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 Midwesterner, which is a corn moisture scanner, something, I believe me, I’ve had to explain to many Californians what it is.  What’s the status of the hack test?

          MR. WOOD:  As you know right now, as Mr. McDonald indicated, we have referred, we insisted, the Secretary insisted, that Diebold and the Independent Testing Authority in Washington, review the memory card that, the accubasic code on that memory card, to determine what’s there and what’s not there.  This was an important omission.  It was characterized as an important omission after Secretary McPherson insisted that it be done by the National Association of State Election Directors, who also demanded from Diebold and from the Independent Testing Authority, that this review take place.  So the information that was developed in various sorts of public forum, that’s where it is right now.  It is being reviewed, and we are awaiting that report.

          SENATOR BOWEN:  But what’s the status of the hack test that the Secretary of State promised to conduct here in California on the Diebold optical scan machines?

          MR. WOOD:  I’m sorry.  I apologize.  That was the attempt to answer that, is that the information which was the subject of that hack test is now being reviewed.

          SENATOR BOWEN:  Okay.  So will it….that test will not be conducted here—is that correct?

          MR. WOOD:  The information that is being checked now is the information that was the subject of the hack test, the thing that appeared in the media.  It is being reviewed both at the federal level.  We are conducting an independent state review by computer scientists from the University of California, who serve on the Secretary of State’s Voting Testing Summit Advisory Board, and when those reports are prepared we will have the information that would have been available for many other kinds of tests.

          SENATOR BOWEN:  So does that mean you’re not conducting the hack test because you believe the information will be made available in other ways?  I just want to know whether you’re going to do or not.  A lot of activists are under the impression that the Secretary had agreed to do this.  There were all kinds of rumors that it was being done on a particular day.  To my knowledge it hasn’t been done.  I just think people who care about this deserve a straight answer.  Is it going to be done in California or not?

          MR. WOOD:  If we get the information, Senator.  I mean, the purpose is to get the information.  I can’t say it any more simpler than that. 

          SENATOR BOWEN:  So does that mean it is going to be done in California or not?

          MR. WOOD:  I don’t see the point, Senator, if we have the information.  If we don’t, we go forward.

          SENATOR BOWEN:  Okay.  I’ll take that as an answer.  I think it’s clear enough to the people in the room. 

          Let me go for a moment to the question of the Diebold certification.  Because I received yesterday afternoon, by email, a lengthy letter from an officer of Diebold.  And one of the things that this letter states, and I have not a chance to read and really understand in depth the entire letter, but it states:  “The entire AccuVote TSX system with all components has passed all federal testing and received federal qualification.”  That does not comport with my understanding of the Secretary’s remand, if you will, of the Diebold system back to the federal ITAs for further testing.  What’s your assessment of this statement by Diebold, that the entire AccuVote TSX system with all components has passed all federal testing and received federal qualification?  Correct or not correct?

          MR. MCDONALD:  The Diebold voting system did complete the federal testing, did receive a federal qualification number that it met the federal voting system standards.  It was in later review and investigation following up the allegations that were raised by the Hursti exam that we discovered that there was code, executable code, present, being passed on these memory cards that we believe, and several other officials believe, should have been examined as part of the ITA process.  So I would say Diebold’s claim, that they completed federal examination on the surface is true, unfortunately it wasn’t complete.  There was code that was omitted from that examination, and that’s what we’re back having them examine now.

          SENATOR BOWEN:  Okay. 

          MR. WOOD:  Which by the way, Senator, on the chart that’s listed in your binder I believe at tab-2, that’s why the Diebold application is listed as not having completed it’s federal testing.

          SENATOR BOWEN:  And that’s why I was asking, because your chart and what I understood from the Secretary of State’s office is, that the Diebold TSX was not complete in its federal certification, but my letter from Diebold Elections Systems dated January 17, 2006, says in essence that it is complete.  Both things can’t be true, only one can be correct.

          MR. WOOD:  No.  And Secretary McPherson does not believe that the federal testing is complete. 

          SENATOR BOWEN:  So let me just clear one thing.  The only thing that caused you to send this back was the Hursti test, the memory card hack—is that correct?  There’s nothing else that’s being looked at by the federal ITAs with that regard?

          MR. WOOD:  That’s correct.  That latter statement is correct.

          SENATOR BOWEN:  Okay.  So you’re going to rely on whatever the ITAs do with regard to the Hursti hack?

          MS. DANIELS-MEADE:  And our independent test.

          SENATOR BOWEN:  Oh, you are going to do a hack…

          MS. DANIELS-MEADE:  Well, no.  We’re doing the same source code review—not by ITAs.  We have the voting system technology assessment advisory board, computer scientists from both Berkeley and UD Davis, doing their own independent review of that source code.

          SENATOR BOWEN:  Okay.  So they’re going to do independent review, but there’s nobody who’s going to attempt the hacking test in California?

          MS. DANIELS-MEADE:  I don’t know if that’s contemplated at this time.

          SENATOR BOWEN:  Okay.  But that is what people were told would happen—is that correct?

          MR. WOOD:  That’s correct.  The critical issue though, is to get the information, Senator.  We are going to get the information both from an ITA report, and from an independent review we are conducting.

SENATOR BOWEN:  All right.  I think we’re ready to talk about some….we have already sort of gotten into Diebold territory, which was inevitable.  But I don’t want us to end with that discussion, because it’s really not the only place where there are concerns or considerations.

So I think that we have evaluated, at this point, what the status is of the Diebold TSX certification. 

Let’s turn for just a moment to the Sequoia AVC Edge, which is the DRE that is certified for use in the general election, but not in the primary.  Can you advise with regard to the status of that certification?  And I think it would be useful to begin with an explanation of how it is that the equipment can be certified for use in the general but not in the primary, which is probably clear to people who have been around the equipment, but not necessarily so obvious to people who are trying to follow this with their home Jeopardy game.

MR. MCDONALD: During examination, state examination and testing, of the Sequoia system that involves the AVC Edge with the paper trail, and that would be the Edge Model II, when it came time to report the….in the test primary election to report the crossover votes of simulated nonpartisan voters that had chosen to vote, Democrat, Republican, or American Independent, in the test election, in parallel that we conduct elections, it was found initially that they could not report those separate vote results as required in California.  During further investigation during the testing, it was found that Sequoia had a utility that was capable of verifying those results had been accurately captured and could be reported.  Unfortunately, that utility had not completed federal examination as part of the qualification of the system.  That utility had been omitted.  It had not had source code review, and that’s the cause for the restriction for the condition that it can’t be used in a primary.  Because the system as it was certified, as it was presented, examined, and certified, was incapable of reporting those vote results without using a utility that had not been federally examined and qualified.

SENATOR BOWEN:  All right.  So once again we’re waiting for federal testing with regard to that.

MR. MCDONALD:  Part of the problem that the vendor ran into, and initially their timelines indicated that they would be presenting us with an upgraded system for certification first in July, then in the fall, then in December, and now January, was when they went back to the ITA for that modification, they had not brought their system up to the 2002 voting system standards, but it continually, over the last few years, kept getting the system certified under the 1990 standards with the promise that the next time they came forward they would bring it up to the 2002 voting system standards.  The ITAs held them to that when they came forward with this modification.  And it’s been a primary source.  They’re reporting to us with the delay was they had to revamp their entire election management system, or their entire election voting system, bring it compliant with the 2002 voting system standards.  It was a major overwrite, or rewrite.

SENATOR BOWEN:  And so do you know where Sequoia is?  Has it even submitted its major rewrite to the…

MR. MCDONALD:  They are finishing federal testing.  And as of a conversation with them yesterday, the final end to end testing of the system is due the last week of this month.  And there are three other problems outstanding with the Sequoia voting system.

SENATOR BOWEN:  And those are?

MR. MCDONALD:  The Edge Model I has not been certified with the retrofit, with the voter verified paper auto trail, with the AVVPAT.  It’s currently restricted to only two languages—Spanish and English.  And then the optical, several of the components of the optical system have not been certified with the WinEDS Election Management System, which is necessary for using the Edge DRE with the paper trail.

SENATOR BOWEN:  Okay.  Let me try to….that last thing there was pretty dense, so let’s see if we can pull that apart into discreet parts and regular English.

MR. MCDONALD:  Several counties in California are using an earlier version of the Edge that is capable of retrofitting.  Unfortunately, that version has not been federally tested and certified up until now to be used with the voter verified paper audit trail.

SENATOR BOWEN:  So we’re basically at square zero with that particular model.  The county that wants to use the Edge version I…

MR. MCDONALD:  Counties who have the Edge Model I, that system has not been certified with the paper audit trail.

SENATOR BOWEN:  Okay.  And that model with the paper audit trail is not certified to the federal ITAs?

MR. MCDONALD:  The Edge Model II is.  The Edge Model I is part of the package that is currently going through examination with the federal ITAs.

SENATOR BOWEN:  Okay, now I’m confused, because I thought it was the Edge Model II that was undergoing federal testing.

MR. MCDONALD:  The Edge Model II, an upgraded version of the Edge Model II….the federal testing authorities test a complete system.  So the complete system that is going through, right now, federal testing, the Edge Model II with the voter verified paper audit trail brought up to the 2002 voting system standards, the WinEDS Election Management System has been brought up to the 2002 voting system standards…

SENATOR BOWEN:  Okay.  Let me stop with that.  Would you tell us, for the benefit of people who just…what is a WinEDS Election Management System?

MR. MCDONALD:  Most voting system coming forward have some kind of a central software program that is used to program, to define the election, define the ballots, program the vote recording devices, and then take in the results and tabulate the vote results during the election, and report those vote results—summarize and report them.  So WinEDS is that central program.

SENATOR BOWEN:  So basically, in order to use a Sequoia system then, what I’m gathering is, you have to use both either the Edge Model I, or the Edge Model II, and the WinEDS system, which is the central tabulator for the Sequoia system—is that correct?

MR. MCDONALD:  That would be correct.

SENATOR BOWEN:  All right.  So in order to make the Sequoia system work we need two certifications at minimum—the WinEDS Central Tabulator System, and, either the Model I or the Model II, depending on what the county is using.

MR. MCDONALD:  Actually, we certify complete systems.  So it would be one certification of the complete system.  All those components would be certified together.

SENATOR BOWEN:  But the complete system that uses the Edge I is not in testing, or is in federal testing?

MR. MCDONALD:  Yes.  The complete system in federal testing right now includes the Edge Model I, retrofitted with the voter verified paper audit trail.

SENATOR BOWEN:  And the Edge Model II system then?

MR. MCDONALD:  Is also part of that system.

SENATOR BOWEN:  So the system is being certified with two different options for the voter contact?

          MR. MCDONALD:  With two different options for a direct record election device, a DRE device, both equipped with the AVVPAT.

          SENATOR BOWEN:  Okay.  So those are both being tested simultaneously?

          MR. MCDONALD:  As part of the system, yes.

          SENATOR BOWEN:  As part of the system.  Okay.  And you expect that testing in the next couple of weeks to be completed.

          MR. MCDONALD:  That testing is underway right now and is expected to complete near the end of this month.

          SENATOR BOWEN:  And I understand that you don’t control the timing of that.  Your status graph says that Sequoia has not completed its application as of January 13th.

          MR. MCDONALD:  As of January 13th, they had not.  I received an email this morning with an attachment, that I have not had the time to open, that supposedly includes an application.

          SENATOR BOWEN:  Okay.  What is the status of the Hart eSlate, which Orange County wants to use?  It’s my understanding that it is HAVA certified but has not been certified with the addition of the voter verified paper trail.

          MR. MCDONALD:  That would be correct.  We started testing on that system mid-December.  During the testing, we actually went in the first business day at the conclusion of federal testing, began state examination and state testing during the testing.  We were not able to complete our testing that week, but among the findings we found were that the AVVPAT, or the voter verified paper audit trail, itself, included a unique ballot serial number in plain text for every voter, so that in effect it was like a serial number on a ballot, which we believe is illegal in California.  The vendor has since informed us they have gone back to the ITAs with a minor modification to that system, and it was tested in the week between Christmas and New Years.  They were originally withholding technical documentation from us.  They’ve supplied that to us as of this morning, and we are prepared to schedule testing to resume.

          SENATOR BOWEN:  So your chart says that the Hart system has completed the federal testing, so its revision is now through the ITA?

          MR. MCDONALD:  That would be correct.

          SENATOR BOWEN:  Okay.  And you are completing testing.  When do you expect the final answer on the Hart eSlate?

          MR. MCDONALD:  Hopefully early to mid-March.

          SENATOR BOWEN:  What are the outstanding issues?

          MR. MCDONALD:  We need to complete the testing process, and examination of the system, and review the technical documentation that just arrived in my office this morning, to make sure that it’s complete.

          MS. DANIELS-MEADE:  We also have to do the volume test.

          MR. MCDONALD:  We have to do the volume test.  We have to hold the public hearing, and take in public comment regarding this system as part of the evaluation process.

          SENATOR BOWEN:  Okay.  The ES&S iVotronic DRE, HAVA certified but not AVVPAT or VVPAT certified, at least that’s my understanding of where that stands.

          MR. MCDONALD:  Let me correct, there is no, that I’m aware of, certification that a system is compliant with HAVA.  the iVotronic certainly would be….is a device aimed at accessibility for members of the public who are disabled or have language issues.  That system we have not yet received an application for, and we are being told by the vendor that it is not due to complete federal testing until mid-February.

          SENATOR BOWEN:  This is the system that had the problems in Merced County, I’m told.

          MR. MCDONALD:  This is a upgraded version of that system, correct.

          SENATOR BOWEN:  Have you released the specific concerns that led the Secretary of State to write to the vendor threatening decertification if certain problems weren’t corrected?

          MR. WOOD:  You’re referring to the letter that was sent as a result of the Secretary’s Parallel Monitoring Program.

          SENATOR BOWEN:  I can’t tell from the letter what it was sent in regard to.  It just says that decertification was threatened if certain flaws were not addressed.

          MR. WOOD:  Were not addressed, and we are working with that vendor now to see if those flaws can be addressed.  One of the things that the Secretary of State’s office does is, certification is not a stop, it’s a continuous process.  So once a system is certified in California, the Secretary of State’s office maintains a continuing communication with the counties using the system, with the vendor, and if problems are discerned during that time, those are brought to the vendor’s attention and we seek to correct those.  If they are not corrected, the Secretary of State has a full range of options available up to, and including, the public process of decertification.

          SENATOR BOWEN:  What is the right of the public to see what the problems were, and to have a record of whatever it was that led the Secretary of State to write threatening decertification?

          MR. WOOD:  I think the public has a complete right.

          MS. DANIELS-MEADE:  The concerns that came up with respect to Merced County were identified in the Parallel Monitoring Program that we conducted in November, and those results are on our web page.  They’re perfectly public.  They’re all out there.  The whole report is out there.

          SENATOR BOWEN:  All I have seen in public is, the assertion is, that the vendor is addressing the concerns one by one, but I don’t know what that means.

          MR. WOOD:  I think that’s correct.  We are continuing to look at what the vendor is doing.  And as Mr. McDonald indicated, we expect, based on their statements that they’re going be coming forward with another application.  That will tie into how they’re addressing some of the service related complaints that we have heard from counties and some of our issues.  We’ll be looking at all of that in the certification issues.

          SENATOR BOWEN:  From the timeframe that you laid out, it seems like if I were one of the counties that were looking to use this system, I would be extremely concerned about whether or not I would be able to do that by June.  What would you be advising counties who have been using the iVotronic DRE at this point, given the timing that you just laid out.

          MR. WOOD:  Well, again, if we could make vendors come forward in a more timely fashion we would do it, Senator.  Every state would do that, I suspect.  As Secretary McPherson has said repeatedly, he’s not going to cut corners in this process.  We’re going to do the testing that is required, and we’re going to do a thorough job of reviewing these systems.  And that’s going to come first, because voters have to have absolute confidence that these machines, if they’re put out there, will, in fact, count their votes accurately.

          SENATOR BOWEN:  But I think the question is, the Secretary was quoted yesterday in the press as saying that if any of the counties that are sued, he’ll be right behind them, and I guess the question is, what…

          MR. WOOD:  Well, actually he won’t be right behind them, he’ll be right with them.

          SENATOR BOWEN:  What advice is the Secretary’s office providing to those counties that are using equipment that looks like it has very little chance of getting through the process of certification in order to enable it to be used in a June election?

          MR. WOOD:  Again, at this precise….sitting here today, Senator, I don’t know that we can answer those questions definitively.  We’re going to have to look and see where we are on January 31st, which is fast approaching, and see where these vendors are in terms of being able to meet the deadlines that the counties need.

          SENATOR BOWEN:  And have you released the correspondence to and from the vendor with regard to the problems publicly?

          MR. WOOD:  I believe we.  If we have not….I think they’re posted.

          SENATOR BOWEN:  I don’t think so.

          MS. DANIELS-MEADE:  I don’t know if they’re posted, but they were certainly given to the county election officials who asked for it.

          SENATOR BOWEN:  I got a copy yesterday for the first time, and again, haven’t really had a chance to look at it.

