1



          1            U.S. ELECTION ASSISTANCE COMMISSION

          2                           * * *

          3                   PUBLIC HEARING AGENDA

          4   

          5   

          6                             U.S. Environmental

          7                             Protection Agency HQ

          8                             1200 Pennsylvania Ave., NW

          9                             Washington, DC

         10   

         11                             Wednesday, May 5, 2004

         12                             9:01 a.m.

         13   

         14   

         15           Meeting of the U.S. Election Asistance

         16   Commission, was held on Wednesday, May 5, 2004, at

         17   1200 Pennsylvania Ave., NW, commencing at 1:30 p.m.,

         18   Chairman Soaries, presiding.

         19   

         20   

         21   

         22   





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          1                   P R O C E E D I N G S

          2                                             (9:01 a.m.)

          3              CHAIRMAN SOARIES:  Good morning everybody. 

          4              (No response.)

          5              CHAIRMAN SOARIES:  I'm Baptist.  Good

          6   morning, everybody.

          7              AUDIENCE:  Good morning. 

          8              CHAIRMAN SOARIES:  Welcome all of you to

          9   this public hearing sponsored by the United States

         10   Election Assistance Commission.  My name is DeForest

         11   Soaries, Jr., and I am the Chairman of this new

         12   Federal Agency for this year.

         13              I would like to thank the Environmental

         14   Protection Agency for hosting us and providing for us

         15   accommodations and water and all of the hospitality

         16   that they've provided.  Their staff has been very

         17   helpful, and we are grateful to them for this

         18   facility.

         19              I also would like to thank in advance all

         20   of those who have come to serve on panels today.  We

         21   have great minds and outstanding talent coming to

         22   help us understand more about this issue of





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          1   electronic voting, and people have come from near and

          2   far and we are the beneficiaries of having been

          3   rejected by no one.  

          4              We have the unenviable task of telling

          5   quite a few people that we just did not have space

          6   for all of those who sought to testify orally, but we

          7   have received written testimony from scores of people

          8   which will be a part of our focus as we issue our

          9   report and a part of our consideration as we

         10   deliberate this important subject.

         11              I would also like to thank the very small

         12   EAC staff for the work that they did.  Many of them

         13   have not slept recently, and we would like to

         14   recognize them for their work.

         15              Four-and-a-half months ago the four

         16   Americans that you see seated before you embarked

         17   upon this mission called the Election Assistance

         18   Commission.  

         19              We knew that there were challenges that we

         20   faced.  There were realities that we inherited due to

         21   the timing of our appointment and the nature of our

         22   work, but greater than the challenges were the





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          1   opportunities to pursue this national consensus that

          2   every voter matters, and that every vote counts.

          3              So for four-and-a-half months we have been

          4   working hard on administrative startup activities. 

          5   We've been working hard to facilitate the

          6   distribution of federal funds that were made possible

          7   by the Help America Vote Act to the States.  

          8              We've been busy visiting primary

          9   elections.  We've worked hard to meet with various

         10   groups whose perspective is important as we do our

         11   work and shape our own internal organizational

         12   structure that we might be effective in maximizing

         13   the use of the resources that we have.

         14              We started out work by the publishing of

         15   the States Plans required under HAVA for the release

         16   of $2.3 billion that has yet to be released in

         17   Requirements' Payments.  Shortly those funds will be

         18   released, which created some sense of urgency as we

         19   began hearing from States.

         20              It was clear that the use of those funds

         21   would be subject to the kind of guidelines that we

         22   issued.  Much of our work is subject to a process





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          1   that is rather long-term within the scope of what we

          2   know is a challenge for this November.  But much of

          3   what we do can have an impact on this November's

          4   election, and that brings us here today.

          5              We know, all of us know that voting in

          6   America has evolved since the founding of this

          7   Democracy.  Not only has the Constitution been

          8   amended to expand the persons who have the right to

          9   vote, but also the manner in which we have voted has

         10   changed over the last 200 years.

         11              Early in the founding of our Democracy a

         12   few men would gather downtown and would verbalize the

         13   candidate of their choice, and that was an election. 

         14              There were times when each political party

         15   printed the ballots, and you knew which party you

         16   were voting for by the color of the ballot.  And

         17   there were other times when people would just write

         18   their names on a book.

         19              The concept of privacy in voting, the

         20   secret ballot, emerged quickly as the standard for

         21   this country.  And the way we vote is what brings us

         22   here today.  Our commitment to universal suffrage is





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          1   juxtaposed to the technology that we now use to case

          2   our private ballot.

          3              And so the Election Assistance Commission

          4   was formed in large measure in response to the issues

          5   that really became front and center in November of

          6   2000.

          7              This Commission has responsibilities that

          8   are well articulated in the Help America Vote Act,

          9   but what is not in the Help America Vote Act is what

         10   I'd like to describe so that you will understand more

         11   about who we are.

         12              We came together after having been

         13   appointed by the President December 13th, and

         14   immediately we made commitments that we hope are

         15   transparent and self-evident in what we do today and

         16   in the follow years.

         17              The first commitment we've made is to be a

         18   bipartisan commission in function and not just in

         19   name.  We are two Democrats and two Republicans, but

         20   we believe in our hearts that the issue for which we

         21   are responsible is so important to the country that

         22   it is incumbent upon us to leave our partisan





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          1   identities and personal philosophies at the door.  

          2              From day one we have maintained a

          3   bipartisan spirit.  As one of my colleagues will say,

          4   if you look in on our discussions it would be

          5   difficult if not impossible to determine who was a

          6   Republican and who was a Democrat.

          7              There is a time when partisan differences

          8   are healthy for the country, but there is also a time

          9   when certain issues are urgent to the extent that

         10   partisan differences should not stop us from making

         11   progress.  That is a commitment of this Commission,

         12   and we are going to urge not only the panelists but

         13   the people with whom we work after today to attempt

         14   to rise to level of bipartisan spirit.

         15              The second commitment we've made is to

         16   move by consensus.  We try not to lobby each other

         17   and broker deals, but rather form consensus through a

         18   deliberative process.  In that process we attempt to

         19   be civil in our tone.  We attempt to be conciliatory

         20   in our outcomes.  We refrain from any personal

         21   attacks.  And we try to stay open-minded.

         22              I described that hoping that those who are





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          1   on panels today will respect the fact that that's the

          2   way we operate, and that is the kind of hearing we

          3   would like to manage.

          4              As Chair, I will try my best today to keep

          5   us not only on time but to keep us within the

          6   framework of civility.

          7              The final commitment is to results.  This

          8   hearing is not an academic exercise, although we have

          9   some great academicians.  Rather, this hearing is

         10   strategically called today six months prior to the

         11   November election aimed at concrete actions that we

         12   can take to not only, as I said, fulfill our long-

         13   term mandates but also to help America vote in

         14   November of 2004.

         15              And so we are honored today to have great

         16   minds, experienced professionals, and committed

         17   advocates.  There will be a tension between certain

         18   views, but sometimes tension can produce healthy

         19   outcomes if that tension is managed and articulated

         20   in a positive way.

         21              And so we are thrilled that you have come. 

         22   We have urgent business to do, and we are going to





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          1   ask each of you to either participate or observe with

          2   a certain set of ground rules.

          3              In the first instance I would like to ask

          4   that everyone turn off their electronic devices. 

          5   There should be no computers in the room, but if

          6   there are any other electronic devices:  beepers,

          7   watches, Blackberry, Blueberry--

          8              (Laughter.)

          9              CHAIRMAN SOARIES:  --because it will be

         10   easier to proceed without that.

         11              We are asking each panelist to make a

         12   short opening statement.  I will remind them that the

         13   panelists will give an opening statement for seven

         14   minutes, and then that leaves time for the four

         15   Commissioners to ask questions.

         16              I will try to keep us on track.  Each

         17   Commissioner will lead the questioning for a panel,

         18   and then after that lead questioning then each

         19   Commissioner will have a chance to ask a few

         20   questions after that lead Commissioner.

         21              I want to ask the audience not to make any

         22   demonstrations of support--this is not a pep rally;





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          1   or against--this is not a protest.  We would like the

          2   audience to be careful to conduct itself in a manner

          3   that coheres with the civility that we are attempting

          4   to portray.

          5              I would like to thank the media for taking

          6   this issue seriously because our experience is that

          7   the country cares about this matter of voting, and I

          8   hope that you will find today as interesting as we

          9   intend to find it because as a result of what we

         10   learn we will craft our work to take actions that

         11   will support all Americans as we prepare for a new

         12   Presidential Election.

         13              I would like now to invite my colleagues

         14   to give an opening statement, after which I will

         15   introduce our first presenter.

         16              Vice Chair Hillman.

         17              VICE CHAIR HILLMAN:  Good morning.  I join

         18   my colleagues in thanking you for finding the

         19   commitment and time to be with us.  We can only

         20   benefit by the input of such a diverse group of

         21   people.

         22              We welcome your input, and your presence





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          1   here motivates and energizes us.  So on the one hand

          2   I apologize to the people who are not able to find

          3   seating.  It is so hard to know when you hold a

          4   hearing like this, especially for the first time, how

          5   many people will really be interested enough to be

          6   here.

          7              On the other hand, it is a terrific

          8   showing for us.  And as I said, it energizes and

          9   motivates us.

         10              We, as the Chairman said, are very pleased

         11   to have been able to come this far in the short

         12   period of time that we've been assembled with the

         13   many things that we have had to do, but our

         14   commitment is to make certain that we move as quickly

         15   as possible to meet the mandates of the law, to

         16   fulfill our responsibilities and to move our mission

         17   forward.

         18              And so I again thank you for being here

         19   and look forward to your input not only today but in

         20   the months and years to follow.

         21              Thank you.

         22              CHAIRMAN SOARIES:  Commissioner





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          1   DeGregorio.

          2              COMMISSIONER DeGREGORIO:  Thank you, Mr.

          3   Chairman.  It is indeed an honor to be here and to be

          4   a part of this very important hearing.  

          5              I served for eight years as an election

          6   official in St. Louis County, Missouri, and I bring

          7   that perspective to this Commission.  Back in 1990 I

          8   had the closest Congressional rate in the country. 

          9   51 votes separated the winner or loser and it was a

         10   punch card system.  So I have been through a lot of

         11   experiences because of that.

         12              For eight years after I served as Director

         13   of Elections I worked overseas in 15 countries and

         14   advised Russians, and Indonesians, and others on how

         15   to conduct their elections.  

         16              I was asked to serve on this Commission,

         17   and as I saw the past few months the discussion

         18   evolve in the country about the security of systems,

         19   the use of systems, it became very apparent to me

         20   that this Commission needed to have a hearing such as

         21   this, and I was very pleased when my fellow

         22   Commissioners and the Chairman, suggested that we do





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          1   something just like this.

          2              It is important in any democracy that

          3   there be freedom of speech and honest debate and

          4   informative debate over issues such as this.  I hope

          5   that this hearing encourages a civilized debate. 

          6              When I was first appointed to this

          7   Commission, there was a web site someone put out that

          8   I had worked for the CIA overseas, which was not

          9   true.  But then I find in the past few weeks and

         10   months that this same person is on CBS News, on CNN,

         11   and quoted by The New York Times, and that does

         12   concern me because I hope that in the discussion of

         13   this very important issue that people stick to the

         14   proven facts; that they give us informed opinions;

         15   and that we stay away from rancor and personal

         16   attacks and partisanship.  Because the Nation is not

         17   served by division, it is served by an honest

         18   discussion.

         19              I so hope the debate is civilized for a

         20   very important reason, because we want to encourage

         21   people to participate in our election process.  We

         22   want to have the largest turnout in American history





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          1   in November, and I hope the discussion of these

          2   important issues is at a level that encourages people

          3   to participate and doesn't discourage people from

          4   participating because our Democracy will not be

          5   served if people don't come to the polls.

          6              Thank you, Mr. Chairman.

          7              CHAIRMAN SOARIES:  Commissioner Martinez.

          8              COMMISSIONER MARTINEZ:  Thank you, Mr.

          9   Chairman.  

         10              Through the passage of the Help America

         11   Vote Act of 2002 and our subsequent confirmation and

         12   appointment, the U.S. Election Assistance Commission

         13   was created to assist in the administration of

         14   Federal Elections, and to otherwise provide

         15   assistance for certain Federal Election laws and

         16   programs.

         17              Moreover, the EAC is to establish minimum

         18   standards for election equipment, and to act as a

         19   national clearinghouse with regard to Federal

         20   Election administration.

         21              It is this function of national

         22   clearinghouse, Mr. Chairman, that I want to focus on





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          1   for just one minute this morning.

          2              I think the big picture intent of what we

          3   are trying to accomplish with this hearing today is

          4   worth reiterating.   While roughly 29 percent of

          5   registered voters will be voting in November 2004

          6   with electronic voting machines--and we will hear

          7   some very compelling statistics from Mr. Brace, our

          8   first panelist--and some 30 percent of registered

          9   voters will be using punch card and lever machines,

         10   and another 32 percent will be using optical scan

         11   machines, one of the primary purposes of this hearing

         12   is to begin gathering important information on the

         13   use, the security, and the reliability of all voting

         14   systems to be used in this coming November's

         15   election.

         16              There are no doubt unique challenges with

         17   regard to each voting system, and unique challenges

         18   we will hear today with regard to the use of DREs,

         19   but it is important I think for our audience to

         20   understand--our audience here today and the broader

         21   audience through the media--to understand that this

         22   Commission takes its role as a national clearinghouse





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          1   very seriously.

          2              A significant step in that direction is to

          3   produce timely Best Practices' guidance to states and

          4   local governments regarding the use, the security,

          5   and the reliability of all voting systems, including

          6   optical scan, punch card, lever, DREs, and paper

          7   ballots.

          8              Releasing this Best Practices' guidance

          9   before November in a timely fashion will in my view,

         10   Mr. Chairman, contribute positively toward the most

         11   fundamental task we have as a Commission.  That is,

         12   to ensure that the American public has full

         13   confidence in the administration of our Federal

         14   Elections.

         15              With that, I look forward to the

         16   discussion.  Thank you.

         17              CHAIRMAN SOARIES:  Thank you,

         18   Commissioners.  Much of what we know about who votes

         19   on what kind of voting device in this country we know

         20   because of the work of our next speaker.  We are

         21   pleased to have as our opening presenter who will

         22   give us an overview on electronic voting the





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          1   President of Election Data Services, our friend Mr.

          2   Kim Brace.

          3           PRESENTATION OF KIM BRACE, PRESIDENT

          4                  ELECTION DATA SERVICES

          5              MR. BRACE:  Thank you, Mr. Chairman. 

          6   Commissioners, it's a pleasure to be here this

          7   morning, and I certainly don't envy your task ahead

          8   of you in--

          9              AUDIENCE MEMBERS:  Can't hear.

         10              MR. BRACE:  Yes.  My name is Kim Brace, B-

         11   R-A-C-E.  I'm President of Election Data Services. 

         12   We are a provider of elections' information around

         13   the country, and we have compiled information for the

         14   past 30 years in terms of what types of voting

         15   systems have been used around the Nation.

         16              I have a full statement that I would like

         17   to have entered into the record, and I will summarize

         18   a couple of key points for your benefit and try to

         19   keep us on track of the timetable.

         20              In terms of the history of voting systems,

         21   this country has had a long history, starting off

         22   with paper ballots, as the Chairman mentioned.  As





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          1   the country grew and became more urbanized, the task

          2   of counting ballots, paper ballots, took longer. 

          3   With the industrial revolution, a mechanical way was

          4   found to produce almost instantaneous election

          5   results, the lever machine.

          6              Lever machines were invented in 1890, and

          7   their use in the elections grew over the next 70

          8   years.  It is interesting to note, in light of the

          9   current controversy that we have over electronic

         10   voting systems, that for those 70 years voters were

         11   not receiving nor were election officials counting

         12   physical ballots on lever machines.

         13              Now precincts tended to be smaller in size

         14   at that point in time because of the high cost of

         15   lever machines, but by the middle of the 20th Century

         16   the main source of polling place judges, housewives,

         17   had begun moving into the workforce.  As a result,

         18   this loss in manpower, or womanpower, election

         19   officials looked to cutting the overall number of

         20   precincts and increasing the size of the remaining

         21   polling places.

         22              Punch-card voting systems, first





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          1   introduced in 1964, were a popular solution to this

          2   problem.  These were mainly used in urban and

          3   suburban communities around this country, but in the

          4   rural parts of this country they looked towards

          5   continuing to use paper ballots but find an easier

          6   way of tallying those paper ballots.

