SENATE COMMITTEE on ELECTIONS, REAPPORTIONMENT & CONSTITUTIONAL AMENDMENTS

 

Voting System Update:

How Will California Voters Be Casting Their Ballots in 2006?

 

January 18, 2006

State Capitol, Sacramento, California

 

Senator Debra Bowen, Chair

 

 

 

          SENATOR DEBRA BOWEN, CHAIR:  _____________ informational hearing on our voting systems in California as we try to evaluate whether we’ll be ready for casting ballots in June and November of 2006.  We have a number of members on this committee.  I want to let them know that we will be starting in about one minute.  I’m sure that we have many members who will be watching from their offices or on the squawk box, so we will not wait.  We will begin in about one minute.

          All right, let’s try that again.  Since much of this hearing is going to be focused on technology, it’s only appropriate that we started with a glitch that prevented anybody outside this hearing room from hearing anything I had to say.  So, we’ll start over.

          Good morning, I’m Senator Debra Bowen.  We will shortly be convening an informational hearing that will provide us with an update of where we are with regard to being ready to vote in 2006.  Members of the Senate Elections Committee who wish to be here for the testimony or to ask questions, are invited to come to Room 447.  We have had a room change.  There is a fair amount of room shuffling going on this morning in the Capitol, but we are in Room 447, and we will convene in about one minute. 

          Good morning.  Today’s hearing is designed to give us a snapshot of where California is in terms of having voting systems that comply with the Help America Vote Act ,and the state law, that requires every machine to produce an accessible voter verified paper audit trail—and you will hear a lot of initials for that, but most commonly recently referred to as an AVVPAT—where we expect to be by the time the June primary rolls around, and how it is that we’re going to get there.

          By my count in California, we have nine counties that either have, or are in the process of purchasing the ES&S AutoMark, the one machine that is certified for use in the June primary in California.  We have twenty counties that have the Sequoia AVC Edge-DRE, which is certified for use in the general election, but not for use in the primary.  Fourteen counties are counting on the Diebold TSX touch screen machine to be certified.  And fifteen counties are awaiting certification on a different system, or have not decided what system they will use.

          I invited Secretary of State Bruce McPherson, to join us today to give us an update and answer some questions.  Unfortunately, he was unable to make it personally, but he has sent Under Secretary Bill Wood and several members of his staff to sit in his place.  Thank you for being with us this morning.

          I have also asked elections officials from seven different counties to join us, to talk about their plans for the 2006 elections.  I imagine that there will be a fair number of questions.

          I think it’s a testament to the strength of our democracy that so many people come to evaluate this, to listen to where we are, and to determine for themselves whether or not California will be prepared to run a system of elections that has integrity and is reliable.

          There will be a public comment period at the end of the hearing.  Anyone who would like to take part should sign in with the Senate sergeants some time during the course of the hearings.  Please list your name and organization if you are representing one.  This is not a requirement of testimony, it’s just to help me run a more orderly hearing.

          Let me ask Bill Wood, who is here on behalf of Secretary McPherson today, if he’ll come up and kick things off for us—talk to us a little about where California is.  And I understand that you have some other staffers from the Secretary of State’s office, so perhaps you could start by telling us who is here and what their particular area of responsibility and/or expertise is.

          BILL WOOD:  Good morning, Senator.  I am Bill Wood.  I am under secretary of state.  To my left is, Chris Reynolds, who is HAVA coordinator for the state of California.  To my right is, Karen Daniels-Meade, who is elections director for the Secretary of State’s office.  On Ms. Daniels-Meade’s right is, Theresa Carol, who is assistant secretary of state for Legislative and Constituent Affairs.  And finally, Mr. Bruce McDonald, who is the interim director of the Secretary of State’s new Office of the Voting System Technology Assessment.

          I have a very brief comment and then certainly will be available for any questions you may have, Senator.

          The 2006 presidential elections set off a flurry of activity.  One of the outcomes at the federal level was the enactment of HAVA, the Help America Vote Act of 2002.  This law put in place new requirements for all states.  It outlines specific changes in the election process and mechanics of how we conduct elections nationwide.  Among those provisions are:  New voting system standards, and for the first time, money has been allocated to the states for a purchase of voting systems that comply with those standards. 

Despite the fact that the federal government has been late with issuing the funding and promulgating the specific guidelines under this new law, Secretary McPherson has moved quickly and methodically to navigate through evolving circumstances to put California on the path toward compliance, the right way.  California has reached substantial compliance with nearly all of HAVA’s major provisions.  And I’d like to give you just a brief overview of those areas.

          California has reached a model agreement to establish a statewide voter registration database, implemented new ID requirements, set up a system to notify provisional voters on the status of their voter ballot, established a complaint procedure for voter grievances, created a one-stop shop for military and overseas voters, provided resources to counties to conduct additional poll worker training programs, and to assist with established voter education programs, and work with counties to replace punch card voting machines.

          HAVA’s remaining provision requires the placement of one accessible voting machine in each polling place by the first federal election of this year.  And as you know, this provision goes into effect at the same time the law requiring a voter verified paper audit trail, or as you indicated, one of the many initials that it may be known by, for electronic voting systems is implemented is a state requirement.  Those two elements of combined to create a perfect storm. 

All the major vendors already have certified voting systems that comply with HAVA accessibility requirements, but most are now caught up in the process of testing systems that meet both accessibility and VVPAT requirements together.  Because California Elections Code Section 19250 prohibits certification of direct recording electronic systems without federal qualification, these DRE systems must be produced by vendors and submitted to federal independent testing authorities for federal qualification.  It is these DRE voting systems, with the addition of a VVPAT, which are now undergoing federal testing and qualification.  These are the same DRE systems that most readily meet all voting system mandates articulated in HAVA.

