**Minutes of the Public Meeting**

**United States Election Assistance Commission**

1225 New York Avenue, NW

Suite 150

Washington, DC 20005

Held on Tuesday, November 13, 2007

VERBATIM TRANSCRIPT

The following are the Minutes of the Public Meeting of the United States
Election

Assistance Commission ("EAC") held on Tuesday, November 13, 2007. The
meeting convened at 10:03 a.m., EDT. The meeting was adjourned at 1:30
p.m., EDT.

**[PUBLIC MEETING]{.underline}**

**CHAIRWOMAN DAVIDSON:**

**I'd like to call the meeting to order. And if I could ask**

**everybody to please put their cell phones on vibrate so that they
won't ring during the meeting, I'd appreciate it, or turn them off.
Either one.**

**And if you would stand with me, we'll do the Pledge of**

**Allegiance.**

**\*\*\***

**\[Whereupon, Chairwoman Davidson led all present in the recitation of
the Pledge of Allegiance.\]**

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**Could we have the roll call, please?** **Gavin** **is our Acting**

**Counsel General so I would like for him to take the roll, please.**

**COUNSEL GILMOUR:**

**Certainly. Would each Commissioner please respond verbally for the
record when I call their name? Chair Donetta Davidson?**

**CHAIRWOMAN DAVIDSON:**

**Present.**

**COUNSEL GILMOUR:**

**Vice-Chair Rosemary Rodriguez.**

**COMMISSIONER RODRIGUEZ:**

**Here.**

**COUNSEL GILMOUR:**

**Commissioner Gracia Hillman.**

**COMMISSIONER HILLMAN:**

**Here.**

**COUNSEL GILMOUR:**

**Commissioner Caroline Hunter.**

**COMMISSIONER HUNTER:**

**Here.**

COUNSEL GILMOUR:

**Madam, all four members of the Commission are present.**

**CHAIRWOMAN DAVIDSON:**

> **All right. And if everybody would look at the agenda and I would**

**like to have a motion to approve the agenda.**

**COMMISSIONER RODRIGUEZ:**

**So moved.**

**CHAIRWOMAN DAVIDSON:**

**Second?**

**COMMISSIONER HUNTER:**

**Second.**

**CHAIRWOMAN DAVIDSON:**

**All those in favor please say aye. Opposed?**

**\[The motion carried unanimously.\]**

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**Well, today \-- first of all I would like to welcome the delegation,
and I'm not sure I'm going to say that right, from** **Jalisco, Mexico.
I got halfway close anyway. So we do welcome you here to the United
States and we're very pleased that you're able to attend one of our
meetings at the Election Assistance Commission. So I know you had a
briefing this morning on our Voluntary Voting System Guidelines and of
our certification program from Brian Lewis, and we definitely welcome
you and we really are thrilled that you are taking an interest in what
we are doing at the Election Assistance Commission. Which brings me to
note that today \-- I'd like to welcome everybody that's in the
audience, and as you all are aware we have a pretty full agenda.**

**But I would also like to encourage our Voluntary Voting**

**System Guidelines are out for comment. We have been receiving really
quite a few already, and so we would like to encourage everybody to make
comments to those. They're up on our Web site. Look at it. It's very
easy to make comments on each and every section that you would like to,
so please take time and review it and make comments to it. This is a
great opportunity. That will be up for 120 days.**

**Moving on with old business, the minutes are before us. Is**

**there any additions or corrections that anybody has to the meeting
minutes? If not, is there a motion to approve?**

**COMMISSIONER HUNTER:**

**So moved.**

**COMMISSIONER RODRIGUEZ:**

**Second.**

**CHAIRWOMAN DAVIDSON:**

**The motion has been made and seconded to approve the minutes. I would
like to call for a vote. All those in favor of please say aye.
Opposed?**

**\[The motion carried unanimously.\]**

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**And now we'll move on with a report from our Executive Director Tom
Wilkey.**

**EXECUTIVE DIRECTOR WILKEY:**

**Good morning. I'd like to thank first everyone for attending on this
rainy morning in Washington. I also want to extend my welcome to you
from** **Jalisco, Mexico. And I know that we will be meeting tomorrow,
so I look forward to that.**

**Under voting system reports clearinghouse, in August the Commission
adopted a policy that established the voting system reports
clearinghouse. This clearinghouse is a place that we will post reports
on voting systems conducted by state and local election officials. Last
week we launched the clearinghouse after getting our first request from
California Secretary of State Debra Bowen, and we've posted a link to
the state's top-to-bottom review of its voting systems. You can go to
research, resources and reports section of our Web page. We encourage
other election officials to share this kind of information with us and
we hope that they do. They must just submit a request to me or to our
Chair, and we'll take it from there based on our policy.**

**Under voting system certification, ten voting system manufacturers
have registered for EAC's Testing and Certification program. Nine voting
systems have been submitted for testing. We have issued a new
interpretation about the capability of voting systems to support
alternative languages. All of this information is available at eac.gov.
And you can click on the Voting Systems Center link.**

**The TGDC, the Technical Guidelines Development Committee, has
recommended and has submitted to us its recommended Voluntary Voting
System Guidelines, the next iteration. We have launched our public
comment tool. In my opinion, it is one of the most technically advanced,
user friendly and accessible one that I have ever seen in the Federal
government. I urge all of you to take a look at eac.gov. All comments
will be made public. The comment period lasts for 120 days. This is the
first of two 120-day comment periods. At the end of the comment period,
EAC will evaluate all comments, then issue its draft for another 120-day
public comment period. We strongly urge everyone to give us their
feedback.**

**Under election management guidelines, one of the most popular
initiatives at the EAC are our Quick Start Management guides. We just
issued six more on the following topics: Absentee voting and vote by
mail, acceptance testing, change management, contingency planning,
polling place and vote center management, media and public relations.
These have all been mailed to election officials throughout the nation
and they are posted on our Web site eac.gov. We have gotten many
requests for additional copies. You can also call us toll free at
866-747-1471 if you need more. They are incredible. Election officials
from around the country have a great deal to say about these. There are
a series of about 12 now and have been well received by our election
officials and others throughout the country.**

**Under EAC general updates, we have launched a new Web site, so please
email us at** [HAVAINFO@EAC.GOV](mailto:HAVAinfo@eac.gov) **if you have
questions or need help finding information on the new site. Please note
that if you have linked to us in the past, these links may be broken.
Just e-mail us and we'll be glad to help you update your links. EAC
distributes a monthly electronic newsletter that provides updates on our
activities, upcoming meetings and other HAVA-related issues, the best
way to receive frequent updates to our voting system program and other
initiatives at the EAC. To sign up, you can call us at our toll-free
number or send us an email at eac.gov.**

**And this is just a reminder to the Commissioners that at our December
meeting next month in conjunction with EAC Standards and Advisory Board,
we will have a complete rundown of all the year-end activities
throughout 2007 and all of the staff will be participating in that. So I
look forward to that since I think you will agree that we've had a very
busy year, and I look forward to that.**

**That is my report, Madam Chair.**

**CHAIRWOMAN DAVIDSON:**

**Thank you. Questions for Mr. Wilkey?**

**COMMISSIONER HILLMAN:**

**I do.**

**CHAIRWOMAN DAVIDSON:**

**Okay. And welcome back Commissioner** **Hillman.**

**COMMISSIONER HILLMAN:**

**Thank you. Tom, under the voting system reports clearinghouse\...**

**EXECUTIVE DIRECTOR WILKEY:**

**Uh-huh.**

**COMMISSIONER HUNTER:**

**\...could you just clarify what reports are eligible for posting on
the clearinghouse? Because your report said, "will post reports on
voting systems conducted by state and local," and I'm not sure what you
mean "voting systems conducted."**

**EXECUTIVE DIRECTOR WILKEY:**

**The policy that you have adopted are for reports that have been
generated by state or local election jurisdiction and that have
requested that they be put on our Web site. And that request is made
through me or the Chair, and under that policy I notify the four
Commissioners and they have two days to indicate whether they approve or
disapprove of the report being put up on the Web site. But as of right
now it is only reports that are authorized or issued by a state or local
jurisdiction, and they need to request that from us. And of course as I
indicated in my report, I hope that they do because some of them are
very worthwhile.**

**COMMISSIONER HILLMAN:**

**Okay. Maybe a little hypothetical, but if an election administrator,
whether at the county or state level, writes a report based on his or
her observations and experiences of the voting system, does that qualify
as a report to be posted?**

**EXECUTIVE DIRECTOR WILKEY:**

**I believe so, because the policy that you adopted if it is authorized,
accepted, or approved, paid for by a local jurisdiction and they request
us to put that report up, then we will put it up with your
concurrence.**

**COMMISSIONER HILLMAN:**

**And so, if there is a dissenting point of view, let's say that there's
an election commission that has jurisdiction whether at the county or
state level, and if members of the Commission don't agree with the
report that's been submitted and submit** **a dissenting view are we
then considering posting that as well?**

**EXECUTIVE DIRECTOR WILKEY:**

**Well, I think that as I understand the policy, and Counsel can correct
me if I'm wrong, but if there is a** **dissent** **not to post, then it
wouldn't be posted.**

**COMMISSIONER HILLMAN:**

**No, I don't mean not to post, I mean a dissenting point of view. If
somebody writes a report that suggests a particular system isn't user
friendly, lacks in human factors, isn't accessible, whatever, and if
other members of the Commission disagree with that and want to write
their own report about that, is EAC saying it will consider and post
dissenting views from that same jurisdiction? Do we know? Have we gone
that far?**

**EXECUTIVE DIRECTOR WILKEY:**

**We haven't really gone that far, Commissioner, because I think we \--
our intention was that the local or state jurisdiction would approve
that, number one, approve sending it to us and that upon our receipt of
that, with your approval during that two-day period that it would be
posted. I don't think we ever contemplated that it would generate an
opposing view by a member of the Commission, but I think that's
something we need to look into.**

**COUNSEL GILMOUR:**

**I think we \-- I don't have a copy of the policy in front of me but it
would certainly matter \-- I don't recall the specific jurisdiction that
could submit,** **but certainly if a jurisdiction submits something we
would assume they have their own processes for making that decision, as
we do.**

**COMMISSIONER HILLMAN:**

**Well that's why I started asking my question, if the administrator
writes a report and submits it, we would accept it that it is being
officially submitted by the administrator\...**

**EXECUTIVE DIRECTOR WILKEY:**

**Right.**

**COMMISSIONER HILLMAN:**

**\...if the then governing body or members of that governing body take
exception with what the director has written.** **Let's just say clearly
we haven't thought that through and we don't find ourselves in that
position, because I don't know if the policy says it has to be approved
by the chief \-- the Chair of the Commission or the chief election
official, you know. I don't know the vehicles through which such reports
could come to us\...**

**EXECUTIVE DIRECTOR WILKEY:**

**Right.**

**COMMISSIONER HILLMAN:**

**\...putting us in a position of having to then consider, you know,
opposition or opposing point of view from the same jurisdiction. So I'm
just\...**

**COUNSEL GILMOUR:**

**We have to look at the document and make sure what it \-- how it
identifies the who and the what.**

**EXECUTIVE DIRECTOR WILKEY:**

**Right.**

**COMMISSIONER HILLMAN:**

**Right.**

**COUNSEL GILMOUR:**

**And then if it's not clear, we'll have to work on clarifying that.**

**EXECUTIVE DIRECTOR WILKEY:**

**Right. I mean certainly from previous experience, if I had a report
that was generated by my agency and it was not approved, I would not be
submitting anything without the approval of my board or commission.**

**COMMISSIONER HILLMAN:**

**Right.**

**EXECUTIVE DIRECTOR WILKEY:**

**But\...**

**COMMISSIONER HILLMAN:**

**But as we know, with 7,000 jurisdictions we have no clue\...**

**EXECUTIVE DIRECTOR WILKEY:**

**But you are right, you could have three say "yes" and one who wants to
submit** **an opposing\...**

**COMMISSIONER HILLMAN:**

**Right. Or some jurisdiction where the administrator can submit it on
his or her own and doesn't have to get approval of the County Commission
or get approval of the City Council\...**

**EXECUTIVE DIRECTOR WILKEY:\
Right.**

**COMMISSIONER HILLMAN:**

**\...to be able to submit it. I mean we have many different
configurations of election administrative, I guess I just want to
caution that the EAC doesn't unwittingly get caught up that we're either
going to post what we receive or somehow make a determination\...**

**EXECUTIVE DIRECTOR WILKEY:**

**Uh-huh.**

**COMMISSIONER HILLMAN:**

**\...as to whose perspective it is that we're posting on any particular
report of a system. Okay.**

**EXECUTIVE DIRECTOR WILKEY:**

**Okay, thank you.**

**COMMISSIONER HILLMAN:**

**On your year-end report will it also include \-- and let me make this
in a request and not ask a question \-- a summary of everything EAC has
done from inception to meet statutory requirements under HAVA? Even \--
I mean would it have to happen in 2004 or 2005 or 2006, not just what
we've done in 2007?**

**EXECUTIVE DIRECTOR WILKEY:**

**Right. Yes.**

**COMMISSIONER HILLMAN:**

**Okay.**

**EXECUTIVE DIRECTOR WILKEY:**

**As a matter of fact, Commissioner, that is how the whole thing started
with that in mind and with that request. And then it was the feeling
that there are so many other things that we have done in addition to our
statutory mandates that it would be good to showcase those, especially
since we will have a number of local and state election officials
present for our Standards and Advisory Board meeting.**

**COMMISSIONER HILLMAN:**

**Good. Thank you.**

**EXECUTIVE DIRECTOR WILKEY:**

**So we wanted to do something full.**

**COMMISSIONER HILLMAN:**

**Good. Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Is there any follow-up questions? All right, moving on then I think
we've moving in to the new business. And I'd like to have Herb Lin, I
should say Dr. Herbert Lin come forward. I'd like to welcome you,
obviously. I know that we have worked with you in the past at the very
beginning really to set up the voter registration database best
practices. And we appreciate working with the National Research Council.
And I think that that document went a long ways with the state and they
really respected your ability to work with not only election officials
and technicians, but also the IT within the state or county. Those
people that you represented in the past I thought was really a plus and
brought insight into the process that a lot of times is left out.**

**So welcome. We look forward to hearing about our moving forward now
into our new study and I'll turn it over to you for your briefing.**

**DR. LIN:**

**Thanks so much. I appreciate the opportunity to be here today. For the
record, I'm Dr. Herbert Lin. I'm the Chief Scientist of the Computer
Science and Telecommunications Board at the National Research Council,
which is the operating arm of the National Academy of Sciences, National
Academy of Engineering, and the Institute of Medicine. We operate under
a Congressional charter, as you know, to provide the government with
advice on matters of public policy related to science and technology.**

**I'm here as the study director of the Academy project on state voter
registration databases that the EAC is sponsoring. It's a three-year
project from which we have the responsible committee being chaired by
Sharon Priest and Olene Walker. You may know that Sharon Priest is the
former Secretary of State of Arkansas, and Olene Walker a former
Governor of Utah, D and R respectively to chair the responsible
committee. Under this project we're organizing a series of workshops and
through the committee the Academy will be issuing an interim and final
report to address challenges in implementing and maintaining state voter
registration databases and providing advice to the states on how to
evolve and maintain these databases in order to share information with
other states securely and accurately in fulfillment of the Help America
Vote Act of 2002.**

**We have two goals in this project, useful advice and building
community. The first goal, useful advice, we hope to provide through a
set of reports on statewide voter registration databases, how they might
be implemented, what kinds of difficulties might be encountered in their
implementation, and what kinds of solutions might help to overcome those
difficulties.**

**Two reports. The first will be an interim report which is deliverable
the beginning of April 2008 that will outline challenges to achieving
interoperability of state voter registration databases; describing
potential solutions to these challenges; and discussing specific
timelines over which state and local election officials could implement
possible solutions, including solutions that could be implemented prior
to the 2008 November election.**

**A final report, due at the end of the project, which ballpark is 3^rd^
quarter calendar year 2009, will build on this interim report by
describing technical, procedural, and organizational impediments to full
voter registration database interoperability and outline a plan for
achieving such interoperability between the states. The final report
will address issues such as the current state of voter registration
databases across the states, the functionality that's useful for a state
in checking its voter registration database against the database in
another state, the primary technical, procedural, and organizational
impediments standing in the way of full interoperability and paths to
interoperability that minimize technical risk and expense.**

**The second goal of the project I think is equally as important, and it
builds on the remarks that the Chair made at the beginning, is to
catalyze discussions and interactions in the elections community with
information technology experts to which the elections community doesn't
traditionally have much access. As you noted in your remarks, in 2005
the Academies worked with EAC to bring together state election
officials, state IT managers, and some of the most senior and
experienced information technologists around the country. We held two
meetings in 2005 with these participants, and as you noted we got a
uniformly positive response from the elections community to these
meetings. And that, as I understood it, led directly to the discussion
aspect of the current report.**

