the 6 wisdom of the voter-verified paper trail. 7 Proponents argue that the paper record can 8 be counted to accurately determine the outcome of an 9 election. But for this to work, it seems that every 10 voter must verify every ballot. Otherwise, there is 11 no assurance that the paper trail is accurate. 12 Unverified pieces of paper don't add accuracy or 13 security. 14 And even with paper records that are voter 15 verified, there are questions about the accuracy, 16 reliability, and fraud potential for the counting of 17 paper records with a long history of lost, mangled, 18 and manipulated paper ballots. 19 An alternative theory of the voter- 20 verified paper trail holds that the paper record is 21 valuable even if voters aren't required to verify it, 22 since it may indicate that a particular machine is 297 1 malfunctioning. 2 There are a number of problems with this 3 scenario. First, if a malicious programmer or an 4 outside hacker can change the electronic record of 5 the vote, such a skilled person can make the printer 6 provide a paper record that doesn't expose any 7 error. 8 And second, what happens if nine voters 9 don't look at their paper record but the tenth voter 10 reports that the paper record is wrong? Should we 11 assume that the previous nine votes were also wrong? 12 Do we need to call those voters back and ask them? 13 Do we need to somehow retrieve their votes from the 14 system? 15 Under the optional verification system, we 16 clearly cannot rely on those unverified pieces of 17 paper for a later recount. 18 And there are certification issues. In 19 our written statement there are seven concerns that 20 we indicate need attention. We are not aware that 21 any VVPT systems have been certified according to 22 federal guidelines that deal specifically with the 298 1 key concerns. 2 We believe the questions about the VVPT 3 system are sufficiently severe that the paper trail 4 system doesn't make sense for 2004. We are concerned 5 that it doesn't make sense for the long term, either, 6 but technology is constantly changing and the debate 7 over election systems is still developing. 8 The League of Women Voters believes our 9 Nation must focus on solving the very real 10 operational and management issues for voting systems 11 in 2004. We urge the Election Assistance Commission 12 to assist in this task, and we pledge our assistance 13 in those efforts. 14 Thank you. 15 CHAIRMAN SOARIES: Thank you, very much. 16 Angela. 17 STATEMENT OF ANGELA ARBOLEDA, CIVIL RIGHTS 18 POLICY ANALYST, NATIONAL COUNCIL 19 OF LA RAZA 20 MS. ARBOLEDA: Chairman Soaries, and 21 Commissioners DeGregorio, Martinez, and Vic Chair 22 Hillman: 299 1 On behalf of the National Council of La 2 Raza, NCLR, thank you for holding this hearing on 3 issues that are very important for the Latino 4 community. 5 NCLR is the largest national Latino civil 6 rights organization in the U.S. serving as an 7 umbrella organization for more than 300 local 8 affiliated community based organizations. 9 I appreciate the opportunity to appear 10 before you today to support a thorough revision of 11 voting technology. I respectfully request that my 12 written testimony be entered in the record in its 13 entirety. 14 For many years, NCLR, the Latino 15 community, and other language minority groups have 16 been patiently waiting for technology that responds 17 to the need of limited English proficient citizens. 18 For the first time, thanks to technological advances, 19 we have the potential to fully empower language 20 minority voters, those with sight impairments, and 21 people with limited literacy levels. 22 In my testimony I will discuss the 300 1 advantages and challenges of different voting 2 technologies and systems with respect to language 3 minority voters. 4 Despite the legal protections in the 5 Constitution and specific provisions in the Voting 6 Rights Act that protect limited-English proficient 7 voters, there is evidence that some jurisdictions do 8 not comply with federal language assistance 9 requirements. 10 In my written testimony, I provide select 11 examples of barriers faced by language minorities, 12 including Latinos, Asians, and Haitian voters, all 13 showing inaccurate translations, lack of 14 interpreters, and lack of bilingual materials. 15 Mr. Chairman, these and other language- 16 related barriers have a disparate, disproportionate, 17 and negative effect on Latinos and other ethnic 18 minorities. 19 In the absence of both policy 20 interventions and technological improvement, language 21 minority voters are more likely to be turned away or 22 deterred from voting, and less likely to have the 301 1 opportunity to cast a fully informed vote than other 2 Americans. 3 NCLR believes that there are three 4 considerations to guide the decisions in making 5 reforms to the Nation's voting systems. Voting 6 technology must provide for, number one, 7 nondiscrimination. 8 The administration of elections must be 9 guided by nondiscrimination practices. This includes 10 ensuring that the most secure and modern technology 11 is available to all voters in every precinct. 12 Number two, second-chance voting and voter 13 verification. The Help America Vote Act requires 14 that for the first time a voter be able to correct 15 and confirm his or her ballot before it is cast and 16 counted. 17 And number three, compliance with national 18 certification standards. Federal certification 19 standards required under HAVA require that voting 20 technology meet basic but important conditions to 21 ensure that ballots are appropriately cast and 22 counted, machines are secure and reliable, and that 302 1 they provide for second-change voting and 2 verification. 3 In light of these considerations, and 4 after reviewing DREs and their capabilities, we 5 believe that DREs have the inherent capacity to allow 6 language minorities, people with disabilities, and 7 those with limited literacy skills the opportunity to 8 vote independently and privately. 9 Data show that voters prefer electronic 10 voting because it is easier to use, thus increasing 11 voter confidence. Problems with over voting and 12 under counting ballots are reduced with electronic 13 voting systems. 14 DRE voting technology meets the voter 15 verification provisions required under HAVA. DREs 16 can work accurately and effectively, but like all 17 voting systems they require adequate procedural 18 safeguards and management. 19 And lastly, allegations of wrong doing by 20 a particular manufacturer are not a justification to 21 scrap the technology or punish all manufacturers. 22 303 1 -- an alarming mis-steps by leading manufacturers as 2 well as several reports of administrative and 3 technological glicks in the early use of these 4 machines. 5 This apparently has eroded confidence in 6 DREs among some groups. NCLR believes that it is 7 essential to take additional measure to improve 8 security and ensure voters that a ballot cast is a 9 ballot counted. However, we note that to date the 10 voter verified paper trail, VVPT, technology is 11 unproven. It has not been certified as a system that 12 fully provides access to language minorities and 13 people with disabilities. 14 Since no VVPT system is certified, it is 15 simply unrealistic to expect that it can be both 16 certified and widely implemented in time for the 2004 17 election. 18 Finally, NCLR urges that the following 19 recommendations be taken into account to ensure the 20 limited English proficient voters have the right to 21 cast a ballot with certainty and assurance that it 22 will be counted. NCLR recommends (1) that the 304 1 Elections Assistance Commission, EAC, promptly 2 develop voting systems guidelines or best practices, 3 including standards that address security concerns of 4 computers, computer data storage and network used in 5 standards for both DREs and VVPTs as well as future 6 technology; (2) the EAC take steps to ensure that 7 voting technology complies with national 8 certification standards with ample time for election 9 officials to put in place any security systems 10 necessary to ensure voter confidence and 11 participation; (3) the EAC articulate that extensive 12 poll worker training of voting technology is 13 essential as new systems are implemented; (4) the EAC 14 support broad voter education efforts to help the 15 public understand how to use this new voting 16 technology systems; (5) the EAC commissions or 17 supports a rigorous study that assesses the costs and 18 benefits of DRE systems with respect to limited 19 English proficient voters; and (6) the EAC focus 20 public attention to other equally important aspects 21 of the electorial process to promote more effective 22 and equitable election administration. 305 1 Minority voters encounter difficulties at 2 different stages in the electorial process which may 3 preclude them from ever actually encountering modern 4 technology in the first place. These issues should 5 be scrutinized carefully by all committed to the 6 principles of equal opportunity in the electorial 7 process. 8 I thank the Chairman and Commissioners 9 once again for providing NCLR an opportunity to share 10 our views. 11 CHAIRMAN SOARIES: Thank you so much for 12 coming and for your views, both oral and written. 13 Thank you. 14 Ms. Campbell? 15 MS. CAMPBELL: Thank you, Mr. Chairman and 16 members of the Commission for inviting us, the 17 National Coalition to participate today in this 18 hearing. 19 For over 28 years, the National Coalition 20 has brought together national, state and local 21 organizations to address the disenfranchisement of 22 Black voters. The 2000 presidential election exposed 306 1 the cracks in the nation's electorial infrastructure. 