          The Office of the Secretary of State, under the leadership of Bruce McPherson, has taken all of the prudent measures to work towards compliance with these remaining areas.  And I’d like to review very briefly some of our ongoing efforts.

          We have established an new Office of Voting Systems Technology Assessment to streamline the certification process, and we stand ready to review new systems quickly and thoroughly upon receiving complete applications.  We are also prepared to borrow resources from other divisions within the Secretary of State’s office if it will help to expedite the process.  In this regard, it is important to note that as you know, state law requires a 30-day notice for a public hearing for each new system as part of the certification process.  So while we are moving as quickly as possible, much of the time needed for the process is out of our control.

          Secretary McPherson has worked with each voting system vendor, clearly setting forth his stringent guidelines for any system certified for use in California.  Additionally, he has given the vendors a deadline of January 20th for submission of completed applications, and January 31st for completion of federal testing.  The vendors have been each informed that compliance with the deadline will be necessary in order for systems to be reviewed, and, if they qualify, certify, and be in place for the counties to use in the June primary.  These deadlines were established based on counties’ assessment of their needs to plan and prepare for an election.

          In addition, we have outlined ten certification requirements to ensure the systems certified for use in California are secure and reliable, and we have communicated those requirements to the voting system vendors.

          We hosted a Voting Systems Testing Summit here in Sacramento, the first of its kind in the nation, which was attended by twenty-three states, federal officials, vendors, and experts in various elections related fields.  Together, we compared best practices for testing and certification at the state level.

          Secretary McPherson has appointed a Voting Accessibility Advisory Committee to help and advise him on the important issue of improving accessibility of the electoral process to disabled voters.

          In an effort to help the counties to comply with these new requirements, Secretary McPherson has worked closely with the fifty-eight county registrars, meeting personally with them and helping them develop solutions for the challenges we are all currently facing.  This work is continuing, and he will continue to stand by the counties, both legally and procedurally, through this challenging time.

          The national landscape for voting systems has been evolving, and during these changing times, Secretary McPherson’s top priority is to ensure the security, reliability, and integrity of every vote cast, while making sure the systems are accessible for all of California’s eligible voters.  Voters deserve the assurance that systems certified for use in California have been held to the highest standards in the nation.

          And just for a moment, if I can, I think you all have binders in front of you.  I’m going to refer very quickly to some displays that are on the easel here, and I’ll refer to them in your binders.  They’ll be at tab-2 for the HAVA status report; there will be a tab-3 for the spreadsheet status of voting systems, and then there will be a tab-5 for California’s 10-step certification process.

          SENATOR BOWEN:  Let me just as a question.  Are these documents available for people in the audience?

          MR. WOOD:  If we don’t have enough copies, we can certainly make sure that we have additional copies later this morning, Senator.  And they are on our website.

          SENATOR BOWEN:  All right.  Let me see if I can get some assistance from the sergeants with making copies so that people can follow during the hearing.  I have them, obviously. 

          The graphs that we’re looking at on the board, I think highlight the problem that visually impaired voters have, because I’m only moderately visually impaired…

          MR. WOOD:  Too far?

          SENATOR BOWEN:  Yes, I can’t read it.  Sorry.  So, but I have a copy.  I don’t need to read it.  But I think the point is, that there are people, they’re going to struggle with these materials even if they have them.  And one of the things I want to do as we do hearings on this, is try to make materials available during the time of the hearing.  But right now we’ll live with an explanation while we get copies made of these materials.

          MR. WOOD:  Thank you, Senator.  Maybe we’ll start actually back with the one that appears at your tab-2.  This the HAVA status report.  As I indicated in my remarks, this outlines kind of graphically the major provisions of HAVA that the state of California has complied with.  And the one remaining that is outstanding, that being the polling place have at least one accessible voting machine to meet disability and language requirements.  And that’s the first large chart there. 

          SENATOR BOWEN:  We up here at the podium have the materials, so let’s turn them and at least the people in the very front rows will be able to see, if they’re close enough.

          MR. WOOD:  And again, that’s the HAVA compliance status at this point.

          What appears in your binders at tab-3 is the status of voting systems.  Again, this is on the Secretary of State’s website.  This is last dated as of January 13.  We’re going to be updating it as changes occur, and certainly no later than monthly.  This indicates the five voting system vendors who have either applied for, or indicated that they’re going to be coming forward with applications to be certified for use in the state of California. 

And I think what this graphically demonstrates is where each of the vendors is in terms of completing federal testing, whether they have submitted a complete application to the Secretary of State, whether there has been state certification, and then some very quick explanatory notes of where things are, or where they are not.  For example, the one system….well, below, Diebold is ES&S, Hart, and Sequoia, and then a new vendor named Populex. 

The Diebold system, for example, listed the various voting system components that is under review.  Whether federal testing is complete, that’s listed as “no.”  Whether an application has been received by the Secretary of State, that’s listed as “yes.”  There is a blank for state certification because there has been no decision.  And then the note indicates it’s been referred back to the independent testing authority (ITA) for accubasic code review.  And that process continues on for the other vendors.  And I think that, as I say, graphically illustrates where each vendor is in relationship to the certification process.

And then finally, that appears in your binder at tab-5, this is a listing of the 10-steps to voting certification in the state of California.  This process, as the note indicates, has historically taken between 50 and 55 days.  And as I indicated, by law, under the Elections Code, approximately, well, it’s 30 days of that is devoted to public hearing, so it’s about 25 days, or just over three weeks, that is involved in the various other steps.  Just very briefly: receiving an application, reviewing that application to make sure it’s complete, doing all the arrangements for certification testing; step-3, beginning the certification testing; step-4, completing the testing, and then scheduling the new volume testing, demonstration of the system for elections officials and members of the voting system testing, Assessment Advisory Board, created by Secretary McPherson, setting a notice for public hearing, publishing that notice, and then actually conducting the volume test, conducting a demonstration for the election officials and the Technology Advisory Board, _________ finalizing a staff report, consultant completes and writes the report, putting those reports up in advance of the public hearing, conducting a public hearing, closing the public comment period, and then a review by the Secretary of State of all of the information.