**To support this goal of generating and developing community, we intend
to hold six workshops in the 2007-2008 timeframe. These workshops will
be oriented towards small-group discussions among technology experts and
state and local election officials in order to facilitate the exchange
of ideas among participants.**

**To date, we have empanelled the study committee, and there is a roster
attached to the printed version of the testimony that you have. The
kickoff meeting was August 6, 2007. Our first meeting was here in
Washington, D.C. We had a committee meeting and a workshop. That event
featured presentations on the status of voter registration database
efforts, technical and operational issues associated with record
matching, and lessons to be learned from interoperability and database
operations in other domains. We are currently completing planning for
the second workshop to be held on November 29^th^ and 30th later this
month, also here in Washington, D.C. And there is details about this
workshop and registration information and the like available at our Web
site** [www.cstb.org](http://www.cstb.org/)**.**

**The proceedings from the two workshops that we've already had are a
primary source of input to the committee in its deliberations prior to
preparation of the interim report. After the interim report is issued,
of course, we'll take the discussions of the remaining workshops and
those will add to the committee's knowledge base in preparation for the
final report.**

**It's worth saying here, obviously to the Commission, but as
importantly to the broader elections community, that we're really trying
to cast a broad net for participation and input into subsequent
workshops. It's our intent to capitalize on the expertise that's out in
the field to the maximum extent possible, and to that end we encourage
members of the election community to make their concerns and interests
known to us so that the workshops can be structured in the most useful
and appropriate ways. So this is not something \-- we really want it to
be not something that we create sort of in a vacuum without input from
the rest of the world. We really want the input of the outside world,
too. And we look forward to working with the Commission in the months to
come.**

**That concludes the prepared part and I'll be happy to entertain any
questions you might have.**

**CHAIRWOMAN DAVIDSON:**

**Thank you. Questions. Do you want to start out Commissioner Hunter?**

**COMMISSIONER HUNTER:**

**Dr. Lin, thank you for joining us today and thank you for your work.
As you well know, and as we've talked among ourselves, this interest
gains more and more \-- this topic gains more and more interest among
the public as the days go on, and I think part of the reason we've
learned with our election-day survey is that sort of the keys to a lot
of election administration seem to be within the statewide voter
registration databases with respect to what are the possibilities
regarding data collection, what are the possibilities regarding less**
**maintenance efforts, regarding increasing voter participation. I mean
there's a lot of very important aspects and I think we look forward to
your work and hope that it advances the overall goal of making elections
more efficient and accurate for everybody. And thank you for your
request for input. I know that's always a challenge to try to figure out
who exactly \-- it's such a broad topic and I know it will be very
challenging to narrow it down in such a way that it provides guidance
for the states, but I believe they're looking forward to it. So thank
you.**

**DR. LIN:**

**Thanks.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you Dr. Lin for your comments. We attended a meeting recently
at** **Pew, I think, about this issue, and I didn't realize until that
day that there were as many as 23 states already at some stage, either
states that have already compared lists or are in the process of writing
agreements. And there was a \-- I guess this isn't a question but it's
just sort of a red flag I think, because there was a lot discussion at
the group \-- among the group about not \-- the Federal government not
imposing any kind of guidance or requirements or anything like that. But
when you're at 23 states you're almost at half the country, and at some
point it's going to get somebody's attention with much more authority
than the EAC. And so I just think that we all ought to be prepared for
the interests at maybe a higher level than we are experiencing today.**

**DR. LIN:**

**Right, hence the call for broad input and contribution to this so that
we don't go off into never-never land with some, you know, with
something dumb. We really want the community input.**

**COMMISSIONER RODRIGUEZ:**

**I appreciate that. Thank you.**

**CHAIRWOMAN DAVIDSON:**

**And I guess just to add a touch, before I go to Commissioner Hillman,
but to add a touch of what has been said, we have been collecting data
in this office now and by requirement of law of HAVA to give to Congress
and we are finding that states are not collecting the data that is
required. Is this one area that you're really looking into is data
collection and making sure that that is mentioned in the study as well**
**as** **the interoperability and less maintenance and things like that?
Is collecting data \-- I haven't been as involved with your \-- as you
know, only two Commissioners can be really involved with the process and
working with you without causing a problem with the Open Records Act,
and so I've not been one that has been involved. Is that one of the
areas that you're looking at?**

**DR. LIN:**

**When you say "collecting data," do you mean collecting \-- you could
mean two things by that. I'm not sure what you mean. Do you mean the
process of collecting data from individual would-be voters in order to
register? Or do you mean collecting data on the databases themselves and
their performance and so on?**

**CHAIRWOMAN DAVIDSON:**

**The databases themselves, the performance, and really what is required
by law to have some of this in the databases so it is collected from
states for, we'll say, you know, how many people vote to,** **how many
absentees. And in our HAVA report there is things that's mandated and
yet we're getting states that are telling us that they've not collected
that. So it's things like that that is mandated to be collected, and if
that is in their statewide voter registration system it would be very
easy for us to get correct information from states. And I think that
that is one of our concerns, making sure that it is correct and making
sure that we get information that is required by law. So that is one of
the areas I wondered if you were looking into.**

**DR. LIN:**

**Certainly we are looking \-- we will be looking at how "good" the
databases are." I mean that is \-- I don't want to define what "good"
means too precisely here because that's part of what the committee's job
is to do. Certainly, obviously, one part of "goodness" is the extent to
which they conform to legal mandates and so I think that it's fair to
say that we will address that. Recommendations for improving that data
collection I think, you know, are also at least within scope and we will
try \-- I think that we will try to mention those sorts of things in the
reports that we give you.**

**CHAIRWOMAN DAVIDSON:**

**And I guess I shouldn't have used the word "good."**

**DR. LIN:**

**Okay.**

**CHAIRWOMAN DAVIDSON:**

**I should have used the word "accurate" because it does mean a
difference to me. I mean there are databases if the information that
they're receiving isn't accurate or that they're giving to us isn't
accurate and when we call back and find out that it's different than
what their initial report was, that's a big concern to us. It's more
work for the states and it definitely is more work for the EAC and the
staff. So I think that's definitely an interest.**

**The other thing I \-- you mentioned that you felt like some of this
could be implemented before the '08 election, you know. There's
suggested changes that you thought could be implemented right away in
their databases?**

**DR. LIN:**

**What we said \-- what I said in my testimony is that the interim
report, which will be out in April\...**

**CHAIRWOMAN DAVIDSON:**

**Right.**

**DR. LIN:**

**\...is intended to provide some information on potential solutions
that could be implemented or actions that could be taken to improve
voter registration databases prior to the November election.**

**CHAIRWOMAN DAVIDSON:**

**Have you gotten testimony from states that say that it could be
completed that fast? With it coming out in April and their primaries are
upcoming, we're always told it takes six months to a year to change the
software in their voter registration system. So I wondered if you
received testimony that indicates that changes could be made.**

**DR. LIN:**

**The issue there is not so much that \-- what you're saying there is
correct, that it often takes a long time to proof out software,** **to
make sure that it's working and to debug it and so on. I mean I think
what you're saying there is correct. I would point out that the \-- it's
a hard problem to come up with something in April that could be
implemented. That doesn't mean \-- and what we haven't \-- the
Commissioners asked us specifically, you know, "Can you come up with
something here that will help?" We take that mandate seriously, that we
will try. If we honestly say, "No, there's absolutely nothing" \-- if we
honestly find that there's nothing that we can do, that any state can
possibly do to improve its voter registration databases, we'll say so.
But I don't think that that's where we're going to come out, let me say
partly because it's not just a question of technology. There are
procedures, processes that can be changed often on a shorter time scale
than changing out the software and changing the hardware and so on that
could improve the way in which you operate voter registration databases.
And those changes are often easier. Again I'm not promising that that's
the sort of path that we're going to take, but that's just to illustrate
the kind of issue that could come up in what you're talking about.**

**CHAIRWOMAN DAVIDSON:**

**And even their laws might have to be changed.**

**DR. LIN:**

**Perhaps.**

**CHAIRWOMAN DAVIDSON:**

**I mean hopefully not, but that's a possibility.**

**DR. LIN:**

**Right.**

**CHAIRWOMAN DAVIDSON:**

**Okay, thank you, I appreciate that.**

**Commissioner Hillman?**

**COMMISSIONER HILLMAN:**

**Yes, good morning. How are you Dr. Lin?**

**DR. LIN:**

**Hi.**

**COMMISSIONER HILLMAN:**

**I have a question for you about the makeup of the committee.**

**DR. LIN:**

**Uh-huh.**

**COMMISSIONER HILLMAN:**

**I mean I am aware and appreciate that NAS has a process it goes
through\...**

**DR. LIN:**

**Uh-huh.**

**COMMISSIONER HILLMAN:**

**\...for the construct of the committee. I think what has concerned me,
and what I've heard enough about to know that it concerns others, is
that there is nobody on the committee who is an end user, a voter, or an
individual who works at the grassroots level representing the
perspective of the voter or certainly the constituencies who are most
concerned about getting caught up in bad matches on voter registration
systems and what that means in real life, not from the
scientist/engineering/academic point of view but from the real life
point of view. And I guess I liken it to boards of education. I mean for
years boards of education determined that adults could very well
represent the interest of what was best for students and even on college
level boards of education that the person responsible for student
affairs, an adult non-student, could represent the interests of
students. And that changed because students said, "No. No, that does not
\-- that is not adequate representation and we want to have frontline
direct input into the discussions to bring our perspectives and our
interpretations." And it seems to me that that has worked well on behalf
of the communities and the institutions that have sought to do that. So
I am curious as to why NAS did not feel that kind of representation on
the committee would benefit the overall project, the study and the
outcome products.**

**DR. LIN:**

**Fair enough. I think that the perspective that you're describing is
definitely an important one that informs the nature of the
deliberations, and should. I think that we have a variety of ways of
creating forums in which to get that input. We have a variety of
testimony. For example, in the upcoming workshop we'll have lots of
opportunity for testimony to the committee from various voter advocacy
groups and so on. So I think that we'll get some considerable volume of
information from people who are concerned about the issues about the
impact of being denied registration and so on. There's also another
process which, I don't remember if I briefed you on this specifically
but, you know, all Academy reports have to go through an extensive
process of review before they're made public. And certainly the slate of
reviewers can include people of the representatives of the sort that \--
presumably you're not talking about just, you know, polling a voter off
the street but some sort of advocacy organization that works to ensure
fair and adequate participation of the electorate. And we look forward
to trying to identify those people and getting them to contribute both
at this coming workshop, further later workshops, and especially in the
review process. So I don't know if I'm answering your question.**

**COMMISSIONER HILLMAN:**

**Oh, no, you answered my question. I just want to be on the record to
say that I think it was a missed opportunity for EAC and for NAS. And I
also realize that NAS works not only arms length but probably, you know,
yardstick length distance with respect to the input of the committee,
but I just think it was a lost opportunity.**

**DR. LIN:**

**Acknowledged.**

**COMMISSIONER HILLMAN:**

**Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Gavin** **Gilmour, do you have any questions?**

**COUNSEL GILMOUR:**

**I have none.**

**CHAIRWOMAN DAVIDSON:**

**Tom Wilkey?**

**EXECUTIVE DIRECTOR WILKEY:**

**Commissioners I want you all to take note that my friend Dr. Lin is
wearing a tie today. I wanted to make sure everybody recognized that.
And I asked him what the insignia meant on the tie and he said, "I hate
ties."**

**Just a fast question, Dr. Lin. And I know that the committee did not,
having been involved in that discussion, did not want to take up the
issue, the current status of where everybody is. And I know that that
was debated and I know that at the time there was some discussion about
an election organization taking over that role. Do you know the status
of that right now because I haven't\...**

**DR. LIN:**

**We've been working with \-- we've been trying to formulate in a
coherent way, input to NASAD for them to conduct their own survey. As
you know, the incoming president is on our committee and, you know, he
said, "Look, you know, if you the committee can figure out what would be
helpful to you, we'll try to ask it on the survey that we're going to
do." And obviously that was an opportunity that we couldn't pass up, so
we're working on that.**

**EXECUTIVE DIRECTOR WILKEY:**

**Okay, that's great. That's the only question I had. Thank you, Madam
Chair.**

**CHAIRWOMAN DAVIDSON:**

**I appreciate you coming today. And thank you so much for bringing us
up-to-date and answering our questions\...**

**DR. LIN:**

**Great.**

**CHAIRWOMAN DAVIDSON:**

**\...and your presentation. So, thank you so much. We'll look forward
to the meeting later this month\...**

**DR. LIN:**

**Right.**

**CHAIRWOMAN DAVIDSON:**

**\...the 29^th^ and 30^th^ I believe.**

**DR. LIN:**

**Right. Thanks very much.**

**CHAIRWOMAN DAVIDSON:**

**Thanks. Next I'd like to welcome David Beirne. David is the Executive
Director of Election Technology Council. And I'd like to commend the
Election Technology Council for reaching out and hiring somebody that
has been involved in elections through the** **tenure. He not only has
been a local but he's worked with a state I believe, county. So he has
that relationship that he brings elections into the technology of the**
**people that provide the equipment for voting. And I do feel like that
was a step in the right direction of them hiring and having you as their
Executive Director. I welcome you in that position and I think that it
will definitely be an insight to them and to us as we move forward. And
as I said originally, our VVSG is out for comments. I'd also like to say
that in the comments that has been received, the public can review those
comments before you make your own or you can make your own and review.
The comments are processed daily, so they're up on our Web site. So
those can be reviewed as well as we encourage people to input
comments.**

**So this is kind of an initial review of the Voluntary Voting System
Guidelines that you're going to present to us today and we do welcome
you here and appreciate your travel in. And thank you so much for
coming.**

**MR. BEIRNE:**

**Well thank you Madam Chair, and good morning Commissioners. My name is
David Beirne. I'm Executive Director of the Election Technology Council.
In 2003 the Election Technology Council was formed under the umbrella of
the Information Technology Association of America. In 2007 it was
decided among its members to form itself as an individual 501(c)6 trade
association. I'm happy to come onboard as Executive Director. As
mentioned by the Chairwoman, my experience is that of a former local
election official over the last ten years, serving in two different
states and three different counties. I hope to bring my experience as a
local election official together with that of a voting system provider
to serve as a resource to both the Election Assistance Commission, as
well as the entire elections community.**

**Current membership within the Council consists of Election Systems &
Software, Hart InterCivic, Premier Election Solutions and Sequoia Voting
Systems. Together our membership comprises approximately 90 percent of
the voting systems used in the United States. Membership in the Council
is also open to any voting system provider or equipment manufacturer in
other areas of election administration. Anyone who wishes to apply for
membership may do so within the Council.**

**As we move forward with the public comment period, my role as
Executive Director of the Council will be to essentially identify the
industrywide concerns that are appearing within the Voluntary Voting
System Guidelines and then leave it to the respective members themselves
to comment on individual impacts to their individual platforms.**

**Before I move forward into my overall comments and for the sake of the
time restriction this morning, I realize my comments \-- my written
comments were very extensive, so I will be touching just on some various
highlights that I've identified, some key concerns that I want to bring
together in a public forum. But before I do that I wanted to commend and
applaud the Commission for its successes thus far, especially the Quick
Start Management guides, as well as the continuing mission you have to
serve as a clearinghouse for local election officials.**

**My understanding is that there's a two-year adoption cycle that's
proposed for the new iteration of Voluntary Voting System Guidelines
that consists of two public comment periods. Given the aggressive nature
of the impact that we are seeing in the new iteration, we feel that this
is the minimum amount of time that would be required for proper vetting
of public comments from both the industry as well as election officials.
So we do feel that it is adequate and certainly more robust than what we
experienced in the last iteration.**

**Speaking to the aggressive nature of the new Voluntary Voting System
Guidelines is in particular the elimination of software dependent
systems altogether. In fact, the new iteration appears to mandate
software independent voting systems across the board. All of the members
of the Council currently offer a software independent voting solution
namely in the form of a Voter Verifiable Paper Audit Trail. The new
Voluntary Voting System Guidelines speaks to this either in the form of
a Voter Verifiable Paper Audit Trail or an independent voter verified
record basically under an innovation class. That's where a voting system
manufacturer could provide or develop new technology that is not
previously addressed.**

**Our feeling as a Council is that it's extremely problematic to
eliminate software dependent voting systems in the Voluntary Voting
System Guidelines in particular for those states that have not chosen to
adopt or require a Voter Verifiable Paper Audit Trail as that is the
only technology that is currently in existence.**