2 While Florida was just the tip of the iceberg, the 3 paper ballot fiasco raised public awareness of the 4 importance of reliable voting technology, poll worker 5 training and voter education. 6 In the aftermath of the election debacle, 7 the National Coalition launched the "Know Your Rights 8 Election Protection Project." This cutting edge 9 voter protection initiative represents a 10 collaboration of over 60 national organizations, 11 including the Lawyers Committee for Civil Rights 12 Under Law, the NAACP Legal Defense and Educational 13 Fund, People for the American Way Foundation, the 14 National Urban League, Center for Policy 15 Alternatives, the Asian Pacific American Labor 16 Alliance, Puerto Rican Legal Defense Fund, Democracy 17 South, Black Leadership Forum, Common Cause, Georgia 18 Coalition for the People's Agenda, the National 19 Newspaper Publishers Association, and so and so 20 forth, over 60 national, regional and local 21 organizations. 22 The overarching goals of the Know Your 307 1 Rights Election Protection Project are to provide 2 voters with the information on how they can protect 3 their voting rights at the polls as well as to help 4 restore voter's confidence in the fairness of the 5 voting process. To achieve this goal, we must 6 address both real and perceived barriers. For our 7 democracy to work, our voting systems must be 8 transparent, secure and reliable. 9 Any voting technology that raises 10 questions about the integrity of the process should 11 raise alarm bells. No voting system is 100 percent 12 accurate and humans are falliable. That is why we 13 have a system of checks and balances. The goal is 14 not perfection. Instead, it is accountability and 15 safeguards. 16 The National Coalition has been in the 17 business of increasing Black voter participation 18 since 1976. Since Black Americans have historically 19 been disenfranchised, there's a deeply entrenched 20 skepticism regarding the voting process. The Florida 21 recount validated deeply rooted concerns about 22 fairness in the voting process. Electronic voting 308 1 poses a number of concerns when assessed against the 2 backdrop of the ongoing voting rights movement. 3 Concerns fall into three broad categories for us: 4 casting, counting and confidence. 5 Casting, most voters are accustomed to 6 receiving a physical ballot when they enter a polling 7 location as we all know here today. A ballot is a 8 tangible item that represents their voice and voters 9 journey to the polls on election day in an effort to 10 exercise their civic duty with an expectation that 11 their vote will really make a difference. When using 12 a touch screen of voting, there is no physical 13 evidence of the vote and the absence of a physical 14 ballot leaves many voters unsure about the process. 15 Some wonder, if, perhaps, they made a 16 mistake. Others wonder where did their vote really 17 go. I can say that personally because I have voted 18 on the system and I'm in this business full-time and 19 wasn't sure what I just did when I voted in this last 20 primary. How it is captured and what will happen if 21 a system fails. And for some, in the voting age 22 population, who have more limited dealings with 309 1 computer technology, the touch screen process seems 2 almost surreal. 3 Second, counting, in order to vote, 4 individuals must be 18 years old, registered and 5 either request an absentee ballot or travel to the 6 polls on election day. Until 2000, in spite of past 7 under and over counts, there was a general 8 expectation that every eligible vote was counted. 9 The electronic process is not understood 10 by voters or even poll workers who tend to be retired 11 senior citizens who have worked in the polls for 12 years. Computer malfunctions in the digital age are 13 common and consumers have learned to keep receipts 14 and documentation of transactions in the event that 15 they have to prove a computer error. Given this 16 experience, with everything from airline 17 reservations, banking or the posting of bill 18 payments, consumers have learned that, while 19 computers tend to be accurate, mistakes and 20 malfunctions occur. Based upon this general 21 experience, it is not unreasonable to expect that the 22 average voter will simply trust the computer nor 310 1 should them. 2 Electronic systems can fail due to 3 problems with hardware, software, lack of training on 4 the part of poll workers or our gravest concern, 5 intentional tampering with the process. It should be 6 noted that in the absence of such failures, 7 electronic systems are faster and more accurate than 8 mechanical systems and would tend to minimize under 9 and over counts. The demand for a transactional 10 record in the voting process is essential to 11 providing voters with a check and balance process 12 that will help to ensure their vote is recorded and 13 counted. 14 Thirdly, confidence, which we believe is 15 one of the most critical elements of this discussion. 16 Voter confidence is the anchor of our American 17 democracy. In my experience over the past 20 plus 18 years in motivating and mobilizing voters, I have 19 found that voters must feel confident of their 20 ability to properly cast their ballot or they will 21 not venture out to the polls to participate. It is 22 equally important that voters believe that their vote 311 1 will be counted, otherwise, they will stay at home 2 and not bother. The decline in civic participation 3 is well documented and attributed to a range of 4 factors, which in numerous cases can be overcome with 5 education. 6 It is critical that proper education is 7 employed to ensure that voters not only know their 8 rights, but they also gain a basic understanding of 9 how new voting systems machines operate. 10 Checks and balances, those who have worked 11 in the field of civic participation over the years 12 have a practical understanding of the many checks and 13 balances inherent in the existing system and the call 14 for voter verifiable paper ballots is actually a 15 demand for a further check as we transition into a 16 new system. 17 I commend the Election Assistance 18 Commission for convening this public hearing on the 19 use, reliability and security of electronic voting 20 systems. While the development of technical 21 standards should be left to the technicians, the 22 standards must not be developed in a vacuum. Simply 312 1 stated, the standards must take into account human 2 factors such as voters confidence in the technology 3 and the impact on civic participation. Voter 4 verification is an issue that the National Coalition 5 has monitored since the first legally-sanctioned 6 online primary election in 2000. 7 I actually ventured into Arizona, along 8 with several other organizations, including 9 (inaudible) Legal Defense Fund, to monitor that 10 process. And, at the end of the day, what was very, 11 very clear is that it wasn't so much that people, 12 once they were confident in the machinery itself, 13 liked it. It went along age lines, also. By the end 14 of the day, the concern that we left with was that 15 when it came to the verifiable issue that the folks 16 who were doing this election would not address that 17 issue. It was not address and so then, again, voter 18 confidence was what was at stake. 19 Moving forward, it is important to 20 acknowledge why we are here and why we believe that 21 it is incumbent upon this Commission to explore the 22 need for voter verification in greater depth. Let us 313 1 recall that the historical Florida count was the 2 major impetus for reform. 3 I would like to turn to one final example 4 in an effort to outline concerns from the field. 5 Georgia, as we all know, was the first state to 6 deploy a uniform electronic voting system statewide. 7 In 2002, the Georgia Coalition for the People's 8 Agenda, which is an affiliate of our organization, 9 lead our Know Your Rights Project in Georgia, 10 providing training and monitoring of the statewide 11 implementation of the new E-voting machines 12 manufactured by Debold Election Systems. 13 Early in the deployment process, the 14 question of voter verification arose. The state 15 relied heavily upon the vendor to respond to 16 questions about the new equipment. Each machine is a 17 stand-alone, which I'm sure you all heard this today 18 earlier, but where votes are captured on a hard drive 19 in the machine. This data is retrieved and reported 20 electronically at the end of the day. When the issue 21 of a voter-verified paper trail was raised, there 22 were typically two responses. The machines, which 314 1 had already been contracted by the state, were not 2 equipped to generate a receipt. And, two, in order 3 to keep voting private, voters could never be 4 provided a copy of their ballot because this would 5 certainly lead to new forms of intimidation. Both 6 responses missed the point. Voters wanted assurances 7 that the vote cast will be accurately recorded and 8 counted. 9 Lastly, the response from the manufacturer 10 for the people who were working on this project who 11 the Georgia Coalition for Black Women contacted 12 DeBold in the hope of establishing a community-based 13 initiative to educate civic leaders and community 14 organizers. DeBold representatives never met with 15 the organization in spite of the fact that the 16 Coalition was on the front line contracted by the 17 State of Georgia to assist with the deployment and 18 voter education. Unless community participation is 19 in some way mandated for machine vendors, there is no 20 incentive for them to engage the community. 