          7              This led to the development of the optical

          8   scan systems in the 1970s.  With the advent of

          9   computers and the need to replace the aging lever

         10   machines, the 1970s also found the introduction of

         11   the electronic voting systems.  Early electronic

         12   voting systems looked much like lever machines with

         13   pushbuttons replacing levers on a large panel.

         14              Newer DREs resembling ATM machines had

         15   touch screen panels and key pads for entering write-

         16   in votes.  Voter preferences went directly into the

         17   electronic storage usually without a paper record of

         18   the voter's intent.

         19              As I indicated, we have kept track of what

         20   kind of voting system is used around the country.  We

         21   started in 1980.  In 1980 we found just two

         22   electronic voting systems in use at that time, the





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          1   Video Voter and Votronics in use in just seven

          2   counties of this Nation.  They accounted for just one

          3   percent of the registered voters nationwide.

          4              Our most recent survey that we have done

          5   for the 2004 projected election shows that the number

          6   of counties using electronic voting systems has grown

          7   to 675 counties in this country.  

          8              These counties, located in more than half

          9   of the states, amount for almost 50 million

         10   registered voters, or 30 percent of overall

         11   registered voters. 

         12              Our surveys look at a lot of different

         13   voting systems, and when one looks at those and

         14   analyzes the comparison of the percent of registered

         15   voters, or the percent of counties, one finds

         16   differences that are significant in terms of the size

         17   of jurisdiction.

         18              Right now we're looking at slightly more

         19   than 48 million registered voters who are expected to

         20   cast ballots this fall on an electronic system,

         21   compared to 53 million that will use optical scan

         22   systems, and 22 million that would still use some





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          1   form of punch cards. 

          2              About the same number of voters, 22

          3   million, will use lever machines, while about 1

          4   million voters will still use paper ballots.  Voters

          5   using paper ballots represent only two-thirds of one

          6   percent of all registered voters in the country.

          7              In 1980, over 1200 counties or 41 percent

          8   of the counties used paper ballots.  We have produced

          9   in the statement, of which we have copies on the back

         10   table, maps of both what the country looked like in

         11   1980 as well as what the country looks like today in

         12   2004.

         13              Our information and our research indicates

         14   that for 2004, while there have been a lot of changes

         15   going on in the last four years, upwards of 74

         16   percent of the voters in this country will use the

         17   same type of voting system that was used in November

         18   of 2000.

         19              Now besides being the sole repository of

         20   historical information on voting systems around the

         21   country, we provide information for many of the

         22   academic surveys and studies that you heard about





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          1   over the last three years.  We also compile and

          2   collect voting statistics which are allowed to be

          3   pared to the voting information and allow people to

          4   come up with what people have referred to as "error

          5   rates" in different types of voting systems.

          6              I believe the use of the term "error

          7   rates" is a misnomer.  Because many people have

          8   assumed that when people go to the polls they will

          9   vote for all offices on the ballot, or at least the

         10   offices at the top of the ballot.

         11              Empirical evidence, however, shows that

         12   neither of these assumptions are correct.

         13   

         14   

         15   

         16   

         17   

         18   

         19   

         20   

         21   

         22   





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          1              Academic studies have shown that people

          2   experience ballot fatigue as they move down the

          3   ballot and don't vote for everyone.  This phenomenon

          4   is called many things, but I refer to is as "drop

          5   off".  Drop off is roughly equivalent to what others

          6   say is the residual vote measures that you may have

          7   heard about in recent studies. 

          8              As I indicated, we've looked at and

          9   compiled and we did a study for the Congressional

         10   Research Service going back to 1948 that looks at

         11   drop off across the country in every county of the

         12   Nation.  And there is a summary table in the back of

         13   my statement for you, but overall what one finds in

         14   looking at election statistics is that drop off tends

         15   to account for 1.5 to 2.5 percent in Presidential

         16   Elections when the data is available, and ranges up

         17   to 4.5 percent in non-presidential elections.

         18              The problem is that not all states report

         19   the actual number of persons that went to the polls

         20   on election day.  While the availability of this data

         21   has improved over time, just 17 states reported that

         22   number in 1948.  There are still ten states that do





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          1   not compile this information and did not for the 2002

          2   election.  Those states are Alabama, Arkansas, Maine,

          3   Mississippi, Missouri, Oklahoma, Pennsylvania,

          4   Tennessee, Texas and Wisconsin.

          5              CHAIRMAN SOARIES:  Anybody from those

          6   states see us after okay.

          7              (Laughter.) 

          8              MR. BRACE:  Yes.  Now, drop off is a

          9   combination of both what is called "over votes" and

         10   "under votes".  Over votes occur when electors cast

         11   more votes than they're allowed for a particular

         12   office.  For example, they may have voted for two

         13   candidates as opposed to one being allowed.

         14              Our experience has shown that voters are

         15   more likely to cast over vote situations when you

         16   have a multiple vote for office; a vote for four, or

         17   a vote for five.  People don't keep track of how many

         18   candidates they vote for and so they over vote.

         19              Commissioners DeGregorio and I were just

         20   out in Illinois earlier this year and observed a

         21   large number of over votes in the Office for

         22   Delegates to the National Convention, in a vote for





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          1   seven.  In most instances we find that over votes

          2   result from improper ballot design which is an

          3   important point for election administrators.

          4              On the other hand, under votes is more

          5   likely to be intentional than over voting.  Often if

          6   voters don't have enough information about the

          7   candidates, they may skip the contest and not vote in

          8   that contest.

          9              Offices where candidates are unopposed or

         10   where candidates have just minor opposition, find a

         11   large amount of under voting.

         12              What we find and if the data is available

         13   a normal election will produce a drop off rate that

         14   is generally composed of about 90 percent under votes

         15   and just 10 percent over votes.  That's in a normal

         16   election.  Unfortunately elections tend to not be

         17   normal in many instances.

         18              Unfortunately, in many instances and in

         19   many election jurisdictions around the country, over

         20   votes and under votes are not reported.  In fact,

         21   I've been in offices on election day and overheard

         22   vendors specifically discourage officials from





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          1   producing reports on over votes and under votes. 

          2   It's a shame for both the American public as well as

          3   the election official. 

          4              If an election official does not study the

          5   results of the election, that official is no better

          6   than an ostrich with its head in the sand.  Looking

          7   for abnormal voting patterns or unusual over vote or

          8   under vote relationships are important steps to

          9   everyone's research effort, including the use of

         10   potentially mapping that information out.

         11   Therefore, members of the Commission, as a result of

         12   our experience, I would recommend that the Commission

         13   undertake the following steps.  One of the greatest

         14   problems with evaluating different types of voting

         15   systems is the lack of data.  Therefore, my

         16   recommendations would be certainly that the

         17   Commission collect more data specifically, more

         18   detailed information on voting equipment in use

         19   around the nation.

         20              Secondly, actual number of persons that

         21   voted in each election, the voter turnout and

         22   certainly encourage those ten states to finally come





                                                                       27



          1   into the fray and collect those.

          2              You should collect precinct by precinct

          3   election analysis and election results including over

          4   votes and under votes to enable a detailed analysis

          5   of the returns for all precincts of the country.

          6              You should also collect sample ballots so

          7   that one can look at how those ballots appear to the

          8   voters and how they might allude to why you see

          9   abnormal data in the data that you're collecting.

         10              Also I would encourage that the election

         11   vendors that are producing software for doing

         12   tallying of ballots facilitate this process by

         13   putting out data files, not just print files.  So

         14   that the analysis of this kind of information can be

         15   done by both the election administration in that

         16   jurisdiction as well as other people.

         17              I congratulate the Commission for

         18   undertaking this important hearing on voting systems

         19   and I would be happy to answer any questions you

         20   have.

         21              CHAIRMAN SOARIES:  Mr. Brace, we want to

         22   thank you not only for your presentation today, but





                                                                       28



          1   for the assistance you have given us since we started

          2   our work and for the work that you do around the

          3   country with election administrators.

          4              MR. BRACE:  Thank you.

          5              CHAIRMAN SOARIES:  Is there a question

          6   that any Commissioner has for Mr. Brace?

          7              VICE CHAIRMAN HILLMAN:  I do have just one

          8   point for clarification.  When you were addressing

          9   the issue of over votes and under votes and talking

         10   about under votes not being reported, do you mean

         11   that they're not counted in some instances?

         12              MR. BRACE:  In a number of voting systems

         13   and tallying systems they do have capabilities of

         14   reporting the number of under votes and the number of

         15   over votes for each office.

         16              What we find is that those kind of reports

         17   tend to not be produced election day or post-election

         18   day.  In fact, if you go and look for and try to

         19   compile that information, one finds that election

         20   administrators have to go back and rerun the

         21   information to generate those kind of reports.

         22              It's information that is there.  Certainly





                                                                       29



          1   the ballots as they are counted and cast will show

          2   you whether or not there's an under vote for that

          3   office or an over vote, and so it's something that

          4   should be reported.  

          5              VICE CHAIRMAN HILLMAN:  Let me see if I

          6   can ask it a little differently because I'm still not

          7     

          8              MR. BRACE:  Okay.

          9              VICE CHAIRMAN HILLMAN:  If you can choose

         10   four candidates out of seven   

         11              MR. BRACE:  Okay.

         12              VICE CHAIRMAN HILLMAN:  -- and you only

         13   choose two, and I vote for Soaries and DeGregorio,

         14   does my vote in those instances that you just

         15   described, do they count for those two candidates or

         16   not?  If I have chosen not to go to the maximum four,

         17   is my vote counting for these two candidates or not?

         18              MR. BRACE:  Yes.  In almost all instances

         19   they are counted.  Different election laws may be

         20   different, but generally, yes, those two votes would

         21   be counted.  The two additional votes that you did

         22   not partake in would be what I would categorize as





                                                                       30



          1   the under votes.

          2              And, as I said, they may or may not be

          3   counted from the system. 

          4              CHAIRMAN SOARIES:  Commission Martinez has

          5   a question that he says is a quick question.

          6              MR. BRACE:  Okay.

          7              CHAIRMAN SOARIES:  He's an attorney and so

          8   we have to understand the   

          9              COMMISSIONER MARTINEZ:  The question is

         10   quick, I don't know what the answer will be.

         11              CHAIRMAN SOARIES:  And we are really out

         12   of time.

         13              COMMISSIONER MARTINEZ:  We are out of

         14   time. 

         15              CHAIRMAN SOARIES:  And I want to make a

         16   comment.

         17              COMMISSIONER MARTINEZ:  Right.  Mr. Brace,

         18   the idea of not reporting this information, I know

         19   you've worked with and for many state and local

         20   jurisdictions around the country.  We'll have

         21   obviously election administrators to talk to as the

         22   day progresses.  What's the general response as to





                                                                       31



          1   why these ten states are not reporting?  They're

          2   obviously   it sounds like they're collecting it, why

          3   are they not reporting it?

          4              MR. BRACE:  What you end up finding in a

          5   number of those jurisdictions and those states is

          6   that the data tends to be there.  It's down at the

          7   county level.  The state itself is not collecting it

          8   up to present data that can be readily available.

          9              CHAIRMAN SOARIES:  I want to say, Mr.

         10   Brace, that since you gave us introductory

         11   information early on this year and we began talking

         12   about the error rate and the perceptions about what

         13   the does and does not mean, what I've discovered is

         14   that there is also confusion between what "error

         15   rate" means in terms of over vote and under vote and

         16   what "failure rate" means in terms of the malfunction

         17   of equipment.  And I think as we move forward, we

         18   have to dissect that issue because if we talk to

         19   people outside of the elections industry, error rate

         20   is often synonymous with failure rate and not all

         21   errors are due to failure.

         22              MR. BRACE:  You're quite correct,





                                                                       32



          1   Commissioner, yes.

          2              CHAIRMAN SOARIES:  Thank you so much for

          3   your presentation.

          4              MR. BRACE:  Indeed.

          5              CHAIRMAN SOARIES:  We look forward to

          6   hearing from the next panel.  

          7              Our next panel consists of some of the

          8   academic luminaries of our time and scientific

          9   experts of our country.  We are honored to have them. 

         10   I would like them to come forward now so that I can

         11   introduce them individually.

         12              I think you can create a little more space

         13   for yourself because there's an empty chair. 

         14              On behalf of this Commission let me thank

         15   you gentlemen for being here.  We were   if my sons

         16   were in the presence of MBA stars they would probably

         17   have the feeling that is analogous to the feeling we

         18   have being in your presence.  You are the superstars

         19   of your field and you have made contributions

         20   already.  And our desire is to take your expertise,

         21   both the summaries you offer today and the written

         22   testimony you've given us and to use this information





                                                                       33



          1   to guide us as we form a national consensus on the

          2   issues of electronic voting.

          3              We've asked you to help us consider the

          4   four critical areas, the accessibility, the

          5   usability, the reliability, and security issues that

          6   relate to electronic voting.  Each of you in your own

          7   right as an expert could give a day-long

          8   presentation.  However, we've asked you to summarize

          9   your thoughts if possible in seven minutes.  We will

         10   then ask you questions and then certainly reserve the

         11   right to contact you in the future so that you can be

         12     you can be heard through our work.

         13   We have from the state of Georgia, Kennesaw

         14   University, Dr. Brit Williams.

         15              From Johns Hopkins University, Dr. Avi

         16   Rubin.

         17              From the Institute of Electrical and

         18   Electronics Engineers, my neighbor, Stephen Berger.

         19              And from the Massachusetts Institute of

         20   Technology, Dr. Ted Selker.  Welcome gentlemen and if

         21   you would speak in the order that you appear on the

         22   program, I would appreciate your cooperation.  





                                                                       34



          1              Dr. Rubin.

          2   PRESENTATION OF DR. AVI RUBIN, JOHNS HOPKINS

          3   UNIVERSITY, INFORMATION SECURITY INSTITUTE

          4              DR. RUBIN:  Thank you, Mr. Chairman.  Good

          5   morning.

          6              My name is Avi Rubin and I'm a professor

          7   of computer science at Johns Hopkins University.  My

          8   area of specialization is computer security and

          9   applied cryptography.

         10              I've been studying electronic voting since

         11   1997 and recently   last year   served on the

         12   security peer review group for the SERV project for

         13   overseas Internet voting.

         14              Last year I also participated in the

         15   analysis of the Diebold acuvote TSX and we since

         16   published a paper about the security issues with that

         17   machine and the top peer reviewed security conference

         18   which is the IEEE security and privacy symposium.

         19              By further way of introduction, I this

         20   past March served as an election judge in the primary

         21   in Baltimore County.  I think we'll all agree that

         22   security is very important in elections.  There are





                                                                       35



          1   many other important things in elections as well;

          2   accessibility for blind people; for people whose

          3   primary language is not English, and ease of use of

          4   the machines are all very, very important.  But my

          5   expertise is in security.  And there are other people

          6   that will speak to those issues and I will speak

          7   about security.

          8              Today's DREs increase accessibility which

          9   is great.  I like that, but they are insecure, which

         10   I don't like.

         11              I don't think that security and

         12   accessibility are competing goals and I don't think

         13   they inherently need to be.  But I think with today's

         14   deployed DREs, we're in a position that they are.

         15              We must demand both accessibility and

         16   security from our election machinery and I think that

         17   that can be achieved. Let me outline my primary

         18   concerns with today's DREs for you from a security

         19   perspective.

         20              The first and foremost is that there is no

         21   way for a voter to verify that their vote was

         22   recorded correctly.  Machines have the votes inside





                                                                       36



          1   their internal processor inside the memory and even a

          2   sophisticated computer security expert cannot look at

          3   a machine and tell you what's going on inside of that

          4   machine.  Only the people who wrote the software know

          5   what's going on inside the machine and even they

          6   don't really know because it's impossible to develop

          7   large software packages without introducing bugs and

          8   flaws into them.

          9              Another problem that I see with the DREs

         10   is that there is no way to publicly count the votes. 

         11   There's no way for the votes to be counted in a way

         12   that's publicly observable because, again the

         13   counting is going on inside of a computer. 

         14              In the case of a controversial election

         15   and many elections are controversial.  We always have

         16   losers in our elections and there are always

         17   extenuating circumstances.  And when an election is

         18   controversial, there are laws in some states that

         19   require the ability to do a recount.  A meaningful

         20   recount means that you are going to believe you have

         21   more confidence in the recount than you had in the

         22   original vote.  And with fully-automated,





                                                                       37



          1   computerized voting equipment, there is no way to do

          2   any kind of a meaningful recount.  You can just

          3   reprint the results and get exactly the same result

          4   again.  