**In particular moving forward in that respect, what does the voluntary
model of the Voluntary Voting System Guidelines entail or impact the
states if it does inquire (sic)** **equipment replacement for those
states that have not already adopted a Voter Verifiable Paper Audit
Trail? If there's an unfunded mandate or replacement cost for equipment,
our concern as a Council is that the benefits of the Federal model will
be lost if states choose to remove themselves from the voluntary aspect.
So we want to bring that to the attention of the Commission in moving
forward that there are consequences that if the Voluntary Voting System
Guidelines are too aggressive it may force states to reconsider whether
they want to participate in the voluntary structure.**

**The Council believes that rather than an innovation class as specified
within the Voluntary Voting System Guidelines that we should continue to
have both a software dependent and a software independent classification
model. There are a multitude of benefits associated with software
independency, and that's why all the Council members have offered that
solution to jurisdictions. But that has not been a product of a Federal
legislative or administrative process. That has been customer demand
that has dictated that and the vendors have responded accordingly. In
fact, I need to bring up also the parallel between the new Voluntary
Voting System Guidelines as well as the current pending election reform
legislation I'm sure you aware of within Congress which in effect does
the very same thing that we're seeing in this new iteration of Voluntary
Voting System Guidelines.**

**We feel that software dependence should not be seen as a pejorative
especially in light of the various processes that have already been
adopted to address both perceived and real threats to electronic voting
systems, namely in the form of pre and post hash code testing, pre and
post logic and accuracy testing, parallel testing and post-election
audits. Taken together, all of those processes mitigate all of the
perceived and real threats when a voting system is deployed.**

**Another aspect of the Voluntary Voting System Guidelines, the new
draft that I want to speak to, is the establishment of open-ended
vulnerability testing. This purports to place voting systems subject to
a failing grade perhaps at the end of the process after they have gone
through review and are subjected to testing by various computer
scientists, as well as one election official. The very nature of the
OEVT, as documented within the Voluntary Voting System Guidelines, is
that each review would have its own threat models established by the
reviewer themselves. In effect, the open-ended aspect to it is that the
very nature of the threat model is dependent upon the reviewer himself
or herself. And that makes it difficult from a voting system
manufacturer perspective as to how to determine how the system is being
judged. It's very difficult to develop a product when it is a moving
benchmark or a moving criteria for how a voting system is going to be
certified.**

**We feel that the discussion of an open-ended vulnerability testing has
merit. The election industry has recognized the importance of having
third parties come in and develop threat models, and all of my members
currently bring in and contract with third parties to come in and review
their systems for security. However, the role of the OEVT within the new
Voluntary Voting System Guidelines needs to be discussed further and
hopefully the role of the voting system test laboratories can be
clarified as to one of calling "balls and strikes," not winners and
losers. "Balls and strikes" basically being areas of improvement, much
more of a collaborative process as we have seen in years past between
the voting system test laboratories or the independent testing
authorities and the voting system manufacturers themselves.**

**We feel the underlying public policy question to the use of the OEVT
is what is the threat model? Increasingly we feel that there's a
disconnect between the threat model applied to electronic voting systems
versus those of paper-base voting solutions as well. We feel that
electronic voting systems are being held to an absolute standard,
whereas other systems are not. And certainly one area of further
discussion could be the use of impact studies to determine what the true
impact of the new iteration of the Voluntary Voting System Guidelines
could be on the current generation of voting technology.**

**We feel that proper security should be taken into account in all
aspects, including prevention, response and detection. These three
components to security we feel apply to all areas of election
administration. And prevention, response and detection are certainly
benefits that we see with the use of pre-imposed hash code testing,
pre-imposed logic and accuracy testing, parallel testing, and post
election audits.**

**One area that we are pleased to see is the usability performance
benchmarks. In particular, the voting performance protocol as it's
defined which provides for an objective measurement of voting system
usability and was one outstanding deliverable from the 2005 Voluntary
Voting System Guidelines. However, there is one criteria that we feel is
subjective in nature and should be not documented, going back to our
feeling of the voting system test laboratories calling "balls and
strikes," is that you need to have objective criteria for how you're
determining usability. And in particular the average voter confidence
appears to be subjective in nature as it's asking for the impression of
the person using the voting system or reviewing it to provide their
initial assessment based on their own viewpoint. We would encourage the
EAC not to consider any documented metric which is subjective in nature
and again going back to what we feel is the proper role of the VSTLs.**

**One area that we feel should be used to guide the Commission, as well
as the Standards Board and the Board of Advisors, is the financial
impacts of the new iteration of the Voluntary Voting System Guidelines.
There are certain realities within the marketplace that the election
providers must adhere to. And the question is what assumptions are we
going to respect? Are we going to assume that jurisdictions have
unlimited funds to incur costs for replacement of voting systems if that
state requires compliance with the Voluntary Voting System Guidelines
and we see that it requires and mandates software independent voting
solutions? That is a very real issue that needs to be discussed and
really brought up and brought to bear.**

**In conclusion, we want to reiterate our understanding of the difficult
challenges that you all face in adopting the certification process, the
"start-stop" model that you had to implement, and we do respect the very
challenges that you do confront with this. We also understand that more
questions will arise as more and more voting systems are considered
under the 2005 Voluntary Voting System Guidelines.**

**One thing that I did mention in my written testimony is that, what is
the role of the new iteration? My personal feelings, as well as the
Council members, feel that the 2005 Voluntary Voting System Guidelines
have not been fully implemented as of yet and so a number of weaknesses
will be recognized, interpretations will be sought, and that needs to be
considered as well as we move forward for perhaps possible improvement
to the new iteration or whether or not the new iteration is intended to
replace the 2005 Voluntary Voting System Guidelines.**

**We do feel that the overall process for adopting the Voluntary Voting
System Guidelines has been greatly weakened from the lack of industry
representation. We should take great care to learn from other failed
agencies such as the Federal Communications Commission, the Federal
Aviation Administration and others who have involved industry
representatives directly within their rulemaking process. That is
certainly a good model provided, of course, that you do with it within
proper venues and with all due diligence to make sure that others are
included as well. We just would like to make sure that we have a voice
in the process to avoid unintended consequences down the road. While the
Voluntary Voting System Guideline model is voluntary they do amount to
de facto regulations we feel and the ETC members believe they should be
afforded an opportunity to participate directly in that process, as do
other regulated industries in an effort of ensuring fair balance.**

**On behalf of the Election Technology Council, we do look forward to
working with you in the coming months and provide more public comments
on the Voluntary Voting System Guidelines. I'm very well aware that
public comments from the industry were lacking in the last adoption of
the Voluntary Voting System Guidelines, so my role as Executive Director
is, I hope, to spearhead a lot of that discussion so that you do have
more robust comments from the industry itself.**

**So with that, that is the conclusion of my prepared statement and I'll
be happy to answer any questions you may have.**

**CHAIRWOMAN DAVIDSON:**

**Thank you very much, we appreciate it. Commissioner Rodriguez would
you like to start?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. There's a couple of things I guess we should
put into the record. We're not allowed to speak to you, Mr. Beirne,
outside of a public meeting and I think that's important to put \-- or
that's our policy.**

**COMMISSIONER HUNTER:**

**Some people interpret it that way.**

**COMMISSIONER RODRIGUEZ:**

**Right, that's the working policy more or less of the Election
Assistance Commission. So I think someone might say, why does this
entity get access to the Commission? And this could be perceived as
extraordinary access to the Commission in this kind of a forum, and it's
because most of us believe that we shouldn't be speaking with
manufacturers offline in private. And so, that's, I think, important to
get into the record from my perspective. And so I start there.**

**The other concern I've heard and I want to relate to you, and it
sounds like you're going to facilitate or you're aware of this concern,
but I have heard from a number of people that in previous VVSG comment
periods the manufacturers don't comment until the last possible moment
and doesn't give anybody else an opportunity to rebut. So first of all,
we have your testimony which might give us an indication of what might
be some of the comments, so I think that's a step towards a better
process with this iteration. But also you might go back to your members,
I think Sequoia, Hart and I forget the other one, and just say that the
concern had been expressed by this Commissioner that I'd like to see
them not wait until the midnight hour but to \-- because that just gives
people bad feeling \-- opinions and to be more forthcoming with their
comments. I appreciate that.**

**MR. BEIRNE:**

**Thank you.**

**COMMISSIONER RODRIGUEZ:**

**Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Hillman?**

**COMMISSIONER HILLMAN:**

**Sure. Thank you Mr. Beirne for joining us this morning. I have a
couple of questions in no particular order except I'll go on the pages
of your presented testimony.**

**With respect to membership in the ETC, is there any particular reason
why the other manufacturers haven't joined?**

**MR. BEIRNE:**

**We have petitioned them for membership. Others have chosen not to
associate with a trade association for their own individual reasons. So
previous membership under the \-- when the Council was initially formed
included other voting system manufacturers, such as Danaher and others.
And since the new formation of the Council they have not come back in,
but certainly we are not excluding anyone. That is certainly by their
own individual choice.**

**COMMISSIONER HILLMAN:**

**Is the other entity still in existence, the ITAA?**

**MR. BEIRNE:**

**Yes, that is a well reputable association that is here in Washington,
and they are certainly in existence. Their services were fine for the
time that they were necessary. We just felt that given the robust
development and the new continuing efforts for new Voluntary Voting
System Guidelines that a new approach was necessary and more of a
dedicated approach at that.**

**COMMISSIONER HILLMAN:**

**Okay. In your testimony you talked about financial impact and I am
wondering if the ETC has had the opportunity, just for the sake of
conversation, to go through the recommendation VVSG that is before EAC
now and make some determination as to if those guidelines were adopted
as they exist right now that there would be a financial impact of "X"
percent on the development of systems to meet those guidelines. Has
there been that kind of a detailed analysis?**

**MR. BEIRNE:**

**No, there has not been. And let me just shed some further light on the
deliberations within the Council because Commissioner you do raise an
important question. With regards to areas of finances and what the
financial impacts are, as a trade association we're very mindful of
issues that can come up with potential violations of anti-trust and
things of that nature, so we want to make sure that when it comes to
establishing price points or looking at what is the cost overhead that
must be considered when establishing your unit price at the local level
we're very mindful of not discussing that without legal counsel present
to guide us to make sure we don't run afoul of the requirements of the
anti-trust provision. I think the biggest assessment that they've done
is in anticipation of the costs of the 2005 Voluntary Voting System
Guidelines. But as you know my members none of them have submitted for
certification under the '05 standards as of yet, they're wrapping up
their compliance under the '02 standards. And I think as we move forward
we're going to have more of an understanding as to what the financial
impacts are and they're going to be significant. And that is what I'm
speaking to when it comes to the financial impact down to the user end
at the local level, that if you are having a new iteration of Voluntary
Voting System Guidelines mandate new technology under a new process
there's going to be significant financial impacts to those
jurisdictions.**

**COMMISSIONER HILLMAN:**

**I'm not offering that there will or there won't be. What bothers me is
I have an awfully hard time wrapping my arms around "significant
financial impacts." That sends tremors through the community saying, "Oh
my God, what is the EAC going to do to us?" But it's never been
quantified, not by anybody. And so I'm reluctant to engage the dance of
"significant financial impacts" unless I can have a sense are we talking
about two percent increase, five percent, ten percent, 50 percent, 100
percent? I mean, you know, it could run the gamut. And while I want to
be mindful and do a respectful job to make sure that no system would be
priced out of the affordability range for election administrators, I
can't blanket "significant" because nobody has ever given, you know, an
articulated or quantified indication of what that means.**

**MR. BEIRNE:**

**Now there are some initial estimates that we received and I hesitated
to include them because again they're just initial estimates and we can
also cause damage if we just throw out numbers\...**

**COMMISSIONER HILLMAN:**

**Uh-huh.**

**MR. BEIRNE:**

**\...that are not backed up. I mean those range, just for pure
speculation at this point, at roughly an increase of 200 percent. That's
the minimum that we're anticipating for compliance under the '05
Voluntary Voting System Guidelines. That does not include, of course,
the addition of open-ended vulnerability testing and other features of
the new iteration that we would be seeing.**

**COMMISSIONER HILLMAN:**

**That's for the manufacturer\...**

**MR. BEIRNE:**

**Yes.**

**COMMISSIONER HILLMAN:**

**\...of the system with or without the certification process?**

**MR. BEIRNE:**

**With the certification process.**

**COMMISSIONER HILLMAN:**

**With certification, okay. Well, I would hope that there would be for
the benefit not only of EAC being able to make the right decisions but
for the benefit of the community, Congress, state legislatures,
everybody who has a stake, a financial stake in particular, that we
would see some articulation, some willingness of the manufacturers to
put in writing on paper some estimated cost because this is, you know,
this is a soft conversation and 200 percent says, "Oh my God, throw this
baby out because, you know, there's no bath water." But, you know, I'm
not sure what it really means. And as you well know, people speculate
that that's the manufacturer attempt to derail any further \-- anything
until the manufacturers are ready to come to the table with a product
that it can then represent or sell. I'm not saying that that's a valid
assessment or not but, you know, people are getting a little nervous
about what the unknown financial implications will be and whether there
will ever be known the financial implications.**

**Design\...**

**CHAIRWOMAN DAVIDSON:**

**Can I add to that?**

**COMMISSIONER HILLMAN:**

**Sure.**

**CHAIRWOMAN DAVIDSON:**

**And then I'll come back to you.**

**COMMISSIONER HILLMAN:**

**I hope so.**

**CHAIRWOMAN DAVIDSON:**

**The area I think also that you need to consider is not only cost but
the timeframes of developing. As you know, and as I think we all know,
our vendors, as we used to call them, which we prefer manufacturers to
call them, have always been proactive. What do states need or counties
need? And they are developing to what that need is because, you know, of
the situation in the past. This makes them reactive in developing
something new and developing \-- and going out there. After these are
adopted I think it's really important to know as we move forward, it's
important even sending it back to the TGDC the costs \-- what the cost
elements are in some of these areas and it's also important to know
timeframes. So that's another arena that I would like to send back to
your people. It's not a question, it's just a desire that they provide
us some information on what kind of timeframe are we looking at to
design, to develop, to build, you know, develop and build. And then
testing, we'll have to obviously talk with test labs. We plan on having
more public meetings on these issues, but this is one that we'd like to
see you start working on.**

**MR. BEIRNE:**

**Madam Chair, we have worked with Capitol Hill and Congressional
staffers namely in regard to the election reform bill that's pending, to
outline the concerns from an industry perspective what our timeline is.
And currently from start to finish for the research and development,
product implementation, certification at the federal and state level,
we're looking at anticipated windows of up to 54 months. Some
manufacturers may be able to reduce that timeframe, but generally that's
the benchmark that was established within the industry. And we have
circulated, and I'll be happy to share that with the Commissioners.**

**CHAIRWOMAN DAVIDSON:**

**That would be very helpful. And does that include testing in that
process?**

**MR. BEIRNE:**

**Yes, it does.**

**CHAIRWOMAN DAVIDSON:**

**Okay. That would be very, very helpful. Thank you. Commissioner
Hillman?**

**COMMISSIONER HILLMAN:**

**Say what that timeframe was again, I'm sorry.**

**MR. BEIRNE:**

**54 months.**

**COMMISSIONER HILLMAN:**

**54?**

**MR. BEIRNE:**

**Four-and-a-half years.**

**COMMISSIONER HILLMAN:**

**Okay. In your conclusion section you said that ETC believes that the
VVSG should not prescribe design standards, only performance standards.
Can you give me an example or two in the VVSG we're looking at that you
would consider design standards?**

**MR. BEIRNE:**

**Again I've only done an initial review of the entire draft at this
point, but one of the things that did jump out at me is within the
usability section. When it comes to the ability for individuals to, I'm
trying to think of a best way to explain this, essentially \--
especially for a voter with minority language needs that if they select
a ballot in an alternative language, the way it's written within the new
iteration of the Voluntary Voting System Guidelines is that the
capability for that user to toggle, if you will, or effectively switch
over to an English format of that ballot while initiating initially the
alternative language ballot itself to begin with must be in place. And I
can tell you that most systems do not currently permit that. For us that
is a specific design requirement from the user end that is being
prescribed with how the system should look and feel. This is also
detailed within sections that require volume adjustment controls in
certain areas or in how the buttons should appear and how a voter should
navigate on that system. Rather than \-- realize there's a balance that
needs to be struck between overly prescriptive requirements but also
requirements that can be tested against. So that is the challenge that
you as the Commission faces, as well as the TGDC and others in how to
develop guidelines that bridge that gap. But essentially that's just one
example that I can think of in which it speaks to specific requirements
as to the look and feel and how it should function for the user end. And
those are things that we would like to see avoided within the Voluntary
Voting System Guidelines.**

**COMMISSIONER HILLMAN:**

**Then my final question is, are you able to share any insight as to the
role that the manufacturers see, the voting system manufacturers see in
the entire process? And I don't just mean comment on this version of the
VVSG but in the development of products in the field.**