21 And, finally, I'd just leave a point of 22 someone who I had a chance to meet and probably many 315 1 people in this room -- who passed away recently, and 2 that was the late Akin Gibbs, founder of True Vote 3 Systems out of Nashville, who quit his job as a 4 well-paid accountant to establish the only 5 minority-owned voting system firm in the country. 6 And he said it best. There has to be a much better 7 way. Thank you. 8 CHAIRMAN SOARIES: Thank you, Ms. 9 Campbell. 10 Last, but certainly not least, Ms. 11 Pingree. 12 MS. PINGREE: Well, thank you very much. 13 I want to thank all of you for being willing to serve 14 as commissioners for the work that you have ahead of 15 you, for including me and the concerns of Common 16 Cause here today and also two of my colleagues on the 17 panel who have deep concerns about this issue as well 18 and have been working so hard on this issue. 19 My complete remarks have been submitted to 20 you. I would just like to make a few remarks about 21 the highlights of some of my concerns. It's 22 obviously been a long day. You've spent a lot of 316 1 time thinking about this issue and I wanted to put it 2 in a little bit of context that had meaning for me. 3 One of our board members, Robert Pastor is a 4 professor at American University, used to work at the 5 Carter Center, has spent many years working 6 internationally in elections and he produced a recent 7 report, looking at the 2000 elections in North 8 America. I just want to quote a little from his 9 report. "The millennium arrived on the doorsteps of 10 North American in a most unusual way. All three 11 governments in Mexico, Canada and the United States 12 had national elections in 2000, an unusual occurrence 13 in itself." He goes on to talk a little bit about 14 the results of that election, but, more importantly, 15 what there was to be learned from that process. 16 "Despite this political trauma experienced 17 by the American body politic in the Florida election 18 of 2000 and despite the long national debate on ways 19 to improve the electorial and campaign financing 20 system that followed, no American leaders stood up to 21 answer a question which now should be obvious to 22 anyone. What could we learn from our two neighbors? 317 1 In fact, no one even posed the question. 2 The omission from the debate reflects a 3 debiliting flaw in the United States in arrogance and 4 disrespect of our neighbors an unstated belief that 5 we have nothing to learn and they have nothing to 6 offer. In fact, the most important concern coming 7 out of that election and the most disturbing 8 conclusion had to be that the United States 9 electorial system is unquestionably the weakest in 10 North America. That resulted in the Help America 11 Vote Act. It resulted in the reason that you are 12 here today, which we greatly appreciate, but also 13 results in the many hours that we have ahead of us. 14 As has been noted by many of the panelist 15 here and previously, we are about to face what could 16 be, pollsters tell us, a close election. It 17 certainly will be a closely watched election. After 18 Florida, and the concerns raised in 2000, and also 19 after the Help America Vote Act, which gave Americans 20 the confidence that something would be done. Yet, we 21 all know that because of the delays, the lack of 22 funding, likely many of the problems will not be 318 1 solved. 2 I am here, as you know, representing 3 Common Cause, which I've been the president of for 4 the last year. An organization that has been around 5 since 1971 founded by John Gardner. We have been 6 involved in every civil rights and voting rights 7 issue in the last 34 years, from the 18-year old vote 8 to the Help America Vote Act requiring funding and 9 oversight. 10 Our concerns are clear in our printed 11 testimony. We strongly and emphatically support a 12 voter verified paper trail at this time for all 13 voting systems. We believe too many questions have 14 been raised about electronic voting systems, about 15 their manufacturers and the hasty implementation. We 16 do believe we need to take a step back and make sure 17 we are doing the right thing for what we consider a 18 very fundamental right. 19 We also share those concerns. Those deep 20 concerns of many who have worked for years to ensure 21 that all Americans have the right to vote, have equal 22 access to voting and have the right to vote in 319 1 private. But we do believe that no one's right to 2 vote has meaning if the voter cannot be reasonably 3 assured that their vote was counted as cast. Some 4 people have suggested that raising concerns about 5 voting will discourage people from voting in 6 November. I think the cat is long out of the box. 7 And, in fact, we must raise those concerns. We do 8 not want to have another election day disaster and 9 people asking us then why didn't you raise the alarm. 10 I just want to speak briefly about my own 11 experience. I served for several years, in fact, 12 much of my life as an elected official. I have 13 participated in many elections and have to admit that 14 I've never voted on anything except a piece of paper. 15 I come from the State of Maine. I served in the 16 Maine Senate when party held the majority of the 17 Senate, lost the majority to the other party because 18 of a recount and that is one of the biggest concerns 19 about DREs, is how do you have a recount in an 20 election? 21 As a citizen, I watched what went on in 22 Florida. As a participant in the process, I have 320 1 seen many times the need to have a paper verified 2 ballot so that we could count it again. I've also 3 watched the speaker of the house lose their seat from 4 a ballot-tampering scandle and I know how important 5 it is to have practices in place and eternal 6 vigilance in the polling place to make sure that 7 whatever system we use there is no tampering. 8 I also am proud to say that my daughter, 9 Hanna, serves in the Maine legislature today and 10 Maine is one of the first states to pass a bill to 11 require a paper trail for voting. Now they did so 12 with support of both parties, signed by the governor. 13 It went under the hammer, as we say. There was no 14 opposition. There was great support throughout the 15 state, a state that has one of the highest 16 percentages of voter in the country, considers it 17 very important to exercise your right to vote. The 18 bill was also supported by the local affiliate of the 19 Association of the Blind. Their testimony in favor 20 said that, while it was extremely important to vote 21 in private, it was also extremely important to make 22 sure your vote counted. 321 1 A couple of other points, we consider that 2 safeguards must be put in place to assure voters of 3 the accuracy and security of the voting machine. 4 Good procedures are important. You've heard many 5 outlined today. All must be in place to make sure 6 that the technology is not flawed. Many people have 7 said that this outcry for a paper trail is a 8 centrally organized, well-financed campaign. I think 9 we all know that it has been a grassroots movement 10 that has grown throughout the country. 11 As a representative of an organization 12 that has affiliates in 38 states and someone who's 13 traveled extensively in the last year, I have seen 14 the growing concern, starting with a small group of 15 individuals and now becoming one of the questions I'm 16 asked more frequently than anything else, what are we 17 going to do to make sure that every vote is counted 18 in this election? 19 The companies that produce the equipment 20 for elections must be held to a far higher standard 21 of accountability and transparency. Yet, another 22 Common Cause concern over the last 34 years, the 322 1 influence of money and politics and the importance of 2 clear laws around this state and the local election 3 officials must be far more vigilant in their 4 oversight of the vendors. The government, not the 5 vendors, must be in control of our system of voting. 6 Vendors should adhere to strict, nonpartisan policies 7 and practices. There must be a competitive and open 8 contracting process for purchase of voting machines. 9 There must be strict conflict of interest codes for 10 all elected officials and vendors. Testing of the 11 machines should be done publicly and by a truly 12 independent body. Testing should be done at every 13 step of the process, including the random testing of 14 machines on election day and there must be a truly 15 independent inspection of software. 16 One last remark from me. I had the great 17 -- Bosnia after the Dayton Accord, traveling around 18 to 17 polling places with the embassador and the 19 opportunity as an American to observe what was going 20 on in a free country in their first opportunity to 21 vote. It is equally important that we protect those 22 same rights here in our country. We cannot see 323 1 ourselves as election observers in countries aboard 2 if we are not willing to look honestly and 3 forthrightly at the problems that we're facing, look 4 into the long-term, make sure we reinvigorate* voter 5 confidence, return people to the polls. 6 I appreciate the work that you're doing. 7 I know how difficult your charge is and how limited 8 your resources are, but we are counting on you to do 9 the right thing. Thank you very much. 10 CHAIRMAN SOARIES: Thank you so much and 11 thank you to the entire panel. Not only have you 12 been helpful and very clear in your recommendations 13 and raised very critical issues, you may be the panel 14 that adhered to our time schedule better than any 15 other panel. You win the prize. 16 (Laughter.) 