          5              We must trust these machines for several

          6   things.  We must trust them not to fail.  We must

          7   trust that they haven't been programmed maliciously

          8   and we must trust that they have not been tampered

          9   with.  And that's a tall order.  

         10              One of the fundamental concepts in

         11   computer security that I teach in my courses and

         12   uncovered in all the text books is the concept of a

         13   trusted computing base.  

         14              In a system we try to keep the trusted

         15   computing base as small as possible so it has the

         16   least amount of code and the least chance that

         17   something can go wrong.

         18              In today's DREs the trusted computing base

         19   is approximately 50,000 lines of computer code

         20   sitting on top tens of millions of lines of Windows

         21   CE which is more computer code.  Not all of the

         22   vendors use Windows CE, but the Diebold machines that





                                                                       38



          1   we looked at do.  And it is impossible to secure such

          2   a large trusted computing base.

          3              Future systems should involve the security

          4   community that have a lot of experience, there's a

          5   lot in the government and a lot in academia, a lot of

          6   experience built up on how to design a security

          7   system to have as small as possible a trusted

          8   computing base.

          9              We have techniques for building secure

         10   systems, but they are currently not being utilized. 

         11   When we looked at the Diebold machines, we found

         12   gross, gross security and programming errors.  We

         13   pointed these out in our papers and presented them to

         14   our peer community which has widely agreed with this

         15   opinion.

         16              The worst thing that I see is that when

         17   I'm constantly asked, well how bad are the other

         18   vendors, or how good are the other vendors, how do

         19   they compare to Diebold, and I to say, I don't know,

         20   because I can't get access to their code.  

         21              If people who have security expertise want

         22   to analyze and tell the public how secure these





                                                                       39



          1   systems are prohibited from getting access to them,

          2   then the public is left wondering what is being

          3   hidden inside of there.  I'm a strong proponent of

          4   opening up these systems for scrutiny.

          5              I don't think that we can achieve perfect

          6   security.  I know better.  I know that we cannot

          7   achieve perfect security in any useful system.  But I

          8   believe that there's a spectrum of really, really

          9   terrible to very, very good.  And my opinion after

         10   looking at DREs and looking at the Acuvote TSX from

         11   Diebold is that right now we're sitting very, very

         12   close to terrible.  And I think we can do a lot

         13   better. 

         14              I am not against electronics in voting.  I

         15   think that we can have computers help us with the

         16   voting process, but they need to be designed with

         17   input from security experts, and I feel that security

         18   experts in general have been shut out from a lot of

         19   the decisions about the designs of these machines

         20   when approached at all. 

         21              I do not speak in a vacuum.  There have

         22   been three other studies, one by SAIC, Robbin





                                                                       40



          1   Technologies, former NSA members and the State of

          2   Ohio.  

          3              Every single study has cited serious

          4   security concerns with the DREs.  And many election

          5   officials I hear and many vendors come out and say,

          6   "our systems are secure" and they just repeat that,

          7   but they don't show any evidence to back it up.  I

          8   haven't seen any studies showing what the security

          9   measures are.  

         10              And I think that what we need is to

         11   involve the security community the same way we're

         12   involving the accessibility community and all the

         13   others, it's all part of the puzzle that needs to go

         14   together.

         15              I will wrap up in a minute.  I just want

         16   to say that I think you will hear a lot of rhetoric

         17   today from my experience.  You are going to hear that

         18   the procedures in place make the process secure.  But

         19   I don't think that there are any procedures that can

         20   prevent say a malicious program inside of the 50,000

         21   lines of code on top of the tens of millions of lines

         22   of code that changes votes from one candidate to the





                                                                       41



          1   other.

          2              The other problem I have with the claims

          3   of the procedures solving all the security problems

          4   with the machines is that it is very difficult to

          5   design contingency plans.  What happens if at the end

          6   of the day the machines say, you know, 144,000 people

          7   voted and we catch that with our procedure, but there

          8   are only 19,000 voters registered.  And that actually

          9   happened in Fairfax County in the last election.

         10              What do we do?  Do we throw our hands up

         11   if this happens on a national scale and say, well,

         12   you know, we messed up?  I think that if we built the

         13   systems a little more carefully, we could avoid

         14   having to rely on procedures that are our contingency

         15   plans.

         16              I've run out of time so I will be happy

         17   during the question and answer to talk about the

         18   problems that I see with the logic and accuracy

         19   testing versus security testing which are completely

         20   different things.  And I also don't buy the argument

         21   that these machines have worked right in the past so

         22   we need   so we believe they're perfectly secure.





                                                                       42



          1              If we know that the machines have worked

          2   well in the past, then we know they've worked well in

          3   the past. But we don't know that they're going to

          4   work well in the future and I don't think we should

          5   sit on our hands and not enhance them with security

          6   to prevent a problem from happening in the future.

          7              In conclusion, accessibility and security

          8   are not mutually exclusive.  We need to develop

          9   systems that do not require completely trusting a

         10   vendor with the outcome of the election.  

         11              We need to develop systems that are

         12   auditable, including the ability to perform

         13   meaningful recounts.  And we need to develop systems

         14   where votes know that their completed ballot is

         15   recorded correctly.  We also need transparency in the

         16   process and no hidden code.  Today's DREs have none

         17   of that.  

         18              Thank you.

         19              CHAIRMAN SOARIES:  Thank you, Dr. Rubin.

         20              We are going to hear from all of the

         21   panelist before we do questions and answers.  

         22              So, Mr. Berger.





                                                                       43



          1         STATEMENT OF STEPHEN BERGER, INSTITUTE OF

          2           ELECTRICAL AND ELECTRONICS ENGINEERS

          3              MR. BERGER:  Thank you very much, Mr.

          4   Chairman.  I appreciate this opportunity to address

          5   the Commission.

          6              I got involved in this process in 2001.  I

          7   have a professional background in telecommunications

          8   development of standards particularly for regulatory

          9   purposes and then qualification of products to ensure

         10   that they meet the requirements.

         11   

         12   

         13   

         14   

         15   

         16   

         17   

         18   

         19   

         20   

         21   

         22   





                                                                       44



          1              From that background I've been involved

          2   for some time in the IEEE Standards Association.  The

          3   IEEE is the largest standards' body in the U.S., I

          4   believe, if not the largest one of them.  We operate

          5   under American National Standard processes to develop

          6   consensus documents that represent the center of

          7   technical thinking on any given subject.

          8              After the 2000 election, some of our

          9   members approached the Standards Association

         10   essentially saying they felt the engineering

         11   community needed to contribute what it could to the

         12   improvement of the system.

         13              We certainly agreed and started a

         14   standards project at that point which continues to

         15   this day.  There are four things I would like to

         16   primarily say to the Commission this morning.  

         17              The first is, as I've been involved in the

         18   system, one of the very pleasant experiences is to

         19   realize the tremendous contribution that's been made

         20   to the system that we've inherited.  

         21              A number of people, deeply committed to

         22   our Democracy, have worked tirelessly to deliver the





                                                                       45



          1   system that we have today.  There is a lot of value

          2   there.  To be sure, it can be improved but there's a

          3   lot to be appreciated and protected.  

          4              So I would commend to the Commission to be

          5   very careful to retain the value that's been

          6   delivered to us by those who have worked in days

          7   before.

          8              Secondly, and almost as a corollary to

          9   that, I would observe that probably all the easy

         10   problems have been solved.  What remained are complex

         11   compromises against often-competing requirements.  We

         12   certainly, as Dr. Rubin has said, want systems that

         13   are secure, but also are accessible to people with

         14   disabilities that have reliability but could be

         15   actually afforded in budgets of jurisdictions all

         16   across this country.

         17              We received today compromises in those

         18   competing requirements.  We look for better

         19   improvements.  Innovation could allow us to more

         20   satisfactorily address competing requirements.

         21              I believe the best approach to achieving

         22   that, as you have already identified, is consensus





                                                                       46



          1   processes where we bring together expertise from

          2   various fields and allow all the stakeholders to

          3   input to the process.

          4              Let me say a few words on where we are in

          5   standards in this area.  As you well know, in 1990

          6   the FEC established the first National Standard for

          7   Voting Equipment.  It was a tremendous contribution. 

          8   For the first time there were recognized requirements

          9   across the Nation for our voting equipment.

         10              Those standards didn't do everything to be

         11   sure, but they made an important and large first step

         12   in the process of unifying requirements.

         13              Standards themselves don't do everything. 

         14   They have to be addressed into a quality system that

         15   implements and monitors their effect and sees that

         16   the desired outcome is achieved.  And so we have

         17   today the ITA system supervised by NASA that

         18   implements the standards.

         19              Of course in 1998 the FEC staff revised

         20   the standards for the 2002 version, which is in force

         21   today.  We met with the staff shortly after that

         22   document was revised and all agreed there was further





                                                                       47



          1   work to be done. 

          2              There were areas that could use yet

          3   further development, particularly in the areas of

          4   security, useability, disability access, and others. 

          5   And those are the focus of the IEEE effort today.

          6              Two other comments I would make is that,

          7   as we consider the voting system and the quality

          8   system, if you will, it is important to recognize

          9   that there are four levels that need to be addressed.

         10              Certainly there are national requirements

         11   such as we have today in the 2002 FEC Standard and

         12   the ITA testing to that standard.  

         13              Then in every state there is a second

         14   level of inspection as the states individually

         15   evaluate the equipment for use in their own

         16   particular use and style.

         17              Following that, there is a third level of

         18   acceptance testing to ensure that the equipment

         19   delivered was represented in that that was evaluated

         20   at the state and national level.

         21              Finally, there is the Logic and Accuracy

         22   Testing to ensure that the equipment on election day





                                                                       48



          1   is functioning properly and accurately.  Standards

          2   are needed at all those levels, and I would encourage

          3   the Commission to pay careful attention to deal with

          4   all four of those levels.  Some of them have had a

          5   great deal more attention than others.

          6              It is also important in this area to

          7   encourage innovation, but as in all important areas

          8   of technology to have a carefully considered way for

          9   introducing innovation. 

         10              We need very much a way of introducing

         11   innovation that puts it through careful evaluation,

         12   trial, development of specifications to safeguard

         13   against possible vulnerability, and in phased

         14   deployment so that we guard the system against

         15   unintended consequences.

         16              That does not exist in a unified way

         17   today, and is very much needed. 

         18              So I will close with that introduction to

         19   my comments.  There is more detail in the written

         20   version, but I thank the Commission for this

         21   opportunity to address you.

         22              CHAIRMAN SOARIES:  Thank you very much,





                                                                       49



          1   Mr. Berger.

          2              Dr. Selker.

          3                STATEMENT OF DR. TED SELKER

          4           MASSACHUSETTS INSTITUTE OF TECHNOLOGY

          5              DR. SELKER:  I am Ted Selker, and I am a

          6   Professor at MIT at the Media Lab.  I have been

          7   involved with making many products at IBM, including

          8   an accessibility package for the OS2 Operating

          9   System, which has tens of millions of lines of code.

         10              David Baltimore from Cal Tech and Charles

         11   Best got together after the election in 2000 and

         12   said, you know, maybe the technologists can help. 

         13   And in creating this forum for political scientists

         14   and computer scientists and other technologists to

         15   get together, we all learned from each other.

         16              The most exciting thing we learned was

         17   that in fact the electronic technology that is most

         18   useful right now for understanding this stuff is the

         19   Internet.  We found that lots and lots of the data,

         20   the forensics is public data and it is available on

         21   the net, and we have done lots of studies to learn

         22   such things as that the registration data base





                                                                       50



          1   problem is the largest problem in how we lost our

          2   votes in 2000.  

          3              Probably between 1.5 and 3 million votes

          4   were lost because registration data bases are in

          5   error.  

          6              We don't have any way of checking how many

          7   New Yorkers are registered in Florida.  In fact, it

          8   is not illegal.  We don't know how we are choosing

          9   who we are going to check the registration data base

         10   and eliminate possible people that are not supposed

         11   to be voting.

         12              I don't know any changes that have been

         13   made systemically, or even best practices, as a

         14   result of the well-reported problems of Florida in

         15   2000.

         16              As we go through and understanding that a

         17   lot of what's been going on is we've been starting

         18   with assumptions.  Many people have been spouting off

         19   about technology and problems with technology and

         20   other things in elections.  That's not new.  But we

         21   have to replace that with testing.

         22              What is exciting about the more data that





                                                                       51



          1   we have today is that testing is more feasible.  We

          2   really want to make these standards performance-

          3   based.  We want them to be better than they were

          4   before, as a criteria. 

          5              If we look at the goal of protecting,

          6   detecting, and correcting problems we have ways of

          7   detecting the kinds of fraud that I'll be talking

          8   about.  

          9              Parallel testing is the mechanism by which

         10   you run elections, phantom precincts on the day of

         11   elections using actual machines and show that the

         12   input equals the output.  

         13              In many case, voting machines don't have

         14   clocks in them.  I just checked over a machine from

         15   Ireland that did not have a clock in the machine. 

         16   That simplifies various aspects of the testing.  

         17              It does not mean that somebody couldn't

         18   get a foundry, build a chip, put a battery inside

         19   with what looks like an E-prong and put that into the

         20   ballot module so that it could have a clock and know

         21   to expose its Ester DG (?) on the day of election.

         22              However, there are many other ways of





                                                                       52



          1   defrauding elections that might be easier.  So that

          2   is not the most expected approach for causing that

          3   kind of mischief.

          4              The real center of my comments probably

          5   has to do with how do we vet the qualifications of

          6   the people that we need to help us through this

          7   process.  We have to develop experts, experts that

          8   can be trusted, experts that can help the EAC, I

          9   hope, figure out what is good and what is wrong, what

         10   are the critical things that have to be improved,

         11   experts that can help the people that are making

         12   decisions about what equipment to buy.

         13              These local election officials today have

         14   all sorts of problems.  If you take a look at the

         15   useability problem--and I'm an expert in

         16   useability--if you take a look at the 13,000 ballots

         17   that were thrown out for over-votes in Palm Beach

         18   County in 1996, the Democrats and the Republicans

         19   signed off on that butterfly ballot.

         20              In 2000, again the Republicans and the

         21   Democrats signed off on it.  There were only

         22   19,000--it was 300 or so ballots that had chad





                                                                       53



          1   problems.  There were 19,000 over-votes because of

          2   the design of the ballot.

          3              Probably one percent of our electorate was

          4   lost because of bad ballot design in this country,

          5   and I don't know of anybody that is saying:  How do

          6   you run a simple test to see if this ballot is good?

          7              Polling place practices were equally

          8   flawed.  I have watched polling place practices where

          9   people teach their officials by telling them, or

         10   teaching them concepts.  Others by procedures.  We

         11   know that we have simple procedural understanding and

         12   simple things to go on.  You can make better choices.

         13   One million votes were lost that way.

         14              But I shouldn't dwell on these non-

         15   technical matters.  Let me just say that I believe

         16   that the elections over the last few decades have

         17   reduced the errors and the failures gigantically over

         18   what it was before.

         19              We don't have enough data to do more than

         20   state it.  We can show some examples.  But in fact we

         21   have to figure out how we move forward.  As we look

         22   at the machines that we are testing today, we are





                                                                       54



          1   thinking:  Well, can we rely on parallel testing?

          2              The doomsday scenario that people are

          3   terrified of is what if we had to run another

          4   election?  Well people have had to run other

          5   elections when they've had troubles in the past, but

          6   if we refuse to take that we can go for verification.

          7              Verification is an important idea.  The

          8   question is:  Can people improve the election through

          9   verification?

         10              Now I know of no study--in fact, the most

         11   recent one that I've been involved with, we had 3 

         12   people out of 1000 making mistakes when there was 1

         13   person doing the task, a second person watching over

         14   their shoulder and signing each time they did the

         15   task that they had done it right, and the third

         16   person doing the same thing. 

         17              Still, there was a .3 percent error.  This

         18   is an unacceptable level of error for testing for

         19   fraud or for testing voting kinds of equipment.

         20              The question is:  If we had a perceptual

         21   task--I'm in favor of having a task such as redundant

         22   information.  It uses the already available





                                                                       55



          1   electronics inside of the DREs of today.  You can

          2   produce an audio.  That audio can be heard while

          3   you're making the decision--a perceptual task that

          4   happens while you're making the decision is one that

          5   people universally can do.  Cognitive and memory

          6   tasks, you act after you vote by looking at another

          7   action, another piece of paper, are not so easy.

          8              In  Wilton, Connecticut, where they tried

          9   it, they had terrible problems.  Twice as many ballot

         10   workers.  Twice as long for the voters.  People, the

         11   exit polls did not show confidence in the system.

         12              So I am very excited about using a tape

         13   recorder with a separate record and playback head. 