Before I conclude, I’d like to take this opportunity on behalf of Secretary of State Bruce McPherson and myself, to acknowledge the very dedicated county elections officials who are with us today, as well as those who are not in the room.  California’s elections are run by extremely dedicated public servants, and the Secretary of State would like to acknowledge their work on behalf of the voters of California.

Thank you, can that concludes my statement.

SENATOR BOWEN:  Thank you.  I do have a few questions and I think in order to proceed in the most orderly way I’ll work in this way.  First, I will explore a little bit the state deadlines and the state process. Then you had made a reference to delays that were caused by the federal government’s snail’s pace on some matters, and I’d like to get a better understanding of what, if anything, we’re still waiting for there, and what has been delayed.  And then finally, we will go to a discussion on a vendor by vendor basis of where things stand. 

And before we do that however, Senator Battin is here with us.  Do you have any opening comments, Senator Battin?

SENATOR JIM BATTIN:  Thank you, Madam Chair.  This certainly is an important issue.  And I represent Riverside County, which was the first county in the state to go to the electronic voting system, and I’ve grown to appreciate the ease of use.  But to the Secretary of State’s office, we have a very big task ahead of us.  And I would commend the Secretary on his efforts in the last nine months on getting a handle on the job.  I think it should be noted, I think, probably the office was in disarray when he took it over, and just all the controversy that was going on with the previous secretary, and people got sidetracked in what they were working on.  But we can’t lose the fact that there’s the voter’s trust which should be, I believe, a trust that they don’t think about; just something that they expect.  I mean, you go vote, you should know that the vote is accurate, and it’s secret, and there shouldn’t be any worries about it.  That’s the basis of our democracy.

And I know that the whole HAVA investigation for the federal government is, from my understanding, and I’m sure you can correct me if I’m wrong, is that I think the federal government now is still looking into what happened then, but is satisfied that the HAVA monies are being handled appropriately now.  And I think Secretary McPherson should be commended for really working on that.

It is a, you know, I have been frustrated for the last year or so simply because I’m one of those people who grew accustomed in Riverside to having electronic voting and I did not want to see it go backwards, and I think at one point there was an effort to go backwards on it, and I just think that that would not have been right.  I mean, step by step evaluation of the vendors, I think, is good.  And I think that the Secretary is doing the right job in that regard.

So that would be it.  I mean, I’m going to have to take off.  My schedule is impacted today beyond my wildest expectations.  And I will try to come back, but I’m already late for two meetings that I’m already late for. 

Thank you very much, though, for coming.  I appreciate it.

SENATOR BOWEN:  Thank you, Senator Battin.  So let me begin by just a little bit of discussion of the state’s process.  There was an article in yesterday’s Oakland Tribune noting that the Secretary has ordered the voting machine makers to be done with federal testing by the end of the month, and to be ready for state testing.  That’s a January 31st deadline?

MR. WOOD:  That’s correct, Senator.

SENATOR BOWEN:  And I guess my question is, why was….you have here that it takes historically 50 to 55 days to complete a voting system certification, assuming that there are no problems identified during the certification process.  Why was this deadline set for

January 31st, a month following the HAVA and state compliance?  Why wasn’t it set for October 31st of last year, or November 30th, or

September 30th?  Why are we just getting this deadline now?

MR. WOOD:  One of the things that’s critically important, I think, Senator, is that the process of voting system acquisition is a vendor driven process.  The state of California does not build voting machines at the government level.  Machines come to the Secretary of State for review and assessment.  And to that extent then, California, like states across the country, is dependent on voting system vendors bringing equipment for us to review.  We cannot order them to come forward.  We can only look at what they bring forward to see if it meets the strict standards that we’re setting here in the state of California.

So at the time period that you’re talking about in the fall, there were at various points, it looked as though voting system vendors were going to come forward.  It became clear after discussions with them, that it needed to be made very clear to them that in order for counties, even with a tight deadline, to have some expectation of being able to deploy systems if they chose, because they had been certified, to go through the training that their poll workers would need to go through, to go through the training that the voter education programs that would be necessary for a voting system.  That’s why that deadline was put into place, so that vendors had a very clear understanding that time had passed and that anything they were indicating as far as kind of informally in terms of bringing things forward, these were the deadlines that were going to have to be met. 

I’m going to be clear too, Senator, that if an application comes in after January 31st, that does not mean that it’s going to be turned aside.  The Secretary of State is going to continue to review applications as they come in.  The critical point was, that vendors needed to know that January 31st is the date that we needed to have so that we could begin our process with the requirements under California law, and then give counties still an expectation that they could successfully use the equipment if it passed the certification tests.

SENATOR BOWEN:  I’m more confused than I was before that answer.  If there is a January 20th deadline for submission of a completed application, but the process is vendor driven, and you will consider anything that comes in even after that deadline, does the deadline mean anything? 

MR. WOOD:  Well, I think the deadline is critical, Senator, because that’s a deadline that the vendors need to understand is going to be important for us to do the work we need to do to maintain the reliability and security of the voting equipment, because it’s just not going to be to the voters’ benefit to have a system out there that has not gone through a very strict process.  That process, however…

SENATOR BOWEN:  We certainly agree on that.