17 CHAIRMAN SOARIES: Our vice-chair is a 18 former executive with the League of Women Voters and 19 has worked as a non-profit advocacy, Rita, I guess 20 most of her adult life when she wasn't in the 21 government. And she's going to lead our questions to 22 your panel. 324 1 COMMISSIONER HILLMAN: Thank you. I'll 2 start with Ms. Pingree. Other than the paper 3 verification for the voter, what other concerns does 4 Common Cause have about the use DREs in the 5 elections? 6 MS. PINGREE: Well, I think, as many other 7 people have expressed today, our biggest concerns are 8 in the ability of the voter to verify their ballot 9 and the opportunity to have a recount and ensuring 10 that the machines are properly certified and their is 11 no tampering or improper influencing of the machines 12 in terms of the software. 13 Many of the computer experts who have 14 expressed their views have many concerns about this. 15 And, again, I think the fundamental question of, 16 after you've cast your ballot on an electronic 17 machine, if your vote is not preserved, how do you 18 have a recount and how do you verify that the vote 19 was exactly what the voter intended? 20 COMMISSIONER HILLMAN: I don't know if you 21 were here earlier today, but there were -- I believe 22 it was when we had the panel of election 325 1 administrators and they did talk about the machine 2 having the capability to produce ballots, if 3 necessary. It would expensive. It would be time- 4 consuming, but if a recount required that, they could 5 do that. Does that address any of the concerns you 6 have about the recount difficulty? 7 MS. PINGREE: Well, I think the concern 8 that has been most often expressed is the ability for 9 the voter to see the ballot itself and to know what 10 was produced on the ballot to feel confident of that 11 ballot and that to be able to be used if there needed 12 to be a recount and also to verify and allow the 13 voter to verify that ballot. 14 COMMISSIONER HILLMAN: Thank you. Good. 15 Ms. Campbell, a little earlier we had the 16 county clerk from Travis County, Texas -- Austin, 17 Texas testifying and I asked her opinion about why 18 she thought that there was such a high level or lack 19 of confidence that voters have -- a high lack of 20 confidence, if that makes sense. And she was talking 21 about how voters don't know the process that happens 22 on election day and, I mean, there's an awful lot 326 1 that goes on, as you well know from 3:30 or 4:00 2 o'clock in the morning until midnight. And then, 3 depending on whether there is or isn't a recount or 4 so on and so forth. And you've addressed lack of 5 confidence as one of the factors that keeps voters 6 away from the poll. What would you suggest or have 7 you had time to give thought to how can the voter 8 have a higher level of confidence, not just in 9 whether the ballot they cast was what they intended 10 to because they don't see it, but in the other parts 11 of the process that have lead to lack of confidence? 12 MS. CAMPBELL: Thank you, Commissioner. I 13 mention Georgia as an example because it was the one 14 state that did this statewide and, to the credit of 15 the state, I believe the state government was open to 16 including the community whereas the manufacturer did 17 not. And it's not to make DeBold the lighting rod. 18 It's just real life example that here you had a group 19 of community organizations working together to assist 20 in giving voters confidence by going out with the 21 machines all across the State of Georgia and going 22 the community groups, going the churches, going to 327 1 the community centers, going into the schools and I 2 actually attended one of the town hall meeting, the 3 church in Atlanta that Joseph Lowry hosted, and there 4 was someone from the manufacturing company who was 5 attending and people had the concerns. People who 6 have voting for decades asked questions and you 7 couldn't get good responses. And, so part of it, as 8 I mentioned in our testimony, is that there has to be 9 some checks and balances and some inclusion in the 10 process as its developed with these companies and 11 that is one concrete way to assist in that process in 12 where you had a manufacturer who had the opportunity 13 who would not even have a sit-down conversation does 14 not assist in that arena. 15 COMMISSIONER HILLMAN: Just one follow-up 16 question. Do you think the voters would find it 17 interesting to know the various security measures 18 that election officials put in place from start to 19 finish around the machines, the counting process, et 20 cetera? 21 MS. CAMPBELL: I mentioned Arizona as an 22 example, which I don't remember -- I did the short, 328 1 truncated version of my comments -- was that it's not 2 so much people want to hear all the technical 3 nuances, but just like you go to the bank and put 4 your bank card in there, you have the option of 5 having a receipt. You can either say yes or you can 6 say no. But something as important as the vote, and 7 it means to what this country is about, why do we not 8 have this option? 9 One last point, we had a discussion 10 yesterday at the Press Club, which was mentioned. 11 And one of the things -- the discussion was Election 12 2004 Are we Ready? And the consensus was, no, we 13 were not. And there was panelist who made this 14 point, Dr. Bill Scriggs, and lightly but it was a 15 serious and surreal moment. He said that why is that 16 the lottery can pinpoint down to a science where a 17 ticket was purchased and whether the person who -- I 18 think some woman somewhere was about to -- I don't do 19 the lotteries, so I don't know a whole lot about it, 20 but that we can take that process, which is 21 electronic and a person can come and say, oh, I lost 22 my card and bought my ticket and it was lost. They 329 1 were able to tell that woman down to a science, no, 2 you didn't. You weren't there. This, that and the 3 other because the system were in place to do that. 4 And something as simple as that is -- we have the 5 technology. We are in the 21st Century. Why is it 6 that the voting system is such that we say that there 7 cannot be a process that is developed to give people 8 confidence. We do it for everything else electronic. 9 Why can't we do it for voting and that continues to 10 be what we hear in the field and also what the 11 discussion was yesterday. There has to be a way and 12 we are imploring this Commission, which I know this 13 is part of the process, to help us find a way to give 14 voters a confidence the system will work. 15 CHAIRMAN SOARIES: I want to make sure I 16 understand that one point. 17 MS. CAMPBELL: About the lottery? 18 CHAIRMAN SOARIES: No. If the development 19 of the electronic voting device essentially simulated 20 the experience of the lever machine, and if the 21 electronic machine can do at least as much 22 mechanically to record and count votes as the lever 330 1 machine, I'm still trying to understand what it is 2 about the electronic machine that now requires more 3 verification than the lever machine required, even in 4 recounts? The electronic machine has the capacity to 5 produce more information in a recount than the lever 6 machine did. But I never heard this discussion -- I 7 never raised the question myself when I was at that 8 table and I'm trying to understand what is it about 9 the electronic machine, which, in essence, simulates 10 what had been the lever machine electronically that 11 causes us to have less confidence in that than we did 12 the lever machine, which produced less information? 13 MS. CAMPBELL: I don't have all the 14 answers to that question, but I can only state it 15 from the experiences of what we hear and what we 16 experience in the capacity and also that the 2000 17 election is what was the lighting rod to make people 18 question the process. Heretofore, people did not 19 question the process. I don't think, if the 2000 20 election had taken place the way it did, you would 21 have what we heard before, the national civics lesson 22 that we are still experiencing almost four years 331 1 later. And, from that process, you have more of an 2 awareness of the process and the voting public has 3 different kinds of questions and the solutions are 4 something that we're all sitting here trying to 5 explore so that at the end of the day what continues 6 to be -- what we continue to hear and -- the 7 technology side of it is, at the end the day, the 8 common point is that people have to have some way to 9 feel that their vote was verified. And, because this 10 discussion is around the technology, there are other 11 elements of that. We know that there's need for 12 voter education because technology for some is 13 something that's very intimidating. So some things 14 can be resolved just by people being able to touch 15 that machine and know what the ballot is going to 16 look like and I addressed that further in our 17 testimony here. And, so, at the end of the day, it 18 boils down to the confidence issue as the issue. 19 COMMISSIONER HILLMAN: Angela -- is it 20 Arboleda? 21 MS. ARBOLEDA: Arboleda. 22 COMMISSIONER HILLMAN: If we were having 332 1 this hearing January 1 of 2005, and we were talking 2 about the November 2006 elections, what would your 3 concerns be about the paper trail, the voter verified 4 paper trail? I mean, we would have, presumably, 18 5 months to figure out, do studies and figure out what 6 would or wouldn't work. What would your concerns be 7 if we weren't up against a November 2004 election? 