          MS. DANIELS-MEADE:  I’m not aware, Senator, that you had asked for it.  I’m certain we would have provided it to you.

          SENATOR BOWEN:  Well, I think one of the questions we have is, how….you know, even the existence of the problems with Merced County and the iVotronic didn’t become common knowledge in the public’s fear until the Friday before Christmas when somebody from AP got a copy of the letter and wrote a story.  That’s the first I knew that there were issues.  To my knowledge, it’s the first time anybody in this room, with the possible exception of the registrar there and people sitting at the witness table, had any idea.  How are people supposed to have confidence in what you’re doing if there are problems involving….my understanding of the allegations made, or what was observed, I think on videotape, is that voters who voted for candidate A had their votes recorded for candidate B using that equipment in Merced County.  And the vendor said something about voters with long fingernails.  So how are we supposed to evaluate what’s happening, and how do we know that there aren’t other systems where there has been correspondence with the vendor about problems that the public doesn’t know about?

          MR. WOOD:  All of the things that are reviewed by the Secretary of State in terms of what happens with a voting system other than the particular items that Mr. McDonald referred to earlier in the trade secret area, which are covered under California law, all of that is public record, Senator that is available to the public.  We will make it public.  We try to work with vendors to see if some of these problems are things that can be corrected.  If they cannot be corrected, if they cannot be successfully addressed, because either the counties that are using the equipment are dissatisfied, we have concerns that the equipment isn’t, in fact, performing reliably or accurately, then we have very public means of dealing with those vendors.  And this secretary has shown no reluctance whatsoever to be very public about his disapproval or his dissatisfaction with inadequately performing voting systems.

          SENATOR BOWEN:  I don’t know how you could possibly say that when I got a copy of the letter written a week after, or ten days after, the November election on the Friday before Christmas from an AP reporter.  I had no way of knowing that, and I don’t think anybody else in the state had any way of knowing that.  I wouldn’t call that very public.  I just wouldn’t.  I mean, this letter, this is a response from ESS, which again, I obtained from another source yesterday, not from the Secretary of State’s office, this is not available anywhere publicly from the SOS’ office that I know of, it basically says, “SOS performed a review in which, again, blaming voters with long fingernails for errors in the recording.  I find it astonishing that this is something that I would learn about from an AP reporter on the Friday before Christmas.  And that once the Secretary became aware of it, because I know the press called your office, that the documentation wasn’t released immediately.  Are there other counties that have had problems with the ESS iVotronics system or any other system?

          MS. DANIELS-MEADE:  No other counties use that system in California—only Merced.

          SENATOR BOWEN:  Are there any other issues with any other ESS system in any other county?

          MR. WOOD:  We’ve had an ongoing issue, or we had an issue that appeared with Solano County in November, and in March with Sacramento County misreporting the vote results that came down to a bug in the ES&S software that we have tested over in December.  They have presented us with a batch of the results of that bug.

          SENATOR BOWEN:  And when was this information made available to the public?  Just now?

          MS. DANIELS-MEADE:  It’s not a matter of vote results, it was a matter of ballots cast, and their inability to…

          MR. WOOD:  That was a different ongoing issue.

          MS. DANIELS-MEADE:  Oh, okay.

          MR. WOOD:  The ongoing questions, I can’t answer when it was made available or what date, for the information public.

          SENATOR BOWEN:  So we know we have issues in Merced.  We know we have issues in Solano.  We know, now, or I know, for the first time now, that there were some issues in Sacramento.  In what other counties, or in what other systems, is the Secretary of State’s office aware of any problems that occurred in the November election?

          MR. WOOD:  We are aware of routine problems that occur in mishandling and misreporting votes that have occurred in every election.  Clerks forget to send a file at the right time.  They have problems reported.  I know of no systemic problems related to any other voting system arising from that election.

          SENATOR BOWEN:  So how do we get from the place where the Secretary of State’s office is aware of something, but the public doesn’t know about it?

          MR. WOOD:  Well, it’s the Secretary of State’s office and the registrars in the particular counties, Senator.

          SENATOR BOWEN:  Well, who has the obligation to make this a public record?  Is it the registrars, or the Secretary of State, or both?  I don’t know, I’m just asking.  Who’s obligation do you think it is to make this public record?  Or do you think it’s okay that you just deal with all of this, and that if an AP reporter happens to get a hold of a letter on the Friday before Christmas, that the public finds out about it.

          CHRIS REYNOLDS:  Senator, just to try to clarify.  We discovered this problem during Parallel Monitoring.  It’s something that we came across.  We immediately communicated with the vendor and communicated with the Registrar of Voters.  The problem was mentioned in a public setting.

          SENATOR BOWEN:  In what public setting?

          MR. REYNOLDS:  It was a meeting with the vendors, or it was a voting system testing summit.

          SENATOR BOWEN:  That wasn’t a public setting.

          MR. REYNOLDS:  It was mentioned at the California, the CACEO New Law Conference.

          SENATOR BOWEN:  You think that’s sufficient public disclosure?

          MR. WOOD:  I’m not meaning to suggest, I guess what I’m getting at, Senator, is that as Mr. McDonald has indicated, and as elections officials knows well, there are things that happen during elections.  There are ballots that aren’t returned.  There are reports that….I shouldn’t say it that way….There are ballots not returned in accordance with the time that you would expect them to be returned.  There are results that aren’t reported in a timely fashion.  There are things that happen.  There are voting systems that are not appropriately turned on.  There’s a lot more scrutiny applied to the problems associated with the very human process of conducting an election.  There’s no question about that.

          I guess what it comes down to is that you’re making a distinction between some issues, and maybe some of the others that I’ve mentioned.  They’re all problems.  They’re all ones that we don’t want to see occur.  No one wants to see occur.  In particular, I think, to try to illustrate what I’m trying to get at, the voting systems that were used in the Florida 2000 election that produced dimpled chad, and pregnant chad, and hanging chad, those systems passed federal certification.  Those systems “worked.”  But what we encountered was a user interface issue.  We’re also moving into an era where we’re moving from one type of voting system into another type of voting system.  We have become acutely aware of the fact that in this very human process, there is a certain thing that is unacceptable in terms of user interface issues and procedural matters that need to be done correctly.  At the same time, we have to acknowledge, because it’s a simple fact of life, that we’re dealing with an army of volunteer poll workers, as well.  So there’s all these issues where there are going to be, and have been, problems.  And in this particular case, Parallel Monitoring discovered that there was a unit that did this.

We didn’t find the response from ES&S anymore acceptable than you did.  I guess what you’re saying is, how do we setup a public process to monitor those things?

SENATOR BOWEN:  Well, I guess, I’m not trying to pick on one particular kind of equipment, I think that the results of whether they be a user interface issue, which I take to mean long fingernails among other things…

MR. REYNOLDS:  No _____ at all.

SENATOR BOWEN:  But the ES&S problem is not a user interface issue, it was a software bug in one of the modules.  But I think the point is regardless of what the problem is, it ought to be made available to the public.  So if there’s an issue with a software bug that arises after certification, the fact that something occurred during parallel monitoring can’t be something that I learn about on the Friday before Christmas because an AP reporter got a hold of a letter threatening the vendor with decertification.  And this is not transparency.

MR. REYNOLDS:  Well, I think it is, Senator.  I think it is because these issues are raised, and the Secretary of State’s office reviews them to determine what is going on, and that’s where we are right now.

SENATOR BOWEN:  Yeah, you’re the Secretary of State’s office, but turnaround and look at all the people behind you.  These are all people who care about transparency and the elections process.  Forty-eight percent of the people in this country right now don’t have confidence in the electoral process the way we run it.  The way we change that is, we make things way more transparent than you might possibly ever have imagined, so that anybody here can be aware everything that’s going on and can evaluate for themselves whether or not they think…

MR. WOOD:  Which is why the Secretary of State’s processes are open to the public; why our volume tests are videotaped, and the videotapes are available to anybody; why our records are posted on our websites; why everything is pretty much put in a public setting.  When there is not a sufficient information that we know about, and that’s why we send a letter like that to a vendor, we want to find out what’s going on.  I don’t think it serves the public to put a letter or a document out, when we don’t have some answers that we can at least go forward with and advise the public about, and that’s the process where we are.

SENATOR BOWEN:  All right.  I think it does serve the public to disclose the flaws, the warts, the bugs, the software glitches, and all of the user interface issues.  I actually do think it’s in the public interest to disclose that.  You don’t. 

MR. WOOD:  I didn’t say that, Senator.  I want to be clear again, the Secretary of State’s office does believe everything should be public.  The question is, the point at which the information can be used by the public so we have some answers, so we know what’s going on.  So there isn’t simply a lot of rumor or speculation, or information that hasn’t been reviewed at all put out there as a kind of a public record.  I think that’s inappropriate.  That doesn’t help voter confidence, and that does a disservice to the voters of California.

SENATOR BOWEN:  You had reviewed….someone in the Secretary of State’s office had reviewed, what happened in Merced County sufficiently within whatever it was, ten or fourteen days following the November election, to draft a letter threatening decertification.  So somebody thought that the problems there were sufficient enough to…

MR. WOOD:  To get some answers from the vendor.  That’s exactly correct.

SENATOR BOWEN:  But the public, when was the public supposed to know about this?

MR. WOOD:  As soon as we have answers from the vendor that either solve the problem or fail to address the problem, as I said.  The Secretary of State has a full range of options all the way up to, and including, decertification—a very public process.

SENATOR BOWEN:  Well, all right.  I think we’ll have a look at the Public Records Act, because I don’t think the Public Records Act allows you to wait until you have answers before you disclose the existence of problems.  But we’ll leave that legal conversation for another time.

I do want to make it very clear at this point, though, that I would like copies of any correspondence, any testing, anything with regard to any county, or any vendor, that has encountered user interface issues, software issues, hardware issues, problems with volunteers.  I understand that a whole lot of volunteers are required to make an election system run.  But I think one of things that we have to do is take a look publicly at where the problems are so that we can avoid them in the future, or correct them.  And to basically say, “Trust us, we’ll tell you when we’ve got things worked out,” is not going to work for this chair of the Elections Committee, and I’ll follow up with a written request.  I thought it had already been made clear to the Secretary of State that I wanted that information, but obviously it hasn’t been clear enough, so I will make it clearer.  Because if there are other issues, I think the public deserves to know about them.  It isn’t about me knowing, and it’s not about you knowing, it’s about anybody else in the state of California, or in this country, who cares about the results of the elections and how the elections are run, being able to evaluate for themselves what’s going on.

Did I finish all the vendors?

MR. WOOD:  I think there is one other, if you’d like to address that one, Senator.

SENATOR BOWEN:  Yes.  Populex.

MR. WOOD:  Yes. 

MR. MCDONALD:  Populex has submitted an application that was incomplete.  We have asked for additional information so we can evaluate that system.  Additionally, their system has a barcode that has a unique ballot ID or serial number for each ballot.  So again, it’s questionable under California law.

SENATOR BOWEN:  And what counties are in line to use the Populex system?

MR. WOOD:  We don’t know at this point.  It’s just a system that has applied for certification, but we don’t know if any counties are interested in it.

SENATOR BOWEN:  So it’s one that if it is certified could be an option in counties where there’s not another certified option?

MR. WOOD:  Yes.

SENATOR BOWEN:  All right.  I don’t have any further questions.  And we will go to the registrars at this point.

          MS. DANIELS-MEADE:  Thank you, Senator.

          MR. WOOD:  Thank you, Senator.

          SENATOR BOWEN:  Thank you very much for being with us this morning. 

          I understand that there are a couple of registrars who have time issues, and so anyone who needs to be accommodated because of flights or other conflicts back where your primary responsibility lies, please let me know and we’ll go out of order.

          Please introduce yourself for the record.  And as you know, the purpose of this is for us to understand what is happening in the Secretary of State’s office, as well as what’s happening at the county level, with particular focus on the June election, because that’s where you really have your backs against the wall for trying to figure out how the people in your respective jurisdictions are going to be casting their ballots.

          ELAINE GINNOLD:  My name is Elaine Ginnold.  I’m the Acting Registrar of Voters in Alameda County.  And I wanted to tell you that Alameda County has 4,000 Diebold AccuVote TS machines that meet the requirements of the federal Help America Vote Act in our warehouse, but they cannot be used in the June 6th primary because they don’t have a voter verified paper audit trail printer, which is required by state law. 

          Last September, Alameda County began the procurement process for voting equipment that would meet both the HAVA and the state requirements, and that is because our current vendor had not yet been certified.  This was back in September, and we wanted to have some options out there.  However, due to the certification issues with all of the vendors who submitted proposals to that RFP, the county is reluctant to enter into an agreement with any vendor while these issues remain to be resolved.

          It’s now mid-January, and it is doubtful that the certification status of the vendors will be clear until March or April.  Already it is very late for Alameda County to begin contract negotiations and to expect that any vendor has the capacity to deliver 3,000 to 4,000 pieces of voting equipment in time for them to be acceptance tested by the county and prepared for the June election.

          The county wishes to wait until the current issues with certification are resolved so it can make the best possible decision about available voting equipment and use its federal HAVA funds wisely.  Therefore, the county is requesting that the state Legislature enact urgency legislation to allow it to conduct the June 6th primary election by mail ballot.  Using mail ballots will eliminate the need for the county to supply 1,000 polling places with accessible voting equipment that will not be certified in time to prepare it for the polls.

          SENATOR BOWEN:  Let me just ask a couple of questions because I know that this issue of the one-time, I imagine, use of, at least that’s what’s proposed right now, mail only ballots has arisen in a number of counties where there’s concern about spending a lot of tax money for a system that may never be certified, or that may only be usable in one election.

          If you go to an all mail election, and I really am sorry to have to use this term that is ambiguous, and we’re not talking about women’s suffrage when we talk about all mail elections.  We’re talking about the United States postal service.  Are there any HAVA requirements to provide special services to disabled or visually impaired voters if you are using a post office only election?

          MS. GINNOLD:  Yes, there are.  One is a public information program to let voters know how to correct their mistakes, and how not to make mistakes on the ballot.  And of course by mail, you can do a direct mailing to every voter with instructions on how to mark their ballot that are very clear.

          The other thing is, that in the community there needs to be some accessible equipment.  And using the Oregon model, there would have to be….Oregon is an all mail ballot state, and they provide one accessible voting equipment in each county.  That’s the polling place of record.  Plus, additional accessible pieces of equipment that can go out into the community.

          The point for Alameda County is, that it’s, like, having 100 to 200 pieces of equipment that can be circulated throughout the county, are put out there during an early voting period for the primary election is far more doable than trying to get 3- to 4,000 pieces of equipment in and prepared for the election.  That’s the difference.

          SENATOR BOWEN:  And if you used an all mail scenario, would you have in person voting centers that anyone could use?

          MS. GINNOLD:  Absolutely.  And we do that now.

          SENATOR BOWEN:  You know, I have been supportive of expanding absentee voting over the years.  I’ve carried the Permanent Absentee Ballot bill in 1993.  Had it vetoed.  It eventually became law when Kevin Shelley carried it later.  But there are many people who believe that absentee voting is an invitation to fraud.  In fact, I met in December with Hans Von Spakowski(?) at the Department of Justice, who told me that if he had it his way he would not allow any absentee ballots.

          MS. GINNOLD:  Then he must not know about the Oregon experience.  Now they’ve been conducting mail ballots for maybe the past five years.

          SENATOR BOWEN:  And I’m sure he knows about it.  He just feels very strongly that it’s possible for people to….that coercion becomes more possible; that you can’t control the circumstances in which someone might be paid to cast an absentee ballot in a particular way, so vote buying becomes more possible.  There’s no way you can determine what’s under the signature once the ballot goes in.  He had a number of objections.  I found it very interesting, we do know that it increases turnout significantly.  What’s your response to the concerns about coercion and vote buying?

          MS. GINNOLD:  I think that we have to look towards actual experience, not just speculation.  I know that there are some people that speculate that. 

But in Oregon, for example, they’ve done studies and they found that there’s less than one-tenth of one percent report of coercion or voter fraud, or whatever, in their absentee process.  I feel that it’s no more possible for that to happen in the mail ballot election than it is at the polls.  In fact, it’s more secure, because the signature of every voter is checked when they return their ballots, and if that signature doesn’t match, it’s not counted.

          SENATOR BOWEN:  I understand that, and I’ve actually often said that.  But when I actually took a look at what it means to compare the signatures of thousands and thousands and thousands of voters with volunteers who are not trained in the forensics of handwriting, it did give me some concern—more for those who might not have their ballot counted because there’s not an apparent match.  I know that as people get older, their handwriting changes somewhat, for example.  And I’m concerned about the possibility that someone might not have their ballot counted because their handwriting is shakier than it once was, or something like that.

          MS. GINNOLD:  Well, the current law allows the benefit of the doubt to go towards the absentee voter.  And I know that in our county when we come across a ballot that has a signature that we question, the clerk will initially kick it out, but then the supervisor reviews it.  And if the supervisor can’t decide, then the registrar will.  And that’s the process for every kind of signature, whether it’s on a voter registration card, or a provisional ballot, or an absentee ballot.  That’s the same process that we go through.

