CHAIRPERSON QUESENBERY: Next is Lillie Coney, Electronic Privacy
Information Center (EPIC).

MS. CONEY: My name is Lilly Coney. I would like to thank the U.S.
Election Assistance Commission\'s Technical Guidelines Development
Committee for the opportunity to offer testimony before you today as you
consider the subject of human factors and privacy.

I am the senior policy analyst at the Electronic Privacy Information
Center based in Washington D.C. EPIC is a public research center
established in 1994 to focus public attention on emerging civil
liberties issues and to protect privacy, the First Amendment, and
constitutional values.

One of my roles is to coordinate the activities of EPIC's project the
National Committee for Voting Integrity.

The laws establishing the right of citizens to participate in the public
discourse associated with the act of voting have been primarily within
the jurisdiction of states.

Because of the documented history of voter intimidating, coercion, and
fraud associated with third party knowledge of how individual voters
cast their ballots it is important not to underestimate the importance
of voter privacy. The concept of privacy and voting are inseparable for
the latter gives meaning to the former. In 2000, the focus was on
Florida, but the problems in that state were repeated in many others.

That presidential year was like any other except for one fact. The
deciding margin of victory was only 537 votes. This number is dwarfed by
the number of voters disenfranchised according to the CalTech MIT study
Voting: What is What Could Be which records that between four and six
million votes were lost in that election.

The study attributed the loss to problems with voter registration or
polling place practices and problems with ballots. As a consequence,
voters received a rude introduction to the reality of elections in the
United States. Not every vote cast was counted.

As a result, Congress passed the Help America Vote Act. While attempting
to strengthen the integrity of the electoral process by requiring
stronger voter identification requirements, HAVA did little to address
the potential problems of skewed election outcomes if the electronic
machines are faulty or rigged.

According to unscientific exit interviews of voters, their reaction to
DRE touch screen voting technology was positive. Voters\' comments
regarding their experience with DRE voting machines were reported as
great, very easy, and fast.

The sad truth is the voter is the last one to recognize problems
associated with voting technology. With implementation of new voting
technology, voters of all descriptions have had a multitude of
experiences in recent elections.

In an election held in Louisiana on Saturday, September 18th of this
year, it was reported that 59 precincts in the City of New Orleans did
not have voting machines when polls opened at 6:00 a.m.

The body of evidence is growing that voting on DRE unauditable paperless
voting technology presents hazards for votes being counted as cast by
voters it is important to address these concerns.

However, we must not ignore the potential threat to privacy while
investigating the benefits or detriments presented by e-voting
technology. Application of DRE paperless voting technology in U.S.
public elections address some of the issues of voter privacy, while
potentially creating others.

In our written testimony, there are some inserts of comments by Dr. Doug
Jones, on voter privacy and electronic voting. Dr. Jones is with the
University of Iowa\'s computer science department and also a member of
the National Committee for Voting Integrity.

He advises that the DRE should separate the timestamp on the cast ballot
event from the actual record of the cast ballot in order to insure
privacy along with other concerns regarding how the DRE touch screech
voting machines are designed.

If the touchscreen is at a 75 or 80-degree angle to the horizontal, the
view from the screen might be difficult to keep their ballot choices
private or hidden from the view of people who are in the polling place,
including other voters.

In addition to these concerns, there are suggestions being made on how
electronic voting could be improved, including discussions about
applying wireless access technology to the voting machines, which may
also present privacy challenges. If misapplied, wireless access that
allows remote activation could allow observation of activity on a number
of units inside polling places by someone outside the facility with the
appropriate technology and skills.

Caution should be taken when considering the implications of using
wireless technology with voting systems.

Poll workers can play a key role in providing voters with privacy.
Unfortunately, poll workers more often act as gatekeepers whose most
important function is to determine who may vote in public elections
instead of serving as vote facilitators.

In the case of the Florida 2000 presidential election, poll workers did
not take malfunctioning punch card voting machines out of service. It
was reported that 20 punch card voting machines in two Miami-Dade County
precincts with the highest rate of discarded punch card ballots did not
show votes for at least some candidates during a test minute before the
polls opened on November 7, 2000.

There is very little, if any, due process according to voters who are
judged to be invalid by poll workers as they enter into the voting
process. Unfortunately, the experience for voters in these "out groups",
which include minorities, new citizens, language minorities, or disabled
voters may be disenfranchisement.

Those voters not identified with by poll workers often find the hurdles
to voting are much higher and problematic. In the State of Florida,
voters erroneously included on a list of felons who were prevented by
state law to vote were predominantly minority.

The subjective nature of the polling operation meant some poll workers
in Florida were able to recognize the errors on the list and allowed
voters to vote while others could or would not allow those voters to
vote.

As little as possible should rely upon the subjective judgment of poll
workers as gatekeepers to the ballot box, but the focus should be on
facilitating participation in the election process.

In another example in 2003 in New York City, a study done by the Asian
American Legal Defense Education Fund reported that minority language
speakers were subjected to poll workers improperly demanding
identification who were rude, hostile, who made disparaging remarks
about language assistance.