8 MS. ARBOLEDA: Well, it would all depend 9 on the results of the studies that we or that the 10 Commission would conduct. I cannot say what NCLR 11 would say about VVPTs until those studies are, in 12 fact, conducted. What we do know for certain is that 13 to date there is no VVPT technology that has been 14 certified and therefore we believe that it is 15 dangerous to tell the Latino community that the 16 answer to language minority and Latino voters is to 17 put all of their confidence on a paper trail instead 18 of saying what we know is that some DREs have the 19 capability to storing and recording this vote and 20 what we need to invest time on is to ensure the 21 Latino voters and other LEP language minority voters 22 have the ability and education tools to have 333 1 confidence and to go into those polls and actually 2 use the technology that can speak to them in the 3 language that they're most comfortable in. 4 The danger here is that precluding voters 5 to use this technology will, in fact, deter language 6 minority from actually participating in electorial 7 process. Melony alluded to the lack of civic 8 participation and engagement. We believe the lack of 9 using DREs at this point actually adds to that 10 problem. 11 So, going back to your question, what will 12 we say in 2006, I am eager to find out what those 13 results of those studies are and I really don't have 14 any answers until that happens. 15 COMMISSIONER HILLMAN: Okay. Good. 16 I have a question for you, Ms. Maxwell, 17 but I wanted to ask Jim Dickson that same question. 18 So let me pose that to Jim and then I'll come back to 19 you. 20 And, Jim, that is, if we were having this 21 discussion, this hearing January 2005, preparing for 22 the November 2006 election, what concerns would you 334 1 raise about paper verification? 2 MR. DICKSON: Madame Commissioner and 3 Mr. Chairman, my concern would be that we need to 4 test it in the real world in a variety of states, 5 since they all have different elections, different 6 procedures and we have to do that incrementally. We 7 can't do it across the country. It defies my 8 comprehension to take an idea that has never really 9 been used and install it nationwide is reckless. 10 In terms of 2006 and your question, I 11 don't think you can do the kind of development, 12 analysis and research of this idea in less than five 13 years and that number cuts a lot -- is generous 14 because when we have developed voting systems and 15 standards in the past, it takes years and years and 16 years. So, to try to telescope what is a multi-year 17 process into 18 months is just not doable. 18 COMMISSIONER HILLMAN: Thank you. Jim, 19 when you started your testimony, you did mention 20 about being able to vote in privacy for the first 21 time this year in the District of Columbia with the 22 new equipment and I just want to say that I have the 335 1 privilege and opportunity to be there when Jim did 2 that and it was, in fact, a very powerful and 3 impactful opportunity to witness Jim being able to do 4 that by himself for the first time in his very short 5 life. We know you're not that old, Jim. 6 (Laughter.) 7 COMMISSIONER HILLMAN: Ms. Maxwell, given 8 what I know about your organization, I'm going to 9 just guess that the phones have been ringing and the 10 e-mail mailboxes have been full of people raising 11 concerns about the use of DREs and paper trail or no 12 paper trail and League has probably studied it and 13 it'll be an interesting conversation at convention 14 I'm sure. 15 When did that kind of volume of activities 16 around DREs land on the League's screen, if you will, 17 time frame? 18 MS. MAXWELL: I think probably it was 19 approximately a year ago. Once HAVA was enacted and 20 once we started getting organized with our leagues in 21 the states across the country trying to get league 22 members on the committees in the various states that 336 1 were going to be designing the implementation plans, 2 as we started to have conversations about all the 3 aspects of HAVA implementation from provisional 4 ballots to all of the various issues that have been 5 addressed today. It's an issue that came up at that 6 point in time. 7 COMMISSIONER HILLMAN: Setting aside the 8 voter verified paper trail, and before 2000, were 9 there concerns that the League was hearing about or 10 discussing concerning the use of DREs? 11 MS. MAXWELL: No, not specifically. I 12 think most of the concern after the 2000 election 13 related to all kinds of issues of people arriving at 14 the polls and their names not being on the voter 15 registration list or obviously all the problems that 16 occurred, as we all know, with the punch cards in 17 Florida. It was more a concern of how the current 18 systems were not functioning and had not functioned 19 in the Year 2000 and I think we were looking at all 20 of the ways that we could improve all of those 21 systems, not just the machines. So it was not a 22 direct focus on DREs specifically at that point in 337 1 time. 2 COMMISSIONER HILLMAN: My next question, 3 and my last one, is more to ask your opinion about 4 something. In the 1990s, New Mexico was introducing 5 the use of what they described as the first 6 generation DREs and it must have been interesting and 7 exciting and I was with at the League in the '90s and 8 we didn't discuss that. I'm sure the New Mexico 9 leagues knew all about it and it was probably 10 interesting and exciting. But nobody raised concerns 11 about where did these votes go into virtual land and, 12 certainly, 10 years ago, 12 years ago was an early 13 time to introduce electronic systems. Were we asleep 14 at the switch or has something changed drastically in 15 10 years that -- you know, should we have been paying 16 more attention to this and been giving the New Mexico 17 officials a run for their money 10 years ago? 18 MS. MAXWELL: Well, perhaps, ideally, had 19 we had unlimited resources, as a staff, we could have 20 been looking at all of these things. But I think the 21 fact of the matter is that, as all of us were going 22 along assuming that our elections were operating 338 1 properly. That all of our votes, however we were 2 casting them, whether on levers, which happens to be 3 what I still do and actually have never used a 4 machine other than a lever machine. But I think as 5 we were looking at all this and assuming everything 6 was fine and it really wasn't until the 2000 election 7 that we discovered that things weren't fine and that 8 it cost us the confidence that we had. So I think 9 asleep at the switch, no, concerned about a lot of 10 different issues at the time. This didn't happen to 11 be on the radar screen, wish it had because I think 12 we all would have been better served had we 13 recognized some of the concerns and issues relating 14 to our election systems. But I'm not as concerned 15 that, perhaps, we weren't focused as much on the 16 machines themselves but that we should have, whether 17 it be nationally or in every state, more focused, as 18 I said on the accuracy of our registration lists. 19 Where we providing provisional ballots? All of those 20 other kinds of things that really make up an election 21 system. I think we were focused on a lot of those 22 kinds of things and always have been in our 339 1 communities to be certain that an election runs well. 2 I mean, League members across the country are always 3 at precincts and polling places observing and being 4 sure that things are run properly. So I think we had 5 a broader focus and I frankly think that was the 6 right focus, not just on a machine. 7 COMMISSIONER HILLMAN: Thank you. 8 CHAIRMAN SOARIES: Thank you, 9 Commissioner. Thank you panel. We are very much 10 aware that voting is a process and not a machine. 11 But you've helped us zoom in on the voting device, 12 starting with electronic voting, in large measure, 13 because of what all of you have conceded. That after 14 Florida, the machine became the star of the show. 15 All of you are involved in a much broader and deep 16 involvement in the voting process and we would invite 17 you to stay close because we have many more issues to 18 confront, many miles before we sleep and we need your 19 assistance. 20 Commissioner DeGregorio. And we're in 21 such good time, I'll take credit for that, though. 22 (Laughter.) 340 1 MR. DEGREGORIO: Thank you, Mr. Chairman. 2 Ms. Campbell, first of all, I want to 3 thank you for bringing up the name of Akin Gibbs. I 4 had the opportunity to meet Mr. Gibbs several times 5 at (inaudible) conferences, election officials 6 conferences and he was a true warrior in the election 7 field and I know that we all miss him and I think you 8 for bringing up his memory today. It's very 9 important that we do. 10 Ms. Maxwell, I want to compliment the 11 League for the work that the League's done. When I 12 was director of elections, I worked very close with 13 the local affiliate, but you continue to do good 14 work. I just read the best practices report that you 15 did for provisional voting. 16 MS. MAXWELL: Thank you. We're proud of 17 that. 18 CHAIRMAN SOARIES: We want to license 19 that, by the way. 20 (Laughter.) 21 MR. DEGREGORIO: I appreciate the 22 contribution that you make and all the organizations 341 1 represented here that you all make in the process. 