MR. WOOD:  Right.  But that process clearly needs to unfold within the timelines that we’ve indicated go through all of its steps.  But at the same time, if vendors are thinking that counties are going to be able to use their equipment, counties need to have time to deploy the equipment and go through the various training that I’ve indicated.  And if you get past January 31st, that becomes more problematic, based on every discussion that we’ve had with the counties.

SENATOR BOWEN:  All right.  But I still don’t have an answer to either of two questions.  First, why is the deadline for a completed application January 20th if it takes 50 to 55 days to process and we need to allow the counties time.  And second, if you’re going to continue to accept applications after that deadline, what are the consequences of not meeting the deadline?

MR. WOOD:  Well, the consequences are, that it increases the possibility for an unsuccessful deployment on behalf of a county that chooses to buy a system.  Or, a county has to devote greater resources to successfully deploy.  It just increases the risk.  What we’re concerned with now is, working with the counties and the vendors to see if we can’t do everything under a timeline that makes sense.

SENATOR BOWEN:  Okay.  And then the first question was, if we can set a deadline now for two days from now, why wasn’t this deadline set last fall when we could have had the 50 to 55 day process beginning?  If it’s important to send the vendors that kind of clear signal, why not send it before the HAVA and state law deadlines, rather than after?

MR. WOOD:  Well, and I apologize if I’m not being clear, Senator.  In some cases federal testing had not been completed.  In some cases vendors indicated to us they were coming forward and they did not.  So the question was, we need to give them an absolute deadline so they knew what deadlines…

SENATOR BOWEN:  All right, but it’s not an absolute deadline.  You’re using the words “absolute deadline” but then you’re telling me…

MR. WOOD:  It’s an absolute deadline, Senator, in the sense that this is the date that the counties believe is the one that makes the most sense for them to successfully deploy equipment that’s certified.  After that, the risk increases that you’re not going to have a successful deployment.

SENATOR BOWEN:  Okay.  With regard to the question of whether the problem was the submission of completed federal testing, you’ve just testified that there is a different deadline for the completion of the federal testing, and that would be January 31st.  That seems to indicate to me that a vendor could submit a completed application even before federal testing was completed—is that correct or not?

MR. WOOD:  That is correct.  If, however, a vendor fails federal testing, or is not qualified at the federal level, then we can’t consider their application.

SENATOR BOWEN:  Okay.  But, when we’re looking again at what the date is for the submission of a completed application, you can’t give, as a reason for not completing the application, that the federal testing isn’t complete because that process you set a separate deadline for.

MR. WOOD:  I’m sorry, Senator, I don’t quite understand your question.

KAREN DANIELS-MEADE:  If I might.  Historically we have required voting system vendors to complete an entire process and pack it before we will even consider the application.  What we have said we will do is, we are giving them a little grace period so that they can get some of the initial materials in which can jumpstart the testing process, and then we will accept the federal certification up until January 31st to accompany that process, so that we, in other words, have got the process started.  It’s another step that we’re trying to take in order to expedite the testing.

SENATOR BOWEN:  But what happens if the federal testing results aren’t submitted by January 31st in your office?

MS. DANIELS-MEADE:  What we are basically saying is, if all of these materials are to us by the end of January, we can guarantee we can get through the process, assuming there are no problems with your system, in time to have a hearing of the first part of March, which is the deadline that the counties have indicated to us they need to know, that’s sort of their drop dead date for when they can purchase and deploy systems for use in the June election.  So what we’ve done is, sort of worked backwards and said, okay if the first week of March is the last date that you can absolutely wait to know, then we need to get all these steps accomplished prior to that time, and that’s why these particular deadlines have been set.  That’s not to say that we haven’t been telling vendors all along for the last year or two that there’s a deadline approaching, we need to see your systems.  I mean, we haven’t given them a deadline in writing, but we certainly have been encouraging them.  And we have indeed been told by several of the vendors, oh, next month we’ll have it.  Next month we’ll have it.  And it hasn’t happened.  So we finally said, look it, they need to understand, we need to have these materials, and we need to have them now if there’s any hope to be able to use these systems in June.

SENATOR BOWEN:  All right.  Well, I guess I’m still unclear as to why these deadlines are being set now rather than having been set in a timeframe that would have allowed for the completion of the 30-day notice and the hearing before the December 31st deadline.

MS. DANIELS-MEADE:  I think the most reasonable answer to that is simply the federal testing has not been completed on enough of the systems to make it reasonable to set a deadline.

SENATOR BOWEN:  Okay, but you’ve since said that you’re going to have a separate application deadline from the federal testing deadline.

MS. DANIELS-MEADE:  But we’ve only given a very short grace period between those two dates.

SENATOR BOWEN:  At the time when the Diebold TSX machine was sent back for additional federal testing, I don’t remember the exact date, but it had to have been the end of November or beginning of December, and the indication that I had from the Secretary of State’s office at that time was that that was expected to be a two or three week process.  Can you, not with regard in particular to Diebold, but what kind of timeframe are we talking about now to get federal testing done when it has not been completed?

MR. WOOD:  I think I’m going to ask Mr. McDonald to more fully respond to you, Senator.  Do you mean specifically in the Diebold case, or just in general?

SENATOR BOWEN:  I just want to know.  Since I was led to think at the time, that it was going to take two or three weeks to get that done, and we had the November 18th, I believe, hearing on the certification of the Diebold equipment that was held for…

MS. DANIELS-MEADE:  November 21st, I think.

SENATOR BOWEN:  Twenty-first.

MS. DANIELS-MEADE:  Yeah.  And the letter went December 20th, just for your information.  December 20th is the date we sent Diebold the letter that we needed additional testing.  But we sent it back for further review.