**MR. BEIRNE:**

**I'm not sure I understand the question.**

**COMMISSIONER HILLMAN:**

**Well, in some sectors the manufacturers have taken on the role of
assessing what the needs of the consumers are and saying, "We believe
this product will address these needs because of X, Y and Z," and in
fact educating government and consumers as to why path "A" is better
than path "B" not only from affordability but maybe durability and
whatever other standards there may be. Other manufacturers are
reactionary and they wait, you know. They'll make a design and they'll
wait to see if the customer really insists there needs to be a grip on
the water bottle, and then you get into the whole environmental
discussion and what products should the water bottle be on and pretty
soon I'm sure that it will be like having a water bottle will be like
wearing a fur coat because of the wastefulness that's perceived in
having these water bottles. So I'm wondering what the voting system
manufacturers see is their role in the whole evolution of voting systems
from today going forward.**

**MR. BEIRNE:**

**Well I think that they all can stand alone on their record, especially
when it comes to the adoption and development of a Voter Verifiable
Paper Audit Trail. There were concerns from the beginning in which the
manufacturers themselves said, "This should be used for auditing
purposes because it was not included within the original design
framework and it's going to have its own concerns associated with it."
But going back also to your other concerns is that I know all of my
members are very aggressive with receiving feedback among their users
and hosting users group meetings and hearing about what improvements
they can make to the software, whether it's improvements to how the text
should appear on the machine, to increased usability, to the reporting
aspects, new reports that can be featured within the tabulation software
itself. One of the limitations however with the responsiveness of the
industry to those concerns is really the different nature of the
certification process that we're experiencing now. And certainly I think
one of the compounding factors as we approach the 2008 election cycle is
that there have been state mandated changes within their voting system
architecture and so the vendors have attempted to address that with new
versions. Taken that combined with the certification process at the
federal level if that state requires it, the very real potential is that
in the 2008 primary cycle because of the timelines that are just natural
with the certification processes at this point they're going to have
develop workarounds to, you know, adopt and accommodate those state
legislative changes. So as much as possible they are responsive \-- I
guess going back to your original question \-- they are extremely
responsive but they are limited with how expeditious they can be with
addressing those concerns. They have to look at it from the standpoint
of releasing new versions and making sure they do it on a timetable to
maximize their investment and to keep costs down. And that's the natural
\-- that's the nature of the beast, so to speak, when it comes to
developing a product and making sure that it's viable within the
marketplace.**

**COMMISSIONER HILLMAN:**

**Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Hunter, it's your turn.**

**COMMISSIONER HUNTER:**

**Thank you. Thank you Mr. Beirne for coming this morning.**

**CHAIRWOMAN DAVIDSON:**

**Thanks for being patient.**

**COMMISSIONER HUNTER:**

**Oh, no problem. So the way I see this new iteration of the VVSG is
that it gives us all a chance to, in a sense, start from scratch because
a lot of what you just said, things were done in a Band-Aid approach,
you know. As soon as HAVA was passed people ran around and bought things
that arguably weren't sort of ready for primetime or then the state laws
were passed that you had to add a paper trail onto something that wasn't
initially, whatever the technical word is, wasn't initially programmed
to do so. And I think there's a lot of that. So the way I see this next
iteration is kind of a chance for us all to start over. Obviously when
you say those kinds of things you are going to have to argue that the
implementation date be way off, and obviously right now our public
comment period the whole process right now will take at least two years.
So we're not talking \-- I don't think anyone here is talking about
something that's going to take effect, you know, in the next three years
or something along those lines. Clearly, in my view, there needs to be a
lot of time to develop things. And so along those lines, as you well
know, the new iteration of the VVSG requires software independence both
for what I call the paper trail requirement and for the innovations
class. So I'm very curious to hear from the vendors, the manufacturers,
what are their thoughts on the viability and the feasibility of the
innovations class. Because if certain people are of the mindset of paper
trail is not the way to go for whatever reason, and I think for the
reasons that have been talked about, then let's look at the innovations
class and find out is it really feasible. And if it's not, that's
something we should know and we should call it what it is because if
it's not feasible then we're essentially mandating paper for the future
of electronic voting and that's going to be around for a long, long
time. And if that's the only way to do it, then we shall see. But I'm
told by talking to people, just sort of, you know, back-of-the-room
conversations with computer scientists and others, some will tell you
that any kind of new system that would come through the innovations
class would take five to ten years. Others say ten to 15. I've even
heard 20. People from NIST have said at least 15. So I really don't know
what the answer is. Obviously there's no definitive answer, but I'd like
to know how long would that take and what \-- how is it financially
feasible? How is a company going to spend the research dollars that it
would take to develop a new system with no guarantee that that system
will later be certified?**

**MR. BEIRNE:**

**Right. And I think the concerns you bring up are very much the same
ones we've identified. The innovation class section really remains
completely undefined and that's why we'd rather see, just as it is in
the '05 guidelines, software independent or software dependent
classification. It's either/or. Essentially you would still be able to
develop an innovative product that would be software independent but not
relying on paper. That would certainly be within the realm\...**

**COMMISSIONER HUNTER:**

**Software independent that doesn't rely on paper?**

**MR. BEIRNE:**

**That would be the innovation class as it's currently drafted.**

**COMMISSIONER HUNTER:**

**Right. And what \-- can you think of anything that would meet that?**

**MR. BEIRNE:**

**Again it's an unknown. I think it was much more of an escape hatch
that was put into the new draft of the Voluntary Voting System
Guidelines so as not to be seen completely mandating paper across the
board when in effect that's the only solution that's available.**

**COMMISSIONER HUNTER:**

**I realize it's the only thing that's available now, but do your
researchers or anyone like that could they opine on what might be
available in the future under that innovations class that's not
paper-based or that is paper-based but is somehow different and more
manageable?**

**MR. BEIRNE:**

**I think there are some areas that \-- there are some other providers
that are not necessarily members of the Council I think that may offer
solutions that are close to what they envision with the innovation
class, but beyond that it's really an unknown. And I think that where we
are currently within the industry is that we are looking at where we are
now. And I think looking forward to down the road if the Voluntary
Voting System Guidelines were adopted as they are written now and of the
states that require federal certification, at least I believe
approximately eight to ten of them would be forced to go to paper as the
software independence depending on when the Voluntary Voting System
Guidelines went into effect and products had to be certified to those
standards, which goes back to our original concern which is to have both
the '05 standards as well as, you know, if the new iteration is adopted
as it's drafted to run simultaneously or concurrently and allow states
to choose which guidelines they wish to adhere to. New York is a good
example of how they have specified the 2005 Voluntary Voting System
Guidelines for compliance, but as of now I don't know of any system that
has been certified to those standards. So those are very real concerns
that all have to be taken into consideration. And I think going back to
your point, the innovation class I haven't had a thorough discussion
with my members as to really what the feasibility is or the timeline.
Certainly no less than five years and I would say probably ten to 15
before that would be even considered. The question though remains is how
much there is the will at the local level among the customers to
purchase such a product.**

**COMMISSIONER HUNTER:**

**But that would \-- I mean assuming that it's already been through the
certification process, I would assume that they'd be more willing to
purchase it I think. So the question for me is sort of on the beginning,
how do we know that anybody is even going to spend the time and money to
develop such a system?**

**MR. BEIRNE:**

**Well and those are the natural risks associated with making an
investment for the future and trying to dominate the marketplace by
developing a product that addresses all of those concerns and does not
rely on paper. And certainly that's the benefits of a competitive
marketplace, and certainly one individual vendor may look at it and say,
"That's exactly what we want to do and pursue." I think the way the
innovation class is written, however, it's so open-ended it provides a
new process in which there's a separate review for what is considered
innovative. And I think just keeping it simple between software
independence, which doesn't limit the ability to develop new products,
as well as maintaining and recognizing that software dependent machines
are not necessarily a bad thing, that a number of industries have
software dependency but they have systems in place to verify and proceed
and make sure that the software that is in place, just as we did with
hash code testing and certification to make sure those products are
viable.**

**COMMISSIONER HUNTER:**

**So you also mentioned in your testimony threat assessment, and
arguably the VVSG was not premised on any kind of thorough threat
assessment. There were some workshops and that's all detailed on the
NIST Web page, but there's not a sort of one document that is a risk
assessment that was used to develop the VVSG, from what I understand.
And so I'm wondering what is your recommendation if we decided that we
wanted to move in that direction to get some kind of threat assessment
to help us ascertain what's the best way of going? Who would you
recommend? Who typically does that sort of thing in this industry?**

**MR. BEIRNE:**

**To develop a proper risk assessment as to\...**

**COMMISSIONER HUNTER:**

**Uh-huh.**

**MR. BEIRNE:**

**Well, I think including election officials certainly first and
foremost is critical to any process in which you're identifying threat
models. Unfortunately, given experiences within certain states, such as
California, relying entirely on one segment of expertise in the form of
a computer scientist \-- and that was one aspect of the open-ended
vulnerability testing that is a good thing \-- is that it does at least
require the presence of one election official. However, I think that's
one thing that's missing from developing a consensus within the threat
model. If you include election officials and computer scientists and
even the industry representatives themselves, they can more thoroughly
review what is a realistic scenario and perhaps develop a ranking as to
what threat models are most realistic, much more of a perceived nature,
and those things. So that not only are the substance of \-- not only is
the substance of voting technology addressed but also the perception,
because that does impact voter confidence and that's a very real concern
for my members as well. So I think just having a more thorough
discussion and not relying on just one facet of electronic technology to
feel whether or not the concerns are being met. In my testimony I
referenced that the threat model that's being established for electronic
voting systems seems to be entirely different than any other voting
solution. From an election official perspective, I think there are well
known concerns with paper balloting at the polling place. Those issues
and concerns are not discussed with regards to electronic voting
systems. Issues of ballot stuffing at polling places and things, those
are threats for any voting system whether they're paper based or
electronic. And I think that's where a robust discussion and actualyl
some sort of consensus from the EAC and others as to what is the
appropriate threat model, and I think that's important and that
underscores the weakness of not having industry representatives at the
table to say, "Where are we currently with our technology so that we can
better understand where we move forward to?" And I think there's still a
lot of issues and a lot of systems that are currently in place that are
not given the credit for preventing and detecting any attempts to, if
you will, hack into a voting system.**

**COMMISSIONER HUNTER:**

**Because of the guidelines or the management guidelines or whatever are
used in conjunction with the machine?**

**MR. BEIRNE:**

**Essentially, yes.**

**COMMISSIONER HUNTER:**

**Okay. Well, the same resolution in December of '06 that adopted the
concept of software independence also references the fact that there are
systems out there now that are obviously not software independent and
that those are okay in the terms of the TGDC members as long as the EAC
election management guidelines are used. So I think that the TGDC
recognized at least that even if one were able to hack a machine, you
know, the reality of it is that there are safeguards to prevent that
sort of behavior.**

**MR. BEIRNE:**

**I didn't see that mentioned in the new draft of the Voluntary Voting
System Guidelines. If that provision is there to enable\...**

**COMMISSIONER HUNTER:**

**No, it's not in the VVSG. It was just in the resolution back in
December of '06, but I don't recall that it's mentioned in the VVSG.
Thank you.**

**MR. BEIRNE:**

**Right.**

**COMMISSIONER HUNTER:**

**Thank you.**

**MR. BEIRNE:**

**Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Is it on their Web site, though, correct?**

**COMMISSIONER HUNTER:**

**The resolution I think is on their Web site. On this Web site.**

**CHAIRWOMAN DAVIDSON:**

**Any other questions?**

**COMMISSIONER HUNTER:**

**I don't have any questions at this time. Thanks.**

**CHAIRWOMAN DAVIDSON:**

**One of the things that you \-- that was in your testimony and I'd like
to see if you would explain it to me is the statement regarding the VSTL
role as being to "call balls and strikes," not winners and losers. Can
you clarify what you're exactly meaning in that?**

**MR. BEIRNE:**

**Well, I think one of \-- the main context of that was with regards to
the open-ended vulnerability testing, and that the way it was structured
within the new Voluntary Voting System Guidelines is that it's unclear
as to when in the process the OEVT would occur and it's a very real
possibility that the certification process would be moving at the same
time as the OEVT. And although it would be compliant with all of the
certification requirements it would fail the open-ended vulnerability
testing, and it remains unclear as to whether that it s concrete
stoppage of the certification process resulting in a failure and whether
the equipment manufacturer would have the ability to address those
concerns and to keep the certification process moving forward, doing so
in a situation where it's not necessarily fully disclosed to the public,
so it allows and respects the role of the manufacturer to respond to
those concerns and to keep the process moving forward for them to, you
know, certify their new software versions or firmware versions and keep
the products moving. That's really what the concern was. We realized
that the VSTLs are intended to determine compliance and certification,
but that was really mainly to refer to the open-ended vulnerability
testing and to make sure that they understand that their role is to call
"balls and strikes." What are the areas of improvements? Where are you
lacking? Where are you not? As opposed to just simply saying, "Here's a
winner and here's a loser. Here's a pass/fail, you know, situation."**

**CHAIRWOMAN DAVIDSON:**

**As you're aware, and we've even talked about it today in the report
that was given by Mr. Wilkey, we have adopted a policy as the
Commissioners to move forward to put voting system studies and reports
up on our Web site that have been adopted either by a state or a local
election official. And I don't have that in front of me. I guess we
should have had that available to hand out again, but it is on our Web
site. And California was our first one that we have put up. One of the
things that we want to do in the clearinghouse is always make our
election officials and our stakeholders aware of any issues or problems.
And there has been some things that have come up lately and questions
asked of us and people wanting us to make things available that really
we don't have the authority to make available at this time because we
didn't certify the equipment. As you're aware, the equipment that is
being utilized by the states currently has not been certified. In the
future, underneath our program in signing that you are actually
manufacturers and you have registered with us it was also during that
statement registered that you would report any anomaly that you found in
your system to us in a report so that we can put that up in our
clearinghouse, our reports. How do you think that your manufacturers
would feel if we would put forward a policy asking for the manufacturers
to provide us any statement that they give to their locals or states on
their equipment so that we can make others aware of that also? Obviously
it has to provide a great deal of information so that it's just not
taken out of context; the software, the firmware, whatever it might
take, you know, but going ahead and indicating what those issues might
be before we have equipment out there that has been tested by the EAC. I
hope I've made this clear, you know, because we do have two different
timeframes. We have the timeframe when we have it and we can make it
available to the public. And then we have this period, this little
complicated period where people think we have the authority but we don't
because it wasn't certified by us and we don't have the authority to,
you know, obviously decertify something we haven't certified. Or we
wondered about even putting it up on the Web, the information. How do
you think your people would feel about us moving forward with a policy
requesting the manufacturers to provide us any information concerning
equipment that they were notifying a county or a state?**

**MR. BEIRNE:**

**I'm not really sure because \-- I know the situation you're referring
to and I'm not sure what their initial impressions or concerns might be.
I think one thing I have heard, however, is in the role of the
clearinghouse of information from the EAC standpoint, keeping in mind
that would be a state matter, is the question of fairness and to make
sure that proper diligence is given to all stakeholders to respond to
these situations that even though a state-driven effort \-- let me back
up. A clearinghouse is really only as good as the information that's
being stored and disseminated. Proper vetting of that information,
making sure that you allow for comment back and forth and for dissenting
viewpoints as well, which I think goes to Commissioner Hillman's
question at the beginning of the hearing, I think those are critical.
And I think that even \-- there's a dispute within, in particular, I
think, the State of California, is what you're referring to Madam Chair,
and in that instance I believe there's a disagreement among some of the
participants as to their opinions as to where they are currently. And I
think that if you were to move forward for some sort of correspondence
from the vendor, or from the manufacturer, I would make sure that you at
least allow for a good robust, you know, dissemination of information
that includes a response to address concerns so that it's not portrayed
in one way, because oftentimes the industry is misrepresented and not
afforded the opportunity to address concerns and to set the record
straight.**

**CHAIRWOMAN DAVIDSON:**

**It wasn't the California issue that I was referring to, it was some
reports that we had had by, you know, people that there might be an
issue with some software that's out there.**

**MR. BEIRNE:**

**Right.**

**CHAIRWOMAN DAVIDSON:**

**So it wasn't California, just to make sure that you understand that.**

**Do you think that your manufacturers will provide information to us
concerning, you know, initially involving the states, obviously telling
them that there's an issue with their software or something they've got
to do to come in? We've got Presidential elections coming up very soon
and to make that information available to other election officials we
think is very vital, and we feel that that's part of our clearinghouse
in some respect. So that was what it was concerning.**