          SENATOR BOWEN:  Is the signature match process transparent?  Can it be observed?

          MS. GINNOLD:  Absolutely.

          SENATOR BOWEN:  Let me ask a question about what happens….as you know, at this point, getting permission to do a postal service election only would require a two-thirds vote.

          MS. GINNOLD:  Right.

          SENATOR BOWEN:  There have been attempts to go to all mail balloting on a majority vote bill and they haven’t been successful.  I understand that there’s special circumstances and things are different this year, but nonetheless, that’s a two-thirds vote bill.  What happens if you can’t get permission to go to a mail only voting?  Where would you be?

          MS. GINNOLD:  We have a couple of other options.  Another option that we’re thinking of pursuing, or investigating pursuing is, some kind of judicial or administrative relief.  And that would be, to allow us to use the existing AccuVote TS, one in each polling place, just so that we could meet the Help America Vote Act requirements.

          As you know, there’s no touch screen available right now that’s fully accessible to the disabled, so I think that that may be one avenue.  The other option that we have is, to do an all mail ballot election.  We’ll just use the voting system that we have that’s certified, and we’ll send out paper ballots to the polls, bring them back and centrally count them.  And it may take about a week, to do that election night count, but we will have an election regardless.

          SENATOR BOWEN:  And when you say paper ballots and counting them, do you mean counting by hand?

          MS. GINNOLD:  No, no.  I mean optically scanning them at a central place.

          SENATOR BOWEN:  So what equipment will be used to do the optical scan if you use an all mail system?

          MS. GINNOLD:  It will be our existing certified equipment, which is the Diebold equipment.

          SENATOR BOWEN:  And then with regard to the instructions, and this is not really a question so much as it is an observation—I’m sure you’re well aware that there were some issues with regard to the instructions for absentee voters in San Diego recently, specifically with regard to write in candidates and the question about whether or not the bubble would have to be darkened in order for a write in vote to count.  So it just seems to me that anybody who’s doing absentee ballots either for permanent absentee voters, or an all absentee, or all mail election, this would be an excellent time to review your instructions that go out to the voters, given the fact that we’ve just had confusion and litigation over that specific issue.

          Let’s jump to November for just one moment.  I only have one more question.  Are you looking to buy HAVA compliant machines for every voting station in every polling place, or just one machine per polling place as HAVA requires?

          MS. GINNOLD:  We’re planning to use a blended system, which would be one optical scan and at least two touch screens in every polling place for a meaningful accessibility.

          SENATOR BOWEN:   And do you have the re-read of the ballot for visually impaired voters and the sip and puff technology in place now, or available now for use?

          MS. GINNOLD:  The touch screen has a recording on it for the disabled, and that’s why it’s Help America Vote Act compliant.  But it doesn’t have sip and puff technology.

          SENATOR BOWEN:  So you’re looking at two machines per polling place?

          MS. GINNOLD:  Right.  Once they’re certified with the VPAT, we would put two machines in each polling place.

          SENATOR BOWEN:  Is there any requirement that the two machines be the same machine?  Could you go further blended and have one that allows the sip and puff capability, and another that does the read back for visually disabled voters?

          MS. GINNOLD:  Right now we can’t blend the voting systems.  They’re certified as a system.  And the one that provides a sip and puff technology is not part of that system.

          SENATOR BOWEN:  So we’d have to change the way we…

          MS. GINNOLD:  Right.  And as I said, we’re in a procurement process, so it could be any one of those vendors.

          SENATOR BOWEN:  All right.  I don’t believe I have any further questions.  I think you’ll be probably spending some more quality time with us in Sacramento as we work our way through the question of the all mail balloting. 

          So let me go back, is there anyone else with a time…

          MS. GINNOLD:  Thank you.

          SENATOR BOWEN:  That you very much for being here.  Let me go back to the order which has no, to my knowledge, underlying logic—right?  It’s just an order that we picked.  So Ira Rosenthal, Registrar of Voters, Solano County, talk to us about what Solano County is looking at doing.  And then since there was a brief discussion about problems in Solano County, perhaps you can update us on those issues.

          IRA ROSENTHAL:  Oh, sure.  I have a prepared statement I’d like to start off with. 

          I’m Ira Rosenthal.  I’m Solano County’s chief technology officer and also, registrar of voters.

          I appreciate the opportunity to talk to this committee this morning to describe the status of our current voting system and our plans for supplementing it to meet the accessibility requirements under federal law, the Help America Vote Act.

          I would like to point out that Solano County had a fully HAVA compliant voting system in March 2004.  It was accessible to voters with all manner of disabilities, and was greeted with overwhelming enthusiasm, particularly by elderly voters who appreciated the bright screen and ease of use.  Unfortunately, that system was decertified by former Secretary of State Kevin Shelley, due to a faulty battery in a peripheral device that was unrelated to the system in use in Solano County.  Under the circumstances, our county opted to install a precinct count optical scan system provided by Elections Systems and Software (ES&S), which we have now used in two countywide elections.  As you now, optical scan systems are not accessible to voters with visual and physical disabilities and we’re required by HAVA to install at least one accessible device in each polling place, and this has left Solano County, like many other counties, in the unenviable position to be searching for a HAVA compliance system from a pool of only one that has been certified for use in the coming primary election.

          Our vendor, ES&S, has a virtual monopoly with its AutoMark system due to several factors. 

First, the Legislature’s decision to require a receipt printer on direct recording electronic devices forced voting system manufacturers into product development in a short timeframe prior to the deadline to become HAVA compliant.  In addition, the Secretary of State’s office has imposed ever changing rules on state certification, and that has caused delays and left vendors in an extremely uncertain position about the likelihood of their certification, and, in fact, what it takes to get certified in California.

          Solano County is under contract to choose an ES&S product, but we’re seeking options other than the AutoMark, in part because of a threatened lawsuit regarding the utility of this system to voters who are blind, or quadriplegic, or who have cerebral palsy.  In addition, the AutoMark is heavy, it’s expensive, and we believe, will be relatively difficult for our poll workers to administer.

          ES&S markets a touch screen device, as has been mentioned during this session, called the iVotronic, which has been retrofitted with a voter verifiable receipt printer.  This device is under serious consideration as it’s lighter in weight and more accessible for disabled voters because it does not require a voter to use their hands to deposit a paper ballot into a scanner.  And that complexity exacerbates itself when you’re talking about a multi-sheet ballot.

          We’re told by the Secretary of State’s office that the machine will be subjected, the iVotronic, will be subjected to the same high standard of volume testing that was required of Diebold.  And if this occurs, we’ll be assured of an acceptable level of reliability in the field. 

The iVotronic has been certified for use in this state, but unfortunately not with its receipt printer.  Although we’re told the iVotronic and receipt printer has been federally qualified and is listed on NASED’S site as being federally qualified, we were surprised to learn only last week, that they are again in federal qualification testing, and the process is not expected to be completed until February 10th.  Given the state testing takes another 50 to 60 days, it’s likely the product will not be certified by the state until mid-April.  And it will be exceedingly difficult to order, conduct acceptance testing, program, train poll workers, educate voters, and deploy over 200 of these devices prior to the June 2006 primary election.  There is a risk that all of our good faith efforts to accomplish this will lead to serious breakdowns in the conduct of the June election because of the timelines.

          Our greatest hope is that the equipment will sail through federal and state testing on an accelerated time schedule, leaving us with a high degree of confidence and plenty of time to adequately train and prepare.  We are concerned about the voting rights of all voters, including voters with disabilities, and we hope to serve them well in the upcoming primary.  But our concerns are many.

          The obvious concern is that testing will not go smoothly and implementation will be delayed.  By imposing a complex technical requirement on our voting systems during a time of tight deadlines and during a time of great fluctuation and evolution in federal and state testing, the Legislature has created a potential showdown between federal and state law.  We are confronted with…

          SENATOR BOWEN:  Are you suggesting that we go back and repeal the paper trail law?

          MR. ROSENTHAL:  I’m suggesting that we give counties a reprieve for the June primary.

          We’re confronted with the possibility of violating either accessibility requirements of federal law, or state requirements for a voter verifiable receipt printer.  In fact, the reprieve on the receipt printer is exactly what I think one of Alameda’s options is, when they talked about getting judicial relief.

          SENATOR BOWEN:  It’s very hard for me to imagine a judge waiving a very clear state law.  I can think of no circumstance under which a judge would, other than an extremely activist judge, would take upon him/herself to do that.  But perhaps somebody’s lawyer can enlighten me as to what the legal theory underlying that result might be.  I again, when I put my lawyer hat on, I just can’t even begin to imagine what the theory that would lead to that kind of a remedy.

          MR. ROSENTHAL:  Well, it could very well be, at some point of this process, some county may have to make a decision who they’d rather get sued by.  I think that’s the situation that we’re in.

          And to further exacerbate the situation, as a number of people have mentioned, we’re concerned about spending one-time federal and state funds on first generation equipment that will have a short timeframe, and short lifespan, and will cost the county millions of dollars to replace.

          We’re also concerned about misinformation distributed by public officials that fuels a near hysteria environment about the integrity of our elections, and erodes public confidence in our democracy.

          And I am personally disappointed in letters that have been published in the Sonora Union Democrat and the Stockton Record.  I believe those articles contain misleading and erroneous information attacking both voting equipment and attacking voter confidence in the whole process.  I believe that voting equipment certification shouldn’t be treated as a political football and hurled about with inaccuracies.  It’s not helpful to the process, and I’m hoping that this practice will come to a quick end.

          SENATOR BOWEN:  You’re referring, I guess, to my letters saying that we ought to have a transparent process and secure systems?

          MR. ROSENTHAL:  Your letter also indicated a 30 percent failure rate in the Diebold test.

          SENATOR BOWEN:  And that’s accurate, is it not?

          MR. ROSENTHAL:  Not the information that I’ve seen.

          SENATOR BOWEN:  Well, I’ll provide you with the accurate information.  It is what happened in the March Diebold test.

          MR. ROSENTHAL:  I think the transparency to the whole process, I think, needs to be measured with waiting to get the correct information.  I mean, I think there was some discussion about the Secretary of State’s timing, and behavior, and what they did with the letter that the issued to ES&S, of which Solano is very concerned about, and the response from ES&S.  But I think these are complex systems.  They’re complex situations.  We’re not talking about just the device that’s out in the field.  These things need to be investigated.

          You cannot put out into the public every little what if, or every little maybe this happened, without verifying the truth, because it just destroys confidence in the situation.  Just because there was one error that was picked up in Parallel Monitoring, does not mean that anything happened at the polls.  In fact, we have not heard of anything reported from Merced that there was an anomaly at the polls. 

          Additionally, the iVotronic has a voter review process, and if something did occur that involved a miss-hit on that device, the voter would be presented with that information and would easily be able to correct it.

          And from my experience, I think that we keep concentrating on the security of the systems.  We’re not paying enough attention to lost votes from voters misinformation about how to actually mark a ballot.  And I think we see more lost votes on optical scan systems than we do in DREs.

          We hope the Legislature will step up to its role that it played in creating this predicament by supporting the plea from Alameda and other counties to permit the conduct of the June primary using all mail ballots.  We further hope that the Legislature will act quickly to extend the deadline on the use of voter verifiable receipt printers until all vendors exercising due diligence are able to meet this requirement with confidence and precision.

          Finally, we hope there can be some dialog among county election officials, the Secretary of State, and the Legislature, to search for long term solutions to the myriad of problems we face at all our polling places, not only with respect to the equipment, but also regarding physical accessibility of polling places, and the need for simplified processes that will lead to enhanced performance by poll workers and reduced errors on the part of voters.

          Thank you.

          SENATOR BOWEN:  Mr. Rosenthal, as an ES&S county, has Solano experienced any problems similar to those reported in Merced that triggered the Secretary of State’s threat to decertify the iVotronic last year?

          MR. ROSENTHAL:  The letter issued from the Secretary of State’s office noted at least a half a dozen issues with ES&S on various pieces of equipment.  Solano County had an error in its election reporting system that dealt with the way the system accumulated absentee votes and voting day votes—the way you tabulate and added those together.  That was an error that came up in November 2004.  It was investigated by the company.  And I think by the summer of 2005, according to the memo, that went back to the Secretary of State’s office, they verified the issue and issued a patch for that.

          SENATOR BOWEN:  So you experienced no problems in

November 2005?

          MR. ROSENTHAL:  Well, we did not install that patch because it was released too late in the election process.  And as a matter of security and testing, we had already completed our testing and we’re not going to introduce anything new into the process.  We understood what the issue was.  There was a manual work around for that problem, and we went with the system as it was originally certified.  So, in our reporting on election night, we did not report completely accurately, the number of precincts reporting until the end of the night, because the number of precincts reporting was the issue in the bug in that system.  That did not affect the count of individual ballots, or the accumulation of the ballots; it just affected the number of precincts reporting as complete.

          SENATOR BOWEN:  And did you experience any other problems in the November 2005 election?

          MR. ROSENTHAL:  That’s the only problem that we experienced.  We did, as every county experiences in some polling places, of course, experience issues with the way poll workers use the equipment.  So, of course, there were some issues, and some areas that needed to be corrected during the day, or needed to be corrected after the polls closed.  But this is not 100 percent process.  No matter what system anyone is using, no matter where you are in the country, errors do occur.  It’s a very manually intensive process.

          SENATOR BOWEN:  I don’t think the question is how we deal with the errors and how we learn from them, there’s no human endeavor that I’m aware of where there are not errors.

          MR. ROSENTHAL:  Absolutely.  And I think we also have to put that into the context of the software itself.  None of the software is going to be bug free.  You know, at some point something is going to surface, but there are processes and procedures within the election office where we identify those issues prior to the election.  We test thoroughly prior to the election.  We test thoroughly after the election.  So I think the whole issue with the hack testing and whether that’s really something that could happen in the field, I think we’re talking ourselves into things that there are countervailing measures for.  You know, these things are very unlikely to ever happen, and I think that if they did happen they would be detected.

          SENATOR BOWEN:  Well, I think my view of that is, that if we make the information regarding that transparent and publicly available, that the public can make that judgment about what the risks are and can work with people who are expert in the field.  And there are lots of people who have volunteered their time, lots of programmers who have volunteered their time.

          So did you report problems to the Secretary of State’s office after the November 2005 election?

          MR. ROSENTHAL:  Yes, we did.

          SENATOR BOWEN:  You testified that there weren’t any problems.  What did you report?

          MR. ROSENTHAL:  Well, we reported all issues that occurred during election day.  We had a couple of polling places where the internal clock on the precinct scanner was not set correctly, or lost time.  There were a couple of other anomalies where we had paper jams and were not able to use a scanner and had to collect the ballots and then scan them back at our central office.

          SENATOR BOWEN:  I think you really undermine your credibility when you sit at this table and testify that you had no problems in the November election, and then when I asked if you reported, you tell me that you did and you say what they were.  ________ the clock is set wrong, and you were able to correct it, fine, but don’t call it nothing, because then people say, well, what else is he not telling me?  Well, it doesn’t help you any.

          MR. ROSENTHAL:  Well, put this in the context of what happens that day.  There are critical problems and there non-critical problems.  If a scanner works and it accumulates votes accurately and the clock is not correct and the poll worker who opens the polls notes that, that is not a critical error.  If the scanner jams and we’re no longer able to use it in that polling place for the rest of the day, that is not a critical error.  Those ballots come back; we scan them; we report those results that evening. 

          What we did not have, is a bug in the software.  We did not have an error in the vote tabulation.  We have problems where poll workers don’t show up.  We have problems where facilities are locked.  We have problems where poll workers forget to pull the memory card out of the machine and the machine gets locked into the building.  We have problems across the board, but there is…

          SENATOR BOWEN:  I was asking specifically about problems with the equipment, and in specific, because I think that we learn from our experience, and if we don’t have the transparency and the openness to know that while these are the kinds of issues, we have scanner jams with this particular kind of equipment.  If we don’t have a way to tabulate how many places were there jams with an optical scanner across our experience with counties, then we don’t have any way to say, “Well, that happened in one polling place in all 58 counties.  We won’t put that on the top of our fix list.  This happened in every county that used that equipment.  Maybe we’ll put that at the top of the list of things to work on.”  But it doesn’t help to be told that there are no problems with the equipment.

          So, we’ll go on.  I don’t want to beat the dead horse. 

          MR. ROSENTHAL:  Those non-critical issues were all reported to the Secretary of State.

          SENATOR BOWEN:  And did you get a response from the Secretary of State?

          MR. ROSENTHAL:  Not that I recall, but that doesn’t mean that we did not get one in the office.  I do have an election manager that does handle most of the day to day operation of the office and delivery of the election.  So we may have gotten a response to that.

          SENATOR BOWEN:  Did you get a response from your vendor with regard to the problems?

          MR. ROSENTHAL:  Yes, we did.  They are going to be investigating those machines that did not retain their time correctly. 

          SENATOR BOWEN:  And you learned just today that that equipment is back in federal certification?