SENATOR BOWEN:  And that was expected to take two to three weeks.  And my question more generally is, what are you anticipating now if you have to send something back for additional federal testing, how long do you anticipate that it will take?

MR. WOOD:  I was going to say, I’m going to let Mr. McDonald fully answer, but let me just briefly point out though, that again, this is…when it goes back to a federal independent authority, these are three labs, I think, and those labs have whatever process they need to go through in terms of resources, and that was our understanding at the time.  We are now informed that there are resource questions as far as a lab, and that’s why there is a delay.  This is again a process outside of the control of the states and outside of the control of California.

SENATOR BOWEN:  I understand that.  I’m just trying to get a fix on when it is that we might hear.

MR. WOOD:  Sure.  Mr. McDonald.

BRUCE MCDONALD:  The original projection was based on Diebold’s initial phone call, the vendors initial phone calls, with the testing laboratory and their estimate based on the amount of code that needed to be reviewed.  Since they’ve gone back to the testing laboratory and there have been several questions raised at a federal level as well about why the source code hadn’t been reviewed previously during the normal course of testing that, as if anything, probably made the testing laboratory more conservative in wanting to make sure that they get everything correct. 

The latest word, they’ve been struggling with the contention of resources.  We expected the turnaround time, they were having a project kickoff meeting today and we were supposed to get, by the end of the day, a projected turnaround time for this project to examine the source code. 

Right before I came over here I got an email from the laboratory that one of the members of the team is sick and they’re having that kickoff meeting now tomorrow.  So by tomorrow or Friday we should have a final turnaround time on how long it will take to complete the project.

SENATOR BOWEN:  So the two to three week timeframe was based on Diebold’s…

MR. WOOD:  The initial estimates that we received from Diebold and their conversations with the ITA.

SENATOR BOWEN:  Right.  And is the estimate that you just referred to, or the email, also from Diebold, or is it directly from the ITA?

MR. WOOD:  That’s directly with one of our consultants working with the ITA.

SENATOR BOWEN:  All right.  So the answer is, we still don’t know how long it might take.

MR. WOOD:  No.

SENATOR BOWEN:  Is there any reason that the state certification process cannot run concurrently with the federal process?

MR. WOOD:  And again, I’m going to let Mr. McDonald explain that better than I can.  But just from a lay perspective, which is the one I understand, is the federal process is an iterative process in terms of what it goes through in the testing, and so there are various versions of the systems that are tested during that iterative process.  To run a parallel test with the state process would mean that at some point if the federal process changes, a vendor submits a different version, that the state process is now running along checking a version that is no longer being tested at the federal level.  So the parallel tests can easily just diverge.  But I think Mr. McDonald can probably put it more eloquently than I can.

MR. MCDONALD:  Actually I think that was an accurate description.  We run the risk of testing…

SENATOR BOWEN:  So vendors are submitting software that is not ready for primetime, is what you’re telling me.

MR. WOOD:  Frequently, yes.

MS. DANIELS-MEADE:  And it really is an iterative process.  I mean, if the federal ITAs discover an issue that they have concern with, the vendor goes back and changes it, and then they start over again.

SENATOR BOWEN:  Yes, I understand that.  But I’m thinking to my experience in another area of the law where we deal with both federal and state testing, and it has to do with pesticide certification.  And we don’t wait for one process to finish before the other begins.  We try to use a process that moves everything forward at the same time. 

I understand that if something is changed at the federal level, that it may mean additional work in the Secretary of State’s office, but we’re in a position now where if material isn’t submitted to the federal testing labs, or isn’t completed until the end of February, I see absolutely no way that you could possibly get your part of the work done in time for the registrars to have any ability to even make a decision about what they’re going to use in the June election.

MR. MCDONALD:  Just as a point of clarification, as the Under Secretary indicated in his remarks, Elections Code Section 19250 requires that any DRE system that’s proposed to be certified by the state must first pass federal qualification.

SENATOR BOWEN:  I’m not suggesting that the state’s process do the proposal that it go to the certification process, but we are in a situation where if we wait for, or if you wait, for the federal government, or rather, the federal testing labs, because they are not government labs, and I want to make that clear, they’re private laboratories.  They’re not government run.  We could very easily be in the situation where it is impossible for any of the counties, whose situation I laid out, to use this equipment.  And I’m sure that when we do the next panel and we hear from the registrars, that that’s caused a lot of extra work there as they sort through the process of trying to figure out how they are going to conduct an election if they don’t have any HAVA compliant equipment that they can deploy, or if their only option is the AutoMark, which is the one system that is certified.  Not a DRE, but certified.

MR. WOOD:  And I think again, just to clarify a point, Senator, it’s not just the question of being HAVA compliant, because these systems are HAVA compliant, it’s the question of being HAVA compliant as well as meeting our state requirement of having the voter verified paper audit trail.

SENATOR BOWEN:  Okay.  Let me read to you the statute that you’re working under here with regard to the federal qualification, because it doesn’t say that you may not recommend certification.  It says, you may not approve a system.  The Secretary of State may not approve a direct recording electronic voting system unless the system has received federal qualification and includes an accessible voter verified paper trail.  So there is nothing in this provision of the statute that would lead me to conclude that you can’t begin the work on the state….you simply can’t give the final authorization.  It doesn’t mean that you can’t do the part of the work that’s within the state’s purview on the paper trail.

MR. WOOD:  Again, that’s why, perhaps, we accept the application. We begin working as soon as it’s practical.  We accept the application before federal testing is complete so we can begin the process of evaluating the system, reviewing the technical documentation, planning a course for testing, actually doing everything we can to prepare for the certification testing.  Historically, the Secretary of State’s office, I believe, has run into trouble trying to go out and test and certify a system before federal testing is completed.  And that is the process that we wait until we actually arrive and start testing the system until we know what the final version of that system is going to be.  We do all that we can in preparation in advance.