**I am going to explore this further. I'm going to explore it with the
staff and see if they can't craft language to either amend our current
policy in separating out the issues that we need to take into
consideration your comments that there should be some type of comment,
we'll look into that. But, you know, this is an issue I think that we
need to move forward and to look at and after looking at it and being
advised by the staff I may call for a tally vote. I just wanted to make
sure that this was addressed in the meeting so the public is aware of
it, and we will proceed and study it more thoroughly.**

**MR. BEIRNE:**

**If I may just add a few things that just came to mind with concerns
moving forward if you do proceed with that policy which we certainly
respect the need for, especially as products are EAC certified, that you
certainly have a role to make sure that the states affected would have
proper notification, although all of the manufacturers do make sure that
they provide notice to the extent possible.**

**One of the concerns that just, you know, came to mind was that each
state may have a different software version and so\...**

**CHAIRWOMAN DAVIDSON:**

**Understandable.**

**MR. BEIRNE:**

**\...from a public advocacy standpoint there may be some misperception
or miscommunication with that information that is out there and
available. And just making sure that the proper disclaimers as to who is
affected, you know, what software versions and making sure that's very
clear I think would be critical moving forward so as to not perhaps
cause a panic in other states that are not subject to it.**

**CHAIRWOMAN DAVIDSON:**

**Absolutely. And that's the reason why I said it would take a great
deal of information. It would take the version of the software probably.
And, as you say, if it's only utilized in one state, and a lot of times
because of state law there is a version for a state that has been
tested. So I understand that completely it has to be specific because we
don't want to give out indication** **and flood the concerns that there
may be issues out there that nobody is \-- it doesn't even** **involve
them. So I understand that completely.**

**MR. BEIRNE:**

**And I'll take back your concerns and so hopefully I can have a
response from the Council as to our feelings about how best to move
forward and address what \-- your concerns.**

**CHAIRWOMAN DAVIDSON:**

**I'd appreciate that right away if they would, please. Is there any
other questions? I know we need to take a break.**

**EXECUTIVE DIRECTOR WILKEY:**

**Do you want to wait** **until after the break?**

**CHAIRWOMAN DAVIDSON:**

**Yes. Would you mind \-- we need to take a break for our people that
are doing our transcribing and, you know, all of our work for us. So
we'll take a 15-minute break, come back and get \-- Commissioner
Rodriguez has some additional questions, do you?**

**COMMISSIONER RODRIGUEZ:**

**No.**

**CHAIRWOMAN DAVIDSON:**

**No? Well, our Executive Director Tom Wilkey and possibly our Counsel.
So if you will come back to the podium in a little bit we'll get started
back with you. Thank you. We'll take a 15-minute break.**

**\*\*\***

\[The Commission recessed at 11:36 a.m. and returned to open session at
11:55 a.m.\]

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**We're going to go ahead and get started. If we could have everybody
come in and take their seats. Okay, I think that we're ready to get
started.**

**So Mr. Wilkey would you like to address your comments to Mr. Beirne?**

**EXECUTIVE DIRECTOR WILKEY:**

Yes, I do have \-- thank you, Madam Chair. I do have one question I will
ask about\...

**CHAIRWOMAN DAVIDSON:**

**You might pull your microphone a little closer.**

**EXECUTIVE DIRECTOR WILKEY:**

**I wanted to make sure that both Mr. Beirne representing the Council
and our guests in the audience understand, and I think Commissioner
Hunter reflected on this, that this is going to be a long process. This
is going to be at least, at minimum, a two-year process and perhaps even
longer. And then when you add to it whatever date we decide to do
implementation, it could be even longer than that. And we did so because
of many of the issues that you addressed in your testimony that we're
hearing from the election official community, from the advocacy
community, and so on. We want to have this right. We want to it last for
a long time.**

**With that in mind I also want to remind you in the audience that in
addition to the two 120-day comment periods that we have structured into
this review that we will also be conducting a number of hearings. And
those hearings will be specifically designed to receive testimony, not
only from your organization but from the disability community, from the
advocacy community, from the election community and from others so that
we can get some real defined comments on this. And so I would urge you,
as you've been urged by the other Commissioners here, in the past \--
and having been around this effort for a long time \-- in the past we've
always noted that the manufacturer community has been a little slow and
sometimes even a bit shy to provide the kind of public comments that we
need in order to make this document a real good, solid piece of work on
behalf of the Commission, on behalf of the voting public really. So we
hope that the manufacturers will be actively in this period and will be
working with us as we move along.**

**With that in mind I just had one question about a statement you made
near the end of your testimony in which you say, "In its entirety, ETC
believes that the VVSG should not prescribe design standards, only
performance standards." And that puzzles me because of all of the issues
in this document, and we all have our own individual interests between
the Commissioners, between staff. Mine has always been in the area of
usability, readability, those issues that I think are in the final
analysis some of the most important. And I don't know how you can say
that we should not be addressing design standards when it is so tied to
the usability issues that in a previous statement you appear to say we
are doing a good job in that area, because one pushes the other. Could
you elaborate on that just a little bit more David?**

**MR. BEIRNE:**

**Well, our overall support for the establishment of the voting
performance protocol speaks exactly to the establishment of how the
systems are going to be judged for usability. That really speaks to the
performance standards as opposed to the mechanics of how you're going to
go about achieving it. And I think that's really where we draw the
distinction. The overall gist of our comments in that regard is that it
should allow for proper flexibility from the manufacturing standpoint to
allow them to develop innovative means to achieve that usability. And if
it's too prescriptive \-- and I realize it's a very fine balance that
has to be struck between, you know, what is the design standard, what is
the consensus for how to achieve that usability versus trying not to
make sure that all the systems look exactly the same. Any time you have
a competitive marketplace you benefit from having those features in
perhaps innovative ways to accomplish them. And so that's really where
we speak to not going so far beyond establishing the performance
protocol but actually dictating how those systems should look and
function. And I think that's pretty well covered within the usability
section in which it really goes into detail as to how the system should
look to achieve that usability aspect, whereas in the performance
protocol you have metrics that are going to be used to judge their
success or lack of success in achieving the usability feature.**

**EXECUTIVE DIRECTOR WILKEY:**

**Okay. I just wanted that design because we have, particularly in this
interaction, there was a great deal of work put into the usability part
of this document. It is something that was needed above and beyond the
2002 and the 2005 and is critically important. But, again, many times a
design feature will greatly impact the usability overall and can cause
some real problems. So that was the area that I was looking at.**

**One other general \-- if you could make one other general comment
because as I think Commissioner Rodriguez indicated, you know, we are
very careful about our interaction with manufacturers, manufacturer
representatives because at some point in time we're all going to be
involved in approving various documents for certification. And so we try
to keep that line there. Unfortunately sometimes it impugns our ability
to be able to go out and look at what's going on in the industry as a
whole. And do you find at this stage that manufacturers are kind of in a
"let's wait and see" mode? Or do you see at this point new things coming
into the marketplace, new innovations, new designs coming in? Or do you
see now that there is kind of a "let's wait and see what happens with
getting the 2005 done and then into the next iteration"?**

**MR. BEIRNE:**

**From \-- I would say overall there's definitely a "wait and see"
approach giving what's not only occurring within the EAC framework but
also what's occurring within Congress as to what the next generation of
technology is going to look like. I think that some of my members are
moving forward with innovations in other areas to increase efficiency at
the polling place, but with regard to voting system architecture I think
that's pretty much a "wait and see" just given the anticipation of the
2005 Voluntary Voting System Guidelines, as well as consideration of the
next iteration.**

**EXECUTIVE DIRECTOR WILKEY:**

**Thank you, sir. Thank you, Madam Chair.**

**CHAIRWOMAN DAVIDSON:**

**Mr. Gilmour, do you have any questions?**

**COUNSEL GILMOUR:**

**I had two clarifications I wanted to make. And the first one dealt
with \-- you were throwing \-- I know these were ballpark numbers you
were throwing out. That this was a, for lack of a better term, sort of
guesstimates. But you had suggested a 200 percent increase in that area,
and I wanted to make sure which standards that was applying to. Was that
a 2005 analysis or was that an analysis of the next iteration?**

**MR. BEIRNE:**

**That's the 2005. No analysis has been done on the newest iteration.**

**COUNSEL GILMOUR:**

**So I just wanted to assign that number its proper place in the
discussion.**

**I also had a question I'd like to follow up on, a question that the
Chair had asked, and that involved the "balls and the strikes," winners
and losers portion of your testimony, which was very catchy but
apparently it drew a lot of attention. But my question really had to do
\-- it dealt with the open-ended vulnerability testing. And I think I
understood your response, but you will see in light of EAC's recent
activities, and I think when Mr. Hancock gets up here and starts
discussing our program, the EAC has taken some very strong measures to
enforce its position of VSTL laboratory independence from manufacturers.
It's a very big thing and I know from some of the manufacturer's
statements they agree with that, at least in part, maybe not fully. But
we want to keep that process independent. So, in other words, also the
idea that a certification program is in some ways distinct from product
development. And these are things that the EAC has stated and taken
action on. What I'm trying to do is get a bit of an understanding based
upon I think some of the statements you made within this OEVT context
and your statement with respect to the VSTL's role and** **their
questions. Keeping these policies in mind, are we talking about the same
thing? And also essentially how does that fit in? How can we make \--
how does that sort of stated** **goal of EAC to create an independent
test authority link with your comments about "balls and strikes" and
winners and losers?**

**MR. BEIRNE:**

**Well, I think the role of the independent nature of the** **Voting**
**System** **Test** **Laboratories can best be served by, you know,
assessing independent of influence of manufacturers to say, "These are
the standards that you did not meet. We need to see these following
changes to your system in order for your product to be certified
successfully." What the OEVT seems to be implying is that there's a
shift in the model that's being applied in certification to much more of
pass/fail criteria and that's for us, from our standpoint, that is a
dramatic shift from the days of** **yore before the EAC adopted the
certification process in which the ITAs or the VSTLs would identify
problem areas and allow for a response and then perhaps improvements to
allow for that product to maintain its continuing evolution through the
certification process. The "balls and strikes," and that's the problem
with catchy phrases is oftentimes they do gather attention, that's
really speaking to whether or not, and perhaps just serving as guidance
for the Commission in moving forward, whether or not that is an
acknowledged shift in how the VSTLs are going to approach, which is much
more, almost antagonistic to say, "We are reviewing your product for
compliance." But also, you know, there is a certain investment that is
made by the manufacturer to see that their product is certified. And
that all gets taken into account when establishing price points for the
user. And so if that's a dramatic shift, I think there's a number of
policy questions that need to be considered by the Commission on the
role of the VSTLs and how that certification process should be continued
to be financed and how best to balance all of those needs.**

**COUNSEL GILMOUR:**

**So is** **your concern that this section may not be pass/fail?**

**MR. BEIRNE:**

**My concern is that the OEVT section is pass/fail. It's not very clear
as to the sources of remedy available to manufacturers that if they were
subject to a failing criteria their ability to respond to the OEVT and
make adjustments to their system before damage is done to their
individual investments of marketing their product if it becomes public
knowledge that the system has simply failed for these vulnerabilities
without allowing, one, the manufacturer to respond with their own
opinions or to address those concerns before they lose all of that
product investment.**

**COUNSEL GILMOUR:**

**So how would that be different than any other pass and fail within any
other area which would be reported as well in the ultimate test report?
I guess what I'm saying, is there is a distinction in this area versus
other areas where there might also be a documented failure that would
also be made public? Is there a issue that we need to be aware of with
respect to this?**

**MR. BEIRNE:**

**No, I mean I think the intent is not to indicate that you shouldn't be
deciding what should be accepted or certified or not. We certainly
respect that role of the EAC. I think it's \-- and if there's no due
diligence in response from the voting system manufacturer to comply with
concerns as they're brought forth, then certainly it's within the merits
of the certification process to deny certification. I don't think that's
going to be the fundamental shift. I think if the OEVT is intended to
provide a black and white pass/fail criteria, that's the real concern.
We just would like to make sure that there's an avenue for a response
mechanism and for that process to move forward with, you know, the
manufacturer addressing it. And if they fail to do so, then of course we
would expect that the product would not be certified.**

**COUNSEL GILMOUR:**

**That's all the questions I have.**

**CHAIRWOMAN DAVIDSON:**

**Okay. Thank you very much. We appreciate your testimony and your
answering the questions. And we look forward to the next time, as we
said, the public meeting that we're going to be having with
manufacturers and gaining more information. So thank you.**

**MR. BEIRNE:**

**Thank you Commissioners.**

**CHAIRWOMAN DAVIDSON:**

**Next on our agenda we have Brian Hancock. Brian is the Director of our
Testing and Certification of the EAC and he's been here many times
before us and this time is a little different subject. And he's worked
very hard, along with the rest of the staff, on providing us with a
Certification Manual for the laboratories. So obviously this is the
first step and I think it's very close to going out for public comment
that we did on our other Manual for certification for the manufacturers.
So we look forward to it, Brian. We know that you've worked hard on this
and we're anxious for \-- it was my goal that it would be done before I
ended my Chairmanship, but obviously getting the comments from the
public is very important. So this we will make sure is done as soon as
possible. So Brian, welcome.**

**MR. HANCOCK:**

**Thank you, Madam Chair. Commissioners, good morning. And I'd just like
to say I am here to talk about our draft Laboratory Accreditation
Program Manual. I do just have to just make a quick note to thank
everyone here on the staff that's assisted with this project, and that
includes our Counsel** **Gavin** **Gilmour, Matt Masterson, Lizo Terro,
and a number of other folks. It was a collaborative effort as it usually
is around here.**

**I'd first like to talk about the process that we're going to be going
through before the Commission votes to adopt the Manual and then I'll
give you some \-- a very abbreviated look at each of the chapters to see
what is contained in this Manual. And I should say we're going to go
about this in exactly the same process as we did to adopt the Testing
and Certification Program Manual. It seemed to work very well, so we're
going to be doing that once more.**

**The EAC will publish the Lab Accreditation Manual in the Federal
Register for a 30-day public comment period. I think it's important to
note that this is not a \-- "this" the public comment period \-- is not
a required function or publication for us, but we are doing it as we did
last time to make sure that the entire process is open and transparent
to the voting public and everyone else out there. Staff, of course, will
then review each of the comments we receive and incorporate the
appropriate comments into the final draft of this Manual. The
Commission, of course, will vote to approve the final document, as you
did for the Testing and Certification Program Manual. It's important
also to not forget that this document is going to be simultaneously
published for a required 60-day initial comment period to receive
comment on the paperwork burden that's placed on organizations required
to report information to us under this program and to have the Manual
approved by the Office of Management Budget under the Paperwork
Reduction Act of 1995.**

**I'll talk to you a little bit about the Manual itself now. We have
seven chapters in this Manual. The first chapter is basically an
introduction and it talks about background information, the authority of
the EAC to undertake this program. It talks about the scope and content
of the Manual and it has a definition section.**

**To my way of thinking, I think really the most important information
is probably contained in the second chapter of our Manual and that is
the program requirements. And I'm going to concentrate most on this area
because I think it is really where the EAC is going to provide the most
value-added to this program. We have a number of requirements listed
here. The first two that will always be a requirement are a NIST
recommendation, as it says in HAVA, and a NVLAP accreditation. Those
will be two things that we will require always before the EAC looks to
accredit any voting system test laboratory. We have what I think is a
very important conflict of interest and prohibited practices program in
this document. And we define conflict of interest as, "A prohibited
conflict of interest exists if the duties and responsibilities of a
laboratory, their parent corporation, or a lab employee involved in the
testing of voting systems under our program will have a direct and
predictable effect on the financial interest of the laboratory, parent
corporation, or lab employee."**

**As far as prohibited practices is concerned, we very explicitly state
that no laboratory, their parent corporation, or employee may: Provide,
or have provided, consultation, developmental testing or other services
to a voting system developer/manufacturer such that the independence or
the appearance, even the appearance, of independence in the testing of a
particular voting system component would be compromised. Also, no lab,
parent corporation, or employee may solicit or receive a gift, directly
or indirectly, from any entity which holds a financial interest in the
development, production, or sale of voting systems, or is otherwise
impacted by the testing and certification of voting systems.**

**We have a number of program enforcement elements as well. The first of
which is the fact that we require labs to collect standard information
from each employee, and these include assets, debts, outside or prior
activities/employment, gifts, and any work on voting system development
that they have done sufficient to demonstrate compliance with the
Manual. We look at all those things to make sure that the lab is
compliant. The information collection that the lab does must also
reflect the financial interest of those individuals, such as spouses or
minor children, whose interests are imputed to the employee under our
Program Manual. Continuing with the enforcement elements, the Manual
requires and documents the review of information collected for potential
conflicts and prohibited practices; and the labs must resolve and
document any and all identified conflicts of interests or prohibited
practices prior to the employee or the lab's involvement in any testing
engagements under our program.**