          MR. ROSENTHAL:  We learned that last week.  Now there is a version with a receipt printer that does have federal certification.  It’s listed on the NASED site.  I confirmed that with the EAC.  However, there is a more recent version, or another release, that’s gone back into federal qualification testing.  I don’t know the difference in functionality between those two versions, but apparently that’s the one that will be coming to California.

          SENATOR BOWEN:  What’s the drop dead date for you to know whether the system you want to use will be available in the June primary?  Or, perhaps that’s a question, really, that only Debra Syler(?) can answer.  I don’t know.

          MR. ROSENTHAL:  There are various benchmark dates we can start backing up from.  Our issue has been over the years that when dates are published, they move around a lot they’re not dates certain.  I would say that we need to know for sure in a couple of weeks what our options are.  I would say by early February.  If there is something that has been submitted for certification in January, or early February, and will come out of certification in late March or April, we can live with that.  We’ve done that before, in fact, done that twice before, in the last two years, being able to implement something with only two or three months before the election.

          SENATOR BOWEN:  And are you looking to place HAVA compliant machines at every voting station in every polling place, or just one per precinct as HAVA requires?

          MR. ROSENTHAL:  One per polling place.

          SENATOR BOWEN:  One per polling place.

          MR. ROSENTHAL:  Which is less than one per precinct.

          SENATOR BOWEN:  Right.  All right.  Thank you.  I have no further questions.  Let’s go to Jill LaVine, Sacramento County and ES&S AutoMark, as I understand it.

          JILL LAVINE:  Correct.  I’m Jill LaVine, I’m the registrar of Sacramento County.  I can tell you that I remember the punch card days very fondly at this point.  We had, Sacramento County, used a pre-scored punch cards for almost 34 years with no problems, and now we’re faced with changing the voting system.  We went out to bid three times for a new system.  My predecessor, Ernie Hawkins, said, “Well, it’s time we make a move, so let’s go ahead and start.” 

So the first time we went out was October 2001.  We pulled a team together with our IT department from the county, and our purchasing department, and went out and started looking.  We weren’t in a big hurry at that point.  We were seeing that there were a lot of changes that were happening. 

Then, Proposition 41 was passed.  Bill Jones decertified some of the pre-scored punch cards.  We had until January 2004 to get the new system.  So it kind of pushed us ahead with all the changes.  We cancelled that RFP.  The very same day we asked the board to allow us to go back out again.

          Our second RFP included the language from Prop. 41, talking about the paper audit trail.  But there’s a lot of questions about what exactly what that paper audit trail involved.  Then secretary of state, Kevin Shelley, put together a taskforce to discuss this.  We waited for this taskforce report to come back while we were basically looking for another new system.  That was delayed.  A lot more questions came back.  The March and April voting systems panel meetings were cancelled because of other problems, and so we had to cancel our second RFP in May of 2003. 

We were able to use the punch cards for the very last time for the governor’s recall election.  Then we moved to an optical scan called, MarkSense.  It was a ballot card where you filled in the little tiny block.  That was not well received by our voters.  And knowing that we had to move anyway we knew that was only a temporary solution.

          SENATOR BOWEN:  Well, it was just out of curiosity, what was it that made it not well received?

          MS. LAVINE:  It was very, very tiny.  The card was a small card with little tiny numbers on it and they had to hit that number, as a punch card you had a template to do.  Without a template they were having a difficult time hitting the right square.

          Well, the HAVA deadline was approaching.  We knew we had to make a decision even though standards, money, VPAT, certification, decertification, accessibility, and lawsuits were all, like, right out there. 

          So, for the third RFP, we thought it was interesting, we issued it right after the March election—March 2004.  We actually issued it on April 1st.  We called it, kind of, our inside joke to see what would happen here.

          We had a lot of experience by this point so we knew what we were looking for. We knew what questions….well, we thought we knew what questions to ask.  They keep changing, but we’re much better versed on going through the process. 

          It was a very short turnaround time we asked the vendors to have their responses back by May 4th.  We did demos by May 17th, and we awarded the bid on June 8th.  We did it in a two-phase approach.  We awarded the bid to ES&S, Election System and Software. 

          In the first phase we asked for a precinct count optical scan system.  And we had two months after they could….they had to get the equipment to us by July, and then we had two months to make sure that we had all the equipment in, acceptance testing performed, logic and accuracy testing performed, train our poll workers, train ourselves, and train our voters.  A very ambitious schedule, but our staff did pull it together.  We managed to get through that November 2004 election with implementing the phase one.

          The second phase was going to be the AutoMark.  This is a voting assist terminal for those voters that are blind, visually disabled, have physical disabilities, or need language assistance.  The AutoMark does not tabulate votes; it only marks the ballot, but it uses the exact same ballot that we use for the precinct.  It’s the same ballot we use to mail out to the absentee voters.

          So when Governor Schwarzenegger called for the special November election we thought, “Oh, what a perfect time.  Let’s go ahead and roll out the AutoMark.”  So once again, with a little less than two months, because the AutoMark wasn’t certified until August 3rd, we performed the acceptance testing, the logic and accuracy testing, developed our poll worker training, and went out to the public and started talking to the voters.  We rolled out 419 AutoMark units—one for each polling place for the November election.  Because it was the largest roll out of the AutoMark, it brought national attention.  We had visitors from North Dakota, Nebraska, New Mexico, Arizona, our own Board of Supervisors, one from the governor’s office, the Secretary of State’s office, and from the EAC. 

So for the upcoming June primary election, the voters of Sacramento County will be using the optical scan ballot.  There will be an M100, which is the optical scan precinct counter, at each polling place and an AutoMark voter assist terminal at each place.

Thank you.

SENATOR BOWEN:  Thank you.  How many disabled or blind voters actually use the AutoMark during the November 2005 special, do you know?

MS. LAVINE:  We did a survey.  It’s really difficult because not every disability is visible to the poll workers.  And half of our poll workers return the report and said….so out of 187 precincts they said about 900, almost 1,000, voters, used them.  And looking at the breakdown, over half of those showed no physical disability, you know, it’s difficult to tell, but were using it because they were interested in the equipment.  Now, some of the, like the disabilities, my son is dyslexic, so you would not see a physical disability, but you would see a learning disability, and he loves the AutoMark, because he can listen to the ballot being read back to him.

SENATOR BOWEN:  What languages do you provide in Sacramento County?  I know them, but I can’t remember.

MS. LAVINE:  Sacramento is required to have everything in English and Spanish.

SENATOR BOWEN:  The AutoMark is an ES&S vendor system now, although it didn’t start out that way.  Did you have any problems similar to those that have been reported in Merced County that triggered the Secretary of State’s threat to decertify the iVotronic DRE?

MS. LAVINE:  No, we did not.

SENATOR BOWEN:  And you bought one HAVA compliant machine for each polling place?

MS. LAVINE:  Yes.  And one optical scanner for each polling place.  So we have two units going out to every polling place.

SENATOR BOWEN:  And any difficulty in deploying….there was testimony from someone that the AutoMark system, the equipment, is heavy, cumbersome.

MS. LAVINE:  It is very heavy.  It is very cumbersome.  We had to hire a drayage company to deliver them.  And I’m very grateful for the November election, believe it or not, because we learned a lot.  We hired the Kiwanis Club for November and we will be hiring probably somebody a little more professional.

SENATOR BOWEN:  The Kiwanis Club was your drayage system?

MS. LAVINE:  It was our drayage system.  We’re hoping to keep the money within the county and benefit everyone.  However, the AutoMark requires probably someone with a little more muscle than the Kiwanis Club had this last election.

SENATOR BOWEN:  Someone mentioned the possible lawsuit against counties using the AutoMark system.  Do you know anything about…

MS. LAVINE:  There has been a lot of….it’s not a lawsuit, but a threatened lawsuit.  It has basically been very, very quiet.  As part of our outreach, we have gone to the California Federation of Independent Living.  We’ve been meeting with them to discuss accessibility issues.  So we’re working with our groups to help overcome this accessibility issue.

SENATOR BOWEN:  And it’s over accessibility and specifically to the AutoMark?

MS. LAVINE:  Yes, because the AutoMark, as Ira was saying, the ballot, since you actually write…

SENATOR BOWEN:  So you have to be able to transfer the ballot…

MS. LAVINE:  Take the ballot out and put it into the optical scanner. 

SENATOR BOWEN:  And is there a privacy sleeve?

MS. LAVINE:  There is a privacy sleeve available.

SENATOR BOWEN:  But still you’re dealing with if you have someone who’s got limited dexterity, it’s potentially a problem.  All right.

Thank you.  Let’s go to the 800 pound, I don’t want to call it a gorilla because I live there, and Los Angeles County is not a gorilla.  Let’s go the 800 pound teddy bear, Los Angeles County, Connie McCormack.

CONNIE MCCORMACK:  Madam Chair, thank you.  We need a little levity, I think, at this point.  I appreciate that.  Thank you for the opportunity for this hearing today.  You’ve read, and all of us have read, and you’re very clearly knowledgeable of the crisis, that has been deemed a crisis by the California election officials of not having a choice of voting equipment to meet federal and state laws, and the dilemma that we find ourselves in as the days go by.

I personally appreciate the opportunity to have a hearing, because there seems to be a definite need for more fact based information, and to counter some of the allegations, and misrepresentations, and a lot of emotion laden rhetoric that has swirled around this issue both regarding electronic voting equipment, the DREs I’ll call them, and the optical scan paper ballot voting systems.  So my testimony encompasses an overview of the current situation and it’s also followed by a description of the path that Los Angeles County has chosen to take, which is to phase in new voting equipment in multiple stages, a process that the Board of Supervisors has approved and I will be describing.  And also, provide you an update on the status of where we are at this point in time in that process.

But I would like to begin my comments by stating very clearly that during 24 years of experience as a registrar of voters, my highest priority has always been, and will continue to be, utilizing only election equipment that is accurate, secure, and reliable.  I am sure that this key priority is shared by all election officials, and members of County Board of Supervisors, who authorize the purchase of voting equipment, and members of the U.S. Congress, and the state Legislature.  All of you were elected on voting equipment that met those criteria when tabulating the ballots. 

Elected officials also want, and I believe they should be able to expect, that the release of unofficial election results on election night will occur in a speedy fashion.  In the past when results were slow being released, there were always allegations that something was going on in the back room.  And it’s unofficial election results.  The process is not perfect.  And I'd like to commend the Chair for saying that, because there are humans involved in this process and there will always be a problem.  Some of them may be equipment related, some of them will be human related.  But I think California is very wise in having between 21 and 28 days to finalize official results.  It’s extremely important.  It’s an open, transparent process.  Errors will come to light.  It’s an opportunity for people to see what they are, and to rectify them—that’s the key—and to have accurate results at the end.

In November 2005, it’s just a mere two months ago, a statewide election was held using certified voting equipment that met the criteria I just mentioned.  Over seven million ballots were cast at that election on both electronic and optical scan equipment without any significant, that I’m aware of, criticism directed to the administrative aspects of the election or the ballot tabulation.  Yes, there have been some issues.  I’ve now heard, and we’ve learned about, with a unit of the ES&S that was Parallel Monitored that I’m not aware of Merced County having a single voter complain about having a vote not being what they said they tried to cast.  I’m not aware of that.  I think we need to distinguish what the problem that’s been identified was with a unit.  We don’t know whether or not it’s beyond that at this point, and I think Ira’s comment to that is important that facts come forward on that.

What has changed, I mean, two months ago, we had an election and now we’re going to have another one.  No matter what, we’re going to have it.  I don’t think anybody is going to change the date.  Other things might change—how we conduct it, or meeting a deadline, or anything might happen, but I don’t think we’re going to change the date. 

So what has really changed is that there’s a new legal requirement that comes into effect on January 1st, it’s the accessibility requirement that you’re all very much aware of, so I won’t discuss that.  Because, you know what it requires, and it is a very difficult requirement because it’s a precinct based requirement.  I think when you start talking about Los Angeles and 5,000 precincts, up to 3,000 separate ballot combinations in a primary election, a central count system as we have had for the last 36 years, is a lot easier to administer than a precinct based system, which we have never had before.  So in addition to having to be accessible, it’s a precinct based system.  And there’s going to be a huge challenges for all of us.

But, I would like to mention that when this accessibility requirement came in and HAVA was passed in 2002, there was equipment that could meet it on the market.  And indeed, it was already being purchased and used in many jurisdictions including, in California.  In other words, HAVA did not mandate the use of systems or any components that were not in existence prior to passage of the federal law.

California counties could choose, and did, many of them did choose, to roll out this equipment.  With a few counties exception, most rollouts went really well including, in Riverside, San Joaquin, Kern, Shasta, Napa, Santa Clara, San Bernardino, Los Angeles, and others, reported positive experiences both with the equipment and with voter satisfaction on the equipment—very high voter satisfaction in the surveys in Los Angeles County.  Indeed, several counties, Riverside and Los Angeles, have been using DREs successfully now for five years since introducing these systems to our voters, who have been very enthusiastic since the year 2000.  Notably, even those counties where start up problems did occur in March of ’04, the election monitoring report issued by Secretary of State in April 2004, clearly stated that the electronic voting equipment used in that election worked with 100 percent accuracy.  Yet later that same month the former Secretary of State chose to decertify the equipment.

So the transition to DRE equipment with a voter verified paper trail, which we all know is now is the law, has caused a situation of, it’s been mentioned earlier, a collision between federal requirements and state requirements.  And this is not a comment as whether that is a good or bad idea, it’s just a statement of fact. 

There has been, I think, a lot of misinformation on a paper trail vote, because the DRE equipment that has been used for many years, including the models in Los Angeles for five years, does contain an internal paper record of votes cast, which is sufficient for compliance with federal law and for recounts.  But it’s not a voter verified, as per the state law.

In response to the anxiety, the Legislature, as you know, passed a law in 2004.  But in contrast to HAVA, the state law for VPAT passed when printers were only in the conceptual, or at best, prototype stage, and were not in actual use anywhere in the United States. 

SENATOR BOWEN:  I don’t want to interrupt, but it is twenty to one, we’re going to lose our hearing room at 1:30, and I do have…

          CONNIE MCCORMACK:  Okay.  I’ll try to wrap this up here.

          SENATOR BOWEN:  So I’m particularly interested in…

          CONNIE MCCORMACK:  In what Los Angeles is going to do.  Let me just make one more comment.

          Hindsight now reveals that the timeline for such equipment to be developed and then sequentially tested by federal and state authorities has exceeded the legal deadline mandated by the passage of the VPAT law.

          So I will skip through some of the other situations that is in my written testimony, and I would like to be able to pass that out, and go right to Los Angeles.

          Following the decertification of the Votomatic punch card system by the Secretary of State in 2001, Los Angeles County and others were required to legally replace that system, as Jill Lavine has mentioned.  My recommended course of action, which the Los Angeles County Board of Supervisors adopted, was to phase in the new voting technology in multiple stages.  A complete description of why we did that is available on our website, through multiple memos, and one is attached to the testimony.  So I won’t to explain why, but with all the complexities you can imagine why phasing in just seemed to be the right decision.

          These multiple phases included a phase transition to an optical scanned small ballot system.  Jill mentioned, but even though it’s a single dot in Los Angeles, it does have a device that guides the voter.  It was deployed for the first time in our county for the November 2003 election.  Since then, _____ election has been used in every election Los Angeles County has conducted and over six million ballots have been casted on that system. 

Given the environment of uncertainty and every-changing regulations at the federal and state level, in 2004 I recommended that we upgrade the InkaVote system to HAVA compliance as the next stage in the transition.  That InkaVote Plus system will augment the current system by adding a precinct based component that enables blind and disabled voters to use an audio headset to produce an optical scan paper ballot that can be read along with all the ballots cast in the precinct on a precinct tabulator.  In April 2005, not on the first, but I think it was the 5th, the Los Angeles County Board of Supervisors unanimously voted to release an RFP to require the InkaVote Plus system.

          The InkaVote Plus system recently passed all federal testing, and to date has already been certified for use to meet HAVA requirements by the Secretary of State of the mid-Western state of Missouri.  Recently, the second largest county in Missouri, Jackson County, encompassing suburban Kansas City, purchased the InkaVote Plus system and is currently installing it for HAVA compliance. 

L.A. County has completed our contract negotiations with the InkaVote Plus vendor and plans to award the contract upon certification of the system by the Secretary of State.  The Secretary of State has scheduled testing of the InkaVote Plus system to commence January 23, next week.  It is our hope and expectation that this system will be certified by the Secretary of State expeditiously in order for Los Angeles County to begin the rollout of the InkaVote Plus system for the June 6, 2006 primary.

          Additionally, a key component of L.A. County’s voting system for the past five years has been the option for counties to choose.  We call it, “three choices, no excuses.”  Voters could go early to vote on the touch screen, or they could get an absentee, or they could go to the polling place.  But due to the lack of a certified DRE voting system now in California, the option for L.A. County’s voters to continue to cast a ballot using DRE equipment during early voting is now in jeopardy.  It goes without saying that should this occur, a significant number of tens of thousands of L.A. County voters will be angry by this unnecessary reduction in service that they have come to rely upon over the last five years.