         14   You play back something that's already been recorded

         15   onto it.  If somebody tries to erase that, that tape,

         16   you have integrity.  We'll all remember that 19

         17   minutes of erased tape for a long time.

         18              In Wilton, Connecticut, there were

         19   actually slots at the bottom of the ballot box that

         20   the ballots could fall out.  We're talking about the

         21   first time in a very visible place where voting

         22   verified paper trails were tried.





                                                                       56



          1              So I believe that audio verification is

          2   available today.  It is available with equipment that

          3   we own, and it can do a better job in helping people

          4   verify and validate that they have voted the way they

          5   want.

          6              The best thing about it, as well, is that

          7   it can be read by a computer and by a person.  This

          8   is not true of most of the technologies that people

          9   are considering today. 

         10              We don't know how to count receipts at the

         11   100,000 level that we've tried to specify for

         12   election equipment.  I'm not sure that I should go on

         13   very much longer.  I just want to thank you all for

         14   being here and I would welcome any questions.

         15              CHAIRMAN SOARIES:  Thank you so much.

         16              Dr. Williams.

         17              STATEMENT OF DR. BRIT WILLIAMS

         18               KENNESAW UNIVERSITY, GEORGIA

         19              DR. WILLIAMS:  Well I'd like to thank you

         20   for that glowing introduction.  I wish my president

         21   had been here to hear it.

         22              (Laughter.)





                                                                       57



          1              CHAIRMAN SOARIES:  You do fine with your

          2   president.

          3              (Laughter.)

          4              DR. WILLIAMS:  I think the one thing that

          5   we all agree on is that there is ample room to

          6   improve our existing voting systems, and that is the

          7   goal that all of us have got before us.

          8              But we have to keep in mind in doing that

          9   that there are a lot of aspects to a voting system

         10   other than just accuracy and security.  We have got

         11   to look at availability.  We've got to look at

         12   reliability, maintainability, useability, and even

         13   affordability.

         14              We could build the quintessential voting

         15   system, but if nobody can afford to buy it it is a

         16   futile exercise.  So any change to a voting system

         17   has to be evaluated on the basis of its impact on the

         18   entire system, and I think that is the whole purpose

         19   of the formation of this Commission.

         20              What we need to guard against I think is

         21   the tendency to go out and do something quick and

         22   dirty that is a rapid, poorly formulated addition,





                                                                       58



          1   such as a paper receipt for instance, to an existing

          2   voting system could have an adverse effect that far

          3   offset any of its advantages.

          4              And furthermore, actions like this are

          5   unnecessary because we're not in any eminent danger. 

          6   To do the kinds of things we're talking about here is

          7   not going to be fast.  We're not going to implement

          8   Dr. Rubin's recommendations in the short term. 

          9              In the short term--and by "short term,"

         10   I'm really talking probably four to six years--we're

         11   going to have to dance with them what brought us. 

         12   And so we really need to look at what we can do with

         13   our existing voting systems to compensate for these

         14   vulnerabilities that we know are there. 

         15              I agree with Dr. Rubin that you can't

         16   compensate for them 100 percent, but nobody

         17   guaranteed me that that airplane I'm flying home on

         18   is 100 percent safe, either.  

         19              So in that spirit, one of the hardest

         20   things I have had to do--I submitted this long

         21   discourse to you--and one of the hardest things I've

         22   had to do is to say, now what am I going to use this





                                                                       59



          1   little precious seven minutes to talk about?

          2              So what I've decided is to look at some

          3   recommendations, some things that I think we can do

          4   based on our experiences in Georgia that maybe we can

          5   carry nationwide that would shore up some of the

          6   immediate problems that we've got to deal with in

          7   order to run elections in 2004 and 2006.

          8              The number one recommendation I have is to

          9   implement a nationwide secure voting system software

         10   library.  NIST currently has a secure law enforcement

         11   software library.  They use that, or the way that

         12   library works is that if you have law enforcement

         13   software, you submit it to NIST.  NIST puts it in the

         14   secure library.  They compute a hash signature on

         15   that, and then that signature can be used in a court

         16   case or in a challenge to verify that software that's

         17   in use in the field is in fact unaltered from the

         18   software that's in that software library.

         19              I think we could very quickly extend this,

         20   since that technology is already in place, we could

         21   very quickly extend this to voting system software. 

         22   The way it work would be that when the ITA completes





                                                                       60



          1   their qualification of a voting system, they submit

          2   the software, not the vendor, but the ITA submits to

          3   NIST for the secure software library the exact system

          4   that they've just finished qualifying.

          5              Then from there on, NIST handles it the

          6   way they handle the law enforcement software.  If

          7   there's a challenge to that software, or if any

          8   jurisdiction has any concerns about the validity of

          9   their software, they could get that signature from

         10   NIST, run the same signature against their own

         11   software, and verify that there's been no

         12   modification to the software they have.

         13              We do that in Georgia.  When we bring a

         14   system into Georgia, we give it a software from the

         15   ITA, not from the vendor, and we compute a hash

         16   signature that I believe is the same identical

         17   signature that NIST uses.  It's in the paper I

         18   submitted to you.

         19              Then on a period and on a random basis

         20   when we have people out in the field, we run

         21   signatures against the installed software to verify

         22   that it has not been altered from the software it is





                                                                       61



          1   served by.  So this is something that the mechanics

          2   and the mechanisms are in place.

          3              Now there's a lot of software out there,

          4   so I'm not suggesting that we go try to round it all

          5   up.  What I'm suggesting is that we start with the

          6   new systems coming out.  And then as jurisdictions

          7   request to add new systems to the systems, to that

          8   library, so that if a jurisdiction is running say a

          9   version of ES NIST  software and they want to include

         10   it in the library, then they give NIST--they identify

         11   it uniquely to NIST using either the qualification

         12   number or the vendor version specific numbers.

         13              NIST obtains that from the ITA's archives

         14   and implements it into the secure library.  The

         15   second recommendation I have is probably as equally

         16   important, but a little part of it is not going to be

         17   as easy to do.

         18              If you go and look at anomalies that have

         19   occurred in recent elections, you will find almost

         20   without exception that those could have been maybe

         21   avoided, and at least minimized, by well trained poll

         22   workers or well trained election officials.





                                                                       62



          1              Poor ballot design leads to all kinds of

          2   problems.  Poorly trained poll workers, where things

          3   that could have been a simple problem escalate

          4   because the poll worker didn't know how to handle it

          5   quickly on the spot.

          6              So to that end, again in Georgia--and

          7   Kathy Rogers in her presentation is going to go into

          8   some more detail on this program--we've developed a

          9   64-hour program of training, and we have a State law

         10   now that says by I believe it's 2005 that every

         11   county office has to have a State-certified person in

         12   that county office.  That is, someone who has

         13   successfully completed our 64-hour training program.

         14              Now all states probably can't do that, but

         15   all states have universities that have departments of

         16   continuing education, and all states have technical

         17   institutes.  Maybe this Commission could give block

         18   grants to those institutions to develop specific

         19   programs for those local jurisdictions--not

         20   generalized, here's generally how you run an

         21   election, but here's how you run an election in this

         22   county under these State laws with this equipment,





                                                                       63



          1   similar to the program we have in Georgia.

          2              Now that's going to require some

          3   additional documentation.  Already the Office of

          4   Election Administration out of your office has done a

          5   lot of work in developing generalized election

          6   management type documents.

          7              What we need now is some way to take the

          8   vendor documents and customize those into specific

          9   documents that can be used by localities.  Mostly

         10   it's a cut-and-paste kind of thing, because the

         11   vendor document has got every feature of the system

         12   in there and nobody implements every feature  of the

         13   system.  

         14              So what you need is to pare those things

         15   down, and then turn them into specific documents. 

         16   Here's the document for the person who is going to

         17   build the ballots.  Here's the document for the

         18   person who's going to train poll workers.  Here's the

         19   document for the precinct manager.

         20              I will stop at that.  I very much

         21   appreciate the opportunity to talk to you today, and

         22   I look forward to working with you.





                                                                       64



          1              CHAIRMAN SOARIES:  Thank you, so much. 

          2   Let me just share how much I appreciate your

          3   discipline.  We know that you have so much to say and

          4   to offer, but you have given us time to ask you

          5   questions and you have left room for the other panel

          6   and I really appreciate that.  But you have said so

          7   much that I hope you know that we will be calling

          8   you.

          9              Our questions will be led by Commissioner

         10   Martinez.

         11              COMMISSIONER MARTINEZ:  Thank you, Mr.

         12   Chairman.

         13              Let me add my thanks to all of you.  I

         14   appreciate your time and your commitment to be here. 

         15   Your verbal and written testimonies I think are very

         16   much on the mark of what we were looking for in this

         17   first public hearing.

         18              Let me--what I will do is I will just ask

         19   questions in the order that you all spoke.  To the

         20   extent that you can keep your answers to a relatively

         21   short response so that I can leave time for my fellow

         22   Commissioners to also ask you questions, but I do





                                                                       65



          1   have specific questions as I've had a chance to take

          2   a look at your submitted testimony, et cetera.

          3              So I will start, Dr. Rubin, if I could

          4   with you.  Thanks again for being here.

          5              Ever since I was approached about serving

          6   on this Commission, and perhaps even before then, but

          7   certainly since around March of last year, I have

          8   followed very intensely the debate that mostly rages

          9   in the media between computer scientists and election

         10   administrators.

         11              It seems that even up to this very day

         12   that computer scientists are talking at and over

         13   election administrators and the same is coming back

         14   at you.

         15              I am interested, Dr. Rubin, my first

         16   question is just to get--you served as a poll worker

         17   and wrote I think a very interesting and compelling

         18   account.  It sounds like you did it at 5:00 o'clock

         19   in the morning, so I applaud you for doing that, but

         20   I think I read it actually at 5:00 o'clock in the

         21   morning.  But give me just your general impressions.

         22              I know what your conclusion was, and I





                                                                       66



          1   read through your essay about that particular

          2   experience.  I mean you have entered--you know, what

          3   you did is you took off the hat of computer scientist

          4   and entered the world of essentially election

          5   administration for a full day.  I think you served

          6   the entire day as a poll worker.

          7              Talk a little bit about your general

          8   impressions.  What did that experience impart to you? 

          9   What has changed in your view in terms of the

         10   vulnerabilities of DREs, and what has reinforced your

         11   view of those vulnerabilities?

         12              DR. RUBIN:  Okay, one of the big

         13   criticisms that I received from a lot of people after

         14   our report came out was that I  didn't know that much

         15   about elections, that I was a computer scientist and

         16   I needed to learn about elections, and I thought that

         17   that would be a very good way to do it.  So I

         18   volunteered and served as an election judge.

         19              It was interesting to me that the machines

         20   in the site where I was were the very machines that I

         21   had analyzed the code for.  It was a very unusual day

         22   for me because I saw voters coming in and universally





                                                                       67



          1   liking the machines.  They really liked them, which

          2   told me that there is something good about the design

          3   here, something good about the human factors here and

          4   that we need to preserve that, and I think these

          5   comments were made earlier about preserving what is

          6   good.

          7              At the same time, I felt a little nervous

          8   and almost hypocritical supervising machines that I

          9   knew were not secure and that I was concerned would

         10   not operate properly.

         11              In the statement that I wrote up that you

         12   referred to, I did mention that the experience

         13   focused my opinion both on things that I had thought

         14   were problems before that I thought were less of a

         15   problem in practice, and things that had not occurred

         16   to me that I viewed as being more serious problems in

         17   the experience.

         18              So what it did was, it was an excellent

         19   thing for me to do because it focused me on what was

         20   a realistic evaluation.  I think ever since that

         21   experience I've been able to speak with a lot more

         22   authority about the security issues in these





                                                                       68



          1   machines. 

          2              One of the issues that we brought up in

          3   our report was the fact that, when looking at the

          4   code in the computers--and those of you who are

          5   familiar with these computers know that you take a

          6   smart card which has a ballot on it, and you put it

          7   in the machine and it's designed to prevent you from

          8   voting more than once.

          9              Given that a smart card has a chip on it

         10   and some protected storage, there are ways--and we

         11   know in my community how to do that--and they didn't

         12   do it right.  It was actually as bad as you could

         13   possibly imagine.  No cryptology.  No authentication

         14   whatsoever.  They could have been using matched

         15   stripes for all they did with that.  So we wrote

         16   about that.

         17              When I served as a poll worker, I was in a

         18   precinct that had nine election judges and five

         19   machines.  In the entire day, 16 hours, we received

         20   199 votes.  

         21              So when somebody went up to a machine and

         22   voted, the card was knocked out and there was a loud





                                                                       69



          1   clicking sound, and we were already heading towards

          2   them to take it away and thank them for voting and

          3   give them a sticker, et cetera.

          4              The attack we designed in our paper was

          5   one where you could manufacture your own smart cards,

          6   walk up to a machine and vote 20 times.  Now in my

          7   precinct that would not have worked, and so I pointed

          8   that out in my statement that I wrote up.

          9              However, one of the things I also noticed

         10   was:  At the end of the day the memory cards in each

         11   computer were collected that had the tallies on them,

         12   were taken out of all the machines after the totals

         13   were printed up, and then put into one machine and

         14   they were accumulated there together.

         15              As a computer security person, I always

         16   look for the point of highest vulnerability, and I

         17   thought that was it because that was the point where

         18   we had all the votes on one machine, and then they

         19   were supposed to get modemed back to the back end

         20   servers at the Board of Elections, or wherever they

         21   go.

         22              Now that was another part of the code that





                                                                       70



          1   we had analyzed, and they did the cryptography on

          2   protecting that communication incorrectly.  They used

          3   a broken site in a mode that's insecure, so even had

          4   it not been broken it would have been bad, and they

          5   used one key that was hard-wired into all of the

          6   machines, which is a no-no in computer security.

          7              And so I became concerned thinking that,

          8   you know, here we have something completely

          9   ephemeral, these bits that are representing all of

         10   the votes and, as a security person, that made me

         11   very nervous.

         12              I actually at the symposium that NIST put

         13   on, it was when one of the secretaries of state that

         14   was there came up and told me that I really should

         15   serve as an election judge, I'm very, very grateful

         16   for that advice.  So I think, you know, that that

         17   summarizes the experience.  It's really helped me

         18   focus a lot.

         19              COMMISSIONER MARTINEZ:  So is it possible

         20   for election administrators to be a computer

         21   scientist for a day?

         22              DR. RUBIN:  That would be harder.





                                                                       71



          1              (Laughter.)

          2              COMMISSIONER MARTINEZ:  That's harder to

          3   do.

          4              DR. WILLIAMS:  Could I speak to that just

          5   a minute?

          6              COMMISSIONER MARTINEZ:  Yes.

          7              DR. WILLIAMS:  That perception is not

          8   quite accurate.  Those votes that are accumulated on

          9   that accumulator are for press release purposes only. 

         10   The official tally is done from the individual cards,

         11   from the individual machines.  They're taken back to

         12   the central location, not transmitted by modem.  That

         13   accumulation in that modem transmission on election

         14   night is purely for the benefit of the press and so

         15   forth.  The official tally is conducted from the

         16   individual voter cards in the county office the next

         17   day.

         18              COMMISSIONER MARTINEZ:  Thank you, Dr.

         19   Williams.  And I am going to ask you to follow up,

         20   Dr. Rubin, so if you want to respond to that you can

         21   do so.

         22              DR. RUBIN:  I appreciate that opportunity. 





                                                                       72



          1   It is very interesting.  You asked what were my

          2   impressions and my feelings.

          3              COMMISSIONER MARTINEZ:  Yes.

          4              DR. RUBIN:  I've dealt with PCMA memory

          5   cards, the ones we're talking about, very often and

          6   the thought that from when the voters came in until

          7   those cards were removed from those machines, there

          8   was no physical record of those votes is what made me

          9   very uncomfortable that day.

         10              COMMISSIONER MARTINEZ:  I see.  Dr. Rubin,

         11   generally speaking what are the types of--and I don't

         12   know if you can do this without speaking the computer

         13   scientist language which would go over my head,

         14   unfortunately, but what are some of the general types

         15   of security threats, the risks that you've identified

         16   in the machines that you've looked at?

         17              And if you can, what's the likelihood of

         18   such a risk occurring?

         19              DR. RUBIN:  Okay, there are two different

         20   levels to answer this on.  One is specifics of the

         21   Diebold Acuvote TSX, which I think are less

         22   interesting because that's one machine that's





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          1   received a lot of scrutiny and I think there is the

          2   issue of security of DREs in general.