**We also talk about personnel policies of the laboratories. We require
that all labs have in place written policies to ensure that the lab does
not employ individuals, in any capacity related to the testing of voting
systems, who have been convicted of a felony offense or any criminal
offense involving fraud, misrepresentation, or deception under either
federal or state law.**

**We also have the ability to do site visits under this program. As a
condition of accreditation, all laboratories will allow the EAC or EAC
representatives to enter their voting system testing and management
facilities. We also require them to provide us notice of lawsuits. Again
as a condition of accreditation, all labs need to provide the EAC notice
of any lawsuits or claims filed against it, its subcontractors,
subsidiaries, employees, officers, owners, operators, and insurers.
Essentially anyone that has direct dealings with that lab. Finally, we
also outline additional steps to ensure that the labs, one, are not
prohibited from doing business in the United States, that they allocate
sufficient resources to enable them to properly use and maintain their
test equipment, their personnel, and their facility, and that they
maintain insurance policies sufficient to indemnify themselves against
financial liabilities or penalties that could result from their
operations.**

**We go on in the following chapter to talk a little bit about the
accreditation process itself. We basically set forth the required steps
that all applicant labs must perform in order to receive an
accreditation from the EAC. The process generally includes an
application for and a receipt of a NIST recommendation, as I noted
earlier; the receipt of an EAC invitation to apply to the program; and a
successful submission, acceptance, and review of the EAC application.
Successful applicants will be recommended for approval to the
Commission. As required by HAVA, the full Commission will vote, as you
all have for the current laboratories, to accredit those successful
candidates.**

**Another very important aspect is outlined in Chapter 4 of this
document and it's compliance management program. Essentially the
purposes of this chapter are to provide mechanisms to improve the EAC's
Testing and Certification Program, to increase coordination,
communication and understanding between the EAC and our voting system
test labs, and to increase public confidence in elections by
facilitating voting system test lab accountability. These will be
accomplished by gathering information in three major areas. First, the
labs are required to notify us of changes that they have, and by
"changes" I mean any change to key personnel, whether that be management
or technical personnel, any change in the physical location of the
laboratory, They need to provide us with any change in their record
keeping policies, their conflict of interest policies, and personnel
policies, and a number of other things. We also can request additional
documentation or information from these labs. And finally, as I noted
earlier, we have the ability to do EAC on-site reviews of the labs. In
here there are really two types of reviews that we've outlined. One is
essentially a policy, procedures and practices review. This type of
review would require EAC personnel to enter a voting system test lab
facility to examine documentation and to meet with voting system test
lab personnel to confirm that the lab's policies, procedures and
practices do in fact in reality meet the requirements of our Laboratory
Accreditation Program. This would occur once every two years, and as you
might know from the presentation that you had from the NVLAP folks they
also, after the initial two-year period, they do a review of their labs
every other year. So our goal is essentially one year to have a NVLAP
representative go in and then that intervening year an EAC
representative would be able to go in and look at the facilities. And
this, I should say, is going to be by far the most common type of
on-site review that the EAC would conduct.**

**The second type of on-site review would be a testing observation and
technical assessment review, and this essentially would require that the
EAC have a contracted laboratory assessor to be able to enter the voting
system test lab facility in order to assess the lab's technical
procedures, policies, management, personnel and to verify compliance
with acceptable lab practices and standards. Additionally, we have the
ability that the EAC assessor would be able to observe test lab
employees during the testing of voting systems to, again, ensure that
the test lab's practices match their technical policies. And I should
say this is only included as an additional tool to be able to ensure
compliance. The primary means for assuring technical compliance is, and
will always be, the NVLAP assessment that is required to be done prior
to the labs applying to the EAC.**

**The next chapter in the document discusses the revocation of an EAC
accreditation. Essentially the process for revocation would begin with
factual findings made pursuant to the compliance management program that
I just spoke of. Each time that an EAC representative would go into a
facility, they would write up what we term compliance management
reports. And if sufficient deficiencies were found there they could in
fact lead to a revocation. Test labs that fail to comply with our
program requirements will be provided a notice of the EAC's initial
intent to pursue suspension, they would later be provided with the
intent to suspend itself, and finally they would be provided with an
opportunity to be heard or to cure their noncompliance. A lab that has
had its accreditation revoked does have the right to appeal. And, again,
all revocations and appeals to that revocation will be voted on \--
recommended and voted on by the full Commission. Again, it's important
to note, though, that the lab may choose to cure and is able to cure
their deficiencies at any time during this process. They do not have to
wait until sort of that dreaded revocation stage. They can do it at any
time during the process.**

**The next two Chapters, which are 6 and 7 in the document, essentially
mirror some of the things that we've included in the Testing and
Certification Program. Chapter 6 discusses requests for interpretation,
and it just outlines procedures by which voting system test labs can
seek clarification of the voting system standards or our guidelines to
us. Again, as in our Certification Program, interpretations are case
specific but may be used as precedence to understand and apply the
standards. And certainly they'll also be used to educate us in whatever
later standards or changes to that document might come down the road,
they could also be included in that document. As we do with our
Certification Program, all of these interpretations will be published in
the library of interpretations at the EAC's Web site at www.eac.gov.
Chapter 7 deals with the release of laboratory accreditation program
information. Again, as is always, it's our policy to make sure that we
have as much information as possible and as practical and consistent
with federal law to make that available on our Web site. Again, the
chapter also sets out EAC procedures and the responsibilities of the
lab's themselves when information \-- when they have identified
information as protected.**

**Finally, the document has three appendices. Appendix A is basically a
format and outline for an EAC test plan. Appendix B is an outline of the
certification test report. And Appendix C just discusses the use of an
EAC logo that the labs might want to have after they've received
accreditation.**

**That is in brief an outline of our draft document. Again, we're going
to be putting it out for public comments. We expect \-- I believe we got
400 or so public comments on the Certification Program Manual and I
would expect probably near that many for this one, as well. I'd be happy
to answer any questions you have.**

**CHAIRWOMAN DAVIDSON:**

**All right, thank you very much. Commissioner Hillman, you're the\...**

**COMMISSIONER HILLMAN:**

**First up at bat.**

**CHAIRWOMAN DAVIDSON:**

**Uh-huh, your turn to be first.**

**COMMISSIONER HILLMAN:**

**Okay, thank you. Just a couple of questions for you. On the section
Chapter 2 about notice of lawsuits, can we also or should we also be
asking for labs to notify us if they have filed a lawsuit against an
entity, like a voting system manufacturer or, you know, some other
entity that \-- or NIST? Or \-- I don't know who they might be filing a
lawsuit against.**

**MR. HANCOCK:**

**Well, that's certainly \-- yes, that certainly might be interesting
for us to have and very valuable, in fact, depending on what type and
against, you know, who the suit might be.**

**COMMISSIONER HILLMAN:**

**Yes, I don't know the conditions. Half a question to the General
Counsel that we might have to put on that, but I think it would behoove
EAC to know not only of suits or complaints filed against the lab but
vice-versa if the lab is in fact taking action or filing notice against
somebody.**

**MR. HANCOCK:**

**We can work with Counsel to get that answer.**

**COMMISSIONER HILLMAN:**

**Then my other question goes to Chapter 5, the revocation of
accreditation. I think I am correct that EAC cannot or at least does not
levy any fines, any monetary penalties at all if a lab is half a step
out of compliance. I mean there's no\...**

**MR. HANCOCK:**

**Correct.**

**COMMISSIONER HILLMAN:**

**Right?**

**MR. HANCOCK:**

**Yes.**

**COMMISSIONER HILLMAN:**

**Is that because we can't or we just haven't?**

**COUNSEL GILMOUR:**

**We have no authority to issue a fine.**

**COMMISSIONER HILLMAN:**

**We don't have the authority to do that? Okay, thank you.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Hunter?**

**COMMISSIONER HUNTER:**

**I don't have any questions at this time, thank you.**

**CHAIRWOMAN DAVIDSON:**

**No questions?**

**COMMISSIONER HUNTER:**

**But thank you for all of your hard work and your presentation.**

**CHAIRWOMAN DAVIDSON:**

**Do you want me to come back to you?**

**COMMISSIONER HUNTER:**

**Maybe.**

**CHAIRWOMAN DAVIDSON:**

**Okay. Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you. Thank you, Mr. Hancock for your presentation. Thank you,
Madam Chair. You said that the EAC will publish the Manual in the
Federal Register for a 30-day public comment period, but you said that's
not required?**

**MR. HANCOCK:**

**Correct. The program that we have established, as for the
Certification Program, there are no requirements under the, Counselor
help me out, under the Rules and Procedures \-- Administrative Rules and
Procedures Act. But, again, we think it's extremely important for the
transparency aspect of the program to actually do this.**

**COMMISSIONER RODRIGUEZ:**

**And Mr. Hancock was that your recommendation to the Commission
something that the staff developed? Or was that \-- I wasn't here when a
lot of this stuff was done, so will you just tell me how that evolved?**

**MR. HANCOCK:**

**Right. I think it was our initial recommendation to the Commission
when we were doing the Certification Program Manual. And it seemed to
work very well then, so we thought we'd pursue that at this time as
well.**

**COMMISSIONER RODRIGUEZ:**

**Okay. And then you describe an EAC policy regarding the release \--or
no, no. It's EAC's policy to make as much information available as
practical, consistent with federal law. Is that again a Commission \-- a
policy adopted by the Commission? Or is that one you had direction on?
Or is that one that you guys recommended?**

**MR. HANCOCK:**

**Yes, again when we were developing the Certification Program Manual,
and we certainly worked very carefully with Counsel, and essentially the
only information that is very obviously protected would be that that
would be covered under the Trade Secrets Act. And I think there are very
specific determinations as to what information would fall under those
categories. And outside of those we see no need to protect any
information, quite frankly.**

**COMMISSIONER RODRIGUEZ:**

**Well I think these two steps that the Commission is taking, and your
group in particular, go a long way to helping us as a Commission be more
transparent. And I very much commend those steps and your efforts.**

**MR. HANCOCK:**

**Thank you.**

**COUNSEL GILMOUR:**

**For clarification, the specific language is actually from our Testing
and Certification Program Manual that was adopted by the Commission.**

**COMMISSIONER RODRIGUEZ:**

**Okay.**

**COUNSEL GILMOUR:**

**So that would be the Commission policy in that Manual.**

**COMMISSIONER RODRIGUEZ:**

**So that's how\...**

**COUNSEL GILMOUR:**

**It's actually just repeated in this Manual so people are fully aware
of the requirements.**

**COMMISSIONER RODRIGUEZ:**

**Very good, thank you.**

**CHAIRWOMAN DAVIDSON:**

**Brian, my two that I have on my mind is I also know that NVLAP
through, you know, the National Institute of Standards and Technology
also has a manual on certification of laboratories or their
accreditation \-- recommendation of accreditation. And I'm aware that
the staff has worked with them on updating that manual. My question is
does it kind of coincide or make sure that we don't have anything that
conflicts with the two manuals?**

**MR. HANCOCK:**

**Yes, Madam Chair, that's correct. You're right, they in fact have two
documents that govern \-- well more than two, but two very specific
documents that govern their voting system test lab accreditation
program. The initial document was published well before we had started
work on this document. In fact, it was published right around the time
that HAVA was passed and the EAC was just getting formed, so there were
some inconsistencies in that document and NIST in fact themselves saw
the need to revamp that document to make some corrections. So they're
very careful to work with us, and so their manuals and our draft manual
do match exactly at this point. And my understanding is that their
manual will be, at least their 15022 manual will be going out for public
comment shortly. They're a bigger agency, so it takes a little longer to
get through their review process, the Department of Commerce. But it
will be going out for public comment.**

**CHAIRWOMAN DAVIDSON:**

**After that is done is there any intent that we would either link to
that manual so people would be aware of their process prior, because it
is part of really the process? Or would we put that manual up on our Web
site also so that people would be aware?**

**MR. HANCOCK:**

**We haven't actually discussed that, but it's certainly not a bad idea
at least to link to it, you know. And perhaps they would even want to
link to ours from their specific voting page because the manuals are so
important and dovetail so closely.**

**CHAIRWOMAN DAVIDSON:**

**Okay. The other question I have is you talked about when we would go
into a laboratory and do our review and when NVLAP goes back. Also I
just wanted to make it clear to the public that it is also \-- NVLAP
also has to go in whenever there is a new iteration of the Voting System
Guidelines. Is that correct?**

**MR. HANCOCK:**

**Yes, that's correct Madam Chair. One other thing that we should note
is we don't charge anything for our facility review. So we're free,
NVLAP is not.**

**CHAIRWOMAN DAVIDSON:**

**But there is a charge by NVLAP?**

**MR. HANCOCK:**

**Yes, ma'am.**

**CHAIRWOMAN DAVIDSON:**

**Okay. All right, I appreciate it. Would you like to have anything,
Commissioner Hunter?**

**COMMISSIONER HUNTER:**

**No.**

**CHAIRWOMAN DAVIDSON:**

**Okay, no questions then \-- additional questions. So I will turn to
Tom Wilkey. Do you have any questions for Mr. Hancock?**

**EXECUTIVE DIRECTOR WILKEY:**

**Just one fast question, other than the fact that is another document
that I think that the Commission can be very proud of. It's typical of
the kind of work that's come out of your division and you've done a good
job on this.**

**I am assuming in Chapter 4 when you talk about assessment review that
that would also include whether the assessor feels that there is
sufficient number of personnel to keep up with the volume that they
have, because that's always appeared to be a problem in the past.**

**MR. HANCOCK:**

**Absolutely, that's certainly something we would look at. And to an
extent that is actually something that NVLAP looks at during their
limited management review as well. So, yes, we're both going to hit on
that. Yes.**

**EXECUTIVE DIRECTOR WILKEY:**

**Great, thanks. Thank you, Madam Chair.**

**CHAIRWOMAN DAVIDSON:**

**Counsel Galvin Gilmour, do you have any questions?**

**COUNSEL GILMOUR:**

**I don't have any specific questions since I'm familiar with the
document. But I would like to point out and encourage the public and the
interest groups and manufacturers and vendors and everyone to provide
comments. The main reason we initially decided to put these things out
for a public comment process was because we found it very useful. We're
creating a program that's not existing before, so getting \-- you know,
not wanting to create unintended consequences, not wanting to do things
that wouldn't have a benefit in the long run we decided to ask lots of
people what their opinion was. So really it was a practical concern as
to why we did this. So we do encourage people to provide comments. And I
think that when folks read it it really is a document that they'll find
significant differences over what's been there previously, although
there's not much documentation necessarily with what previously
occurred, but the bottom line is you'll find that the conflict of
interest provisions, the laboratory independence provisions are very
strong, oftentimes modeled off a federal government requirements. And I
think they'll be well received and I hope people do provide comments on
that.**

**MR. HANCOCK:**

**And, Counselor, let me just add to that that I think the important
thing you brought up is read the document. I think we've been finding
out as we progress with our Certification Program that some of the
questions that we get asked by the participants are actually answered in
the Manual, and we're finding that they're not reading it very
carefully. So we would invite everyone to read both Manuals very
carefully, as well as to comment on those Manuals.**

**CHAIRWOMAN DAVIDSON:**

**Thank you very much. Appreciate it.**

**MR. HANCOCK:**

**You're welcome.**

**CHAIRWOMAN DAVIDSON:**

**Next we have our discussion on our missions and goals for the EAC
Assistance Commission Strategic Plan. And after many months of drafting
and editing the EAC missions and goals, the Commissioners have succeeded
in coming up with a document that we think is worth discussing today and
with some strategic objectives for the agency and a plan of action going
forward. So there's copies that are available if you didn't get copies.
So we also have copies for everybody.**

**But I will open it up for discussion. We have it in front of us. Any
discussion on the strategic objectives for the EAC? Okay, Commissioner
Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. Just one of the goals of this Chair and the
Commission over the past year has been to outline our strategic
objectives. When I started, we talked about it. And now I'm very pleased
that we have come to the point of putting some goals on paper. I think
I've heard from a number of staff members that they'd like some more
formal direction from the Commission, and I believe it's also required
by the OMB. So I think this is a step. I know it's not in final form
yet, but I think it's an important step that we have as Commissioners
have taken. And hopefully by the end of the year we can have a final
work product.**

**CHAIRWOMAN DAVIDSON:**

**Thank you.**

**COMMISSIONER HILLMAN:**

**A question and a comment. I noticed that, and I understand that this
document started earlier this year in 2007, but under "Statutory
Requirements" there's a first sentence that says, "Prior to discussing
EAC's strategic plan for 2007-2010." Are we talking fiscal years or
calendar years? I mean we're almost at the end of 2007, so I'm wondering
if we mean to adopt this that we're going to cover the last few weeks of
this year. Or should we be talking about 2008-2010, which is really
three years? I mean it's just a question as to what the effective date
of this is and what guidance this would issue.**