Most of these problems can be addressed through training and a better
screening process. In addition to poll workers, there were problems
presented by election observers who were independent observers inside
the polling place, but conducted themselves improperly.

In conclusion, overly aggressive investigations of charges of voter
fraud pose additional threats to voter privacy and secrecy of the
ballot.

Recent reports of a Florida Department of Law Enforcement investigation
that involved state troopers going to the homes of elderly black voters
in Orlando to investigate their decision to vote absentee is disturbing.

In closing, it is vital that the secrecy of the ballot be extended to
include men and women of the armed forces. The recent proposals made by
some state election officials to use third-party agents to allow voting
by any combination of scanners, e-mails, and/or fax are particularly
troubling to privacy advocates.

In the case of Missouri, all three of these methods are employed for the
military overseas voting program.

In addition, to those citizens living abroad who would like to vote
should have an opportunity to do so and have that vote counted.

Every effort should be made to expedite the delivery of absentee ballot
applications wherever they are requested and also facilitate the
delivery of absentee ballot request forms through fax, e-mail of PDF
e-forms. The process of receiving voted ballots should be done through
expedited mail.

Thank you.

CHAIRPERSON QUESENBERY: Thank you. I know you abbreviated some of your
remarks which will be on line so we would have more time for discussion.
With that, are there any questions?

MR. ELEKES: Yes. At one point of you have testimony, I have to question.
You stated the angle of which monitors are included may disallow privacy
because someone outside the voting booth can perhaps see them.

While you were testifying, I happened to look up the standards under the
ADA for individuals who are wheelchair users or mobility impaired, and
we come into direct conflict with the appropriate height of those
monitors for people who may have a mobility impairment.

How can you recognize or what recommendation might you be able to make
as to insure the security of that visible monitor since it is a part of
the accommodation being made to the person with physical or visual
disabilities to adequately see the screen?

MS. CONEY: Let me notice couch what I say by saying that is something I
know usability experts or those who design equipment and polling place
locations will definitely need to review.

As a privacy advocate, I would say a screen of an appropriate height,
appropriate angle that allows the person to comfortably go behind within
the voting area to vote but do so comfortably knowing their activities
are in view of someone who might be behind them might be at an
advantageous points. So if screens could be used, that would be very
beneficial.

There is also, because of security concerns, resistance with doing
something like that. I think both \-- all of those factors need to be
brought into play in order to come up with means of insuring privacy,
accessibility, and integrity.

MR. ELEKES: Not to leave you with the question. So, voting booth perhaps
and considering to put in a wheelchair or to put a walker used by a
physically disabled person, the voting booth itself should be designed
in a manner not only to provide accessibility but obviously to provide
adequate privacy to assure the individual of their privilege to vote in
an efficient manner and in private.

MS. CONEY: Yes.

MR. ELEKES: Thank you.

CHAIRPERSON QUESENBERY: This may sound like a silly question but it
reminds me of something Ginny said to Commissioner Hillman. If you
don\'t think about privacy as part of comfort at the beginning of the
process, then you don\'t get it at the end of the process?

MS. CONEY: Exactly. It\'s very key in this transaction to have both.

CHAIRPERSON QUESENBERY: They are both requirements?

MS. CONEY: Absolutely.

CHAIRPERSON QUESENBERY: Thank you very

97

1 much.

2 MS. MILLER: One comment. You indicated

3 that some jurisdictions have in place a fax, and

4 making ballots from that angle, and that\'s something

5 that you are not in support of.

6 MS. CONEY: The problem being if you vote

7 a ballot and fax or e-mail in, however you vote is

8 open to a number of ways of being exposed to the

9 public especially when you look at a work

10 environments.

11 We look at our military. For a long time

12 they had been told this is a job, it really is not

13 like any other type of employment in our society.

14 There is a perception that the ballot choices are not

15 going to remain secret and may become knowledge of

16 superiors where promotion and assignment decisions

17 are made. That may impact the willingness of someone

18 to vote or how they will vote.

19 even if it\'s just perception, not

20 reality, if in the voters mind they think there is a

21 possibility that creates some problems.

22 MS. MILLER: We have that in place in the

98

1 District of Columbia, but it\'s only under a signed

2 agreement. The voters understand their privacy

3 rights are given up when they fax the ballots back,

4 but it does give the voter an opportunity to cast a

5 ballot in situations where they may not be able to

6 vote at all.

7 MS. CONEY: We focus on is the elections

8 are not long. We know the first Tuesday after the

9 first Monday in November is voting day. The mail

10 process is available. But putting the mechanisms in

11 place seem to come late in the process of whether

12 it\'s inside the Department of Defense, whether

13 resources are not available to do it, whether they

14 are not thinking about it until six months out

15 because of other priorities going on.

16 This needs to be a part of the decision-

17 making process a long time out, and infrastructure to

18 accomplish this needs to be in place to limit the

19 necessity of voters actually having to do those

20 options as a last resort in the way they would like

21 to participate in an election.

22 MS. MILLER: Thanks.