          3              COMMISSIONER MARTINEZ:  Sure.

          4              DR. RUBIN:  And I'd rather address the

          5   second one.  If you want me to address the first one,

          6   I--

          7              COMMISSIONER MARTINEZ:  The second is much

          8   more appropriate.

          9              DR. RUBIN:  My biggest concern is that in

         10   a very large trusted computing base the threat that

         11   somebody with access to the development environment

         12   of the code base--typically the vendor--basically is

         13   in a position to make the outcome of the election

         14   come out however they like.  And they can be

         15   infinitely clever about how they do this, and it's

         16   virtually undetectable.

         17              So let me give you an example that comes

         18   to my mind.  Say that I am malicious and I am hired

         19   by a vendor to build a voting machine and I'm one of

         20   the programmers on it.  I embed malicious code in

         21   there that actually does nothing until something

         22   happens.  The thing that has to happen is a voter has





                                                                       74



          1   to walk in and touch the touch screen in a very

          2   unusual fashion, say put four fingers on the screen

          3   three times in a row.  Call it the knock.  And when

          4   that happens, the machine changes its behavior and

          5   takes the internal votes and shifts five percent of

          6   them from one candidate to another.  In addition to

          7   doing that, then removes itself, removes the

          8   malicious code from the machine.

          9              To try to figure out how realistic and

         10   difficult that was, I teach a graduate course in

         11   computer security at Johns Hopkins and this past

         12   semester I had 40 mostly Ph.D. graduate students

         13   build mock voting systems and embed back doors in

         14   them with a secret knock.

         15              They did that for half of the semester,

         16   and the other half they received each other's--they

         17   received several machines from other classmates not

         18   knowing if we had given them one that had a back door

         19   on it or not.  

         20              I was astounded to see the cleverness and

         21   the ease with which the malicious code was hidden,

         22   and how difficult it was to find.  





                                                                       75



          1              The last part of your question is:  What

          2   is the probability that something like this would

          3   happen?  I believe that we have to look at the

          4   incentives out there to tamper with the election. 

          5              You've got billion dollar contracts

          6   dependent on the outcome of elections, and so I think

          7   we've got very well funded and bad intentioned

          8   adversaries to worry about.

          9              DR. SELKER:  Could I respond to that?

         10              COMMISSIONER MARTINEZ:  Dr. Selker, sure.

         11              DR. SELKER:  That particular idea of

         12   having a funny user interface that somebody could

         13   walk into is an extremely labor-intensive way to

         14   change votes.  That means that somebody will have to

         15   go into a balloting booth in many, many places to

         16   make a change.  Unless, you know, maybe for a water

         17   district it might be worthwhile, but for other things

         18   it isn't.

         19              So the leverage of the attack is really

         20   one of the things that Avi and many of us have

         21   focused on.  So the thrust that I'm most concerned

         22   about are ones that are systematic that will be part





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          1   of the whole system and will affect large elections. 

          2   And those ones can be tested for by parallel testing

          3   and even before elections, and as well for the code

          4   that persists after elections.  And some of the

          5   threats can be detected with other means as well.

          6              COMMISSIONER MARTINEZ:  Very quickly, Dr.

          7   Rubin, back to you, and again as I ask you one more

          8   question and then you can respond if you want to to

          9   what Dr. Selker said.

         10              And I do have other questions, and I am

         11   running out of time unfortunately, but Dr. Rubin in

         12   the continuum that you've described from one being

         13   terrible to ten being very, very good, if in the

         14   interest of our Democracy you and Diebold decided to

         15   go into business together, what could we do to move

         16   up that spectrum?

         17              If you were advising Diebold, and I guess

         18   you have suggested some things already, but just for

         19   the record what are some things that--and I don't

         20   mean Diebold specifically, I mean to stick with the

         21   general DREs--what are some things that can happen? 

         22   I guess I'm trying to get to:  From your perspective,





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          1   and I know there are some who believe this, but from

          2   your perspective is a voter-verifiable paper ballot

          3   the only way to fully secure--again understanding

          4   that we could never have a 100 percent fully secure

          5   system--but is that the only answer, is what I'm

          6   trying to get to, from your perspective.

          7              DR. RUBIN:  I believe there's a short-term

          8   answer to that and a long-term answer.

          9              I think in the short term, meaning

         10   November 2004, that a voter verifiable paper ballot

         11   is necessary because it's the only way to get around,

         12   it's sort of an end-run around all of the security

         13   problems in the machines.  

         14              If the voters see their paper, and if it

         15   is implemented correctly, and that is the ballot the

         16   way they meant to vote it, and that is kept, then we

         17   can have recounts.  We get around the problem of not

         18   being able to audit with recounts.

         19              Then the voters have some confidence that

         20   they're leaving the poll place with something behind,

         21   which is their vote exactly the way they voted it.  I

         22   do believe that in the long, long term we should





                                                                       78



          1   explore other cryptographic options and combinations

          2   of techniques.

          3              I happen to think that the most bang for

          4   the buck you can get is by adding paper, voter

          5   verifiable paper, into the process because it avoids

          6   so many pitfalls.  Then the challenges are to design

          7   the system so that it works so that, you know, you're

          8   not dealing with paper jams.

          9              I think I am much more worried about a

         10   poll worker dealing with a very bad software bug on

         11   election day than a jamming printer.

         12              CHAIRMAN SOARIES:  Commissioner Martinez,

         13   if the other Commissioners are going to ask this

         14   panel questions they've got to start now.

         15              COMMISSIONER MARTINEZ:  Okay.  Thank you.

         16              CHAIRMAN SOARIES:  Commissioner

         17   DeGregorio.

         18              COMMISSIONER DeGREGORIO:  Thank you, Mr.

         19   Chairman.  I know that because of limitations in time

         20   I won't be able to ask each panelist a question, but

         21   let me ask Mr. Berger who has been involved in the

         22   Standards' process for many years, as he described,





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          1   and is a representative of IEEE and will be on the

          2   Technical Guidelines Development Committee that will

          3   be set up very soon to look at the standards that

          4   this Commission will adopt eventually.

          5              I am concerned because it is my

          6   understanding that the 2002 Standards that were

          7   developed by the FEC that you had a hand in--they

          8   were updated--that there are very few systems out

          9   there that meet those 2002 Standards right now.

         10              What can you tell me that would encourage

         11   me that these vendors of this equipment will be

         12   tested and will meet these 2002 Standards for the

         13   2004 election?

         14              MR. BERGER:  Well as you very well point

         15   out, there is a process.  You have to have

         16   specifications.  The vendor has to have time to

         17   respond to them.  And then their offerings have to be

         18   evaluated, be certified, and then acquired and

         19   deployed.

         20              That takes time.  It is something that

         21   every field has.  In this particular case, I think

         22   one of the best features to put in the system is





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          1   fully engaging the vendors in the development of

          2   those specifications.  

          3              We certainly don't want to turn over the

          4   system to the vendors but they know what they can

          5   implement quickly and what they can't.  They have

          6   insights as an important stakeholder to the process,

          7   but perhaps most importantly if you use a consensus

          8   process and the vendors see the handwriting on the

          9   wall, if you will, the experience in many areas is as

         10   the standard works through its final approval process

         11   and implementation the vendors are very busy in their

         12   product development having products ready for market.

         13              That very often stands in contrast to

         14   processes where you somewhat hold the development of

         15   specifications behind closed doors, and then you

         16   serialize that process.

         17              I'd like to add a comment if I may,

         18   quickly, to the previous discussion.  It would simply

         19   be this:  We need to look around for other fields

         20   that have something to offer in the issues we were

         21   just discussing.

         22              In an election audit, we are essentially





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          1   involved in an historical research.  We are trying to

          2   determine what the voter did at a point in time. 

          3   Recent history, to be sure.

          4              It is well established in historical

          5   research that you have the highest confidence that

          6   you understand what occurred by multiple independent

          7   witnesses and accounts that have been kept separate

          8   so that they don't influence one another.  That is a

          9   principle that I think we need to think carefully

         10   about in this field; that as quickly as possible, and

         11   as independently as possible, we have independent

         12   records of what the voter does so that audits can

         13   compare separate accounts.  That's a well established

         14   principle, and I think it avoids the kind of

         15   bottlenecks that Dr. Rubin pointed to.

         16              CHAIRMAN SOARIES:  Commissioner Hillman--

         17              COMMISSIONER DeGREGORIO:  One last

         18   comment, Mr. Chairman, while I have the floor--I'm

         19   going to steal the floor--

         20              (Laughter.)

         21              COMMISSIONER DeGREGORIO:  --but I just

         22   want to compliment Dr. Rubin for working at the polls





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          1   and joining the ranks of the million Americans or so

          2   out there who work at the polls. 

          3              I read your commentary the next day, too,

          4   and it wasn't five in the morning, but it may have

          5   been eight o'clock in the morning, because I know

          6   that when I was an election director we had

          7   difficulty recruiting good workers.  

          8              I encourage everyone in this room to work

          9   at the polls, if you can, and the media out there to

         10   encourage people to become poll workers.  

         11              I know Ted Selker and I spent 15 hours at

         12   the polls in Los Angeles last October, and so I think

         13   it is important for people in the academic,

         14   scientific, media, to get it from the inside and work

         15   at the polls.

         16              I do have one concern, though, when I see

         17   emails that go out to encourage people to be poll

         18   workers to not be real poll workers but to subvert

         19   the system.  I'm not suggesting that at all about you

         20   or anyone else here, but I have seen some of that go

         21   on in the past few weeks and it does concern me that

         22   people are out there to pretend to be poll workers





                                                                       83



          1   but really want to subvert our electoral system and

          2   process.

          3              Thank you, Mr. Chairman.

          4              CHAIRMAN SOARIES:  Vice Chair Hillman.

          5              VICE CHAIR HILLMAN:  Thank you. 

          6              I have two questions, but one I would like

          7   to ask each of the panelists to submit your response

          8   in writing.  That is, on the issue of a way for the

          9   voter to verify that their votes were recorded

         10   correctly.

         11              I would just like to see from your

         12   perspectives the difference between--I obviously know

         13   how you can do it with a paper ballot--but with the

         14   lever machine, the Opti Scan, and the DREs, the voter

         15   verification question.  Because I'm not seeing in my

         16   mind the difference between the lever voting, which

         17   has been used for decades, and the DRE once you hit

         18   that lever and push that button it's been gone.  So

         19   for 90 years the issue wasn't discussed, and now it

         20   is.  So that will help me.

         21              DR. SELKER:  Could I speak to that for a

         22   moment?





                                                                       84



          1              VICE CHAIR HILLMAN:  Well I do have

          2   another question, but if you could just submit your

          3   responses to me, just a one-pager would be fine, I

          4   would really appreciate that.

          5              My other question:  Dr. Williams, if you

          6   could just briefly share your observation and your

          7   thoughts about the role that the independent test

          8   agency plays in this whole discussion about the

          9   certification of the machines, and that as a useful

         10   tool and any suggestions or thoughts that you would

         11   have to the Commission about the work of that agency.

         12              DR. WILLIAMS:  Well of course one thing

         13   they do is give us a uniform starting point.

         14              CHAIRMAN SOARIES:  Hold on, Doc.  If you

         15   could just pause so that the microphone can go up,

         16   that way people can hear the first part of your

         17   statement.

         18              DR. WILLIAMS:  Is it on now?

         19              VICE CHAIR HILLMAN:  It is.

         20              CHAIRMAN SOARIES:  There's a little time

         21   delay here.I

         22              DR. WILLIAMS:  It gives us a uniform





                                                                       85



          1   starting point.  I've got on my desk the 1990

          2   Standard and the 2002 Standard, and when the ITA

          3   tells me that they have evaluated a system with

          4   respect to one of those two Standards, then I know

          5   what that means.  I know what they've done to it.  I

          6   know what the system had to do to come through that.

          7              It tells me, for instance, that the system

          8   is reliable; that the system is maintainable, that

          9   the components in its are quality components; that

         10   the engineering that went into it is quality

         11   engineering; and that the functionality of it is a

         12   voting system.

         13              It also tells me that it has been at least

         14   looked at from a cursory basis from the point of view

         15   of security and fraudulent code and those kinds of

         16   things.

         17              Now, you know, every time you say that

         18   everybody goes (fluttering hands) ohhhhhhh, you know,

         19   you can't do that.  Well, no, you can't.  There's no

         20   such thing as a 100 percent secure system of any

         21   kind.  But the more it is looked at by the ITAs and

         22   so forth, it raise your confidence level.  





                                                                       86



          1              So their evaluation brings your confidence

          2   level in the system up to a point.  

          3              Then the next step in the Standards, and

          4   we think, when we talk about the standards we tend to

          5   talk about them as if they were federal-level

          6   standards; they're actually standards at three

          7   levels.  That second level, then, is state

          8   certification.

          9              The next thing a state should do is bring

         10   that qualified system into the state and do a review

         11   on it at the state level, number one, to see if there

         12   are any peculiarities in the state law, the state

         13   code, the state regulations that need to be examined

         14   that the ITA didn't examine.

         15              Pennsylvania, for instance, has a very

         16   unique way of voting, changing your vote in a multi-

         17   member straight-party election called "The

         18   Pennsylvania Method."  No other state does it that

         19   way.

         20   

         21   

         22   





                                                                       87



          1              DR. WILLIAMS:  And then you should always

          2   look at the system from the point of view of

          3   usability and affordability at the state level

          4   because the ITA's do not consider these two hardly at

          5   all.

          6              And certainly not affordability.  They

          7   don't even know what that costs.  That's strictly a

          8   local concern. 

          9              VICE CHAIR HILLMAN:  Is that a transparent

         10   process?  I mean, would most people who would want to

         11   know how the ITA is doing this process, is it

         12   transparent to us or to elections administrators?

         13              DR. WILLIAMS:  Yes, I think it is.  I

         14   mean, certainly this is not any kind of secret

         15   proprietary process.  The standards are yours.  They

         16   are EAC standards.  And the ITA's are intermediaries

         17   for an asset.

         18              Now, the problem you run into is how do

         19   you fund this thing?  See, we have no money.  

         20              So the way it's funded is the -- contracts

         21   with the ITA for the evaluation.  So up to the point

         22   where that evaluation report is released, that's a





                                                                       88



          1   propriety relationship.

          2              Now, once that report is through, it

          3   becomes pretty much a public document although

          4   officially it belongs to the vendor to pay for it.  A

          5   vendor would have to be out of their mind to refuse

          6   to give it to you.  

          7              I mean, so those are very available.  And

          8   you can.  Yes, it's a very open process. 

          9              VICE CHAIR HILLMAN:  Thank you. 

         10              CHAIRMAN SOARIES:  Thank you.  I've got

         11   two quick questions. 

         12              We did inherit FEC standards.  And we are

         13   working hard to position ourselves to enhance the

         14   standards pursuant to many of the principles that you

         15   made clear today.  

         16              I think we have to acknowledge as often as

         17   we need to today that all of this costs money.  And

         18   I've been pressed by the media particularly to find

         19   out what happens next.  And just to give you just a

         20   preview of what we'll say after this over, we've got

         21   to raise money.  

         22              All of this costs money.  And I know if





                                                                       89



          1   there's one thing we'll all agree on from every

          2   perspective today -- that we need money to invest in

          3   this process.  So we do value the work that's been

          4   done because much of it has been done by volunteers.

          5              I don't know how many of you were involved

          6   in the development of the '90 standards and then the

          7   update to '02.  But I'm just curious to know -- maybe

          8   you, Mr. Berger, would know -- in the '90s there was

          9   reference to a standard for paper verification.  And

         10   the '02 standard there's no such thing.  

         11              I'm just wondering if it was an oversight. 

         12   Was there a conscious decision made to make no

         13   reference to paper verification in '02?  What -- 

         14              DR. WILLIAMS:  I don't recall that as a

         15   conscious decision.  That's something we could talk

         16   with Penelope about.  You know, Penelope was the

         17   editor-in-chief of that.

         18              But I don't remember any discussions in

         19   any of the meetings I was in where a conscious

         20   decision was made to leave that out.  It sounds like

         21   an oversight.             CHAIRMAN SOARES:  Okay. 

         22              MR. BERGER:  I'll just say that I got





                                                                       90



          1   involved late in the process as the -- became

          2   engaged.  There was a mature draft at that point.  We

          3   took it and brought as much reflection and

          4   recommendation to it as we could from the membership.

          5   

          6              I don't recall any discussion of this

          7   point either from the FEC or from any of our

          8   reviewers.  It didn't seem to be an issue at that

          9   time. 

         10              CHAIRMAN SOARES:  In many ways we are

         11   faced with a task kind of catching up to the horses

         12   and then building a coral around them.  Technology

         13   has outpaced the science, the research, the data.  