I should also point out, that we do our testing on the trust to build that is delivered to us directly by the ITA.  That trust to build isn’t completed and built until the conclusion of the federal testing process.

SENATOR BOWEN:  Okay.  Well, a couple of things.  One is, historically we’ve never had the kind of time crunch that we’re going have this year because we’ve never had a paper trail requirement and a HAVA requirement kick in at the same time.  So, whatever we’ve dealt with historically, I think probably isn’t very useful, given the fact that it’s now the middle of January and we still have counties who don’t have any idea how they’re going to run elections.

So let me go to, I mean, I think we’ve dealt with the question of the alternatives.  Again, I don’t understand the purpose of the deadline if we’re going to continue to accept applications.  I do see that we have now set a split deadline so that the federal testing doesn’t have to be completed before the application is complete, and I do wonder why that wasn’t done last fall. 

But I want to talk a little bit more about the state’s certification process and what exactly the state does.  If you could talk a little bit about your process for certification, I think that would be helpful.

Let’s say that the federal certification requirements have been met by a particular vendor.  What is it that the Secretary of State’s office requires and does after that?

MR. WOOD:  And again if I could refer you to tab-5 on your binder, that’s a listing of the 10-steps that the state certification process goes through.  One of the critical ones that, of course, has been added by Secretary McPherson is a volume test.  And all of these things, as

Mr. McDonald indicated, are done either in parallel or in tandem so that we do eliminate unnecessary waste of time.  The volume test however, is an important addition because this allows for the real world election day testing of a voting system without having any question about real or live votes being at risk. 

Just one other point, Senator, if you’d like to go into more detail about these certification processes is, I mean, there will be an election on June 6th.  The voters of California will cast their votes on equipment that’s been certified by the Secretary of State and has been used in the past, and used successfully in the past, and survived recounts, and a variety of other things.  There will be voting systems that can reliably and accurately count votes at the time of the June 6th election. 

SENATOR BOWEN:  Let me go back to something you just said.  You said that the certification would occur in parallel or in tandem.  I’m not sure what you mean.

MR. WOOD:  I meant the steps of the certification process.  So as it indicates, for example, at step four, step five, step six—step four, the state certification testing is completed.  When it is done, the following three items are scheduled:  volume testing, a demonstration of the system for election officials and the voting system technology assistance advisory board, and the scheduling of a public hearing.  At the same time, there’s a publication of the notice of the 30-day public hearing.  And then the volume test is conducted; a demonstration is run; the draft reports are done.  There listed sequentially here, but these things are also done at the same time.

SENATOR BOWEN:  So my question with regard to this step was, what does the state certification testing involve at the Secretary of State’s office?

MR. WOOD:  I think Mr. McDonald can answer that.

SENATOR BOWEN:  Okay.

MR. MCDONALD:  The process begins upon receipt of an application and technical documentation of the voting system under consideration.  When we receive the application, we review it to make sure all the required components are there.  Review it to get an understanding of the system, and to understand just exactly how we need to modify our testing plans so that we can test and exercise the full functionality of the system.

SENATOR BOWEN:  What does that mean, modify our testing plans?

MR. MCDONALD:  We have a basic testing plan, but each system has unique features, so we want to make sure, or this is a system that has come through with modifications from a prior version that’s already certified, so we need to modify our basic testing so that we actually exercise and test those functions that have been added and verified.

SENATOR BOWEN:  Are the testing plans published somewhere?

MR. MCDONALD:  We don’t have a published testing plan.  We have a generalized one that is actually under tab-6, which is more detail.

SENATOR BOWEN:  So how would an interested member of the public know what the testing plan comprises or what modifications have been made with regard to a particular vendor submission?

MR. MCDONALD:  When we finish the testing and prepare for the public hearing, we write a detailed report and provide all that information and post it on our website.  It becomes a matter of public record.

SENATOR BOWEN:  What happens when you’re dealing with proprietary code?

MR. MCDONALD:  Proprietary code is withheld and not made public.

SENATOR BOWEN:  Right.  Can you effectively publish the testing plan or modifications to the testing criteria without violating the provisions regarding the code?  It’s very hard for me to understand how you would be able to do that without basically having the impact of disclosing at least some of the structure of the code, if not the specifics that you’re testing for.

MR. MCDONALD:  Again, the code is not published—that is proprietary.  At times security features that are evaluated are redacted as well if they’re deemed to be a public risk to the security system.  In general, what we publish is a description of the features we tested, what testing was done, and the results of what we found about those features.

SENATOR BOWEN:  So that testing plan is published afterwards, but not before the testing is commenced—is that correct?

MR. MCDONALD:  That would be correct.

MR. WOOD:  One other thing let me add, Senator, as I indicated, Secretary McPherson convened the Voting System Testing Summit in November.  We’re completing a report based on the testimony of a wide variety of experts in election related areas.  One of the goals of that testing summit was to produce best practices that states could agree on for state level testing, because we’re committed in California, to a two-tier process.  There are federal review, but a state review in California is critically important.  So there are going to be a variety of things that are examined in the course of producing best practices. 

And what Mr. McDonald was just describing and what your question goes to, those are all going to be subject areas that will be looked in terms of best practices that states may wish to adopt.

SENATOR BOWEN:  And when will that be completed?

MR. WOOD:  We’re completing the report itself now, and probably within the next several weeks.  And we hope to hold a public hearing connected with those draft recommendations.