**CHAIRWOMAN DAVIDSON:**

**I think a strategic plan, if I'm correct and I may have to turn to our
Counsel, is to be at least three years. And also, if I remember right,
there was something that we need to keep in mind for a five-year plan.**

**COUNSEL GILMOUR:**

**I'm not aware of what specific requirements we're trying to fulfill
with this document here. And I'm not sure exactly what the purpose of
the date here is serving, so I have a hard time responding to you at
this time on that question. But what's \-- so the question deals with
timeframes?**

**COMMISSIONER HILLMAN:**

**Well, I don't think that there's a required minimum/maximum number of
years. I mean OPM, the Office of Personnel Management, and the Office of
Management and Budget, issue guidelines and I think whether we establish
the strategic plan for three years or five years is at the discretion of
the Commission. I'm just a little sensitive to adopting this late in
2007 a plan that addresses 2007 because I don't think we mean this to be
retroactive. So one recommendation would be just to change that to say
2008-2010. That's still a three-year period because it's eight, nine and
ten.**

**CHAIRWOMAN DAVIDSON:**

**Sure.**

**COMMISSIONER HILLMAN:**

**The other comment \-- question I would have is we received I think the
last draft I saw of this before today came out in late August, early
September, and I'm just wondering if \-- what the differences are or
changes between the draft that was floated at that time and the one
that's before us today.**

**CHAIRWOMAN DAVIDSON:**

**I think very little. I think that Commissioner Rodriguez you made
really one initial change. I'm not sure whether you made any changes.**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. I removed one goal and that was to do a UO
cover \[ph\] conference since we had already done one.**

**COMMISSIONER HILLMAN:**

**Okay, thank you. I would hope that \-- I mean I certainly agree and I
join in saying that, "Hallelujah, we're coming to the end of
wordsmything and developing our strategic plan." Certainly the mission
statement, the functions, the guiding principles, and the statutory
requirements reflect the consensus of the Commission and the input from
the staff. I am a little concerned under the strategic objectives. I
fully agree with the strategic objectives outlined in bold; increase
transparency, maximize impact by focusing on relevant issues, et cetera,
maximizing support for election administration improvements. I would
hope that the specific tasks/projects bulleted under each of those
strategic objectives would be explained as recommendations from the
Commissioners to staff and that staff would come back to us hopefully by
the beginning of 2008 with their suggested changes to the specifics. I
would not want this strategic plan to cause staff to have to reshift
focus on any initiative, particularly for 2008. But there are some very
specific things in here, which could be good projects, but they may or
may not fit within our approved budget for 2008 with the budget
submission we've made for 2009 and those kinds of things. So I guess
it's sort of a question/comment to the Executive Director does that make
sense?**

**EXECUTIVE DIRECTOR WILKEY:**

**It makes absolute sense. And I think what we were looking for in this
document, at least as far as staff was concerned \-- staff worked very
hard to do some basic going through a number of issues over a period of
time \--and it was felt that the Commissioners should weigh in on their
overall strategic objectives as a policy making group. But certainly we
will be taking this document and flushing out where we need to go into
more specifics, as you've well pointed out, based upon our budget
recommendation \-- budget that we will have in place for 2008 when we
finally get one and what we have submitted for 2009. I also wanted to
point out that while we sometimes have our differences of opinion with
issues with the Office of Personnel Management and the Office of
Management and Budget that we have gotten excellent input from both of
those entities. In fact, the Office of Personnel Management we are
working with now and they will be working with us as we bring somebody
in to help refine this a little bit more. And during our recent budget
submission meeting with OMB, and I might add that OMB has been so very
helpful at least to me personally and I know to the Commission over a
period of time since its inception, and they have offered also to do a
cursory review and to work with us and to give us recommendations as we
approach the final adoption of this document. So we're very pleased to
have that input. But I think you're absolutely right Commissioner, this
is the framework and from that framework we will build the house based
upon that framework.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Rodriguez?**

**COMMISSIONER HILLMAN:**

**Well, I did want to ask what you thought was a reasonable timeframe
that you could come back, because this document will be public and I
would think that people will look at this and say, "But the Commission
said it was going to do this." So what is a reasonable timeline for you
to work with the staff to come back to us so that the specific bullets
under the strategic objectives will be accurate?**

**EXECUTIVE DIRECTOR WILKEY:**

**I would think by the first part of the year probably. I believe our
first public meeting in the New Year where we have substantive
discussions is in February, and hopefully we can get something to you by
then.**

**COMMISSIONER HILLMAN:**

**Thank you.**

**EXECUTIVE DIRECTOR WILKEY:**

**Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. I do think that the staff will take a look at
this and say, "Oh, that's what we've been asking them to do for awhile."
So I think there's a lot of synergy between what the staff has been
advising the Commission as a way to proceed and our recognition that,
"Yes, we need to go there." And so I think \-- we have so much
difficulty in meeting together as a group because of open meetings that
this is I think a real basis for discussion within the open meeting
parameters, but I think the staff will be encouraged. I hope.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Hunter do you have anything to add?**

**COMMISSIONER HUNTER:**

**No.**

**CHAIRWOMAN DAVIDSON:**

**So then the direction that you think \-- that is possible that we go
ahead and have \-- that I ask for a motion for the mission statement,
functions, guiding principles, statutory requirements, and the strategic
objectives and in that area just take the bullet points and not the
other and we have a motion that way? Or do you have something else in
mind Commissioner Hillman?**

**COMMISSIONER HILLMAN:**

**No, I would be comfortable adopting this with the understanding that
the specific bullet points under each of the three strategic objectives
are recommendations from the Commissioners and that the staff will come
back with a finalized list for us to consider and approve no later than
our February public meeting, if I heard the Executive Director, and that
we would just also change the date from 2007 to 2008.**

**CHAIRWOMAN DAVIDSON:**

**And that's a motion?**

**COMMISSIONER HILLMAN:**

**That would be my motion.**

**COMMISSIONER RODRIGUEZ:**

**Second.**

**CHAIRWOMAN DAVIDSON:**

**There's a motion and a second to take what you see before us on the
strategic objectives \-- I'm going to try to put it in the words that
Commissioner Hillman did \-- taking \-- making sure that the bullet
points that are there and then the staff look at our suggestions
underneath those bullet points, come back with recommendations by
February. Also, change the date of it for the requirements of the
strategic plan for 2008-2011. Is that close enough that we can call for
the motion?**

**COMMISSIONER HILLMAN:**

**Or it could be 2010. I don't know if \-- I mean it could be 2011, but
I wasn't suggesting we add another year. Just 2008-2010 since this
speaks through 2010.**

**CHAIRWOMAN DAVIDSON:**

**Okay, 2008-2010. All those in favor of the motion? Or is there any
discussion? Should I ask for discussion? Seeing no discussion, I will
call for a vote. All those in favor say aye. Opposed?**

**\[The motion carried unanimously.\]**

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**We now have, which is a big "hurray" for us I think, a mission
statement and a lot of groundwork done so the staff can then move
forward. Thank you everybody. I appreciate the Commissioners' hard staff
and staff's hard work and I know it's been frustrating through a lot of
time that we have not had this in place.**

**Okay, moving forward the next thing that we have on our agenda is that
we may consider an interim policy for handling state requests to change
the National Voter Registration Form. At our last meeting in October we
heard testimony from the staff regarding the initial policy on how the
EAC will handle states' requests making changes to the National Voter
Registration Form. The staff drafted a document seeing that it wasn't
approved and that others was given out and not approved. I have prepared
one that hopefully we can look at. Obviously I emailed it to the
Commissioners this morning about an hour before and then it was revised
because our Counsel was good enough to clarify it and help us relate and
put it into motion. The substance has not changed at all but the
clarifications and it's written far more appropriate for the agency if
it is adopted. This is available to the public. If anybody did not get a
copy, there is copies out in front or El will have copies that she will
hand out if you'll just raise your hands.**

**And basically, as we all know, that it is very important as we move
forward with the Presidential election being so near that we do
everything possible to give local officials the tools that they need to
have fair and transparent elections. And with elections being right
around the corner and every vote must count and every registered person
must be able to know what the instructions are for the states to be able
to move forward so we don't have any disenfranchisement at all, I think
it's important for us to have some type of a policy.**

**The policy I have taken is listening to all of us, and I appreciate
the staff's hard work in coming up with a policy that \-- a draft policy
and the Commissioners also working so diligently on this. I've come up
with one that hopefully people can support. It's not the best, I will
admit it, but at least it gets us off of square one where we can move
forward. It addresses that state address changes can be made immediately
by the Director of Election Administration Support, which was formerly
the Programs and Services area of our office. And we have the addresses
changes made immediately. Right now we have one that's before us and
they have asked for it to be changed for I think approximately a month,
but they've asked a couple of times or even maybe more, "When are we
going to make our decision?" So obviously they're very anxious to be
able to get that information on their form of what address that the form
is to be mailed to to make sure \-- ensure that they get all the
registrations that are mailed to the office.**

**Second of all, it gives all the information coming \-- once it comes
in and the Director of Election Administration can make appropriate
changes \-- or not appropriate changes \-- ask for clarification of
information that comes from the states, and all of that is sent to the
Executive Director. And once the Executive Director has reviewed the
state's request to anything other than the address change, after they
have reviewed it and feel like they have enough supporting document to
go to the Commissioners, it goes to the Commissioners for a vote. And
then we've set up a few procedures on how it is actually to be
addressed. Address changes would be done within seven days, business
days. And all other changes once all of the information is gathered by
the Director of Election Administration Support and forwarded to the
Executive Director it would be referred to the Commissioners for their
decision. And issuance of the decisions on any case would be made in
writing. That just kind of goes through what my request is, and I do
submit that for consideration. And I do know this was very late in
getting it out to you so \-- for discussion first of all. So I'll open
it up for discussion. And you can see that we really are not doing
anything behind the doors because the Commissioners didn't receive this
until this morning very late. Ms. Hunter? Or Commissioner Hunter I
should say.**

**COMMISSIONER HUNTER:**

**Madam Chair, thank you. I appreciate your work on the subject and I
think that this does take us a step forward. We all have an interest in
making sure the form is as accurate as possible, particularly since the
Presidential election is obviously coming up very quickly. So I think
that this does help us to move forward, and I will certainly support
your proposal.**

**CHAIRWOMAN DAVIDSON:**

**Any other discussion? Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. At the last meeting both Commissioner Hillman
and I wanted to incorporate some public comment period into the NVRA
revision process, and we heard earlier today from Mr. Hancock about our
Testing and Certification Programs and how without the federal
government requiring them to seek public input that the Commission has
made that determination that that's a good policy. And I unfortunately
dropped the ball. Last month I proposed that we \-- it was kind of a
simple thing \-- any changes to the Federal Form follow the notice,
comment and hearing requirements of the Administrative Procedures and
Sunshine Act. And I heard from our General Counsel, not Mr. Gilmour, but
from our General Counsel who is on leave and she wrote that she needed
to explain that Administrative Procedures Act to me. So maybe I
shouldn't have included that language about the Administrative
Procedures Act. Maybe I just should have said that any changes to the
Federal Form have a public comment period instead of referring to the
APA. But I wonder why we as a Commission are reluctant to include that
type of a requirement in changes that we make to the NVRA. And I'm
interested in hearing from all of the Commissioners on that question.**

**CHAIRWOMAN DAVIDSON:**

**Before I take that, I do know that our delegation from Mexico has to
leave very soon. They have a one o'clock departure time. So we do
appreciate you coming and spending this much time with us and we hope
that your other travels through the United States are, well as I would
say, as beneficial as what I think that you found our meeting as. But I
hope that you've enjoyed your time with us. And do come back. You're
always welcome.**

**\*\*\***

**\[Applause\]**

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**Okay, I'm sorry. Commissioner Hunter you had your hand up for a
response?**

**COMMISSIONER HUNTER:**

**Madam Chair, thank you. I don't think anybody believes that we
shouldn't put things before public comment when appropriate or when
required certainly. However, I think there are circumstances that the
EAC needs to act expeditiously to make sure that the Federal Form is as
accurate as possible and to do so as quickly as possible. A member of
our staff, Edgardo Cortes, our Election Research Specialist, has given
us a memo with four requests that states have submitted to us for
changes to the state instruction portion of the Federal Form. I'll note,
I believe this is correct, that these are just the ones that we're aware
of. I believe Mr. Cortes told us in his last appearance that we have not
gone out and solicited these changes. So my point is there are probably
more. I don't know that for sure, but my guess is that there are. So we
know of at least four states who have written in and said, "Please
change our state instructions." And one example is that the State of New
Jersey has changed its voter registration deadline. And it used to be 29
days before the election and now it's 21 days before the election. And
while I always welcome input from all kinds of people, I don't know \--
I mean I can't think of a reason that we would need to have any kind of
public comment on New Jersey changing its state registration deadline.
And so I think that there are circumstances that require us to move
expeditiously in amending the state instructions portion of the form to
me falls very neatly into that box. I've always said that any changes to
the first part of the form, which is, you know, not the state
instructions, the other portions of the form, should be done through the
regulatory process. And as a side note the FEC, with one exception when
the Help America Vote Act was passed, did put everything through the
regulatory process. All of the changes to the first part of the Federal
Form were done through the regulatory process except in one
circumstance. However, they did have a policy that we have, Edgardo
Cortes was able to find it for us, that the Commission delegated the
authority to the staff members to make any and all changes to state law
so that the state law is properly reflected in the state instructions.
So the FEC didn't find the need to run it through a public comment
process. And, again, I would never argue that public comments aren't
useful in most circumstances. I just don't think this circumstance is
one that lends itself to providing the public with the most up-to-date
information. Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. And if there's a public comment provision in
your proposal I apologize that I missed it, but I didn't see one.**

**COMMISSIONER HILLMAN:**

**No, there's no\...**

**COMMISSIONER RODRIGUEZ:**

**Of course I only had an hour or so to review it\...**

**CHAIRWOMAN DAVIDSON:**

**Yes.**

**COMMISSIONER RODRIGUEZ:**

**\...but I didn't see one.**

**CHAIRWOMAN DAVIDSON:**

**There is not one.**

**COMMISSIONER HILLMAN:**

**Okay.**

**CHAIRWOMAN DAVIDSON:**

**There is not one.**

**COMMISSIONER HILLMAN:**

**I have a question for clarification and then I have a comment. What is
the status of our efforts to transfer the regs from the FEC to EAC?**

**COUNSEL GILMOUR:**

**My understanding is we're presently in the request for public comment
process that was initiated as a result of the last meeting. I think it
was the last meeting.**

**COMMISSIONER RODRIGUEZ:**

**September.**

**COUNSEL GILMOUR:**

**It was the September meeting, which essentially is receiving public
comments on the transfer versus new rulemaking question.**

**COMMISSIONER HILLMAN:**

**And so do we know when that comment period ends?**

**COUNSEL GILMOUR:**

**I think Edgardo could probably give us the date on the public comment
period. It was a 30-day period.**

**CHAIRWOMAN DAVIDSON:**

**Edgardo, do you \-- you're next up here anyway, so if you want to come
up.**

**COMMISSIONER HILLMAN:**

**What I'm trying to appreciate is the timeframe. Where are we today
from when we would anticipate starting a process?**

**MR. CORTES:**

**The public comment is over on December 3^rd^, on Monday, December
3^rd^.**

**COMMISSIONER HILLMAN:**

**Okay.**

**MR. CORTES:**

**So that \-- at that point is when we would provide any comments to the
Commissioners as they come in and the Commissioners would then have to
make a decision whether to proceed with the transfer and then after
doing the transfer begin to amend those rules, or whether or not the EAC
would just begin a full rulemaking process from scratch.**

**COMMISSIONER HILLMAN:**

**Okay.**

**CHAIRWOMAN DAVIDSON:**

**Can you tell us at this time how many comments that we have
received?**

**MR. CORTES:**

**We've only received one comment so far. It's not been a \-- it was not
germane to the question that was asked. So\...**

**COMMISSIONER HILLMAN:**

**Okay. Commissioner Rodriguez I actually thought you were going
somewhere else with the public comment, and that is to say that if we
were making this kind of a decision under the rulemaking process we
would put it out for public comment. So I really thought you were going
to suggest that this policy itself be put out in some fashion for public
comment before we voted on it because the thing that concerns me is I
absolutely agree that we, EAC, don't want to be viewed as causing any
voter using the National Voter Registration Form to not be able to
timely submit their form to the proper place. And so that's why I was
advocating that the change of address be done so that at least state
officials could receive the form. And it is my understanding that no
state outright rejects a form, at least they're not supposed to, without
contacting the voter to say, "We need this additional information from
you." But if the voter doesn't have the right address then the state may
never receive the form, and we've got one of those pending now.
Everything else would be in the scope of policy and we wouldn't be doing
it state-by-state, case-by-case. I mean I never envisioned that EAC was
going to consider every request for a change to the form case-by-case
but rather we would be doing it in the context of policy. And so while I
appreciate, and I'm going to guess it's General Counsel's advice, that
we have a responsibility, an obligation is the word, to act on these
requests even if we haven't yet promulgated regulations. Because we are
so close to doing our promulgation period I would wonder that we
shouldn't wait on the non-change of address things, or in the interim
put this out for public comment because I really would like to know from
others \-- election officials and others as to what it means that EAC
would just take case-by-case-by case. Once we say "yes" to this state,
then we're going to say "yes" to every other state and we will be doing
it without an overall policy but rather on a case-by-case basis. So
that's my hesitation right now.**