         14              And I'm wondering -- I'm wondering if any

         15   of you from your other interactions with other

         16   industries see any analogous challenge, where the

         17   technology was in fact in use prior to the testing

         18   for usability and security being on a par with what

         19   we might call public expectations.  

         20              And then people such as ourselves had to

         21   play catch-up to existing technology.  I think about

         22   the microwave ovens.  You know, when the microwave





                                                                       91



          1   came out, my grandmother wouldn't use it because she

          2   thought there was something sinful about things

          3   getting warm that fast. 

          4              (Laughter.) 

          5              CHAIRMAN SOARES:  And she didn't know

          6   anything about the science.  But I think most of us

          7   assumed that that was preceded by science so that by

          8   the time the consumer had access to it -- and I'm

          9   wondering.  Are there analogies?  I just don't -- I'm

         10   a preacher so I have been looking at this. 

         11              MR. SELKER:  The microwave's a perfect

         12   example.  She was right.  There were leaking

         13   microwaves at the beginning.  

         14              CHAIRMAN SOARES:  I knew my grandmother

         15   was smart.

         16              (Laughter.)

         17              MR. SELKER:  I mean there are people that

         18   got in trouble by using, you know, microwave antennas

         19   to heat themselves too.  There are lots of examples

         20   of people putting dangerous equipment out and

         21   learning later how to coral it.  I think it's very

         22   typical for engineers to make things and sell them





                                                                       92



          1   before they test them. 

          2              CHAIRMAN SOARES:  But then how does the

          3   experience in those areas inform us as we devise

          4   process?  Much of what we do, by the way, when we're

          5   in our office -- we just got offices.  But much of

          6   what we do on the phone is to think about process.

          7              We're not really as focused on products as

          8   people may want us to be.  We are focused on process,

          9   because we believe that our job was to put in place

         10   guidance around process because if the process has

         11   integrity, then the product will have more integrity.

         12              MR. SELKER:  Just to finish that, I just

         13   finished studying some voting equipment from another

         14   country.  And I started off very skeptical and I

         15   ended up with a report saying exactly how process

         16   could make it absolutely secure.  When it's released,

         17   I'll share it with you. 

         18              CHAIRMAN SOARES:  No, we can't wait that

         19   long.  Give us a --

         20              (Laughter.)

         21              MR. SELKER:  -- testing is very powerful. 

         22              MR. BERGER:  If I may, there's a number of





                                                                       93



          1   parallels that I think the Commission would benefit

          2   from observing and drawing advice from people who

          3   were involved.

          4              For example, at the Federal Communications

          5   Commission if you go back to about 1980, when they

          6   first required a missions testing of computing

          7   devices, computers were all over the place.  

          8              And for the first time new requirements

          9   that deeply affected that technology were put in

         10   place.  That's been a fascinating process to watch

         11   over the last 25 years.  And a lot of good lessons

         12   have been learned. 

         13              By the way, all those test reports are

         14   available publicly on the FCC Web site.  Every FCC

         15   equipment grant is publicly available.  

         16              Their processes, for instance, developing

         17   the nation's intelligent highway system, upgrading

         18   our entire highway system, is currently under way. 

         19   The Department of Commerce is very involved in that. 

         20              And five standards development

         21   organizations are actively involved.  The upgrade of

         22   our light rail system and our subways is another area





                                                                       94



          1   where there is very active work.  They produce 14

          2   standards to date and are obviously dealing with an

          3   infrastructure in place. 

          4              You pointed to one.  The concern about

          5   cell phones and safety health issues is one that's

          6   been very active in recent years both nationally and

          7   internationally, again, under the guidance of the FCC

          8   and FDA.  And there's a lot of parallels that I think

          9   this Commission may benefit from. 

         10              And I am certain the staff involved there

         11   would be happy to talk to you about their experiences

         12   and their process in guiding the cell phone industry

         13   to address the public's concern about safety there. 

         14              DR. RUBIN:  I think I can give you an

         15   enlightening analogy too.  If you look at the

         16   software industry and in particular the advent of e-

         17   mail, Microsoft software came out and was very useful

         18   and people loved it.  So they kept adding features. 

         19   And they added mail programs.  

         20              And suddenly we started getting hit with

         21   viruses and spam.  And this has been a problem that

         22   now we don't know how to do -- what to do about it.  





                                                                       95



          1   So Microsoft has started -- Bill Gates came out with

          2   a statement that they were going to devote security

          3   as the top priority.  They started hiring security

          4   experts like crazy, redesigning their systems. 

          5              And now Bill Gates has gone on record

          6   saying that by 2006 they will sole the spam problem.

          7              So I think, you know, if we look at the

          8   voting industry and say, well, if we have all these

          9   security problems and I'm not looking for a job, but

         10   we need to get security experts in there and have

         11   them help with the design of the systems to make them

         12   more secure. 

         13              CHAIRMAN SOARES:  Our time is up.  I'm

         14   going to ask Commissioner Martinez to have the

         15   closing comment question.  

         16              But if you could send us information about

         17   any research that you know that has measured the

         18   likelihood of voters looking at the paper, I'd

         19   appreciate that. 

         20              When we buy gas, we have option to get a

         21   receipt or not get a receipt.  I don't know how many

         22   people choose yes over no.  And if any data exists





                                                                       96



          1   that could inform us about just the like -- when we

          2   talk about paper, we assume that everyone will look

          3   at the paper.  

          4              If there's any data that can help us know

          5   more about the likelihood of it happening, I would

          6   appreciate it. 

          7              CHAIRMAN SOARES:  Mr. Martinez.

          8              COMMISSIONER MARTINEZ:  Thank you, Mr.

          9   Chairman.  My thanks to all of you.  And I only

         10   regret, I think -- I probably speak for the entire

         11   Commission in saying that we wish we had more time to

         12   continue this dialogue. 

         13              I do have one closing question, Dr.

         14   Selker.  And I'm still focused, Dr. Rubin, on your

         15   continuum, which I think is very helpful, very

         16   terrible to very good.  And how do we move up that

         17   continuum? 

         18              From your perspective what you said is in

         19   the short term.  We get there.  We can go to verified

         20   paper ballots is what I heard you say.  Is that

         21   accurate?

         22              DR. RUBIN:  Right. 





                                                                       97



          1              COMMISSIONER MARTINEZ:  Dr. Selker, are

          2   there ways to get there?  

          3              What about the possibility of encrypting? 

          4   Is that something that could work today?  Is that

          5   technology available to somehow, you know, provide

          6   some added security to the DRE's that are in

          7   existence today.  We don't have much time.  Can you

          8   just comment quickly on that.

          9              MR. SELKER:  Yeah.  My position on paper

         10   came from watching people look at paper receipts in a

         11   Chicago election.  I watched -- I went to 60

         12   balloting places and people, when they were told with

         13   the paper and with somebody telling them that they

         14   had spoiled the ballot, 1 in 10 were willing to take

         15   a new ballot.  

         16              So that's my concern.  That's why I'm

         17   promoting audio verification trails.  For one thing,

         18   they are cheaper, more reliable equipment, easier to

         19   implement. 

         20              But encryption, I think not for 2004.  For

         21   2004 we have the equipment and we really need to have

         22   oversight over the equipment that improves it.  My





                                                                       98



          1   big concern is what if we add things that create

          2   errors.  And I'm very concerned about the paper

          3   trails and errors. 

          4              CHAIRMAN SOARES:  Thank you.  I am, again,

          5   appreciative of the fact that you thought it worth

          6   your time to travel here and to offer this important

          7   testimony.  And we are grateful and the country is

          8   better served because you've helped us with our

          9   mission.  Thank you. 

         10              We will now without delay call our vendor

         11   panel.  And when they are seated, we will introduce

         12   our vendors.  

         13              (Pause.)

         14              CHAIRMAN SOARIES:  -- to cooperate. 

         15   Excuse me, audience.  I'll try this one more time. 

         16   Will the audience please be seated or leave.  Thank

         17   you. 

         18              I want to first -- I want to thank the

         19   panel for being here and let me apologize for some of

         20   the shorthand descriptions of the names of your

         21   corporations.  Don't -- take it as affection and not

         22   as disrespect.  We feel like family.





                                                                       99



          1              I'd like to also thank you for taking the

          2   time to come and share with us.  I know that all of

          3   you are being called upon more and more to share your

          4   perspective, your experience.  

          5              But frankly without your presence here

          6   today, this hearing would have been much less

          7   credible.  And our moving forward would have been

          8   much more difficult.  

          9              So we really appreciate it.  And we hope

         10   to have a good working relationship with you as we

         11   try to understand the issues. 

         12              We live in a free market economy.  And all

         13   of you involved in the private sector, which means

         14   that someone had to take risk to do this business. 

         15   And that's always a challenge, but it's also a

         16   welcome development because that's what makes our

         17   country what it is. 

         18              Let me introduce the panel.  And if you'd

         19   speak in this order, I'd appreciate it.  

         20              We have Mr. Neil McClure from Hart

         21   Intercivic.  We have Mr. Mark Radke from Diebold

         22   Elections Systems.  We have Mr. Kevin Chung from





                                                                      100



          1   Avante International, Mr. William Welsh from Election

          2   Systems and Software.  We have Mr. Alfie Charles from

          3   Sequoia Voting Systems.

          4              And I will be the lead questioner for the

          5   commissioners after your segmented presentations. 

          6              Mr. McClure.

          7              MR. McCLURE:  Thank you.  I'd like to

          8   thank you for having the opportunity to provide

          9   testimony for the Commission today. 

         10              Hart Intercivic entered the DRE market in

         11   the 2000 presidential election with the certified

         12   system after over three and a half years of

         13   development and testing.  

         14              We have identified as part of our

         15   development process key attributes that we felt were

         16   important to direct recording electronic systems and

         17   embodied those in our system design and architecture.

         18              Those attributes were product liability,

         19   product quality, accessibility, usability, security,

         20   and above all accuracy and integrity of election

         21   data. 

         22              As most of us are aware, product





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          1   development processes are trade-offs that are driven

          2   by market demands and customer requirements.  

          3              Since the introduction of the e-slate

          4   system -- or DRE, we have released five major

          5   functional upgrades to the system in that time

          6   period.  

          7              It wasn't until 2003 where we saw an

          8   emerging requirements for new securities.  And this

          9   did not come from a customer base.  It came from a

         10   market space. 

         11              We had architected the capability in our

         12   system to provide security, higher level security,

         13   into the system.  But it had not been a requirement,

         14   so we had focused our resources on more near-term

         15   needs from our customers and market.  

         16              We're a software development company.  And

         17   our success is measured by our continuing product

         18   enhancement and improvement for our customers and our

         19   market. 

         20              However, the problem we are facing is the

         21   market is not establishing requirements.  They are

         22   prescribing a solution.  That solution is a voter-





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          1   verified paper ballot.  And it's only meant to

          2   address a single risk of a DRE while there are more. 

          3              And that risk is associated with the

          4   device recording the voter's vote as they cast it and

          5   accurately representing that in its memory. 

          6              So if this is a solution, then there must

          7   be a problem.  Well, the problem is -- the perception

          8   is the DRE cannot be trusted.  There are methods

          9   available to provide for a measurable level of trust

         10   in electronic devices.  

         11              And if a device is not able to meet these

         12   levels of trust, then you provide other mitigating

         13   remedies such as a voter-verifiable paper ballot. 

         14              The trust needs to be established in

         15   relationship to the threats to a system.  Security

         16   analysis will identify threats for former risk

         17   assessment and then evaluation and implementation

         18   processes to implement the mitigation strategies. 

         19              With the voter-verifiable paper ballot

         20   we're going from identification of threats to the

         21   implementation stage.  This type of reaction often

         22   causes more harm than good.





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          1              There's been no real discussion, debate,

          2   reference, publications that talk about a risk

          3   assessment -- and all the risks associated with the

          4   DRE.  Yes, they do exist. 

          5              But an assessment will assign

          6   probabilities and likelihoods, which will drive the

          7   product development companies and the people involved

          8   to put appropriate mitigation steps in place --

          9   security mitigation strategies to be based on the

         10   risk assessment and just not on the existence of a

         11   threat.  

         12              Because if we look at this problem, this

         13   Trojan horse problem, we've heard some earlier

         14   testimony about some classroom experiments.  But in

         15   reality in the presidential upcoming election in

         16   Orange County, California, for example, there's 2,200

         17   precincts, 1,723 polling places, 91 cities in special

         18   districts, 5 languages, and ballot rotation on top of

         19   that.

         20              When you put all that together, you have

         21   over thousands of ballot styles, a hugely complex

         22   problem just to get it right.  





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          1              And to think an attacker can come in on

          2   some short-term notice and implement some sort of

          3   Trojan horse -- and we talked about the length for

          4   certification and other processes.  There's a long-

          5   term commitment and a well motivated attacker would

          6   have to spend considerable effort on this problem.

          7              But does a voter-verifiable paper ballot

          8   address the risk that it's attempting to?  We've

          9   certainly heard a lot about different threats that

         10   are out there for DRE's.  Let me pose one to you.

         11              A voter comes in and votes on a system

         12   with a voter-verifiable ballot.  It prints out the

         13   paper.  They review the paper and look at it and they

         14   reject their ballot.  This is under the proposed

         15   implementation that we've seen out in the press and

         16   from other papers.

         17              Well, under that scenario the hacker

         18   would, after a little social engineering, understand

         19   that a lot of voters surprisingly don't pay attention

         20   and that if somebody rejects their ballot, they're

         21   paying attention.  

         22              So they print out the next one that's





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          1   correct.  And so this way this defeats the purpose of

          2   the paper ballot.  The only way around that is to --

          3   if there is an instance where the paper does not

          4   match the electronics, the system should be shut

          5   down. 

          6              Don't give them three tries.  Shut the

          7   system down.  Shut down the election.  Something's

          8   wrong.  Why would we continue to collect votes if

          9   there's a problem with the system?

         10              So these are definitely challenges that we

         11   would face in any implementation of this.  But really

         12   I think it comes back to a matter of trust.  We need

         13   to look towards -- if the requirement is that the DRE

         14   is not perceived as trustworthy, we need to look

         15   towards how do we develop a trustworthy device. 

         16              Well, society -- we do have trusted

         17   computing devices.  There are ways to achieve this. 

         18   And I believe that we have an opportunity to put

         19   DRE's on the path of becoming a trusted computing

         20   device. 

         21              As an example it would be a reasonable

         22   first step to establish a requirement that by January





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          1   1, 2006, all DRE's meet level II of the Phipp's 140-2

          2   cryptographic module standard.  This is a federal

          3   standard.  

          4              It will not bring the device up to a fully

          5   trusted level as regarded in some circles.  But it

          6   would be a great first step to take to put it on the

          7   path of becoming a trusted device. 

          8              In addition, there are some other

          9   recommendations that would go to support this effort. 

         10   There are many reports in the media about

         11   irregularities with DRE's.  I don't see people

         12   attributing these to attacks or security breaches

         13   although they are used as support of the paper

         14   ballot. 

         15              But there are quality issues.  There are

         16   product quality issues.  These irregulars could be

         17   traced back to product issues.  

         18              I think we ought to look at raising the

         19   quality requirements, implementing national and

         20   international quality management systems, and testing

         21   requirements for all voting devices. 

         22              As part of the quality -- increased





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          1   quality requirements system testing should be

          2   reviewed and how it is applied to DRE's.  DRE's are

          3   more appropriately used simulation in order to do

          4   volume testing.  This should be an ingrained part of

          5   a DRE system. 

          6              And today we find that a lot of paper

          7   practices have been applied to DRE's.  Logic and

          8   accuracy tests is a fine example.  If you take a

          9   logic and accuracy test prescription for a paper

         10   ballot system, which is very appropriate, apply it to

         11   a DRE, you end up with a cumbersome, complex process

         12   that is inappropriate for an electronics system.  

         13              This also goes towards recount.  And a

         14   recount is really a term of art for a paper system. 

         15   Recount -- the intent of it for a paper system is to

         16   verify and validate the outcome of an election.  

         17              If you apply validation and verification

         18   to a DRE system, you get a different process. 

         19   There's a lot of discussion about nothing meaningful

         20   to recount.  Well, of course there's not if you're

         21   applying a paper's process to an electronic system. 

         22              So there are other ways to provide





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          1   verification and validation that would include and

          2   encompass the intent of a recount. 

          3              CHAIRMAN SOARES:  Mr. McClure, you are

          4   moving very close to the other panelists' time.  