          In conclusion, for over a year, registrars have been expressing vocal alarm concerning the lack of certified voting systems in California that meet both federal and state requirements.  CACEO, the association, submitted a comprehensive report to the Legislature on February 3, 2005, almost a year ago, describing the situation.  The report warned, and I quote, “This current situation, even though only eleven months remain to issue proposals for new systems, review bids, award a contract, manufacture the equipment, install and test the new system, and educate and train staff, poll workers and voters on use of the new system.  Rushing any of these key steps has led to highly publicized failures in new voting installations both within California and in other states.”  That message was strongly conveyed to the new Secretary, when he took office in March of ’05 by the officers of the association.  Now the deadline has passed, candidate filing has already begun for the election, and election preparations are in full swing.  It takes at least six months to get ready for a statewide election in Los Angeles County.  Yet, many counties don’t know what system they’ll be using.  Counties are in the unenviable position of having all the responsibility…

          SENATOR BOWEN:  We need to get back to L.A. County because I think…

          MS. MCCORMACK:  This is my last sentence.  We’re in the unenviable position of having all the responsibility to conduct imminent elections in ’06 but no authority to purchase legally compliant voting systems to do so.  This is obviously a major concern and the clock is ticking.

          Thank you so much for the opportunity to speak.  And I do have copies for the committee.

          SENATOR BOWEN:  And that’s exactly why we’re here.  We’re very concerned about the difficult situation that counties find themselves in without certification.

          I don’t see the InkaVote system listed on the status of voting systems, the InkaVote Plus, page that we got from the Secretary of State’s office. 

          MS. MCCORMACK:  Perhaps they could address that.  They informed me that the testing is starting January 23rd, but I don’t know what’s on their…

          SENATOR BOWEN:  And federal testing?

          MS. MCCORMACK:  Has been completed.

          SENATOR BOWEN:  Diebold, ES&S, Hart, Sequoia, Populex…

          MS. LAVINE:  Senator, it’s under ES&S, the InkaVote.  It’s the third one down.

          SENATOR BOWEN:  Oh, I see it.  It’s my visual impairment and my lack of reading glasses.  It’s here.  So this says that the federal testing has not been completed, but the application has been received.

          MS. MCCORMACK:  The federal testing, to my knowledge, has been out of the test labs, but the report hasn’t been written yet.  But it’s imminent any day, is my understanding.  It does have a NASED number and the state of Missouri bought it once it received a NASED number.  There are additional California requirements for the slightly ajar primary that have been back in federal testing.

          SENATOR BOWEN:  And do you have a backup plan, or you’re at this point believing that InkaVote Plus is going to be certified?  At least the application is in and ready.

          MS. MCCORMACK:  Our backup plan in Los Angeles County is to continue using the system we have now.  Obviously we want to be compliant with federal law.  And hopefully upon certification there will be enough time to get most, if not all, the precincts up and going.  It’s unclear whether or not, if the system were certified last month, there would have been enough time to do that.  I can’t really project until we get certification. 

          SENATOR BOWEN:  And you’re going to also go to the one…

          MS. MCCORMACK:  The goal is, and the plan, and in the RFP the board has approved is one per precinct, and the InkaVote…

          SENATOR BOWEN:  One per precinct, or one per polling place?

          MS. MCCORMACK:  Well, it’s actually either or.  It can be done either way.  I think we’re looking at our first rollout, we’d like it to be precinct because it’s less complicated for the programming.

          SENATOR BOWEN:  Actually, I mean, one of the criticisms that we get from voters is the confusion when there’s more than one precinct in a polling place.  And I understand the economics of doing it that way.  But I probably get more calls about that on election day than anything else.

          MS. MCCORMACK:  Well, that will have to continue in some areas.  But in terms of some of the equipment, it’s our goal to have one per precinct to begin.  Again, it’s a complexity issue.  And at this point since we don’t have any, I can’t really explain, but that’s our goal.

          SENATOR BOWEN:  And with regard to the early voting and the DREs, you state that the early voting with the DREs is in jeopardy.  First of all, how many absentee voters, how many permanent absentee voters are there in L.A. County?  I don’t recall.

          MS. MCCORMACK:  Permanent absentee voters is somewhere around 250,000.  I don’t have the exact number.  Most elections on absentee voting we run for statewide between 6- and 700,000 absentee voters.  Touch screen early voters are high.  It has been 65,000 in the election.  It usually runs between 40- and 60,000.

          SENATOR BOWEN:  Let me go back to the absentee.  It seems to be much higher in some other counties as a percentage of voters—to what do you attribute that?

          MS. MCCORMACK:  I think a lot of it is people like to go to their polling place.  They’re used to it.  They certainly know that they can get an absentee ballot.  We haven’t highly publicized it because running 700,000 absentee ballots, and getting them in envelopes, and getting them out is a huge logistical issue.  As you can imagine, more than any other county would, most any other county, would have to do if it were all mail.  So we are streamlining our mail processing.  Every election, it gets better, so it makes us able to accommodate it, but it’s still a huge number to accommodate.

          SENATOR BOWEN:  So you feel for L.A. County that the mail ballot, that absentee ballot, is actually more difficult for you as an election official than the polling place?

          MS. MCCORMACK:  I think it’s the logistics of getting the timeline, of getting them prepared and mailed, and then getting them back.  And as you know, a lot of people wait until the last minute and then those ballots aren’t counted.

          SENATOR BOWEN:  No, I can’t imagine that. 

          MS. MCCORMACK:  Well, it’s kind of human nature and so we often have up to 200,000 absentee ballots that are not in the count election night—150- to 200,000.  And even those will all get counted, and we have the 21, or 28 days to do that, it does leave a lot of uncounted ballots election night and leaving close races in the balance.  And the more you grow absentee, and that is an exponential issue, and it’s always an issue of criticism.  Why haven’t you finished counting the absentee ballots?  But there are a lot of steps that to take to do that.

          SENATOR BOWEN:  If you get criticism on that, you tell people to call me because when you get 200…

          MS. MCCORMACK:  You’ll be getting a lot of calls.

          SENATOR BOWEN:  If you get 200,000 absentee ballots from people whose ballots either arrived or they dropped them off at the polling place, it’s going to take time, and there’s no way around that.  I mean I periodically see the time criticism.  And I, of course, would also like to have the election….I’d like to have them before the polls close, but there’s a problem with that too.

          MS. MCCORMACK:  I could imagine if we had ten million absentee ballots, if we went to 50 percent of our four million voters, as some counties have done, what that percentage of untabulated election night ballots would be, and what that raw number would be.  It would be very large.

          SENATOR BOWEN:  Some counties have found it easier to move towards absentees just because it allows them to manage the work flow better, but that has not been your experience in Los Angeles?

          MS. MCCORMACK:  I think it’s because of the sheer number.  If I were Janice Atkinson, Sonoma County, and had the number of voters she has and 50 or 60 percent vote by mail, that’s a kind of a day or two in our office getting them out.  You know, we have some days where we send out 70,000 absentee ballots.  Well, if you’ve got two weeks to do that, it’s a lot easier.

          SENATOR BOWEN:  Okay.  All right.  Thank you.  I don’t think I have any questions.  Maybe it’s because I’ve used the InkaVote system.  Though someone did tell me that they knew how the election in November was going to end when they voted around 7:00 last November because, for those who don’t know, the InkaVote system, you put a little ink dabber through the template and they could tell, based on the ink around the no holes as compared to the ink residue around the yes holes.

          MS. MCCORMACK:  It’s the first I’ve heard of that.  I think we may have to issue some cleaning materials for the poll workers to take care of that.  I have not heard that one yet.

          SENATOR BOWEN:  I had not heard that one either.  It just goes to show, there are always things you may never have thought of.

          MS. MCCORMACK:  Well, we have had one criticism.  You asked other counties problems and criticism, I’d like to own up too.  And that is, some people tend to take it out, the InkaVote, out of the device and don’t really check it.  And one of the good things about InkaVote Plus, right in the precinct it’s going to return it to them.  If they have not voted in a race, or over voted a race, they’re going to get a chance to, “Oh, the whole ballot is blank.”  They’re going to get a second chance, which is part of HAVA, and I think it’s going to make a big difference in L.A. County.

          SENATOR BOWEN:  So will you have the same concerns that Sacramento County has about having a voter need to physically take the ballot from the polling place to the scanner in order to determine…to do that second verification stage?

          MS. MCCORMACK:  Actually the InkaVote ballot is very small and it isn’t a privacy issue because it’s just dots, so you can’t see names of the candidates.  And we’re working to devise a process where if people do not have dexterous ability, that this card, which is a small card, it’s not a big ballot, could be with a mouth, tweezers, or some other way, transported to put in the headset and the InkaVote device for the disabled.  It’s right next to, it’s setup, right next to the scanner, obviously in a private booth.  But we are looking to find ways, and we think we will be able to find ways, to make that much easier to do.  And I think the size of the ballot is going to make a big difference in the configuration of the ballot compared to the large multiple ballots.  This is a single ballot system too.  It’s always a one small ballot; not a big ballot, or a multiple ballot.

          SENATOR BOWEN:  All right.  Thank you.  I have two more counties, three more counties, to deal with and then we still have public testimony. 

So, let me move to Orange County, to Neal Kelley.  You have the part E-Slate.  You have a special election in April.

NEAL KELLEY:  Yes, Ma’am.  Good afternoon, Madam Chair and honorable committee members.  I’ll make my comments brief.

I’m optimistic, actually, when it comes to elections in Orange County for 2006, and this is despite the enormous challenges that we face in the coming months.  I believe we’re well positioned in Orange County for continued positive enhancements in the way we conduct and run elections.  It is true the voters demand and deserve a process that is sound, accurate, efficient, and secure and at the same time stakeholders in the process _______ approve processing of votes, increased access to data, and quicker results.  For all of these reasons I see it as an exciting time to be in elections despite the enormous challenges. 

We have been extremely busy in Orange County.  In 2005, with the confirmation of Christopher Cox to the SEC, that election, the

48th Congressional District, caused a domino effect for us.  And we had four elections, major elections, in Orange County in less than two months.  That’s brought us to 2006 and the vacancy in the 35th Senate District, because of the vacancy created by John Campbell in his election to Congress.  So we’re going to conduct that election on April 11th using all paper.  And the ballot now, Hart Optical Scan system.  The reason for that is, obviously we won’t have the VVPAT system in place in time for April.

And Senator, I think maybe one of your questions might be also the languages we use in Orange County, and we’ll have to do that in the paper election and all it’s all five—Spanish, Chinese, Vietnamese, Korean, and English.  It’s likely in Orange County, that voters will potentially vote on two different systems during 2006 because of that reason.  In our paper election in April, and I’m optimistic, that we will have the VVPAT compliance system for the June primary.

SENATOR BOWEN:  Well, one nice thing about the April special is that you only have one race—right?

MR. KELLEY:  That’s correct, yes, Senator.

SENATOR BOWEN:  If you have to do a paper and pen ballot, one of the suggestions that I always get is, let’s just return to all paper.  And some people say paper and pencil, and I beseech them to at least make it paper and pen.

MR. KELLEY:  We will have pens.

SENATOR BOWEN:  But the counting task, when there’s only one race, is significantly different than in a typical statewide election where there is…

MR. KELLEY:  Agreed.  And by my estimates if we did go on paper in June we’d probably have a two-page 8 ½ by 14 ballot.  It would be significant.  You’re right.

SENATOR BOWEN:  And I think the question always for that is, how do you count that by hand in a way that is not confusing to the volunteers who are relaying it and counting it?  I have never had a good picture of how that would work.

MR. KELLEY:  That’s a challenge.  At the same time the confidence in our system is critical, and pushing through certification, in my opinion, is not the answer.  The diligence of the Secretary of State’s office is important, and while we are eager to move forward with a certified system, in my opinion, confidence is far more important.  So we’d like to have a confidence in the system, obviously. 

But I also realize this is an important process as the impact of HAVA continues to evolve, and Orange County must continue to develop effective communication for the voters to educate them on the process of the changes, oversight, and the importance of regulation at the state and federal level.  I think that’s critical that we educate the voters in that process.

So this brings me back to the original question, I think, of the committee, and that is, how will voters be casting their ballots in 2006 in Orange County?  And the answer is, a variety of ways.  From paper to verified votes on a certified system, I’m hopeful to absentee ballots, we have 380,000 permanent absentees in Orange County, to paper options at the polls.  I’m sure that many of the changes voters will see at the polls will continue to increase the applications for permanent absentees in my opinion.  As long as voters continue to remain engaged and there is confidence in the system, I feel that we are accomplishing our mission. 

I would like to match or exceed our voters expectations when it comes to their voting experience; given a variety of options voters will face in the coming months, it may be difficult to establish a base to do that, but we’ll certainly work to continue our improvement in the county for our citizens.  And I’m ultimately _________ on elections in Orange County 2006, even though we’re going to be very busy.

So with that, thank you.

SENATOR BOWEN:  You experienced some problems in the March 2004 elections when poll workers in Orange County entered the incorrect ballot codes on some equipment.  How you solved that….that’s a human error problem, not a machine problem, but you know, the machine is told to do the wrong thing, it will happily comply. 

MR. KELLEY:  That’s correct, Senator.  Part of my time, but I still take responsibility for that, and that is, we’ve changed the training mechanism for the poll workers significantly.  And with the June primary we will have the scrolling issue again, as you described.  We’re also going to put signage on our JBC, which is the electronic ballot box that the poll workers interface with, that stops them before they do the scrolling.  So the hope is, that it prevents that in the future.

SENATOR BOWEN:  Actually a paper trail would solve that problem too.  Although, if somebody has got the wrong ballot, that’s not going to solve the problem.

MR. KELLEY:  If we choose the wrong party, that’s correct.

SENATOR BOWEN:  Yes.  I wasn’t even talking about that.  The wrong race.

MR. KELLEY:  Right.

SENATOR BOWEN:  We won’t talk about which party ____ using today.  That’s not the topic.

Are you confident that the Hart eSlate with the paper trail will be certified in time for you to deploy it in the June election?

MR. KELLEY:  I am confident.  However, like Conny mentioned, we are concurrently in Orange County, doing multiple preparations for June, and that is to have a complete plan B in place if it’s not certified.

SENATOR BOWEN:  And are you looking to have HAVA compliant machines at every voting station in every polling place, or are you using a mixed system?

MR. KELLEY:  At every polling place.  And our system, with the Hart system, currently has a sip and puff technology, jelly switches, audio, so we’re well positioned for disabilities.

SENATOR BOWEN:  Okay.  I don’t think I have any further questions.  Thank you.

MR. KELLEY:  Thank you.

SENATOR BOWEN:  San Joaquin County.  Deborah Hench.

DEBORAH HENCH:  Senator Bowen, I’m Deborah Hench.  I’m San Joaquin Country’ Registrar of Voters.  And we do have a contract in place with Diebold for the TSX voting system.  Our contract for them is a

$5.7 million contract, of which I have only paid one payment of $858,000.  We have amended that contract to have Diebold pay for all paper ballot elections with the paper ballot and supplying us with additional optical scan units and staff if necessary and training through the November general election of ’06.

SENATOR BOWEN:  ________ put you in charge of negotiating our Department of Motor Vehicle contracts for us.  That sounds like you did a pretty good job. 

MS. HENCH:  We did an excellent job.  And we still have all the warranties in place.  We will also be able to, if something happens, we could, in fact, cancel our contract.  But at this time we are very hopeful that the TSX will be certified and that we will be able to comply with HAVA and the state’s VPAT.

Now, we have been through the testing.  We were there at the volume testing, and I know for a fact exactly what happened in San Joaquin County and that volume test.  Thirty percent was inaccurate.  There were over 10,700 ballots cast, and out of that, there were only

30 issues.  That isn’t 30 percent.  Then we went back to San Diego where there were over 11,000 ballots cast and there was less than one percent error.  In fact, there were only two printer errors.  There was zero screen freezes.  And all the other issues were attributed to the operator.  Meaning, they didn’t enter whatever they were supposed to correctly.

SENATOR BOWEN:  Well, the Secretary of State’s office basically issued a report saying that over 30 percent of the machines in the first volume test had at least one problem.

MS. HENCH:  It isn’t 30 percent if you look at how many ballots were cast. 

SENATOR BOWEN:  Of the machines, not of the ballots cast.

MS. HENCH:  Well, the machines, there were 96 machines up.  Of that, there were 12 printers that had potential jams; there were 22, I believe, screen freezes, of which the screen freeze had nothing to do, and neither did the paper printer, have anything to do with the accuracy of what was cast.

SENATOR BOWEN:  But the assertion was that over 30 percent of the machines had at least one problem, and 12 had potential printer jams, and 22 had screen freezes out of 96.

MS. HENCH:  Diebold then went back, did modifications, went through federal testing, passed the federal testing, has since gone back to the state and done the volume testing, of which there were only two printer potential jams and no screen freezes.

SENATOR BOWEN:  But the assertion about the 30 percent is actually correct with regard to the first volume testing—96 machines…

MS. HENCH:  It is, I guess, a difference in viewpoint.

