SENATE COMMITTEE on ELECTIONS,
REAPPORTIONMENT & CONSTITUTIONAL AMENDMENTS
Voting
System Update:
How
Will
State Capitol,
Senator Debra Bowen, Chair
SENATOR DEBRA BOWEN, CHAIR:
_____________ informational
hearing on our voting systems in
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
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
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
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 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
In addition,
we have outlined ten certification requirements to ensure the systems certified
for use in
We hosted a Voting
Systems Testing Summit here in
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
SENATOR BOWEN: I think that’s the law—right? That’s the law in
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Last
September,
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
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
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
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
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
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,
IRA ROSENTHAL: Oh, sure.
I have a prepared statement I’d like to start off with.
I’m Ira
Rosenthal. I’m
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
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.
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
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
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
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.
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
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,
JILL LAVINE: Correct. I’m Jill LaVine, I’m the registrar of
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
So for the upcoming June primary
election, the voters of
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
MS. LAVINE:
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
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
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
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
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
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
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
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
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
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
SENATOR BOWEN:
I don’t want to interrupt, but it is
twenty to one, we’re going to lose our hearing room at
CONNIE MCCORMACK: Okay.
I’ll try to wrap this up here.
SENATOR BOWEN: So I’m particularly interested in…
CONNIE MCCORMACK: In what
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
Following the
decertification of the Votomatic punch card system by the Secretary of State in
2001,
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
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
Additionally,
a key component of
In conclusion,
for over a year, registrars have been expressing vocal alarm concerning the
lack of certified voting systems in
SENATOR BOWEN: We need to get back to
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
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
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
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
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
MS. MCCORMACK: I think it’s because of the sheer number. If I were Janice Atkinson,
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
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
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
We have been extremely busy in
48th Congressional District, caused a domino
effect for us. And we had four
elections, major elections, in
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
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
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
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
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
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:
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
30 issues. That isn’t
30 percent. Then we went back to
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
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
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.