SENATOR BOWEN:  I think my question goes back to the timing of it.  If there’s a draft report completed in several weeks but that puts us into the middle of February, and if the goal is to get systems certified by March 10th, how does that…

MR. WOOD:  It does not, Senator.  I mean, again, I don’t want to be confusing on this point.  The best practices for the states, which are all in the same position that the state of California is in, these are going to be best practices moving forward.

SENATOR BOWEN:  Well, actually they’re not.  They’re actually not because not all states have a verified paper trail requirement.

MR. WOOD:  About half the states do.

SENATOR BOWEN:  Okay.  So, but just to go back again.  The testing itself, the testing plan is not made public before it’s carried out.  I’m assuming that that portion of the certification is not transparent, i.e., if I, or any other member of the public, wanted to come in and say, can I watch while you’re testing, the answer would be no?

MR. WOOD:  I think the question would be structuring the observation would be very much like structuring observation at an election office during election period.  Observers can be there, but it would have to be structured in such a way it didn’t interfere with the test process itself.

SENATOR BOWEN:  What does that mean when the question is evaluation of software code?  Because observing someone looking at code doesn’t interfere with the testing process, right?

MR. WOOD:  Again, the Secretary of State does not do directly the evaluation of software code itself.  That’s generally the province of the ITAs.

SENATOR BOWEN:  So tell me what is in the testing plan then, in general terms.  What is in the testing plan that you’ve laid out for state certification?

MR. WOOD:  The testing at state certification generally works again on the assumption that the federal testing, which does source code review to meet the federal voting system standards, does more of an engineering testing the equipment under extremes of heat and temperature, vibration, humidity, that type of thing.  It verifies the functionality and then compares the functionality, again, against the federal voting system standards.  Our testing assumes that that federal testing is complete, the system is completed.  And we’re primarily aimed at the functional testing of, does this system conduct an election in accordance with California law to the proposed procedures for use in the state of California, give the ability to use the system securely in an election conducting it in accordance with California law?

SENATOR BOWEN:  Is there a reason why the testing, if that’s what the testing does, why the testing plan can’t be made public before the testing occurs?

MR. WOOD:  I mean, the plan itself, Senator—is that what you’re referring to?

MS. DANIELS-MEADE:  Talking about the protocols.

MR. WOOD:  You’re talking about the protocols.

SENATOR BOWEN:  You’re testing something and you’re basically telling people, we’ll tell you at the end whether it met the test, but we’re not going to tell you what the test is.

MR. WOOD:  I think the protocols of the test absolutely can be made public, very much like the protocols for the volume test.

SENATOR BOWEN:  Good.  I look forward to seeing them.  Obviously the other piece then is if you modify the testing plan.  Because of particular equipment, that would be equally important to be able to view that.  I think it would help people have confidence in the state testing itself.  The fact that we’re here having a discussion about what that testing comprises, is indicative that it’s not sufficiently transparent and public at this time.

          MR. WOOD:  One of the other things I ought to point out, Senator, that Secretary McPherson promulgated the ten standards for voting system vendors to meet this summer.  But one of those ten points, which is new for the state of California, is that the Secretary of State will take possession of source codes from all the vendors.  When questions are raised, we will do an independent source code review in the state of California.

          SENATOR BOWEN:  I think that’s the law—right?  That’s the law in California.

          MS. DANIELS-MEADE:  I think the law is actually that they be deposited with an escrow…

          MR. WOOD:  In an escrow.  This is with the Secretary of State’s office.  And one of the functions of the new Office of Voting System Technology Assessment will be to secure those codes, and if necessary, conduct an independent review.

          SENATOR BOWEN:  All right.  A couple of questions then on testing and the Independent Testing Authority.  As you know there has been, I assume you know there has been, some criticism from computer security experts about the ITA testing procedures, and this will be a subject of a further hearing.  In particular you may have read Professor ______ Ruben’s critique of the testing.  I spent some time with him recently.  He told me that one of his graduate computer science classes he routinely splits his class into two and asks half the class to hack or change the results in certain voting equipment, and then he assigns the other half to try to find the modifications, hacks, bugs, whatever you wish to call them, that the first half of the class has created.  And I think he does this both ways, so that everybody is both the target and the hunter. 

He tells me that in most instances is impossible, even for a graduate level computer science Ph.D. student, to find in the code, something that would enable an election to be hacked or stolen.  Do you have confidence that the Independent Testing Authorities can uncover any problems that might occur, and if so, why is it that the Diebold equipment was certified by the ITAs?

          MR. WOOD:  We have confidence, I think, in the state of California, Senator, that the processes that exist before an election, during election, and after election, would, in fact, detect any attempt to engage in fraud at either a very small level, or at a massive level, so that does not involve the ITA in that sense.  I think California is very well protected in that regard.

          SENATOR BOWEN:  So you’re arguing that it doesn’t matter that if the ITA testing uncovers problems, because we have our own…

          MR. WOOD:  I’m saying that the ITAs are an integral part of the federal testing regimen that exists now.  But I’m saying, in the state of California we have our own independent ways of making sure that the integrity of the vote is protected.

          SENATOR BOWEN:  Right. But I’m asking you specifically with regard to the ITAs, whether you have confidence that that step can uncover any bugs, holes, mal wear, back doors, or other types of manipulation that could allow either a malicious intervention, or just a mistake?

          MR. WOOD:  I believe that those same computer experts would also tell you that, and argue that, no examination can ever guarantee that you could find any possible malicious code or bug in any piece of software no matter how much you examined it, and that’s one of the reasons that we layer these systems with security procedures.  For instance, while nobody, students in a concerted attack, after several attempts may figure out a way to breakdown code, that opportunity isn’t afforded in our voting systems. There are procedures that layer around them and secure them to prevent people from having that kind of opportunity….detect it if it’s done.