2 And many of you mentioned the sit-down conversations 3 you've had with state officials about concerns that 4 you had in the election process dealing with 5 electronic voting and probably other issues. But 6 there are over 7000 local election officials in the 7 country and you all represent hundreds, maybe 8 thousands of affiliates. I know you are here leaders 9 in Washington, but you represent a lot of affiliates 10 throughout the country and, if you could share with 11 me some of your experiences, positive and negative, 12 with local election officials because part of what, I 13 think, we want to do is try to work to get messages 14 to local election officials to work with 15 organizations, such as yourself, to understand the 16 issues that are of concern to you and the people that 17 you represent, not just about electronic voting, but 18 voting registration. Because we know that it's on 19 the front lines in those local election offices where 20 the voter registrations are going to get on the rolls 21 or not on the rolls that you all send in representing 22 people from your organizations. So, if you can just 342 1 share with me some of those experience so that we, as 2 we develop a plan here for the work that the 3 Commission is going to do in the coming months that 4 we can incorporate some of the suggestions that you 5 may have. You just don't have to share them all 6 today, but you can share them with us later in 7 written testimony. 8 Let's start with Jim. 9 MR. DICKSON: Thank you for that question. 10 I want to first reiterate that the biggest historic 11 problem we have had with voter disenfranchisement and 12 therefore voter skepticism about voting, has been in 13 the area of the lists, keeping them accurate and up- 14 to-date. And I would really encourage the Commission 15 to very quickly start to address that issue. 16 (End of Tape 17.) 17 (Tape 18) 18 MR. DICKSON: The one overriding problem 19 that -- this largely impacts state election 20 officials. Eleven years ago, the president signed 21 into law the Motor Voter Law. 22 COMMISSIONER DEGREGORIA: MVRA. 343 1 MR. DICKSON: MVRA. Part of that law 2 stipulates that disability and poverty agencies are 3 suppose to function as voter registration sites in 4 the same way that the department of motor vehicles 5 does. We have polling data and analysis as well much 6 too much antidotal data that tells us that less than 7 half of the agencies are implementing their 8 requirement. 9 Part of the Help America Vote Act provides 10 funds to the states to build a new electronic data 11 base. I would urge the Commission and plead with you 12 to require that any new electronic data base include 13 the implementation of Section 7 of MVRA. Half of all 14 disabled Americans -- I'm doing quick math, 16 15 million are not even registered. When Congress 16 passed the MVRA, it recognized that the department of 17 motor vehicles would be a great place because lots of 18 Americans go there. But Congress also understood 19 that people with disabilities, poor people have no 20 need to go to the DMV and so it put Section 7 into 21 place and that needs to be enforced and now there's 22 the money to do it. So I would encourage you, to the 344 1 extent you have the power to make that part of their 2 data base plans. 3 CHAIRMAN SOARIES: I'd like to do this. 4 I'd like to make sure that the remaining responses 5 stay within the scope of the electronic voting issue 6 and, if there are other interaction items that are 7 worthy of note, if you would put those in writing. 8 Otherwise, we'll get into a whole HAVA hearing and 9 we'll be here until tomorrow. There are a number of 10 other HAVA related issues that are burning in our 11 hearts, voter registration, you know, ID issues and, 12 if I let the door open any wider, then I'm going to 13 have lose my prize. 14 (Laughter.) 15 CHAIRMAN SOARIES: So, if there are any 16 interaction issues that Paul raises related 17 electronic voting, please discuss those. And, then, 18 if those are others that are not related, if you 19 would just send those in writing. Thank you. 20 MS. MAXWELL: I would just make a couple 21 of comments. First of all, specifically, in terms of 22 electronic machines, one of the things I mentioned 345 1 previously was the fact that League members across 2 the country are participating in the HAVA 3 implementation committees in the various states and I 4 think serving a valuable service in bringing together 5 the local and state officials in this process because 6 we have members of local leagues, the state leagues. 7 So I think they serve a particular function in 8 sharing the concerns of citizens with those who are 9 making the kinds of decisions relating to all kinds 10 of issues relating to HAVA, but, of course, 11 specifically, on DREs. 12 I think one of the other areas, and, 13 again, it's peripherally related to DREs, but it is 14 the whole education process. And I know there are 15 some funds out of HAVA that are suppose to support a 16 lot of that, but I think one of the things that the 17 league has always done and will continue to do, and 18 it will include how to use these new machines, is to 19 educate the voters because I think we are a trusted, 20 nonpartisan source for that kind of information. So, 21 certainly, all of that will continue to be done. 22 CHAIRMAN SOARIES: True. Thank you. 346 1 MS. ARBOLEDA: Thank you for the 2 clarification, Chairman Soaries. I was scribbling 3 like crazy because we have plenty of concerns with 4 other sections in HAVA that affect disportionally the 5 Latin community. Specifically, to answer your 6 question, I would suggest two things, extensive poll 7 worker training in the operation of these machines 8 voice, obviously, they are certified. But poll 9 workers need to have confidence in how to operate 10 these machines so that they can transfer this 11 knowledge to the voter who, perhaps, doesn't feel as 12 comfortable using it. 13 The second recommendation would be, as Kay 14 mentioned, a broad voter education, obviously, 15 nonpartisan campaign that speaks to the public that 16 brings the people together and that demystifies the 17 paranoia* that has been built in the past year. 18 Those two things are key. 19 Also, to spell out what are these machines 20 capable and incapable of doing in plain, simple 21 language. You know, you go to the screen and you 22 touch the screen and you cast your ballot and this is 347 1 what happens. I mean, it speaks to you in Spanish, 2 if you need to or in Chinese or in Vietnamese or in 3 Cantonese. That is important. You don't have to pay 4 to use these machines. People in my community are 5 going, if I vote in those computers, do I have to 6 pay? We need to know this stuff. So those are just 7 a few recommendations and I look forward to another 8 opportunity in discussing photo ID and other issues. 9 (Laughter.) 10 MS. CAMPBELL: The only point I'd like to 11 make is my personal experience that I said earlier 12 that I actually -- going into the system where you 13 had a bank card at that someone handed you, put it in 14 the machine, you touch the thing and you handed it 15 back and just the personal experience that, quite 16 frankly, I left there thinking, did I really vote and 17 I do this all the time. 18 The only other thing -- 19 CHAIRMAN SOARIES: It just didn't feel 20 like voting. 21 MS. CAMPBELL: My confidence wasn't there 22 when I left the polling place and it was my first 348 1 time voting of electronically. I spent a number of 2 my years in Georgia where in Fulton County where they 3 had -- we liked the little chads, but, you know, 4 that's another lifetime ago. One of the things, when 5 we talk about checks and balances I hope you will 6 consider or even for the manufacturers to consider. 7 When Jim talked about the experience, I saw in 8 Houston, Texas that experience of seeing someone not 9 have the ability as a disabled citizen, who was a 10 paraplegic, who in Houston, Texas in Harris County, 11 specifically, and how they had to bring the paper 12 outside and there was no privacy. So I felt that and 13 I would hope that you all continue this that it's not 14 either/or. It's kind of a both/and scenario. 15 In my written statement, is that audio 16 could be used as an option for other folks who may 17 not be as literate and there are other kinds of 18 things like that. So that would be my only other 19 comments to that. 20 CHAIRMAN SOARIES: Okay. Ms. Pingree. 21 MS. PINGREE: Thank you. I think my 22 colleagues on the panel have mentioned quite a few 349 1 things, but I'd just like to go back to a couple of 2 things that were in our recommendations, 3 particularly, as it concerns local elected officials 4 and those who are in a position to make the decision. 5 And some of these I consider structural problems with 6 our system of purchasing machines, making polling 7 place decisions. I think I've read that we have 8 something like 13,000 sovereign communities that in 9 one way or another are making electorial decision. 10 And, while there's a lot of debate about how much of 11 the decision-making should be federalized, how much 12 should be left to local officials, particularly, when 13 it comes to the purchase of machines and the 14 companies themselves. 15 The reason we have these recommendations 16 in here is because we want to take some of that away 17 from this whole debate. One of them says vendor 18 should adhere to strict, nonpartisan policies and 19 practices. There must be a competitive and open 20 contracting process for purchasing of voting 21 machines, strict conflict of interest codes for 22 election officials and vendors, independent testing 350 1 of the machines. I think all of these things would 2 make the job of the local election official far more 3 dependable. 4 You know, a lot of people serve in these 5 positions and don't want to be put in a position 6 where they're considered having a conflict of 7 interest or accepting some sort of gift in return for 8 the purchase of the machine. I mean, you've heard 9 the stories and we need you to change the system so 10 those questions just are no longer there. So that, 11 when we think about why we have the machines in place 12 that we do, we believe that they are there for good 13 reasons, for technically-appropriate reasons, not 14 because of who you made a contribution to or who 15 influenced you in that decision-making process. 