          5              MR. McCLURE:  Okay, I'll wrap it up right

          6   now.  Two last items. 

          7              Record retention can be improved for

          8   electronic systems and also the Commission to support

          9   a standardized electronic format for interchange of

         10   data. 

         11              I'd like to thank you again for providing

         12   the testimony.  I think that we have an opportunity

         13   to adopt an evolutionary approach to security in

         14   addressing necessary processes supporting DRE

         15   elections that will provide reliable, trustworthy

         16   elections to be conducted using electronic systems.

         17              We should move forward with electronic

         18   voting in a deliberate and reasonable manner,

         19   celebrate the efficiencies and enfranchisement of all

         20   voters, and appropriately manage the risks.

         21              Thank you.

         22              CHAIRMAN SOARES:  Thank you so much. 





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          1              Mr. Radke. 

          2              MR. RADKE:  Thank you, sir.  Mr. Chairman,

          3   Commissioners, my name is Mark Radke.  And I'm

          4   director of marketing for Diebold Electric Systems, a

          5   subsidiary of Diebold, Incorporated. 

          6              We appreciate the opportunity to be with

          7   you today to discuss the benefits associated with

          8   Diebold's touchscreen voting solution.  

          9              To highlight the various advantages of our

         10   touchscreen solution, we must first review the Help

         11   America Vote Act -- was introduced to replace punch

         12   cards, lever systems, and other election systems

         13   technology. 

         14              The 2000 presidential election uncovered a

         15   number of major issues that existed within the voting

         16   process resulting in inaccuracies and

         17   disenfranchisement.  

         18              And these include, and have been discussed

         19   already today, the inability to determine voter

         20   intent -- we all remember the person pulling the

         21   punch card ballot up to the light -- overvoting,

         22   undervoting -- again, in this case voting for not





                                                                      110



          1   enough people within a race or not voting in a race

          2   at all -- and a lack of voter accessibility for the

          3   blind, visually impaired, and non-English-speaking

          4   voters. 

          5              How does Diebold's touchscreen voting

          6   system assist in solving these major issues?  

          7              Selections made by each voter are clearly

          8   indicated with an X, surrounded by a red box.  And

          9   there is no doubt concerning which candidate was

         10   chosen.  Voter intent is clear and concise. 

         11              Our touchscreen voting solution completely

         12   eliminates overvoting.  So this severe problem that

         13   was experienced throughout the 2000 election is

         14   immediately resolved. 

         15              The system does not allow a voter to vote

         16   for more than the specified number of candidates

         17   within a specific race.

         18              Undervoting is significantly reduced as

         19   selections are clearly indicated.  Once the voter has

         20   viewed the entire ballot, a summary screen displayed

         21   what choices have and have not been made within each

         22   race. 





                                                                      111



          1              Simply touching an unvoted race on the

          2   summary screen immediately returns the voter to the

          3   unvoted race, enabling them to make a selection.  

          4              The ability to significantly reduce

          5   undervoting was clearly experienced in the California

          6   counties using the Diebold touchscreen system during

          7   the October recall election.  

          8              During this election the overall undervote

          9   percentage for the state of California on the recall

         10   question was 4.63 percent.  Counties using punch card

         11   technology experienced a 6.32 percent undervote. 

         12   Counties using optical scan technology experienced a 

         13   2.68 percent undervote.  This percentage almost

         14   equals the 2.9 percent undervote in Florida during

         15   the 2000 election.  

         16              Counties using Diebold's touchscreen

         17   solution experienced a 0.73 percent undervote -- by

         18   far the lowest of all technology used.  It was also

         19   175 percent better than its nearest touchscreen

         20   competitor.

         21              The state of Georgia has already conducted

         22   over 450 successful elections using the Diebold





                                                                      112



          1   touchscreen voting system and experience the same

          2   type of reduction in undervoting.  And I suspect

          3   Kathy Rogers from the state of Georgia will discuss

          4   these details and statistics to you in just a little

          5   bit. 

          6              Based on input from blind, visually

          7   impaired, and physically challenged individuals,

          8   Diebold has the most successful voting stations in

          9   the industry.  Our voting stations meet or exceed all

         10   -- section 508 standards associated with the

         11   Rehabilitation Act of 1998.  This includes

         12   requirements for reach, height, voice guidance, and

         13   other important capabilities.  

         14              Our voice guidance capability enables

         15   blind people to navigate through the entire

         16   touchscreen ballot unassisted, voting in complete

         17   privacy for the first time in their lives. 

         18              Every Diebold voting station offers voice

         19   guidance capability so a voter can vote on any

         20   touchscreen unit within a precinct -- no

         21   disenfranchisement. 

         22              Voters with limited vision can magnify the





                                                                      113



          1   text and target areas on the touchscreen, enabling

          2   them to vote without assistance.  Enlarged target

          3   areas are especially important for voters with

          4   Parkinson's disease or other conditions that affect

          5   dexterity.

          6              The Accu-Vote TSX offers the capability to

          7   quickly adjust the contrast of the ballot on the

          8   touchscreen, enabling people with color blindness or

          9   limited vision to more clearly view the screen.

         10              The simple touch of the high contrast icon

         11   on the screen changes the standard ballot to a very

         12   sharp ballot presentation with black letters featured

         13   on a white background.  This capability is a Federal

         14   Election Commission 2002 certification requirement.  

         15              Voter's in wheelchairs can vote

         16   approaching the unit from the side or from the front. 

         17   The Accu-Vote TSX 10-pound voting tablet can be

         18   removed from the voting station and manually

         19   transported to a physically challenged voter driven

         20   to the voting location in an automobile -- curbside

         21   voting. 

         22              The voting tablet can also be placed on





                                                                      114



          1   the tray of a wheelchair, enabling a voter with

          2   limited dexterity to vote more comfortably on the

          3   touchscreen voting station. 

          4              A voter can make selections on the large

          5   15-inch touchscreen using virtually any type of

          6   object such as a finger, a head pointer, or even a

          7   tongue depressor. 

          8              For several years Los Angeles County,

          9   California, has successfully used the Diebold

         10   Touchscreen Solution for early voting.  The ability

         11   to present over 5,000 ballot styles in 7 different

         12   languages, including character languages, on each

         13   voting station is a capability that is unmatched in

         14   the industry.

         15              Illiterate voters can also vote without

         16   assistance, as Diebold's voice guidance system

         17   enables voters to make ballot selections using a

         18   numbered keypad.  

         19              The numbers from the March super Tuesday

         20   election tell a compelling story.  Zero -- I repeat

         21   zero security-related at the more than 55,600 Diebold

         22   touchscreen voting stations deployed across the





                                                                      115



          1   country by election officials. 

          2              Over 9 million voters had the opportunity

          3   to use electronic voting solutions, including the

          4   entire state of Georgia and virtually the entire

          5   state of Maryland. 

          6              Almost 130,000 visually impaired men and

          7   women had an opportunity to vote unassisted.  310,000

          8   disabled people could vote more conveniently because

          9   the voting booth could accommodate them.  61,000 new

         10   Americans citizens had the opportunity to vote on a

         11   ballot in their native language.  

         12              And also very importantly, 562,000 older

         13   Americans were able to vote easily and intuitively. 

         14   That's a proof of performance that is strong and

         15   irrefutable. 

         16              During a recent March primary election the

         17   California secretary of state conducted parallel

         18   monitoring, testing of touchscreen voting stations

         19   used throughout the state. 

         20              The parallel monitoring process included

         21   the secretary of state's staff pulling voting

         22   stations from selected jurisdictions before the





                                                                      116



          1   elections began and testing each unit for the

          2   duration of the primary election to verify its

          3   accuracy. 

          4              The candidate selection process of the

          5   staff was even videotaped to provide an irrefutable

          6   audit of all activities.  The completion of the

          7   parallel monitoring-testing process concluded that

          8   each and every Diebold touchscreen voting station

          9   provided 100 percent accuracy. 

         10              While there have been questions and doubts

         11   raised that generally are theoretical in nature, it

         12   is clear that electronic voting systems are a

         13   significant advancement over previous voting

         14   technologies. 

         15              We've heard and read a lot of headline

         16   references to such things as red teams, Internet

         17   voting, security hacking, and numerous other items.  

         18   What's been missing from these laboratory originated

         19   critiques has been the real world experience at the

         20   voting booths, including the people, the procedures

         21   that are in place to conduct the election safely and

         22   securely.





                                                                      117



          1              One fact that must be clearly stated is

          2   that Diebold touchscreen units are stand-alone voting

          3   stations that are never connected to the Internet, 

          4   therefore eliminating the risk of Internet hacking. 

          5   They are also never networked within the precinct.  

          6              CHAIRMAN SOARES:  Mr. --

          7              MR. RADKE:  Do I have -- 

          8              CHAIRMAN SOARES:  Yeah.  We will read, and

          9   most of us have read, your written testimony.  If you

         10   can wrap up your oral because we'd like to have the

         11   chance to ask you questions. 

         12              MR. RADKE:  I just have like two more

         13   minutes, please -- or less. 

         14              CHAIRMAN SOARES:  Thank you. 

         15              We have addressed many of the security

         16   issues raised by the independent reviews through the

         17   implementation of the changes that were discussed

         18   earlier. 

         19              We have removed all hard-coated encryption

         20   keys, passwords, and pens.  All the elements are now

         21   selected by each local board of elections and changed

         22   by them as often as they choose. 





                                                                      118



          1              We have enhanced the security of the

          2   election result uploads.  Again, Diebold Election

          3   Systems has responded to the many various security

          4   enhancements and has submitted those changes for

          5   review by the independent agencies. 

          6              Another major topic that has been

          7   discussed here today is the ability of individual

          8   voters to verify their choices for candidates and

          9   also issues.  I want to stress that this is a matter

         10   of public policy, not of technological capability. 

         11              Diebold Election Systems can and would be

         12   glad to meet with standards that are established when

         13   this public policy debate is resolved.  We will have

         14   the capability to retrofit the solution to both the

         15   Accu-Vote TSX and the Accu-Vote TS voting stations. 

         16              And I want to speak this very clearly:

         17   Today each vote cast within an entire jurisdiction

         18   can be anonymously printed out and utilized for

         19   manual recounts. 

         20              I would be remiss if I did not mention

         21   that we did experience issues within selected

         22   jurisdictions in California during the primary





                                                                      119



          1   elections.  Primarily these issues involved the

          2   operation of a separate peripheral device used for

          3   voter -- coding.  We sincerely regret that this issue

          4   inconvenienced voters and affected precincts.  

          5              However, the touchscreen voting stations

          6   deployed within these jurisdictions clearly,

          7   accurately, and securely tabulated each ballot cast. 

          8   Voters surveyed in Salano County, California, gave

          9   the Accu-Vote TSX a 97 percent approval rating. 

         10   Current county officials have stated their Accu-Vote

         11   TSX-based election was very successful. 

         12              We are committed to supporting our 19

         13   California customer counties in an effort to run

         14   efficient elections in November and are confident in

         15   our technology and its benefits.

         16              In conclusion, we do believe Diebold

         17   Election Systems can provide voters throughout the

         18   country with an election solution that, when combined

         19   with the experience, dedication, and oversight of the

         20   state and local election officials, will provide a

         21   safe, secure, and reliable election. 

         22              CHAIRMAN SOARES:  Thank you so much. 





                                                                      120



          1   Thank you.

          2              Dr. Chung. 

          3              DR. CHUNG:  Good morning, Chairman Soares

          4   and Honorable Commissioners. 

          5              Avante's pioneered the voter-verifiable

          6   paper voting system.  Not in light of security. 

          7   Actually at the time we didn't consider security. 

          8              CHAIRMAN SOARES:  Excuse me one second,

          9   Dr. Chung.  Could we just wait.  I don't think your

         10   microphone is working yet.  Are we ready?

         11              DR. CHUNG:  Thank you.

         12              CHAIRMAN SOARES:  Could you start again so

         13   that -- 

         14              DR. CHUNG:  Good morning, Chairman Soares

         15   and Honorable Commissioners. 

         16              Avante's pioneered the voter-verifiable

         17   paper election system not because of a security

         18   concern.  Primarily we were trying to confirm to the

         19   voters how their vote is counted and counted

         20   correctly, how the -- because of the debate I'm going

         21   to raise with 5 points together to mention our

         22   experience on using such a system.





                                                                      121



          1              The first point is that we echo Professor

          2   Rubins that if the DRE voting system is to be used, a

          3   voter-verifiable paper audit trail is the only

          4   reasonable means to assure voting security.

          5              One of reasons among many benefits -- it

          6   helped some voters to look at their choices on paper. 

          7   This is particularly important for those that are not

          8   so familiar with the use of computers or summary

          9   screens at the end.  

         10              Their recent election mishap in Brower

         11   County, Florida -- 134 votes was making no selections

         12   on a single contest election.  And the difference

         13   between the candidates -- only 12 votes. 

         14              Imagine that if we actually print out the

         15   paper record and the voter has a chance to review it,

         16   I'm sure most of them would have caught such a big

         17   error in the system.

         18              On the security side the VPAC helps to

         19   expose all errors, all tamperings during and after

         20   the ballot has been stored in the electronic memory. 

         21   The auditable paper record -- of course, we also

         22   eliminate all legal challenges on the validity of the





                                                                      122



          1   voting results even for the closest of races.

          2              Yes, we still will need good procedures

          3   and practices so that a tamper-proof election can be

          4   held even with the auditable paper records.

          5              The second point I want to make is

          6   accessibility.  It is straightforward for any DRE

          7   system with VPAC to provide -- of the paper record to

          8   the blind voters.  That's making VPAC accessible. 

          9   Avante did it. 

         10              American consultive line -- national

         11   federations of lines of California, California

         12   consultive line, many groups in Ohio, Connecticut,

         13   New Hampshire, and so on have tested such features in

         14   our system and found them to be accessible.  

         15              Like most of the site voters, line voters

         16   also appreciate to know that their ballots are cast

         17   and counted correctly as they cast them.

         18              The third point I want to make is that

         19   VPAC helps voters catch errors if they make them. 

         20   DRE has one undisputed advantage over all other

         21   voting systems in that they guarantee zero percent

         22   overvotes.  





                                                                      123



          1              Avante votes record has proven in the last

          2   five elections that we held with such a system that

          3   with proper interface design DRE can also achieve

          4   zero residual votes.

          5              However, if not property engineered, DRE

          6   has been documented to yield very, very high

          7   undervotes as well.  In the year 2000 election in Los

          8   Angeles 12.3 percent of the voters voting on a DRE

          9   system never voted for a U.S. senator, while in the

         10   same race only 5 percent of -- never voted for a

         11   senator. 

         12              Imagine if the paper record is printed. 

         13   The voter has a chance to look at them.  Maybe they

         14   will discover such errors as well.  The four points

         15   is the cost of the system -- of using such a system. 

         16              Proper use of VPAC will -- the lowest cost

         17   of ownership for the jurisdictions in an actuary's

         18   price list for the good of the society. 

         19              However, it requires that every DRE ballot

         20   cast must print a paper record for recount.  The cost

         21   associated with printing it afterwards should be much

         22   higher than printing by the voters there and looking





                                                                      124



          1   at it.

          2              Many people worry about paper jams during

          3   the elections.  We all know people have been printing

          4   paper receipts for ATM's for at least 10 or more

          5   years.  Certainly printers for VPAC should be

          6   engineered so that paper jams rarely happen.

          7              The VPAC printers can be made modular so

          8   that the poll workers can fix it, change the paper

          9   jam if you ever need to.  

         10              There are a lot of erroneous quotes,

         11   including this morning, made by very smart people

         12   about VPAC.  Being the only vendor that ever used the

         13   system for elections we like to quote some of the

         14   comments for the same election the register makes on

         15   the Avante vote -- we're using. 

         16              Quote: "At the post the machines and

         17   printer perform flawlessly.  Openly and closing the

         18   post went very smoothly even though we had three

         19   times the normal amount of machines.  We had a

         20   recount and it was not necessary to do anything with

         21   the electronic machine as the printer results were

         22   acceptable."





                                                                      125



          1              And here's what the Connecticut SOS

          2   reports on the summary of that -- elections: "The

          3   demonstration project of the electronic voting

          4   systems went extremely well.  92 percent of the

          5   voters rated the electronic voted system as either

          6   excellent or good."

          7              And they continue to say in a separate

          8   letter issued to my office by the state's election

          9   and -- commission, the commission stated a preference

         10   for electronic voting systems as long as they have

         11   some kind of voter-verifiable paper record. 

         12              We hold elections in four counties of the

         13   eight in Connecticut and we are the only one that has

         14   the voter-verifiable paper record in the systems. 