SENATOR BOWEN:  So 34 failures out of 96 machines you don’t view as being over 30 percent?

MS. HENCH:  There were some machines that were the same machine.  It did the same thing.  I mean, it wasn’t necessarily different machines.  I didn’t think it was a great test, and neither did the state.  Therefore, Diebold went back and made the modifications and in fact came forward and did the test again, which, in fact, they passed with only two potential printer jams—two out of 100 machines.  Now that’s a considerable change, and we felt very comfortable that we were going to get certified when the state came back and asked for an additional test and the review.  Now the test, the Hursti test was then cancelled which, my understanding was, because of procedures the we currently have in place in the state of California, the Hursti test would not have worked.  I mean, Hursti would have failed an actual, what they call, hacking. 

There was the question on the review on the optical scan memory cards, and that has gone back for review.  But we also have to remember that those same memory cards have been used in this state since 1993, and we have had considerable review with hand counts, recounts, actual election night results, of which to my knowledge, has not had a challenged election come forward. 

And so, I feel confident that we will be certified shortly.  If we are not, that leaves San Joaquin County in the position of running a paper ballot election with an optical scan, which would be Diebold, and we will not be in HAVA compliance. 

And I am not asking to opt for the mail ballot election simply because my county does not have the facilities or the staffing to do an all mail ballot election at this time.

SENATOR BOWEN:  How many absentee voters do you have—permanent absentee voters?

MS. HENCH:  Around 80,000.

SENATOR BOWEN:  Out of a total of?

MS. HENCH:  280,000.

SENATOR BOWEN:  And so you have a pretty healthy percentage.  And what is your absentee percentage—not permanent absentee, but what’s your typical percentage of voters who vote absentee?

MS. HENCH:  It’s around 25 percent that request, or maybe it’s a 30 percent request.  Then we have about, I guess, a 20 percent return.

SENATOR BOWEN:  In addition to the permanents?

MS. HENCH:  No, I mean, the actual returning of the ballots.  What’s happened with us is, our absentees, permanents went up and the request went down.  Those people that were commuters, who were constantly having to request an absentee ballot, became permanent absentee voters, and therefore our day to day issues have dropped.  Initially we’ll send out, first day of absentees, 60,000 ballots.  After that, the other 20,000 is over the next couple of weeks.

SENATOR BOWEN:  Okay.  So the 60,000 is the permanent absentee numbers; the 80 is the typical total number your get?

MS. HENCH:  Right. 

SENATOR BOWEN:  Will you be placing….first of all, do you have issues with the TSX machine with the read back for visually impaired voters?

MS. HENCH:  The voters, we use the TSX in the primary of ’04 and our voters all loved it.

SENATOR BOWEN:  I know, but you didn’t have…

MS. HENCH:  We didn’t have VPAT.  Now, I personally, our voters have not really gotten to use it with the VPAT.  At this point we do have the review screen, the audio screen, reviewing the ballot for those with vision impairments.  And last time we didn’t have the sip and puff, we did offer a long Q-tip to actually use for dexterity, or people to actually touch the screen with a Q-tip if necessary.  So it was something that we could offer as a work around.

SENATOR BOWEN:  But the audio will be new in this…

MS. HENCH:  The audio is not new.  The audio was there for the primary.  We used the audio for….it always has been there.  We used it in both languages that we’re required to.

SENATOR BOWEN:  Okay.  So your English and Spanish…

MS. HENCH:  We’re English and Spanish.  The VPAT will not be reviewed from the paper.  It’s only the audio reviews from the actual screen itself.

SENATOR BOWEN:  In your certified system?  The audio review will be of what the machine…

MS. HENCH:  No.  I mean on the new version with the VPAT, the recording is through the review screen itself, the actual electronic screen.  It doesn’t review on the VPAT.  On the touch screen that we used in the primary, the TSX, without VPAT, it reviewed everything that was on the ballot.  It audios through every page and then the review screen.

SENATOR BOWEN:  So you’re basically putting visually impaired voters in a different situation than with what gets reviewed then you are sighted voters.

MS. HENCH:  Unfortunately that’s what the state of California has done.  HAVA did not require that, and we did not require it.  We only modified our contracts so that we could get VPAT for free through the contract negotiations.

SENATOR BOWEN:  Well, California doesn’t require that you use the audio stream from the…

MS. HENCH:  Right.  The audio stream is directly from the TSX.

SENATOR BOWEN:  California doesn’t require that.  You can set it up so that, and I believe the AutoMark does this, so that the read is from the paper verified trail and not from the DRE.

MS. HENCH:  Well, at this time the vendor is doing the audio on the TSX on the actual ballot, not on the VPAT.  There is no requirement to make it on the VPAT at this time.

SENATOR BOWEN:  That’s interesting.  So a visually disabled voter is going to be verifying a completely different part of the process than a sighted voter.

MS. HENCH:  It’s exactly the same as all the others.  I mean, it has to meet the same requirements and standards as any other.  I mean, this vendor has taken it through federal requirements and the state, and the state has approved it.

SENATOR BOWEN:  All right.  But the federal government…

MS. HENCH:  Doesn’t require the VPAT.

SENATOR BOWEN:  That’s right. 

MS. HENCH:  The state does.  And the state so far has said this is okay.  The only question they’re having on the review is not anything to do with the audio.

SENATOR BOWEN:  Actually, I think you’re mistaken.  Accessible means the information provided on the paper record copy from the voter verified paper audit trail mechanism is provided or conveyed to voters via both a visual and a non-visual method such as, through an audio component.  The information provided on the paper record copy from the voter, so you may not use the audio from the machine for the verification.

MS. HENCH:  This system is certified by the Secretary of State.  We will use it in accordance to what they give us as the guidelines and procedures.

SENATOR BOWEN:  Well, we’ll pursue this further, but this doesn’t seem to me in any way unclear, and it makes no sense to me to have a voter verified paper audit trail and then have the audio stream read from something else.

MS. HENCH:  The audio stream is being read from the ballot, the official ballot.  The electronic is the official ballot.

SENATOR BOWEN:  Right.  I’m reading the definition of “accessible” to you from the code. 

MS. HENCH:  If the Secretary of State approves this equipment, then it has to have been considered an accessible piece of equipment to that state law.

SENATOR BOWEN:  Well, we’ll ask the Secretary of State’s office to come back up and tell us whether that definition of “accessible” complies with the state law.  And I’ll read it again:  “Accessible means the information provided on the paper record copy from the voter verified paper audit trail mechanism is provided or conveyed to voters…

MS. HENCH:  It’s not just Diebold that does this.

SENATOR BOWEN:  I understand.  I’m asking whether or not a readout from the electronic machine, rather than from the voter verified copy, complies with the state law.  Because this says it’s provided or conveyed to voters via both a visual, which we mean that’s the printout, that’s what you get; that’s the visual record; and a non visual method such as through an audio component, which is the readout.  Are you understanding? 

Ms. LaVine, you’ve dealt with this requirement.

MS. LAVINE:  Yes.  The AutoMark actually reads the ballot back, some of the marked ballots.  So that must be different.

SENATOR BOWEN:  _____________

MS. LAVINE:  Yes, you can actually put in a ballot from another precinct. Let’s say you mark your ballot at home, you can bring it in and put it in the machine and it will read it back to you.

SENATOR BOWEN:  Well, actually the AutoMark wouldn’t be subject to this anyway because it’s not a DRE.  This definition is the way that you get the DRE to be accessible within the meaning of the law.  I don’t see anybody rushing up to discuss this issue, so we’ll request the views of the Secretary of State on whether or not the reading of the ballot back to a visually impaired voter from the DRE, rather than from the voter verified audit trail mechanism, complies with Section 19251 definition of “accessible,” and the provisions that require a paper trail.

What’s your adopted date for determining….since you have the equipment, you’re in a little different position. 

MS. HENCH:  And that’s what I stated in my article that you also said that I was not right on.  The fact that we have the system means that technically, because it has a federal NASED number, that we are in that qualification as of the first of the year, however, it’s not state certified.  So until it’s state certified I can’t actually use it.

SENATOR BOWEN:  All right.  Well, it’s been sent back to the federal government for…

MS. HENCH:  Only for review for the optical scan memory card.  The memory card is the only thing being reviewed.  The other components have all passed.  We’ve even actually asked the Secretary of State to take out the optical scan part of the component of the system in order to certify the TSX, but so far they haven’t.

SENATOR BOWEN:  What do you mean, take out the optical scan part?

MS. HENCH:  Separate them.

SENATOR BOWEN:  Well, how do you run the system without the optical scan part?

MS. HENCH:  Well, we have a certified optical scan system.  The older version.  What we’ve used in the other elections, and the results have been accepted, have been, you know, for the general, the state special, for the recall, we use the Diebold’s optical scan system.

SENATOR BOWEN:  Right, but we have a different set of requirements with both the paper trail…

MS. HENCH:  But it’s a certified system.

SENATOR BOWEN:  But it doesn’t meet the state law requirement of a paper trail—right?

MS. HENCH:  The paper is an optical scan.  The optical scan is, we could separate, and we ask them to separate the optical scan current version off of the TSX.  The TSX has passed all the other tests.

SENATOR BOWEN:  Let me ask you what happens if the testing labs determine that the memory cards pose a security risk because of the risk that results could be changed or executable code could be gone—will that…

MS. HENCH:  Well, we have procedures in place.  I mean, this is what no one seems to take into consideration—when we do anything in the office with memory cards, paper ballots, with our setting up of an election, we don’t do it.  One person is not responsible for everything.  We always have two people working, and we change them around so that nobody gets all the information.

SENATOR BOWEN:  But my question is, what happens if the certification…

MS. HENCH:  If they say there’s code that they think there should be some other procedure (they’re supposed to give us some other procedure to go in compliance), or if they tell Diebold that they have to do something else, then, I guess, they will have to do something else.  However, that same memory card cannot be decertified, because we’ve been using these memory cards in all these other elections.  For 12 years we’ve used memory cards, and it’s pretty much the same memory card in these optical scan systems.

SENATOR BOWEN:  It would seem to me that if a flaw is determined to exist even with regard to a system that’s been used for

12 years, that doesn’t mean that it can’t be decertified.  Of course it can be.

MS. HENCH:  Not for the election.  You have to have….there’s a certain timeframe that has to happen in order to decertify a system.  And the question would be, why would you decertify something that has a proven track record and over 12 years of California history in many other states?

SENATOR BOWEN:  You decertify it if you thought it was subject to hacking.

MS. HENCH:  Well, anything is subject to hacking if you put it in the right situation.  I’m saying that the state and the county registrars do everything in there possible to secure their equipment, to up seals on, to follow procedures, to ensure voters feel their vote is recorded accurately with integrity and with security.  None of us here think that anything else should happen.  That’s why in my office we’ve had to put cameras in; that’s why we’ve put in new passwords; that’s why we do all these things to ensure security.  Now, I’m saying that, okay, if there is an issue with the memory card, I think it’s something we should be able to consider what to work around.  But we have been using these memory cards, and they have proven that they have worked.

SENATOR BOWEN:  You know, I think it’s very hard to say that they’ve proven that they have worked when we didn’t have a printout, we didn’t have a paper record of it.

MS. HENCH:  We’re talking about the optical scan is a paper ballot and that we have the paper ballots on the optical scan that we can recount.  We are not talking about the DRE.  This is a memory card on the optical scan.  The paper ballot where we can, in fact, rescan.  That’s the difference. 

SENATOR BOWEN:  All I can say to you is that a work around gives me extreme cause for concern.  I have seen in one of California’s counties, the Diebold machines were sent two or three days before the election out to the people who were the precinct chairs…

MS. HENCH:  You do understand we sent paper ballots out to these precincts in advance also.  We can’t possibly deliver to all these precincts in this state on the day of election and have an up and running election at 7:00am. 

SENATOR BOWEN:  The difference is that I could walk into a precinct at 7:00am, look at the stack of paper ballots, and, first of all, the seal is there.  The seal on the memory cards was a paper seal.  I’ve seen film of someone, television footage, of someone, pulling back the paper seal, that was supposedly the seal; remove the memory card; reinserted it; and repasting the seal over it, and you would have absolutely no way of knowing that somebody else had ever had access to that memory card.  You do seal your paper ballots, right, when you send them out?

MS. HENCH:  We seal the paper ballots.  We have several seals on the electronic ones too.  I mean, the electronic machines…

SENATOR BOWEN:  I’ll show you the footage I’ve seen of what it looks like.

MS. HENCH:  And I have….there are procedures in place that if anyone tampers with any unit or paper ballot they are to be arrested as a felon.  And we do not leave….the precinct officer never leaves that precinct unmanned.  There is someone there at all times to answer those questions.

SENATOR BOWEN:  I’m not talking about something that happened in your county.  I’m talking about something that happened in another county where electronic voting equipment with the memory card…and there’s no one who can look in the morning and say, is that…

MS. HENCH:  But you’re saying….when you open that poll, there is supposed to be zero printout saying there’s zero votes cast…

SENATOR BOWEN:  I have no faith in that printout because I could take any good programmer in this room who could readily program any equipment to have one thing in the memory and to print something…

MS. HENCH:  But you have to have access to that software.  You have to have access to that account.

SENATOR BOWEN:  Or to the memory card.

MS. HENCH:  The memory card, even if they….what you have to do in order to tamper with this equipment is very difficult.  And that is why we have been trying, in our best way, to put best procedures in place and we do, in fact, have a lot of security in place.  But what you’re saying is, that, yes, anybody can tamper with anything.  And I can’t guarantee you that’s not true.  But I can’t guarantee you that paper ballots weren’t, you know, damaged, destroyed, or whatever.

SENATOR BOWEN:  The difference is what you can see with your own eyes, and I think that’s what makes people…

MS. HENCH:  Well, you have now the paper audit trail that you’ve asked for.  It’s there.  It’s law.  It is required.  And we know that.  We still are going to have to do the tamper proof seals, and the other seals.  All we’re asking for is the Secretary of State to take the optical scan portion, and the optical scan portion is but for the paper ballot only.  It is not for the electronics.  The electronic has passed every test the state has asked it.  The optical scan is the memory card that is in review.  Now, we asked that we could go forward and be in HAVA compliance by having approval on the TSX.  And so far, the state has said, no, they’re doing the entire system, and that’s where we stand.  We may not be in HAVA compliance come June, but we will have an election, and it will be on an optical scan paper ballot if we don’t have that.

SENATOR BOWEN:  We will agree to disagree on whether it’s difficult or easy to hack the machine.  You know, I think the experience in Leon County, Florida…

MS. HENCH:  The Leon County, Florida was a little different.  They took a person in, set them down, gave them the passwords, and handed them the memory card.  We do not in election mode do that.

SENATOR BOWEN:  No.  But I’ve also seen the footage of somebody going into the _____ central tabulator without a password, changing the results of an election and having it…

MS. HENCH:  If you go into my building without having….in my ballot counting room, you better know that you’re under camera; you better know that you better have your ID badge; and if there’s no one in there, you’re going to be arrested.  We have passwords on everything. 

SENATOR BOWEN:  And if someone logs out at the central tabulator in the middle of the election, do you routinely have each operator log in and out over the course of the evening?

MS. HENCH:  We have only two operators, and that would the assistant registrar and my IT person that are at the console that night, and they do have their own passwords, and they do log in and out.

SENATOR BOWEN:  Well, then your system is better than some of the systems that I’ve seen footage of and that I know many of the people in this room are concerned about.

MS. HENCH:  I’m not saying that anybody should be not concerned about security.  That is one of our utmost priorities.  But accuracy is too, and being able to conduct an election and comply with national law, federal law, as well as state law, it would be a great comfort to all of us here.  And, you know, I understand that you have your differences of opinion, but we also have to conduct these elections; and we’re the ones who are responsible; we’re the ones who are in the paper; and we’re the ones who have to deal with the public on a daily basis.  We want our voters to feel confident in their systems.  And these meetings are tearing the confidence apart.  We’re constantly saying that every system is bad, when in fact, there’s good and bad in everything.

SENATOR BOWEN:  Well, I’m sorry that you feel that scrutiny and transparency tears the system apart.

MS. HENCH:  I didn’t say that.  I did not say that.  I said, showing no confidence in voting systems tears apart this.  I did not say....but we are constantly under scrutiny and we are constantly under the lights of all the press.  And every single election, if there is anything going wrong in my election, it is headlines the next day.  I was in the headlines because I did not have election night results as early as the press wanted.  They told me it was because I had misplaced ballots.  Well, I didn’t misplace ballots.  I had memory cards in my warehouse under security, and I knew that’s where they were, and I went and got them, and brought them in and uploaded them.  Now, that’s the kind of scrutiny we have.  The press is there all day long with us.  They understand this is an election and they want to have something to put in their papers.  And all of us are under that same scrutiny.  And I don’t think that anyone here would ever say that I have turned my back on telling anyone the truth. 

SENATOR BOWEN:  I think that my point would just be, that I believe the only way we establish confidence is by letting people see where the problems are and evaluate publicly whether or not they’ve been resolved, and letting people actually understand what the security and accuracy issues are.  If you just tell people, “Trust us, we’ll make it all okay,” you will never have confidence. 