          MS. DANIELS-MEADE:  Excuse me.  One of the things that also came out at the summit, I mean, it was very clear that everyone who was there was acknowledging there are deficiencies in the ITA testing process.  And the limitations of that process are, that they are only going to be testing to the federal standards.  And so if you have other requirements that are not specified in those standards, they’re not even examined by the ITAs.  One of the things that needs to happen is, maybe the standards need to be a little more stringent.

          SENATOR BOWEN:  Great.  We will do a separate hearing on the testing authorities, which all of that is going to change.  We’ll have a look at that whole process, and I look forward to having your technical input and your thoughts on that.

          But basically, Mr. Wood, what you said was that the state has other methods of assuring that the vote isn’t manipulated, and I assume you’re referring to our audit requirement?

          MR. WOOD:  In part, yes, Senator.  And then processes that exist in terms of logic and accuracy tests prior to an election, which are public, the processes that exist during an election in terms of cross checking rosters.  The cross check that goes on, the reconciliation that goes on, and then post election, the various sorts of canvas processes that go on.  One of the things that the Secretary continued this last election, was a parallel monitoring process, as well, so that we would have an opportunity to, in a real world setting, see how machines were functioning.  So there are a variety of steps that are taken both procedural, and mechanical, to ensure that if there is any difficulty, whether it is advertent, or inadvertent, that difficulty is detected an corrected.

          SENATOR BOWEN:  Okay, you didn’t put the audit requirement in that list, but do you consider the audit requirement an integral part of one of our checks on the integrity…

          MR. WOOD:  Oh, no question about that.  Absolutely.

          SENATOR BOWEN:  I mean, I ask that only because the Secretary of State opposed the use of the paper trail to audit the electronic voting machines in my SB 370 last year.

          MR. WOOD:  And actually, again, I want to be really clear on this, Senator.  Secretary McPherson, when he was in the Legislature, was one of the authors of the paper trail requirement.  He does not oppose the paper trail.  He does not oppose the paper trail as an audit document.  What his concerns are in relation to your particular bill, had to do more with whether or not there were sufficient standards in place so that that paper trail could be used for the purpose which, I think, you intended it to be used, as an audit document.  And secondly, that there had been significant concerns raised by the disabled community, that given the paper trail requirement, using the paper trail for an audit document would make it difficult, if not impossible, for some disabled voters to determine what was, in fact, recorded on the paper trail.  So those are challenges we have to meet in the Secretary of State’s office, and he’s determined to meet them.

          SENATOR BOWEN:  All right.  Well, SB 370 is now the law.  We will be using the paper trail in the random audit.  But given what you just said with regard to concerns about whether or not there are technical barriers to actually using that, I would expect that I would have received something from the Secretary of State laying out what those technical issues are.  Because if they do exist, they’re likely to get in our way of being able to conduct the SB 370 audit on the DREs.  Do we have an analysis of what the problems are, or are we able to use the paper trail as we expect it to be produced in order to meet the 370 requirements?

          MR. WOOD:  Well, as far as using it in terms of just as an audit document, it will be used as an audit document.  As you say, that’s the law, and there’s no issue on that.  The question that the Secretary of State still has to face is, how to make that accessible for disabled voters, and that’s a technical…

          SENATOR BOWEN:  But that was only one part of the two objections that were raised.  One part was that it was legally insufficient and that it would be impossible to use it.  Does that concern no longer exist?

          MR. WOOD:  No, it was not….again, I apologize if I’m being confusing.  The question was not that it was legally insufficient, it was that there was a problem with simply keeping it in tact.  Right now, there are no real standards for the paper document.  It needs to have those standards so it can be used fully as the audit document that SB 370 intends it to be used for.

          SENATOR BOWEN:  All right.  Does the Secretary of State in the process of setting standards for the paper?

          MR. WOOD:  Yes.

          SENATOR BOWEN:  And when might we expect those to be completed?

          MR. WOOD:  Shortly.  I can’t give you an exact date today, Senator, but shortly.

          SENATOR BOWEN:  Okay.  And what is the public process for review of what those standards will be?

          MR. WOOD:  We’ll be glad to work those out in conjunction with your office.

          SENATOR BOWEN:  So, absent this hearing, the standards will just be promulgated and there would be no…

          MR. WOOD:  Absent this hearing, Senator, the process would be to put them into regulation at which time there is a public hearing.  So there is a public hearing no matter what.  But we would be delighted to work with your office in formulating those standards.

          SENATOR BOWEN:  But I guess my question, again, is with regard to timing.  Because if there is a concern about the standards for the paper and that is essential to the use of the paper trail in the audit, then that ought to be one of the things that’s dealt with in the certification of the equipment—right?  Because if it produces a paper trail that we can’t use in the audit, it seems to me it ought not be certified by the Secretary of State.

          MR. WOOD:  The point, I think, Senator, is it will be used as an audit document.  Again, I don’t want to belabor it or sound confusing, it will be used as an audit document.  Going forward, that audit document needs to have the kinds of security and protections that SB 370 contemplated I believe it have so that it can be fully utilized as an audit document.  But for paper trails that exist at the time of the June primary, they will be used, as 370 contemplated, as an audit document.

          SENATOR BOWEN:  All right.  I will have some other questions on that.  I’m going to go back and look at the Secretary’s opposition to

SB 370 because my recollection of it is that there were technical issues with regard to the use of the paper as an audit, and I don’t know of anything that would have changed those, so I will pursue that later, because that is not what people are here to deal with.

          Let me ask you what the status is of the hack test that the Secretary of State promised to conduct with Finnish computer expert Harri Hursti, who, as you know, was able to change the results on several Diebold optical scan machines in Florida using the memory cards from something that I’m familiar with as a