16 So I would just say, you know, taking as 17 much of that away as possible, along with all of the 18 other things that have to happen once the machines 19 are in place could go a lot. 20 The other thing I want to emphasize is, 21 one of the reasons why I stood back and looked at the 22 perspective, you know, what's happened in other 351 1 countries? What do we do when we go observe 2 elections in other countries? You know, we have a 3 very fundamental set of questions that we ask and 4 it's embarrassing not to be asking them about 5 ourselves or it's embarrassing to be in the position 6 where our country now does not look as good as many 7 other places that we've been criticizing for a long 8 time. 9 And I do think that's what happened in the 10 2000 elections, while much of this was going for a 11 long time -- bad lists, disenfranchised voters, 12 machines that weren't working, improperly trained 13 poll workers who didn't know how to clear the 14 machines and all the things that had to be done. 15 For the first time, internationally, we 16 were looked at and we had to say, uh-huh, this is 17 America. We count on the vote. We're one of the 18 most proud democracies ins the world and we need to 19 keep that perspective and give it to local election 20 officials who sometimes don't have the opportunity to 21 see all that there is to see. 22 CHAIRMAN SOARIES: Commissioner Martinez. 352 1 COMMISSIONER MARTINEZ: Thank you, 2 Mr. Chairman. 3 Ms. Maxwell, my mother-in-law, Pat 4 Stanley, is the president of the League of Women 5 Voters in Midland County in west Texas. So she'll be 6 real embarrassed that I've just said that. 7 (Laughter.) 8 COMMISSIONER MARTINEZ: With the camera 9 rolling and I also might get an especially nice 10 Christmas present this year for having it. 11 MS. MAXWELL: Well, Mother's Day is coming 12 up. 13 COMMISSIONER MARTINEZ: Oh, yes. Well, 14 there's a Mother's Day present. 15 I mention that because I'm familiar with 16 the work that -- the very fine work of your 17 organization. I also, concurrent with my law 18 practice, before joining the Commission in December, 19 ran a non-profit 501(c)(3) organization that was 20 dedicated to giving money to other 501(c)(3)s that 21 did nonpartisan voter education and voter 22 registration activities. In that capacity, I relied 353 1 on a lot of the work that you all did at the League 2 and the research that you all did. And I'm wondering 3 if there's any research at all that you know of that 4 the League might be doing to see what the use of DRE 5 machines in jurisdictions that are using them does to 6 voter turn out? 7 MS. MAXWELL: We have not specifically 8 done any research in that regard and, frankly, we 9 don't have the capacity to do a lot of serious 10 research in that kind that you described. However, 11 we are looking toward this upcoming election from the 12 standpoint of at least asking our state and local 13 leagues for some antidotal information and some basic 14 questions that they might be looking at. 15 The league in Connecticut this past 16 primary election also was helping with the Secretary 17 of the State in Connecticut as various machines were 18 tried in that election and collecting some data. But 19 we are not really capable or -- we're capable. We 20 don't have the resources to carry out specifically 21 that kind of effort that you described. I certainly 22 wish that we did because it's the kind of data that 354 1 we need and that needs to be gathered. 2 COMMISSIONER MARTINEZ: Right. I agree 3 with that. 4 Ms. Arboleda, the same question. I know 5 that, obviously, NCLR does very fine work and very 6 fine research as well. I assume you have antidotal 7 evidence to, perhaps, give an opinion as to what the 8 use of DREs does for minority voters in terms of 9 whether it helps voter turn out, which is a huge 10 problem for Latinos or, perhaps, we just don't know 11 yet because it's relatively new in most 12 jurisdictions. But, anything along those lines that 13 NCLR might be doing or taking a look at? 14 MS. ARBOLEDA: Thank you, 15 Commissioner Martinez. On page 5 of my testimony, we 16 have some research from California, San Bernadino 17 County, specifically, that shows that 98 percent of 18 voters consider electronic voting superior or very 19 superior and this showed voter confidence. We can 20 only speculate from these numbers and others in my 21 testimony that voter confidence raises people's 22 ability and eagerness to turn out. 355 1 In other research and surveys of 14,000 2 voters, it showed that 97 percent of the voters found 3 the touch screens easy to use and easier than punch 4 cards in some instances. So that, unlike this, 5 limited as it is, show us that LEP voters, limited 6 English proficient voters are eager to use these 7 machines. It was told to me by one of my colleagues 8 from EPOC that a group of older Chinese American 9 people were taken to show them how to use this 10 touchtone screens and they were having the best time 11 of their life. They were saying that it was like 12 playing domino, technological domino and they 13 understood it. 14 They were eager to interact with the 15 technology and these were older Chinese American 16 women. Most of them did not speak a word of English. 17 So the limited research that we do have show that 18 DREs, in fact, provide an ease in their consciousness 19 and in their minds and that they ensure that the 20 voters turn out. 21 MS. MAXWELL: May I have just add one 22 quick addendum to one? 356 1 CHAIRMAN SOARIES: Yes. 2 MS. MAXWELL: In the same way that we did 3 the best practices piece on provisional ballots that 4 you referenced earlier, we are continuing to do some 5 best practices papers on some of these other issues. 6 It's just not the extensive research that I presumed 7 you were discussing. 8 CHAIRMAN SOARIES: Jim, you can speak as 9 long as it's one minute. 10 MR. DICKSON: All right. I want to call 11 your attention to my written testimony. I placed in 12 there a summary of public opinion polls taken around 13 the country which show overwhelming voter confidence 14 in DREs across all racial, all age groups, all 15 education groups. I used less than a minute. 16 CHAIRMAN SOARIES: I don't think we should 17 underestimate, in response to Commissioner Hillman's 18 question, the historical context. Not only does 19 Florida 2000 place the voting device on the pedestal 20 and create this international embarrassment, but we 21 also have, following Florida 2000, a rapid decline in 22 public confidence in corporate leadership and we 357 1 begin seeing the convergence of the perfect storm. 2 We also have a war and, if you study the 3 history of election reform in this country, it's when 4 young people are dying on foreign soil that we become 5 more sensitive to issues of expanding the franchise 6 and getting it right. And, so, if the fire got 7 started, we also can't ignore the gasoline being 8 poured on the fire by the president of a manufacturer 9 promising to deliver an election for a sitting 10 president. 11 And I asked the representative of that 12 company this morning if they've learned lessons and 13 he said that they've learned lessons. He wasn't 14 specific in what the lessons were, but I just think 15 that when we look at where we are today versus two 16 years ago when HAVA was signed, HAVA did not have in 17 mind this as its first challenge and all of these 18 events have converged for this moment in time and I 19 think it's more than a fire out in the field and all 20 of those factors have contributed to our having to 21 respond. 22 But it's not negative. It's just not 358 1 negative. Some of the worse problems we've ever had 2 in this country were resolved because there was some 3 passionate debate that went on at the very least and 4 we welcome that and we welcome persons from different 5 perspective having the willingness to come to our 6 table because your presence indicates that we can be 7 the honest broker of a diversity of ideas. But we do 8 have to come to some common ground and synthesize 9 these concerns so that we can have both short-term 10 and long-term impact. 11 I want to thank you again for your 12 contribution to your process. You can stay right 13 there because we're about to wrap up and I'm afraid, 14 if you move, they make noise. Just don't move. Each 15 Commissioner will say their thank yous and comments, 16 briefly and then I'll just summarize and give you 17 some sense of where we're going next and then we'll 18 be done. 19 COMMISSIONER DEGREGORIO: Thank you, 20 Mr. Chairman. And it's just a simple thanks to all 21 of you. To our panelists, to those who came today, 22 those of you who had to be outside the room, we know 359 1 there are people outside who could not get in because 2 of the difficulty and the overwhelming crowd that we 3 had. We thank the media coverage and we thank C-SPAN 4 for covering this event and, hopefully, in a couple 5 of days, you're able to click on at their website 6 this proceeding and share it with your friends 7 throughout the nation. 