Forty-eight percent of the people in this country don’t have confidence that their vote is going to be counted the way it was cast.  What does that say to you about the people’s view of confidence?

MS. HENCH:  It didn’t come to my office.  If they come into my office, we show them around.  Jim Arch was even in my office and he had nothing to report.  We have done everything in our power to make it as open as possible.  And I would guarantee that, you know, if there is a problem, it’s in the press the next day.  If we have a problem with mailing sample ballots, it’s in the press the next day.  If there’s an issue, it’s there.  We never have ever done anything but said, “This is the problem, and this is what we do to fix it.”

SENATOR BOWEN:  You know, I always thought that was the case too, and then on the Friday before Christmas I got, from an AP reporter, a letter talking about a lot of problems and a threatened decertification of equipment that I had no idea about, and that really shook my confidence in the ability to know about what the problems were and to be able to evaluate whether or not they were serious.  _____ people can evaluate, I think, quite well, problems that are minor, or human errors that occur.  And everyone expects that there will be errors.  The question is, how we deal with them and what kinds of audit systems we put up.

MS. HENCH:  And I agree.

SENATOR BOWEN:  All right.  One more county, and then we still have public testimony.

MR. KELLEY:  Senator Bowen, I’m sorry, I have to catch a flight.  I just want to thank you for the opportunity.

SENATOR BOWEN:  Thank you very much for coming.  Good luck with your certification.

Last but not least, Shasta County.

CATHY DARLING:  Last and perhaps smallest, I think, up here.

SENATOR BOWEN:  Up here.  Alpine County gets that.

MS. DARLING:  Absolutely.  I’m Cathy Darling.  I’m the County Clerk and Registrar of Voters in Shasta County.  Thank you very much for the opportunity to speak today.

We have, in Shasta County, a similar history as Sacramento does.  We were an automatic punch card county for many years—almost 30 years.  And that system was decertified in 2001.  Unlike Sacramento though, we only did one bid process, which was conducted before my arrival in the department in 2002.  And the contract was signed with Sequoia Voting Systems in May of 2003 to purchase both DREs and our optical scan system for our absentee ballots.

The recall election in October 2003, was the first election that we used this system, and it has been used successfully in the past five elections in Shasta County, tallying just under 143, 000 votes in those five elections.

In 2005, because of a change in state law, all counties using DREs are obviously now required to use a voter verified paper audit trail, and so as a result, the Edge I, which you heard about, some of the Sequoia certification status earlier from the Secretary of State’s office, currently the system I have in my county is not certified for use in the June primary.  The main issue being the VPATs are not currently certified for use with the Edge I that I have.  Additionally, the reporting utility that the tally system uses to calculate and report the crossover voters, nonpartisan voters who pick a party ballot, that is an off the shelf product that has not been through the ITAs, or actually is currently in federal testing at the ITAs right now.

Napa and Tehama County are in the identical situation as Shasta.  I’m not going to go over the Sequoia certification status.  You have heard all about that already today.

At this point, obviously considering the certification process, candidate filing, as Conny said earlier, has already begun.  It ends on March 10th.  At that point, ballot layout and voting system programming should begin.  At this point, we don’t know if we’re going to be able to do that our not because we don’t know what our certification status is.  And any delay in the process could very negatively impact not only my county, but every other county that uses the Sequoia system.

There are some new Sequoia customers that were planning to rollout in June, so if that certification comes in time for them to use it, then those counties will be in a very good position. 

Santa Clara County has the same issues that Shasta has with the addition of languages.  The current VPAT is only certified for use in Spanish and English. Santa Clara County is required to present its election materials in five languages.

And then Riverside County, as I’m sure Mr. Battin would be happy to tell you, has just recently decided to purchase all new equipment from Sequoia, so they will be very well prepared for, I think, the June primary.

For Shasta County, the question is, basically to pick the lesser of two evils.  We can either, at this point, use the same voting equipment that has served the voters accurately for the past five elections and risked being sued by the state, or use paper ballots that would comply with state law and risk being sued by the Federal Department of Justice. 

Obviously this is a very uncomfortable situation for me, both personally and professionally.  We’re estimating that our drop dead dates to make a decision about what to do is about early March.  If Sequoia’s federal certification process is not complete by that time, we will have to make a very quick and firm decision about what to do.

Most likely, I will conduct the election using the same equipment that we’ve used over the last five elections.  It is HAVA compliant and has been proven to accurately count the votes that are cast.  The situation is fairly simple, unlike certification.  The election must be conducted and I am loathe to incur the cost of conducting the election for the primary on paper in our polling places. 

Additionally, and a greater fear of mine, is that voter confidence in Shasta County will be irretrievably shaken if we remove those machines from use for any reason.  I have no confidence that every voter will understand the intricate and complex details of certification and why it is we’re not using those machines.  I think it’s much easier to assume there’s a problem

I was asked today to talk about my plans, hopes, and fears.  I hope that certification will be complete in time for the June primary.  I fear that it will not.  And I plan to make a decision about what equipment to use in June very, very soon. 

And I just wanted to leave you with one last thought:  My greater fear is that there will be a failure in either one or more than one county for the primary election in California, and that reflects incredibly significantly on every other registrar and county in California.  When one county has a problem, every other county with that vendor is immediately called by all of our favorite reporters, and we are called by our constituents, as well, to find out if we’re having similar problems.

But regardless of the state of certification of voting systems in California, the primary election will be held.  Counties have to conduct this election on June 6th.  We don’t have a choice.  It’s our sworn duty, and the only reason we’re here doing what we do.

If certification doesn’t move forward and quickly by both vendors, the federal agencies, and the Secretary of State’s office, many counties will be forced into the situation that I’m in now, which is to conduct the elections in a manner that may run afoul of either California law or of the U.S. Department of Justice in their administration of HAVA.

Thank you. 

SENATOR BOWEN:  And this is why we began this hearing with the discussion of where the state certification process was and when the state testing….why we’re dealing with some of these things so late.  I’m very sympathetic to the problem that the vendors have, counties have, with having things not known.  I think it’s a very difficult situation.  We did, obviously, have some counties in California that have had to shift back and forth from equipment because of the decertification of the Diebold equipment.

MS. DARLING:  Well, Sequoia was decertified last year by Kevin Shelley, also.  He, however, issued security directives that we’ve complied with in order to use the system.

SENATOR BOWEN:  So now we have new laws kicking in, and it’s always difficult.  And I think one of the things that I’m very mindful of, I was glad to learn yesterday that you, in San Joaquin County, have not paid the entire $5.7 million.  I thought that was a smart contracting decision, and I wasn’t aware of it before.  But spending a lot of money for something that can only be used once is certainly not a result that anybody in this room wants to see happen.  So, certainty is also a desirable thing when it comes to…

MS. DARLING:  I don’t think any of us are feeling like certainty is going to be coming anytime soon.

SENATOR BOWEN:  Well, we’ll hope to push that as much as we can.  And I know the Secretary of State’s office is now…

MS. DARLING:  My only comment about that, it would really be that it feels to me like the ITA process, you made a comment earlier that software is submitted when it’s not necessarily ready for prime time, and I can’t really comment on that remark.  But certainly my understanding of the ITA process is that, packages are submitted and when problems arise, then the vendor, you know, the ITA contract, the vendor, the vendor makes a change, and then they are retested.  So because of that, the process is really out of the control of, I would say, certainly of the counties, and also of the Secretary of State’s office.  I don’t know that they have any….I don’t know what they can do more.

SENATOR BOWEN:  All they can do is…

MS. DARLING:  Apply pressure.

SENATOR BOWEN:  Really, no one in this room has any ability to control when a vendor submits anything for certification.  But, you know, it is in the vendor of community’s business interest to get their certifications and packages done.  Because if they’re not certified and it means that a registrar has to use another option, that’s a lost business opportunity.

MS. DARLING:  Well, take a look at Diebold’s stock price.  I’ve said from the very beginning, and I absolutely still believe this today, that all of the vendors are as invested in our success as a county as we are, because they have an overriding financial hit that they will take if they have a failure.  And like I said, I mean, all you have to do is look at Diebold’s financial history over the last year to see how profoundly what’s happened has impacted their company—deserved or not.

SENATOR BOWEN:  And it’s a small part of the company’s business.  Although, I won’t talk about the problems I’m having with my ATM card right now.

I want to thank all of the registrars for being here; for helping us understand the problems and the deadlines that the counties are facing, and the challenges, which I think are very real. 

And let me, at this time, ask for public testimony.  I do want to encourage people to be short.  We are, due to the detail that we’ve gone into on some of these issues, I’m overdue in the Senate Rules Committee, which started at 1:30.

And as you come up, please introduce yourself for the record, even if I already know you, the system does not.

TONY BERNHARD:  Senator Bowen, I’m Tony Bernhard.  I’m here on behalf of Yolo County.  I guess the decision for me to appear today occurred yesterday in a conversation between my principle, the county clerk and committee staff, in the wake of our decision over the weekend to commit to the use of Vote-PAD, voting assisting device for managing our HAVA compliance requirements so that we….I know that some of the counties are having to decide who they’re going to be sued by and they haven’t made those decisions yet.  I guess we’ve made our decision.  We aren’t quite sure who’s going to sue us, but we have our position.  We’re going to be using the Hart paper ballot system and the Vote-PAD device, which is designed to allow either visually impaired, or manually impaired, voters to vote the paper ballot. 

I guess the only….an outstanding issue and I’ll just stop because we’re running so late, but an outstanding issue is the Secretary of State seems to regard this as a voting system which will require certification, and we regard it as a voting assisted device, something like a glorified rubber grip for a pencil, or maybe a rubber grip for a pencil. and a chair and a light and a magnifying glass. all together. 

We also recognize that this is a solution that probably is unwieldy for larger counties.  Yolo County is the median county in the state, and so it’s something that we can manage as a technical procedural matter.  I just, rather than going on and on because we’re so late and everybody is fatigued, I will just leave it at that and answer any questions you’ve got.

SENATOR BOWEN:  All right.  Thank you.  I actually have seen some information about the Vote-PAD, but I would hope that we will be able, at a subsequent hearing, to have a demonstration of how it works.  And my guess is, that after the hearing you may find a few people who would like to see what you’re doing.

MR. BERNHARD:  That’s my guess too.

SENATOR BOWEN:  Mr. Keysor, welcome.

DAN KEYSOR:  Hi, Senator.  I was impressed with the PAD.  I hadn’t seen it before, but saw it today for the first time.  But I’d like to get some of the other blind consumers around this state to check it out first.

But I frankly, during this whole process, have been really dismayed by the mishandling, and I feel sorry for the registrars to a great extent.  They’re really caught in a bind.  But I came here to address the issue, and you’ve already addressed it so eloquently related to the, what I call, VPAT, but AVVPAT, I guess they’re called now, paper audit trail receipt, and the lack of a separation between the text to speech output device on the actual printer itself, where the verified ballot drops down through the plastic glass.  And when I asked Diebold how they did it at a demonstration, I said, “Where’s the separation?”  They just said, “Trust us.”  I thought that was really amazing for them to say, over the many hearings that I’ve been to, where it almost seemed like the whole United States didn’t trust them. 

So I think that also when we talk about the….so actually someone high up in the Secretary of State’s office did tell me that they do not meet the accessibility requirements.  But that would be, I guess, that’s third party if I told you.

SENATOR BOWEN:  All right.  Well, Mr. Keysor, we will pursue that because it didn’t appear to me to meet the statutory requirement.  The idea was, as you lobbied for, to have visually impaired voters have their ballots processed in the identical way, but without assistance, and that was the heart of HAVA, so we’ll pursue that question.

MR. KEYSOR:  The other suggestion I’d like to think about maybe, if during all this ITA process and this federal certification, I would think that if the state had more obligation, greater standards than the federal, then why couldn’t the individual states simply just get certified once that they could be certified to certify?  In other words, go the federal government.  I’m qualified as a state to certify my own people because I know that I could beat these standards.  It just seems like by having two entities, it just mucks up the work.

SENATOR BOWEN:  A good topic for conversation.  We’ve actually done that in some other context such as, pesticide certification.

MR. KEYSOR:  That’s all I have, Senator.

SENATOR BOWEN:  All right.  Thank you.  Let me ask people to come up so that we’re ready to go.  Jim Soper, Michelle Gabriel, Marybeth Brangin, Jerry Berkman, Cheryl Lillenstein, Ferris Gluck, Dan Ashby, Alan Deckhert, and Megan Matson.  That’s who signed up on my list.

Mr. Soper.

JIM SOPER:  Thank you, Madam Chair.  I’m Jim Soper.  I’ve been a programmer for over 20 years _________ consultant in a digital equipment corporation.  I’ll try to be brief here.  But I’m hearing at this testimony from the registrars _________ systems are secure.  And I’m here to say that they’re not, and for several reasons.

To start off with, the registrar from ____________ and some of the others, talked about their staff and the procedures _______ central tabulating _______.  And from what ___________ it’s pretty good.  I think they do a pretty good job of that.  But, I saw thousands of cards coming in from out in the field any of which could be carrying a virus.  _____________ central tabulator and you’ve got a flipped election.  And it’s this that they don’t understand.  Even the small cards that some of these systems used that they stick into the machine _______ ballot.  _____________ I just learned about two weeks ago, you can stick a _____ device _____ that’s connected to a computer, your I-pod, and just reprogram the whole thing from your I-pod right into the touch screen machine.  _________ start to spread a virus or whatever to reprogram ________ everything else.  It’s scary.  And knowing that some of these machines have been programmed by crooks, that some of the components had connections in relation to gambling interests, that some of these machines have connections into Venezuela and possibly directly to Hugo Chavez, who has his own agenda, I didn’t trust any of them.  And we need to be careful with that.

Another point—I _________ the Secretary of State’s office ______ simple question, an obvious question, how do we know that the code has been tested and put in __________.  It’s the same code that’s in the machines.  ________________ we’re working on it.

We do not know what’s in those machines.  Despite all of these procedures, we do not know.  And so they can do anything they want.

With regard to the testing, with the level of the federal testing, from the information that I’ve seen, they look at the source code, but they look to see that the source code has gotten _______ and it’s pretty.  They do not look for security problems.

And I see in the testimony that’s not official testimony, hinting at this.  What I do know is that ___ source code ____ machines, ____ password _________ encryption code which is like, I can’t remember, it’s a vital code that should be different for each machine, for each election.  They used the same encryption code NF2654HDF for seven years.  This is from ____________ for seven years. 

SENATOR BOWEN:  I will be conducting a separate hearing on the testing issue.  Again, because we’re so late, duly noted that there are issues, and I look forward to more detailed comments from you and others on that.

MR. SOPER:  We’re here to fix up these machines and we appreciate that you’re pushing back at the system to make sure that we have a chance ___________ we can have confidence in , but that are really, really trustworthy.

Thank you very much.

SENATOR BOWEN:  Thank you.  So my order is the sign-in order—Michelle Gabriel, Marybeth Brangin, Jerry Berkman, Cheryl Lillenstein, Ferris Gluck, Dan Ashby, Alan Dechert, Megan Matson.  If you are not on this list for reasons, because you were using disappearing ink when you signed in, please talk to our sergeant and we’ll get you on our list.  

MICHELLE GABRIEL:  Good afternoon.  My name is Michelle Gabriel.  I’m a concerned citizen from Oakland.  And I would really like to thank Senator Bowen, for having this hearing.  I’m very sorry that the members of the Secretary of States office and the Registrar of Voters, most of them have left, so they haven’t been able to hear the comments that the public have to say, especially in response to a number of things that they’ve said.

I don’t have prepared comments, but I do have a number of comments about what I’ve heard that’s a combination of questions and comments, and I’ll try to go through them as quickly as possible.

SENATOR BOWEN:  And let me also say to people, anybody who doesn’t get to say their peace, or thinks of something brilliant when you go home, because that’s always what happens, you have my email address, my fax number, please, this is not your one and only opportunity to discuss any of the matters that we’ve been talking about today.  So don’t feel like it’s not a use it or lose it here.

MS. GABRIEL:  Okay.  Other vendors use the cards such as Diebold has, and what I don’t know is, is the state testing that, such as Sequoia?  Are those getting sent back to the ITA?  We’ve only hearing about Diebold, and I was wondering if anybody has any information on that about the other vendors?

Another point, what I don’t understand is, when these vendors fix a bug, how does that get checked to go back to the ITAs and through all the state certification?  How does that get determined whether that is of major enough point to go back through qualification and certification?  I think it’s part of, sort of, a game that many software vendors say, “Well, if I change the version, that the version has to go back through all this.”  But I don’t know that anybody really checks to make sure that everybody’s rules for when you have a version change are really the same and how significant it has to be.  And as we all know, when you change one thing you often have unexpected results and you change all kinds of other things, and there’s often many other mistakes that come from fixing your first mistake.  And so, I as a citizen, feel very uncomfortable about that, and I would like to see the state address that in some other certifications.