**COUNSEL GILMOUR:**

**And certainly the context of the comment is, yes, we should have
regulations. Absolutely.**

**COMMISSIONER HILLMAN:**

**Uh-huh.**

**COUNSEL GILMOUR:**

**And that has been the advice of Counsel, and that context of course is
in the idea that we do and we don't, we still have certain requirements
under the NVRA to promulgate a form. And I believe that also falls along
with the advice that Counsel has given essentially to make sure that we
have a standard. If we are in a position where we must do case-by-case,
which potentially we may be in now, your issue aside, that we do have
some sort of standard by which to judge it so that people are being
treated \-- states are being treated the same each and every time and
that we can identify the issues that are being discussed and they're
being discussed consistently. So it's a twofold recommendation.**

**COMMISSIONER HILLMAN:**

**And the standards are in here? No. The standards \-- this is the one
before us for consideration today. There are no standards in this.**

**COUNSEL GILMOUR:**

**This is the one that's presented\...**

**COMMISSIONER HILLMAN:**

**Today.**

**COUNSEL GILMOUR:**

**I haven't had a chance to substantively review it, but I do not\...**

**COMMISSIONER HILLMAN:**

**No, there are no standards here.**

**COUNSEL GILMOUR:**

**\...understand that there are.**

**COMMISSIONER RODRIGUEZ:**

**There is no standards.**

**COMMISSIONER HILLMAN:**

**No. So we would be making decisions based on what standards? What are
the standards that we would be considering a case-by-case decision
against?**

**COUNSEL GILMOUR:**

**Again I've recommended that you do have standards.**

**CHAIRWOMAN DAVIDSON:**

**In October.**

**COMMISSIONER HILLMAN:**

**You recommend that we have them?**

**COUNSEL GILMOUR:**

**Correct.**

**COMMISSIONER HILLMAN:**

**You're not saying that we have them, you're recommending that we
develop them?**

**COUNSEL GILMOUR:**

**Well, the staff did have a recommendation for standards.**

**COMMISSIONER HILLMAN:**

**Right, I got you. Okay.**

**COUNSEL GILMOUR:**

**While those standards obviously can be discussed\...**

**COMMISSIONER HILLMAN:**

**I'm with you.**

**COUNSEL GILMOUR:**

**\...that there be some standards.**

**COMMISSIONER HILLMAN:**

**I'm with you, okay.**

**CHAIRWOMAN DAVIDSON:**

**And as I said, I didn't view this as being the very best. I just felt
like we needed to be able to move forward so that we have something.
This can be improved upon. This is an initial procedure and policy so
that we can get started and at least the states know that if they give
us all the documentation it will be before the Commissioners and they
will be given the decision, you know, as soon as they had all of the
information that they felt they needed. The other thing is - is that
staff could go ahead and make any address changes immediately so that it
would be available and out there and so the states would have those
address changes.**

**COMMISSIONER HILLMAN:**

**You know I think in conclusion if we don't really have clear \-- if we
don't have standards and regulations under which to make changes \-- I
would be willing to stick my neck out on change of address changes
because that's just, you know, that's about as basic as you get. If an
address is changed, an address is changed. But to open the door for
other kinds of things without more definition\...**

**CHAIRWOMAN DAVIDSON:**

**I guess where I come to differ is we're at a point where we're taking
a real chance of disenfranchising voters at this point. The one that you
see that we got before you where not only with the address change but in
New Jersey changing their deadlines, if their form says 29 days and
their people are out registering people, they're going to think the
cutoff date is 29 days and they won't be sending those in possibly up to
the 21 days before the election. So those that could be registered may
not even send in their registration forms and so we're disenfranchising
voters. And when you go through what's being asked they're pretty
simple, and definitely we are going to \-- I mean I think it would be
pretty embarrassing for this organization to be sued by a voter that
didn't have correct information who we've got request in by states.**

**COMMISSIONER HILLMAN:**

**I'm not so sure that Rhode Island \-- I wouldn't necessarily consider
Rhode Island's requests simple. And for me that opens the door. I'm not
afraid to adopt a policy. There are some things \-- you're right. If the
registration deadline has changed \-- I can think of a situation in
which I'd want to question if the registration deadline was moved the
other way, you know, as to whether or not \-- I would need to know if
somebody changed their registration deadline from 25 to 45 days in
advance as to whether or not that somehow was in violation of the spirit
or intent of the National Voter Registration Act.**

**CHAIRWOMAN DAVIDSON:**

**And that is\...**

**COMMISSIONER HILLMAN:**

**So I'm not sure that, you know, in the absence of a policy, you know,
that we're taking these things case-by-case-by-case. I appreciate the
point. I appreciate the point, but I also don't want to be a position
where we're doing the flip side of that, which is making decisions
outside of a process with standards and policies.**

**CHAIRWOMAN DAVIDSON:**

**Well and federal law gives us the guidance there that it can't be
anything \-- the 30 days is the maximum timeframe. So if they wanted 45
days, they're asking for something that's beyond the federal law. And
clearly by law we have that guidance that is before us. So I just think
that, yes, we may not have enough information on a case-by-case basis,
but in the cases we have before us we do have information. In the
interim here I mean that doesn't stop us from voting on \-- and saying
we don't have enough information from a state or requesting more
information. That is definitely in there. So that's \-- Commissioner
Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. Well I think Mr. Cortes has not yet presented
the requested changes, but if we had adopted some version of the staff's
recommendations they would have been classified as \-- in one of three
ways; a voter eligibility requirement, an administrative matter, and a
procedural matter. And that would have been the standards by which they
are then referred to the Commission for a decision. So there would have
been a means to adopt the ones that Commissioner Hunter characterized as
"simple." I'll just make that point for the record.**

**CHAIRWOMAN DAVIDSON:**

**Any other discussion?**

**COMMISSIONER RODRIGUEZ:**

**I think we should hear Edgardo.**

**CHAIRWOMAN DAVIDSON:**

**Edgardo, the discussion on this \-- I think if we have a motion, if it
fails then, you know, obviously we move on with Edgardo. If this passes,
it does change one and we wouldn't be voting on it. It would change the
address where the staff could do that immediately. So that would be the
only thing. Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**I'm going to say this in public, but the one request that we would be
able to deal with is from Colorado. And I just \-- I don't want to
consider as a voter \-- I'm a Colorado voter \-- a decision that would
only benefit my state absent a policy for dealing with the others.**

**CHAIRWOMAN DAVIDSON:**

**Anything else?**

**COMMISSIONER HILLMAN:**

**If I understand you correctly, you're concerned about \-- you're
saying the change of address request was from Colorado. But if we had a
policy on change of addresses and we weren't taking it on a case-by-case
basis, then we wouldn't have that issue.**

**COMMISSIONER RODRIGUEZ:**

**But if we adopt this one that would be the only one that we would
be\...**

**COMMISSIONER HILLMAN:**

**No, but I'm saying is that if we adopt a policy on change of address
then it wouldn't matter which change of address is before us. We're just
saying changes of address would go through and it wouldn't\...**

**COMMISSIONER RODRIGUEZ:**

**I cannot separate your question, I'm sorry. I think we need a policy,
I'm sorry. It appears that I'm reluctant to adopt any policy. I am
prepared to consider the staff policy with a public comment clause, but
if the\...**

**COMMISSIONER HILLMAN:**

**I'm sorry. I have a 1:15 conference call, so I just wanted to let
those folks know I'm going to be late on my conference call. I'm
sorry.**

**COMMISSIONER RODRIGUEZ:**

**If the effect of my vote state would be only to benefit or to
accommodate the State of Colorado, I would have a problem with that.**

**CHAIRWOMAN DAVIDSON:**

**Okay, with that then I think that we will move on. And my plan is take
each one of them separately, we'll vote on each one of these that is
before us so that at least we do have the states notified of what the
decision is on each and every one\...**

**COMMISSIONER HILLMAN:**

**Madam Chair, I had absolutely no notice we were going to vote on state
requests before us. I thought we were asked to consider the policy you
had put before us, not to vote on the pending requests. I had no notice
of that.**

**CHAIRWOMAN DAVIDSON:**

**I think it's in our \-- when we even put it out for\...**

**COMMISSIONER HILLMAN:**

**I'm saying as a Commissioner, in my briefing book I did not know that
what was going to be presented before us today for a vote were the
individual requests from the states; that we were going to vote "yes" or
"no" without any additional information other than what I saw in the
memo from Edgardo Cortes. Now if there was information that went beyond
this little two-page memo, I have not seen it. But I certainly am not
prepared to sit here and vote outside, with no policy, no procedure, no
establishment to just vote "yes" or "no" on these requests.**

**COMMISSIONER HUNTER:**

**A point of information. I believe that it was \-- actually I know that
it was included in the Federal Register notice that we would consider
these. And then also I believe it's included in the agenda under the
second to the last bullet, "Consideration of State Requests." I will
admit that this area of the NVRA has been very confusing at the EAC, so
it's understandable that \-- but my interpretation has always been that
we would consider the outstanding requests from states even if we're not
able to come up with a policy that can be passed.**

**COMMISSIONER HILLMAN:**

**Right. And I have \-- there has been no memo that said \-- I look at
the agenda and it says that we may consider something, and then it says
"Consideration of State Requests" but it doesn't say what those state
requests were. And I don't believe there was any memo that said to the
Commissioners, "You are going to be asked to vote on these requests and
here is the supporting documentation." So there's absolutely no
procedure through which we're doing this other than, "Case-by-case these
requests are here. Vote "yes" or vote "no." And I just don't think
that's a responsible way for the Commission to proceed. I thought what
we were considering was an internal procedure to handle the pending
requests and that the pending requests were provided to us for our
information.**

**CHAIRWOMAN DAVIDSON:**

**We have \-- I asked Edgardo to put out a memo the 9^th^ and as I also
\-- it is \-- I don't have it in front of me, but I do believe it was
also in the notice for the Register that we put out in the Federal
Registration.**

**COMMISSIONER HILLMAN:**

**But it does not say that the Commissioners were going to be asked to
take action on this today. All it says there are currently four
requests. This memo details those requests. That's all it says.**

**CHAIRWOMAN DAVIDSON:**

**Well, I will \-- to simply that so that you can consider it, then
we'll call \-- you'll have a 48-hour period. I'll call for it to be
addressed in a tally vote and you can vote it at a tally vote rather
than in a public meeting.**

**Is there anything else before the Commissioners today?**

**COMMISSIONER RODRIGUEZ:**

**Madam Chair, can we take a five-minute break?**

**CHAIRWOMAN DAVIDSON:**

**I'm sorry?**

**COMMISSIONER RODRIGUEZ:**

**Can we take a break for five minutes so that you can\...**

**CHAIRWOMAN DAVIDSON:**

**We can take a break. We'll have a five-minute break and we'll be right
back.**

**\*\*\***

**\[The Commission recessed at 1:18 p.m. and returned to open session at
1:22 p.m.\]**

**\*\*\***

**CHAIRWOMAN DAVIDSON:**

**I'll call the meeting back to order. I just want to make \-- clarify
that in our Sunshine Act notice that it reads, "Agenda: Commissioners
will discuss and consider adopting a strategic plan. Commissioners may
consider an interim policy for handling the states' requests to state
specific instructions to the National Voter Registration Form.
Commissioners will consider individual state requests to change state
specific instructions to form. Commissioners will receive the following
presentations," and then it just goes on to the things that we have
reviewed today.**

**COMMISSIONER HILLMAN:**

**Madam Chair, I just have to say that this is the very first time that
I've had to read the Sunshine Act notice to know what we were going to
be expected to vote on. There was nothing else that came to me that told
me that this was an item for action. So I just want to be on the record
for that.**

**CHAIRWOMAN DAVIDSON:**

**Any other discussion? Edgardo, I'll have you go through the four and
then at that point I'll ask for a motion for adjournment.**

**MR. CORTES:**

**Okay. And this memo is \-- there are copies of it in the back for
members of the public. Now this was requested at the end of last week,
but essentially there are four states that have officially requested
changes to their state specific instructions on the Federal Form.
They're listed here in alphabetical order, and basically the memo gives
what the current language is in the form and then the language that the
state has requested to be changed.**

**The first one is Arizona, which has requested the addition of a proof
of citizenship requirement under the I.D. number section. The second
state is Colorado, which has requested a change in the mailing address
for where to submit the form. New Jersey has requested a change in the
information regarding their voter registration deadline. The form
currently has 29 days. The state deadline is currently 21 days before
the election. Then the final one is Rhode Island which deals with their
\-- the language under their voter eligibility requirements. And
previously Rhode Island in order to be eligible to vote you have to have
completed any sentence due to a felony conviction, and that included
probation or parole. They have since changed that and now the only
prohibition when it comes to being eligible to vote is if you are
currently incarcerated. It allows those on probation or parole to now be
eligible to vote.**

**So those are the four changes in the specific language. The exact
language that the states have requested is detailed in this memo.**

**CHAIRWOMAN DAVIDSON:**

**Okay. Any questions for Edgardo from the Commissioners? Thank you very
much, I appreciate it. Edgardo has been very helpful and I appreciate
your hard work in this area.**

**Is there any other business to come before the Commission? Yes,
Commissioner Rodriguez?**

**COMMISSIONER RODRIGUEZ:**

**Thank you, Madam Chair. At my first meeting as an EAC Commissioner I
made a statement, and I posted it on the EAC Web site, about my strong
desire that the EAC not use the tally vote procedure for important
public policy decisions. For routine administrative matters it seems to
me to make a lot of sense, or if there's no possibility of meeting it
makes a lot of sense. And the Chair has just indicated that she's going
to post these state changes \-- move these state changes via a tally
vote. And I again reiterate my strong desire that the Commission \-- I
believe this is an important decision, especially since it's being made
absent a Commission policy. And I want to register my strong objection
that this matter be handled in a tally vote. If we need to call an
emergency meeting so that the Commissioners have enough time to consider
that, I think we should go in that direction instead of a tally vote.
And, again, I believe tally votes should only be used for the most
routine and administrative of decisions. Thank you.**

**CHAIRWOMAN DAVIDSON:**

**Any other comment? Taking in consideration that we can't do a
Commissioners' meeting by telephone, and I believe we have researched
that in the past. Is that correct that we can't have an open meeting by
phone?**

**COUNSEL GILMOUR:**

**I have not personally researched that. I certainly can.**

**CHAIRWOMAN DAVIDSON:**

**Speak to it?**

**COUNSEL GILMOUR:**

**No, I can't speak to that right now. I have not researched it.**

**CHAIRWOMAN DAVIDSON:**

> **I will research that before, because I would be calling an emergency
> meeting right away, and with Commissioners' schedules being very tight
> with travel that is upcoming and meetings that's upcoming, I can't see
> waiting to make these decisions until in December when we have the
> meeting. And so that's one of my concerns. But I will research that
> before I do take a tally vote. And so I'll ask staff to prepare an
> answer there so that we can see that right away. You might contact
> Julie because I think she has done some research on that in the
> past.**
>
> **Any other business before the Commission?**

**COMMISSIONER HILLMAN:**

**Madam Chair I just wanted to clarify, I think what our General Counsel
had advised us in the past is that EAC didn't have a policy about doing
\-- here we go with the policy thing again \-- about doing meetings
electronically or through the virtual and that the regs permit that, as
we could do with other of our advisory boards, but we'd have to have a
policy that says that the meetings are permitted that way.**

**CHAIRWOMAN DAVIDSON:**

**I just see that every day that we're holding up and making decisions
on these that we are really taking a chance at disenfranchising voters.
So that's a big concern to me. And I \-- so I will move forward as I get
information. Thank you.**

**Anything else?**

**COMMISSIONER HUNTER:**

**Move to adjourn.**

**CHAIRWOMAN DAVIDSON:**

**Second?**

**COMMISSIONER RODRIGUEZ:**

**Second.**

**CHAIRWOMAN DAVIDSON:**

**All those in favor say aye.**

**\[The motion carried unanimously.\]**

**CHAIRWOMAN DAVIDSON:**

**All right, the meeting is adjourned. Thank you all for coming.
Appreciate it.**