8 It's been an honor for me to listen today, 9 to ask some questions and I know that in addition to 10 the testimony we heard today, we received volumes of 11 e-mails and other faxes from people throughout the 12 country who wanted to give us their thoughts in this 13 important issue. So it's an honor for me. I learned 14 a lot and look forward to taking the information we 15 received today to put it to productive use. 16 MS. HILLMAN: And I join my colleagues in 17 expressing my appreciation for the attention that the 18 witnesses gave to their presentations. It certainly 19 help me learn an awful lot in a condensed period of 20 time, but we don't have a lot of time. So we do have 21 to learn on the fly, if you will, so that we can help 22 all of you, in particular, those who are responsible 360 1 for administering the elections, to generate the 2 highest level of confidence among voters that we can. 3 We have to accept the reality of what 4 machines will be used in November. What we can do 5 between now and November regarding the use of any 6 particular equipment, but that the voters know that 7 it's not all gloom and doom. That there are a lot of 8 good things going on. There are a lot of good 9 organizations at work with election administrators to 10 address this and the input is helpful and it almost 11 makes me want to have another hearing next week. 12 (Laughter.) 13 CHAIRMAN SOARIES: Mr. Martinez. 14 COMMISSIONER MARTINEZ: Thank you, 15 Mr. Chairman. 16 I, too, want to express my thanks to all 17 of the panelists. I thought that the presentations 18 and the testimonies were well-prepared and very 19 compelling and I've learned a lot. I also want to 20 thank the Chair and the Vice-Chair because really the 21 impetus came from their collaboration several months 22 ago when we were talking about what we needed to 361 1 right away aside from getting telephone and actually 2 seeing if we had an office somewhere and other 3 administrative responsibilities, which I know they 4 handled very admirably as well. The impetus for this 5 hearing came from their collaboration. 6 As we develop the vision for it, in my 7 opinion, this is what we envisioned. This kind of 8 dialogue. This kind of fact finding, if you will, 9 for this Commission, which I think is extremely 10 important. I would simply end my participation today 11 simply by reiterating what I started with this 12 morning and, that is, we take our obligation, we take 13 our responsibility very seriously. 14 I'm honored to be serving with my fellow 15 Commissioners and this is a historical act that is 16 happening that the federal government has now become 17 an active partner with our state and local 18 jurisdictions, with our civil rights and voting 19 rights advocates, with other stakeholders in trying 20 to improve the administration of our federal 21 elections. That's an important -- a very humbling 22 one as far as I'm concerned as well and this is a 362 1 major first step in us being able to do our jobs 2 appropriately. I thank you all for being here and 3 I'm grateful to participate. 4 Thank you, Mr. Chairman. 5 CHAIRMAN SOARIES: Let me close by, again, 6 thanking Mike Levitt, the Administrator of the 7 Environmental Protection Agency and acting Deputy 8 Administrator Steve Johnson and Deputy Chief of Staff 9 Ray Spears for working very hard to accommodate us. 10 We do have accommodations, but none that would 11 facilitate this hearing and EPA has been so kind. 12 They've loaned us staff. They've given us space and 13 we just cannot thank them enough. 14 Also, there are so many people here who 15 participated in the crafting of HAVA. People whose 16 minds and hearts spent days and nights into this 17 legislation, which not only formed this Commission, 18 but which, in fact, made history in this country. 19 The United Auto Workers Union described HAVA as the 20 greatest civil rights legislation of the 21st Century 21 and I take that very seriously and it's an honor to 22 know that we have that kind of network around the 363 1 country. 2 So many election officials have come here 3 today knowing that they would not have a chance to 4 speak. Some flew from Florida and other states and I 5 just want to thank you. Good to see you and it's an 6 honor to know that you care enough about our work to 7 show up physically. 8 Congressional staffers are here and, 9 because we have such a small staff, we just kind of 10 adopt them and make them our staff. They're our ad 11 hoc advisers and our envision staff members and I 12 thank the EAC staff, also. 13 A way of fear that citizens votes will not 14 count in the next presidential election is steady 15 spreading throughout the country and that fear 16 threatens to undermine the critical decisions that 17 need to be made to ensure the integrity of our 18 nation's voting process. The good news is that, as 19 Commission Martinez announced, starting next Monday, 20 the federal government, under our leadership, will 21 begin to distribute $2.3 billion to states to assist 22 them in improving their voting process for federal 364 1 elections. The bad news is that many states are 2 afraid to spend the money because of problems that 3 are now associated with new electronic voting 4 devices. 5 Prior to the 2000 presidential election, 6 most Americans applied little thought to the actual 7 mechanics of the voting process. The term "hanging 8 chad" had little meaning to most Americans. But the 9 events that occurred in Florida during the 2000 10 presidential election created a new awareness and a 11 national consensus that a flawed process could only 12 produce flawed results. And so Congress acted by 13 passing the Help America Vote Act of 2002, HAVA, 14 which President Bush promptly signed into law. 15 The first objective of HAVA was to assist 16 the states by funding the replacement of outdated 17 voting equipment, punch card and lever machines. For 18 many states, the voting equipment of choice quickly 19 became the electronic voting machine. The computers 20 were called in to rescue America's voting. Of 21 course, many Americans had already been using some 22 form of electronic voting prior to 2000. 365 1 In fact, in 2000, over 12 percent of the 2 country, almost 12 million registered voters, used 3 electronic machines. While some 29 percent, 46 4 million registered voters, used optical scan 5 machines, which are another form of electric voting. 6 So the computer was not new to the voting booth. 7 What was new was that the federal government was 8 preparing for the first time in our nation's history 9 to get involved in voting as a national enterprise. 10 The rights of citizens to vote had been 11 protected by constitutional amendments and by passage 12 of federal laws like the Voting Rights Act of 1965 13 and the National Voter Registration Act. And, yet, 14 the federal government had never before created a 15 mechanism to define and support the administration of 16 federal elections with both specific requirements as 17 well as significant federal funding. Clearly, the 18 passage of HAVA with strong bipartisan support in 19 Congress, signaled that a national consensus had been 20 achieved. None of us wanted another election of 21 2000. 22 Importantly, no one involved in creating 366 1 this new legislation, no one who envisioned HAVA 2 believed that voting machines alone represented the 3 solution. Accordingly, among other things, HAVA 4 mandates provisional ballots in every polling place 5 to ensure that no voter is turned away. That signs 6 be displayed at every polling place informing people 7 of their voting rights and that a complaint procedure 8 be established in every state that allows citizens to 9 have redress if they believe their voting rights have 10 been denied. 11 All of these mandates must be in place for 12 the upcoming November election and these mandates are 13 part of our mission. But that still leaves us with 14 the issue of the machines. Many thoughtful people 15 have come today and they've described the decision 16 that was made that electronic voting machines, now 17 used in 29 percent of the voting jurisdictions in the 18 country, are neither secure nor reliable and can only 19 be made so with the use of "voter verified paper 20 ballot" and then others believe that the safeguards 21 used in every election by experienced election 22 administrators provide ample and adequate security 367 1 with regard to every type of voting machine, 2 including electronic machines. 3 And, so, here we are, the United States 4 Election Assistance Commission. And the EAC, 5 comprised of four senate-confirmed, presidential 6 appointees is created. Much long waited, but here we 7 are. And so, along with providing much needed 8 guidance and resources to states on the 9 administration of federal elections, the EAC is now 10 charged with updating federal standards relating to 11 the certification of voting equipment. 12 Due to the universally shared desire by 13 all Americans to bring the highest level of integrity 14 and fairness to the voting process, we conducted this 15 hearing today to explore the strengths and weaknesses 16 of the voting systems that will be used this 17 November. 18 We began today with electronic voting. 19 And, after today, we will look at every other major 20 voting device that Americans will use. Information 21 gathered today by these public hearings will provide 22 a basis for updating the voting system standards and 368 1 for issuing guidance and best practices information 2 to all states. The first such public hearing that 3 took place today was on electronic voting and EAC has 4 asked tough questions of vendors, election 5 administrators, researchers about the security and 6 reliability of electronic voting. 7 Ultimately, all four EAC Commissioners, 8 two republicans and two democrats, are all strongly 9 committed to taking whatever actions are deemed 10 appropriate to ensure that our next federal election 11 will have the integrity that Americans expect and the 12 fairness that democracy demands. Thank you for being 13 here. 14 (Applause.) 15 (Whereupon, at 4:15 p.m., the above- 16 entitled matter was concluded.) 17 18 19 20 21 22