From what I can tell, neither the federal nor the state testing for security really addresses having somebody try to hack into a system, and how to prevent or catch this problem.  They’re looking for the obvious kinds of things, but they’re not looking for someone seriously trying to get into a system.

And one of the things I wanted to say, especially to the Registrars of Voters is, that, yes, I know they’re trying to keep their system secure.  And the problem that a lot of citizens have is, that we don’t have equal opportunity hacking anymore.  It used to be when you had paper ballots you had to have many, many people to really sway a large election.  You had to have many, many people all over the county, the state, the country, don’t _____ paper ballots.  Now you need one or two people to just electronically change it.  It’s such a different playing field for trying to hack this thing.  And the Registrar of Voters keep going on and on and on about how secure their systems are, but you know, like I said, it used to be a lot people, now you can just have one corrupt person in few offices and that’s it.  You’ve hacked the system.  And that’s a real concern.

I could tell you that I was a poll worker.  I started getting interested in this about a year ago, when I decided for the special election to be a poll worker and to experience a lot of these problems straight up, hands on, as opposed to just being a watcher. 

And I would like to really thank Senator Bowen, for bringing up the fact that one-third of machines had a problem, not one-third of votes.  As a poll worker, if one-third of the machines in my area had a problem, it would be devastating.  It was hard enough trying to deal with what I had.  So that is a major point.  And I don’t understand how registrars of voters who have to deal with the poll workers can’t get that idea.  It’s just beyond me.

So, many ROVs also talk about voter satisfaction.  That’s another thing I don’t understand.  There’s an assumption amongst voters that the federal testing and the state testing is giving them a secure system, and that’s why ease of voting is so important to them.  If you asked voters, “Well, would you rather have a system that’s really easy to vote on, but there’s a good chance your vote doesn’t get counted as you cast it, or a system that might be a little bit more difficult but you really got your vote counted as casted?”  I don’t think you would have overwhelming numbers of people saying, “Yeah, I want to vote, but I don’t care how it really gets counted.”  So when they talk about voter satisfaction, I just really have a difficult time with that, because it’s like trying to look at that one aspect as if it’s in a vacuum from security.  And the more that people learn about security.

My last point is, that there was one point that you brought up, Senator Bowen, about if you had an all paper ballot how would you deal with having to have so many different issues on a ballot? 

And I’ve been doing some research into what the rest of the world does, since most of the rest of the world handles paper ballots.  And I did find out that in Italy, what they do is, they have a multiple page ballot, sometimes 16 pages, because each issue is on a different page with a different color, and it’s very, very easy for them to separate them and count them.  It’s not impossible, and it’s not so difficult to have to go back and read multiple things.

So, once again I thank you for having this hearing.  It was very informative.  And I hope to be able to continue to come to these.  Thank you.

SENATOR BOWEN:  Thank you.  Marybeth Brangin.

MARYBETH BRANIGAN:  You know, I’m going to pass because of the time.  Thank you so much for having the hearing.

SENATOR BOWEN:  Thank you.  Jerry Berkman.

JERRY BERKMAN:  Thank you for having the hearing.  I’d say what a tough job it is for the registrars and Secretary of State to figure this out, except I think they all left.  Any left?

I gave you a piece of paper.  On that it talks about how the continuous _______ DREs reel to reel accessible voter verified paper audit trails don’t conform to California law.  They’re not accessible because the reel to reel ones that I’m acquainted with, they read back from the electronic ballot not from the AVVPAT.  And as you say, that’s from 19250 of the Elections Code. 

The Secretary of State has a standard for AVVPATs.  The standard states that the AVVPAT compliant must have an audio component.  The AVVPAT machinery must have an audio component.  That’s in the Secretary of State’s standards.

They also don’t conform with secrecy.

Pennsylvania rejected reel to reel AVVPATs because of secrecy issues.  Pennsylvania rejected them because the secrecy issue.  And here you can see the logic.  Anybody can observe. Anybody can request a recount.  Anybody can watch the recount.  You must say your name out loud before you vote.  So, especially the counties that get one DRE, there’s no question you can find out who did what.

Now I’d like to talk about bicycle locks, kryptonite.  They were the gold standard for bicycle locks for a long time.  Now all of a sudden everybody wanted to have a kryptonite bicycle lock.  Then one day somebody posted on the internet how you could break a kryptonite lock, unlock it with, I don’t remember, was it a ballpoint pen?  A ballpoint pen.  And bicycles were being stolen all over the place.  So just because nobody has stolen an election on the DREs, now Harri Hursti how you can go do it.

Now the source code review, at the ITAs, is, I would say, syntactic, not semantic.  They have a list of reels for programmers.  I believe one of them is you cannot use go to statements.  You must have so many comments.  Things like that.  If they find a logic problem by accident since they really aren’t checking for it, they notify the NASED (National Association of State Education Directors) of the logic problem…

SENATOR BOWEN:  Mr. Berkman, let me again say, that I will be convening a later hearing on the testing issue.  And so, rather than have everybody’s eyes roll back in their head, if we could do those….I know they are issues, and I know there are people here who are really good on these issues and we’ll have a specific discussion about them.

MR. BERKMAN:  Okay.  The registrars, if they’re unhappy right now, if they can buy the AutoMark, which does have the read back, does not have the secrecy problem, and hopefully you’ll have your hearing __________ we can get some open source so that we aren’t held hostage to the vendors.

SENATOR BOWEN:  Thank you.  And the hearings on open source are coming too.  We’ll have a schedule within the next few days.

Cheryl Lillenstein.  Welcome.

CHERYL LILLENSTEIN:  Hi.  Thank you very much for holding this hearing.  In this hearing I’m representing the Santa Clara County Democratic Party.

We live in Silicon Valley.  It’s one of the centers of the development of computers and computer science.  And we have a problem with how it is this is going on.  We have Sequoia systems and none of them are certified.  And I think that when the Secretary of State’s office said we have a vendor driven problem that we are looking at the vendor driven problem, and the consequence of not having the state be in charge of our voting system.

The voting systems really ought to be in the public trust.  It is a public trust, and it’s the baseline of our democracy.

So the Santa Clara County Democratic Party created a resolution which is going to be presented at the California Democratic Party meeting in April, and I’d like to read it to you.

Whereas, there are serious questions about security of electronic voting machines and insecure and untested electronic voting equipment endangers the integrity of our democracy;

And whereas, absentee voters record their votes on paper ballots and have a higher likelihood of casting their ballots;

And whereas, paper balloting provides a well tried and well accepted methodology which helps to secure victory with integrity for candidates;

Therefore, be it resolved that the Santa Clara County Democratic Central Committee will commit to a concerted campaign to, a) increase the public’s use of paper balloting and permanent absentees in the 2006 election cycle, and until such time as e-voting can be sufficiently secured to guarantee every vote is counted accurately, and, b) prepare county election officials for this increased level of paper balloting so that they will ensure timely availability and accurate processing of those ballots.

And be it further resolved that the Santa Clara County Democratic Central Committee supports urgent efforts to force transparency in voting system software, construct national standards for electronic voting machine certification, create external nonpartisan certifying groups who publicly disclose testing results, develop reliable voter verified paper trail systems, adopt robust auditing procedures, and update recount procedures.

So I want to repeat, this resolution will be introduced before the California Democratic Party and we are hoping that everyone will encourage absentee registration in order to sidestep this problem.  This is what we can do for now.

Thank you very much.

SENATOR BOWEN:  Thank you.  The one thing that I do want to say is that this is not a partisan issue, and that the results of this, I think are equally important for anyone of any political stripe because the vote is how we legitimately transfer power in a democracy.  And go back to the rule of King George, and Thomas Jefferson, and the founding fathers, and the Declaration of Independence, the idea that we would have a voluntary system for changing the authority under which we’re governed was pretty radical, and it’s worth protecting, and that’s why we’re here today.  At least, that’s why I’m here.

Ferris Gluck, Dan Ashby, Alan Dechert, Megan Matson.  I have a couple of late ads, and I’m being told that I’m going to miss my opportunity to cast my vote in the Senate Rules Committee if I don’t wrap up pretty soon.

FERRIS GLUCK:  Ferris Gluck, from L.A. County.  Good afternoon.  Thank you so much for having these hearings.  I am concerned that there is a rush to judgment to deploy voting systems that merely give the appearance of accurately recording and tabulating the votes.  And I see the urgent need for every county to comply with HAVA, and to have a device that meets the ADA specifications under HAVA. 

And today I’m bringing a solution, which is a noncomputerized solution called the Aquala Vote.  And if anybody wants information, I have contact information.  And it’s a _______ device that offers a transparent way to vote without assistance, so it addresses the needs of the disabled—visual needs and motor needs.

And I just wanted to make a couple of comments regarding the InkaVote Plus, which L. A. County is imminently going to purchase, it sounds like.  I did go to a somewhat hostile meeting which was supposed to be the bidders of what the product was going to be for L.A. County to comply with HAVA, and that was back, I think, in May of 2005.  And we asked to see the interior of the InkaVote Plus machine, and our registrar was very reluctant to let us see the modem that is contained within it.  Not only is there a modem, but this precinct ballot recorder records votes all day long.  As you feed your ballot in, it’s scanning your ballot all day long.  So votes are being recorded during the day and there’s a modem in this device, and that makes me very uncomfortable being from the largest county in the United States.

Thank you very much.

SENATOR BOWEN:  Thank you.  I’m less familiar with the InkaVote than some other systems, so I have some further homework to do.

Dan Ashby.

DAN ASHBY:  Hi.  My name is Dan Ashby.  I’m here as a member of the California Election Protection Network.  And there’s a number of issues I’d like to address about the certifications interlink between HAVA and the ITAs in this state, and the fact that the state of California seems to be routinely violating not only its own procedures but those that are mandatory under HAVA.

The Elections Assistance Commission is charged with implementing HAVA, and the NASED standards are governed by those rules and they require, as of February 2003, that all voting systems be qualified to the 2002 federal standards.  However, if you look at NASED’s own chart, 27 out of the last 39 systems that have been approved since that period of February 2003, have been improperly certified to the 1990 standards, including of the most of the voting systems in California that we’re talking about here today.  There is a tremendous….it’s light years of difference in standards between 1990 and 2002, that go directly to the question of security.  Why is this being widely overlooked?  I did not hear any member of the registrars or the SOS staff here today acknowledge this glaring deficiency.

So, for an example, the Sequoia systems that we’ve heard about today are entirely certified to the 1990 standards as shown in the very chart that the state presented to you today.  The Election Code of California has several provisions that say that no system may be certified unless it has received federal qualification.  That means having the qualification number.  And yet, we have numerous systems that have been talked about today that are already under California testing, therefore they have received a federal qualification number.  These are not minor procedural details.  This is the essence of the law.  One step at a time.

Also, on or after January 1, 2006, the city or county may not contract for, or purchase, a direct recording system unless the system has received federal qualification that includes an accessible voter verified paper audit trail.

Riverside County, on January 12th, their supervisors, approved in concept the purchase of one of these systems that’s not been qualified yet.  If they go ahead and purchase that system without qualification they are in violation of the California Election Code, as well as HAVA.

And then I’d like to pick up another couple of points—the issue with the memory cards, the Diebold memory cards, is that it is interpreted code.  The 2002 federal standards that California has made California law by adopting, absolutely forbid interpreted code—it’s executable code.  That’s the issue.

Now, here’s the other issue that I did not hear addressed.  The purpose of the memory cards is to program the ballot design on the optical scanners and to also collect the vote.  The purpose of the TSX touch screen memory cards is to program the ballot design and collect the vote at the end of the election.  The exact same purpose.  I’ve looked at the Diebold cards, they’re the same card.  If it is an issue about security for the OS system, why is this not equally a system for the TSX system?  The TSX and the optical scan systems both should be withheld until this is resolved.  And frankly, I don’t see how you could possible resolve it since it’s inherent in the code of Diebold, they’ll have to rewrite their entire system, and I don’t think they’re going to be able to do that in six months.

Then one other issue:  The black box voting which originated the proposal under Election Code Section 19202, which allows any interested citizen to propose a test of an election system, the Secretary of State expect a response within a reasonable amount of time. 

I submitted a letter on 6/12/05 requesting the so-called Hursti hack test of the OS memory cards.  At the same time they pointed out that a similar issue applies to the memory cards used in the ES&S system, which are used in many more counties in California, and those are a little bit more dangerous.  They seem to be based on the same principle.  They’re called a “personal electronic ballot box” in ES&S jargon, but their function is the same.  And here’s the distinction:  By design those memory cards have to be programmed by the vendors themselves.  So that completely eliminates public officials from oversight of the program design.  And if you can alter the ballot program design, you can alter the outcome of elections.  And there has been no secretary of state response to that request concerning ES&S memory cards, and this request was brought to his attention on 6/12/05.  I would highly recommend that the chair of the Election Committee make a memo to the Secretary of State to follow the Election Code, please.

Thank you.

SENATOR BOWEN:  Thank you.  Alan Dechert.

ALAN DECHERT:  Thank you very much.  Just my overall impression of the hearing today.  I think it’s clear to me that the state of California does not have a handle on this problem; has not taken control of this issue.  It’s a disgrace that five years after the 2000 election fiasco, that we have so many official in a quandary about what to do in 2005.

Certainly this Secretary of State does not have a handle on this issue.  He has not been the secretary of state for very long, so he has….but it’s just continuing this tradition of saying, “Well, it’s an inherited problem.”  Or, “It’s not something we’ve created.”  But it’s clear that at some point the state of California needs to take control of this issue.  Under Secretary Bill Wood at one point said, “Well, it’s these….we can’t control the machines.  We’re at the mercy of these vendors and this ITA process.” 

But I think that the one option that maybe they should look at is that this state manufacture its own machines.  We’re looking at a need here in California of 100,000 units, and the engineering expertise in this state is….overall the technical problem of casting and counting votes is somewhat complicated, but from an engineering perspective, it is basic applied science; it’s a fairly simple problem.  There’s no need for new inventions or gadgetry in this area.  I think that it is an option that….and certainly, the Secretary of State has the ability to introduce legislation to change the whole playing field.  And we could have….of course, our organization, by the way, I don’t know if I mentioned it, I’m Alan Dechert, Open Voting Consortium.  But, of course, we are looking for a public software solution, but I think we might also be looking at a hardware solution as well.  I don’t see any reason for the state to be at the mercy of these vendors that aren’t delivering—are not able to get systems certified.  And the state certainly has, in any case….there’s a need here for the state to take control of this process, and I think that we don’t need to be at the mercy of the vendors or this ITA process. 

Thank you.

SENATOR BOWEN:  Thank you.  Megan Matson.  _______ Moms, welcome.

MEGAN MATSON:  Thank you.  Our group, the MOB, _____ Moms is currently working on grassroots outreach sympathetically to 3,200 state and local elections officials around the country urging them to look at paper ballot based voting.  I say that just to make my, hopefully, singularly point that I think California can’t lose track of its leadership role nationally.  And I would really underscore what Alan is saying about taking control of this process. 

Hearing that, as Cheryl mentioned, voting acquisition is essentially a vendor driven process.  It’s really a problem.  And in conversations with Deputy Secretary of State, I believe, McDonald, on the phone he mentioned that HAVA essentially mandates DREs.  In looking at the list you provided of the counties and the sickening number of DREs that are being looked at, it looks like we have a real misinformation problem about HAVA and whether it does mandate such a thing.  I mean, it looks like our Secretary of State may not be recognizing this.

It is so reassuring to hear, I think, the two possibly best pieces of news today, one that Jill LaVine is going to go with AutoMark despite it being heavy, and Deborah Hench negotiating a contract with Diebold that would cover the cost of a paper ballot count.  We’ve got to get creative at this point and take very seriously that 48 percent voter confidence problem that has nothing to do with too much transparency and everything to do with vendors who are not ready for prime time, and officials who, I say this with all respect for the difficult situations that they’re facing with really problematic legislation, but, who aren’t looking at all of their options. 

So, again, I would urge us to lead the way, as Governor Richardson is now doing in New Mexico, in insisting on paper ballot based voting, however we get there.

Thank you so much for your leadership.

SENATOR BOWEN:  Thank you.  David Healy and Sharon Graham.

DAVID HEALY:  Hello.  My name is David Healy.  I work with Aquala Vote.  It’s a vote alone system requiring no assistance for the voter.  The system is in full compliance with ADA requirements of HAVA.  For the visually impaired there is a prompted audio message for each ballot item.  This feature makes it very inexpensive to have the ballots understood for any  language.  There is a tactile reference for the visually impaired voter to cast their vote.  This feature also helps the movement impaired.  A vote verification system is also included in this solution.

Thank you very much.

SENATOR BOWEN:  Sharon Graham.

SHARON GRAHAM:  Thank you, Senator.  Thank you for holding this.  My name is Sharon Graham.  I live in Sacramento.  I’m here for myself.  And I just want to basically echo what Mr. Dechert has said.  I see the problem as a matter of having sold off the election comments.  The electoral system should be a public process.  It’s our vote.  It doesn’t belong to private companies.  It’s been sold off to private companies, and I see that as the problem.  So if solving it means that the state makes its own machines and its own code, then I think that’s the way to go.

Thank you.