         15              In our elections in Sacramento County,

         16   California, we have to do a survey.  96.5 percent of

         17   the voters feel highly confident that their vote is

         18   counted and recorded correctly. 

         19              In the same year the same election in

         20   Georgia, a similar survey was done.  70 percent of

         21   the voters feel confident that their vote was counted

         22   correctly.





                                                                      126



          1              Now I want to -- the social benefits of

          2   VPAC.  Ever since paperless DRE voting systems have

          3   been used, there has been many contentious recounts. 

          4   Many are still ongoing.  

          5              The monetary cost to both the

          6   jurisdictions and the contesting can be both

          7   documented and calculated.  More important, if most

          8   of us, definitely the historians, should be concerned

          9   with the costs to our nations and our democracies,

         10   with the endless contention in such a fundamental

         11   issue of voting and counting the votes --

         12   

         13   

         14   

         15   

         16   

         17   

         18   

         19   

         20   

         21   

         22   





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          1              One fact becomes very clear very quickly. 

          2   There are no recounts in DRE voting without Voter

          3   Verifiable paper audit trail.  Florida again made

          4   election history by being the first state to admit

          5   there's just no need to recount in DRE voting because

          6   there's no meaningful recount possible.

          7              One is left with the uncomfortable

          8   position, like Congress's eloquence in the Act, are

          9   we ready to accept that there will be no more

         10   recounts in any elections?

         11              CHAIRMAN SOARIES:  Thank you, Dr. Chung.

         12              Let me say this to the two final

         13   panelists.  Each of the previous panelists have taken

         14   a little more time, and so I have got to give you

         15   more time to be fair, if you need it.  I will give

         16   you an extra minute each, and we are going to extend

         17   this panel to 12:00 o'clock to ensure that we have

         18   adequate time for some dialogue with the

         19   Commissioners.

         20              I need to apologize to you, Mr. Welch.  I

         21   need a three-minute break personally, but let's

         22   proceed.  I have ready your testimony.  Commissioner





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          1   Hillman will take the chair and I'll be right back.

          2             STATEMENT OF WILLIAM F. WELSH II

          3         BOARD MEMBER, ELECTION SYSTEMS & SOFTWARE

          4              MR. WELSH:  Thank you very much, Chairman

          5   Soaries, and thank you for having this hearing today

          6   and giving us the opportunity to have this forum and

          7   have some meaningful debate on the issue, rather than

          8   having it done in the media--although I'm sure the

          9   media will make a lot out of what happens today.

         10              ES&S has been in the business of elections

         11   since 1969.  In fact, that's all we do as a company. 

         12   We're strictly in the election business.  Today we

         13   have in the U.S. over 50 percent of the precincts and

         14   50 percent of the registered voters are voting on

         15   ES&S systems.

         16              To date, we have installed or have

         17   contracts to install over 50,000 DREs.  Now the

         18   results and benefits of moving to DRE--and by the

         19   way, we make virtually every election system that was

         20   ever made.  We don't do lever machines and have not

         21   ever done lever machines.  We did do punch cards many

         22   years ago but don't do them today.  But we do paper-





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          1   based optical scanning systems and DREs.  

          2              The results and the benefits of moving

          3   towards DREs have been, I think, outstanding.  From

          4   the voter's perspective it has made the election

          5   process easier.  I believe that it's made it more

          6   accessible, and certainly in many cases it's made it

          7   more fun.

          8              It has also been made much more reliable

          9   because we've eliminated the potential over-votes,

         10   through the selection verification screen provided

         11   the voter the opportunity to confirm the choices

         12   before a vote is cast, and when it comes to capturing

         13   voter intent electronic voting has no equal.

         14              Electronic voting has also provided new

         15   opportunities to voters that have been heretofore

         16   disenfranchised with the existing technologies.  The

         17   audio function on our iVotronic DRE machines provides

         18   to visually impaired voters the first vote

         19   opportunity to vote unimpaired, excuse me,

         20   unassisted.

         21              The lightweight and portable feature of

         22   our iVotronic makes it easy to be transported to





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          1   curbside or for wheelchair voting.  Because the

          2   iVotronic DRE supports ballots in many languages,

          3   electronic voting is encouraging participation of

          4   voters who might be disenfranchised where language

          5   has been a barrier.

          6              Where optical scan voting is utilized,

          7   ES&S has announced an exciting new product, the ES&S

          8   AutoMark, which makes it possible again for the very

          9   first time on optical scanning systems for a visually

         10   impaired voter to cast an optically scanned paper

         11   ballot privately and independently.

         12              All of these improvements accomplish one

         13   very important and overriding goal that is enhancing

         14   the voting experience for all.  On the security issue

         15   we know that because of the newness of this

         16   technology and the natural skepticism that it brings

         17   with change, some are questioning the security of

         18   today's electronic voting options.

         19              On this issue, I am reminded of a paper

         20   that Dr. Michael Shamus, who is well known in the

         21   election industry, a paper that he wrote on

         22   evaluating the threat of electronic voting.





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          1              In that paper, Dr. Shamus wrote that the

          2   effort expended in meeting the threats to the

          3   election process should be rationally related to the

          4   probability of the threat and the seriousness of its

          5   effects. 

          6              No one would buy a safe that could be

          7   easily opened, but everybody buys a safe that can be

          8   cracked.  The same is true for voting systems.  The

          9   issue is not whether they are secure, but whether

         10   they present barriers sufficiently formidable enough

         11   to give us confidence in the integrity of the

         12   process.

         13              At ES&S we believe strongly that

         14   electronic voting has met that test.  We also believe

         15   that the security measures on the device itself are

         16   important and have to be built into the entire

         17   election process before the election, during the

         18   election and after the election.

         19              This includes all of the important

         20   processes and procedures in training, education, and

         21   other steps to recognize the extremely important

         22   human aspect of carrying out an election.





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          1              This is still a business, even with all

          2   the automation we're talking about that relies

          3   heavily on human beings to do the jobs efficiently,

          4   effectively, and trustworthy.

          5              At ES&S we work very hard to ensure this

          6   element of the voting process is carried out

          7   successfully.  I am skipping a lot of my speech to

          8   make up some time.

          9              CHAIRMAN SOARIES:  Thank you.

         10              MR. WELSH:  At ES&S we also work very

         11   closely with election administrators to train and

         12   educate those who carry out elections about the

         13   voting systems, the processes, and the procedures

         14   that we have established to maintain the integrity of

         15   the voting process.

         16              It is the combination of the security

         17   features which were built into our systems and the

         18   onsite support services training and documentation

         19   that ES&S provides to county and state election

         20   administrators that results in a secure, reliable

         21   voting solution.

         22              The security and audit features of our





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          1   electronic voting systems that I have elaborated on

          2   in detail in my written statement but I won't today

          3   also show that we have a very strong record of

          4   carrying out successful elections.

          5              The procedures we suggest reduce human

          6   error.  I can say with confidence the systems that we

          7   supply our customers are accurate, secure, and

          8   reliable.  

          9              We understand that there is consideration

         10   for a voter verified receipt to add an additional

         11   layer of security.  We believe this option is not

         12   necessary as it will add, clearly, to the cost and

         13   the complexity to what is already a secure process.

         14              The parallel testing process that was used

         15   in California in this last election, as well as

         16   mentioned earlier today by Dr. Selker, would be a far

         17   more effective and immediate solution to the security

         18   issues raised by the previous technical panel than

         19   adding a voter verified receipt.

         20              Nevertheless, ES&S has developed and has

         21   demonstrated several prototypes of potential voter

         22   verified receipt technology.  All these prototypes





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          1   provide the opportunity for voters to see on paper

          2   the selections before a ballot is cast.  

          3              What final form those prototypes would

          4   take and the technology that would be employed will

          5   depend upon the specifications and the requirements

          6   that right now do not exist that you may ask be added

          7   to the equipment.

          8              But should the decision be made to move

          9   forward with the voter verified receipt, we stand

         10   ready to deliver a technically feasible solution as

         11   soon as possible.

         12              However, in deference to Dr. Rubin's

         13   comment, having something available and in widespread

         14   distribution by November of 2004 is impossible. 

         15   Given the current certification process that we all

         16   go through, the time to develop and the time to get

         17   certified, we're talking a minimum of a year once the

         18   relevant specifications are known.

         19              So November I think is out of the

         20   question.  Parallel testing is something that can be

         21   implemented today.

         22              So again in conclusion let me thank you





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          1   for giving us the opportunity.  You have an important

          2   role.  We want to be a participant in helping you

          3   decide what is right for the voters of America.  

          4              We are firmly committed to maintaining

          5   integrity in the voting process and enhancing the

          6   voting experience for all.  Thank you.

          7              CHAIRMAN SOARIES:  Thank you, so much. 

          8              Mr. Charles.

          9       STATEMENT OF ALFIE CHARLES, VICE PRESIDENT OF

         10       BUSINESS DEVELOPMENT, SEQUOIA VOTING SYSTEMS

         11              MR. CHARLES:  Mr. Chairman and members,

         12   thank you for the opportunity to discuss these issues

         13   with you today, and I commend the Commission and

         14   their staff for putting this event together on what I

         15   know was limited time and limited staff and limited

         16   budget.  So I commend you for that, and thank you for

         17   inviting us to participate.

         18              Sequoia Voting Systems has been providing

         19   election equipment supplies and services for more

         20   than 100 years.  We have provided election officials

         21   with lever machines, punch card technology, optical

         22   scan voting equipment, and for the last 25 years





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          1   we've helped election officials conduct extremely

          2   successful elections with two different types of

          3   direct recording electronic voting systems.

          4              There are currently more than 50,000

          5   Sequoia DRE units installed across the country which

          6   will be used to securely and accurately record more

          7   than 105 million individual votes for candidates and

          8   issues this November.

          9              The voters that use these systems can be

         10   confident that the votes they record will be cast in

         11   the most thoroughly tested, accurate, reliable, user-

         12   friendly, accessible, and secure voting technology

         13   that has been deployed in this country today.

         14              With more than 500 pages of Federal

         15   Loading System Standards, reviews by two Federally

         16   approved independent testing authorities, additional

         17   state testing, the escrow of software source code,

         18   the pre-election testing of each DRE machine, and the

         19   increased level of security that DRE systems provide

         20   over and above paper-based systems, voters can take

         21   great confidence that the results of the November

         22   2004 election will be based on the most complete and





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          1   accurate recording of voter intent in the history of

          2   U.S. elections.

          3              As we learned in the aftermath of the 2000

          4   Presidential Election, the complexity of older voter

          5   interfaces has unfortunately caused a large number of

          6   voters to make errors and have placed election

          7   officials in the precarious position of discerning

          8   voter intent on ambiguously marked ballots.

          9              Not only were older punch card and lever

         10   systems more susceptible to error and abuse, but they

         11   also prevented full access for a large number of

         12   voters with disabilities, and voters who require

         13   assistance in languages other than English.

         14              There is little doubt that the current

         15   generation of DRE systems provides considerable

         16   advantages over the way in which previous elections

         17   were conducted.  We are greatly concerned that the

         18   majority of the recent public debate about voting

         19   technology issues focuses only on the small portion

         20   of the topic.

         21              Much of the discussion seems to focus on

         22   somewhat sensationalist concerns while ignoring a





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          1   proper characterization of the benefits of the newer

          2   technology and of the potential for error and abuse

          3   that existed with the older systems that HAVA seeks

          4   to replace.

          5              The superiority of electronic voting

          6   equipment at capturing and tallying voter intent was

          7   clearly demonstrated during the recent state-wide

          8   California recall election.

          9              According to post-election studies

         10   conducted by the University of California, the

         11   percentage of votes not cast in the recount was

         12   directly proportional to the complexity of the voter

         13   interface.

         14              During the recall, the official number of

         15   votes not cast in the question at the top of the

         16   ballot resulted in the following statistics, and Mr.

         17   Radke mentioned some of these:

         18              1.3 percent of the voters who used

         19   electronic systems at the polls and paper absentee

         20   ballots did not record a vote, or did not vote on the

         21   recall question.

         22              2.4 percent of voters using optical scan





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          1   systems did not register a vote.  And 7.8 percent of

          2   the voters using punch cards did not register a vote

          3   on the recount.  

          4              That number equates to more than 273,000

          5   voters in the election, compared to just 1.3 percent

          6   of the votes cast using electronic systems.

          7              The evidence is fairly clear.  By

          8   recording votes more accurately and reducing the

          9   potential for voter confusion or error, electronic

         10   systems help prevent the disenfranchisement of a

         11   significant quantity of voters nationally.

         12              The accuracy and ease of use of DRE

         13   systems are clearly compelling, but the increased

         14   percentage of votes counted will be of questionable

         15   value if the voters do not trust that this is the

         16   case.  Unfortunately the recent public debate about

         17   voting technology has not adequately informed voters

         18   about the considerable number of independent reviews

         19   and local checks and balances in place to ensure the

         20   accuracy and security of the vote.

         21              Many of the critics of electronic voting

         22   allege the technology can be easily manipulated to





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          1   perpetrate election fraud.  Well let's remember that

          2   the commission of vote fraud requires motive,

          3   ability, and opportunity.

          4              With the advent of computerized voting

          5   technology, the universe of individuals with the

          6   technological ability and savvy required to interfere

          7   with an election is but a fraction of the number of

          8   people who are capable of stealing paper ballots,

          9   illegally punching holes in punch card ballots,

         10   making stray marks on optical scan ballots, or

         11   improperly re-aligning the votes recorded on lever

         12   equipment.

         13              Simply by using DRE technology, we can

         14   reduce the universe of people capable of committing

         15   fraud dramatically.  Once we have limited the number

         16   of people capable of committing fraud, it is crucial

         17   to develop and implement appropriate procedural steps

         18   and physical security requirements to prevent those

         19   individuals from having the access and opportunity to

         20   successfully commit the fraud.

         21              As with paper-based voting systems, DRE

         22   hardware and software system design must be combined





                                                                      141



          1   with physical and procedural security that is strong

          2   enough to prevent any individuals from committing

          3   undetectable and unrecoverable acts of vote fraud.

          4              As election administrators know, strong

          5   procedures and safeguards are already in place to

          6   ensure the security of elections throughout the

          7   country, and are constantly being updated and refined

          8   as new threats are identified.

          9              We encourage this body to help publicize

         10   the level of checks and balances currently employed

         11   by election officials, and we encourage you to help

         12   state and local officials develop a set of best

         13   practices to ensure security.

         14              While we discuss the process more fully in

         15   our written submission to the Commission, this panel

         16   and this audience should not under-estimate or ignore

         17   the value of existing safeguards, many of which we

         18   have listed earlier but involve all the several local

         19   checks and balances, as well as system design.

         20              As the Commissioners know, there is a

         21   community of activists, election officials, and

         22   interested observers watching this ongoing debate





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          1   very closely.  While it appears at times that some of

          2   the calls for increased security, accessibility, and

          3   ease of use are mutually exclusive, that is not the

          4   case.

          5              Sequoia has developed two extremely

          6   secure, accessible, and user-friendly electronic

          7   voting systems that have been deployed with great

          8   success for countless elections over the last two

          9   decades.  

         10              Sequoia does not believe that  voter

         11   verifiable paper records are a mandatory component of

         12   a secure and accurate election.  However, we

         13   recognize that perception is nearly as important as

         14   reality when it comes to the confidence and integrity

         15   of the vote.

         16              As new auditing features such as the

         17   contemporaneous paper record are requested or

         18   required, we will meet that demand with an upgrade

         19   that is as easy for poll workers and election

         20   officials as possible, while ensuring the greatest

         21   degree of accessibility for voters who need it.

         22              Throughout the history of election





                                                                      143



          1   administration and reform, change has always caused

          2   concern.  Concern and experience have always led to

          3   continuous improvements, and the issues facing this

          4   panel are no different.

          5              As the Commission considers the state of

          6   election reform nationally and looks at the best ways

          7   to improve the conduct of elections, please look at

          8   all aspects of the administration of elections and

          9   remember that for any improvement to work well it

         10   must be easy for voters, poll workers, and election

         11   officials.

         12              We also request that once rules are set

         13   they are allowed to remain in effect and work for a

         14   substantive period of time.  Continued revisions to

         15   voting system standards and election laws will only

         16   complicate the process further and risk significant

         17   problems in the future.

         18              In the end, when millions of voters and

         19   more than 1 million precinct officials take to the

         20   polls, we will all succeed or fail because of the way

         21   in which we balance the combination of security,

         22   accessibility, accuracy, reliability, and simplicity.





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          1              CHAIRMAN SOARIES:  Thank you, so much.

          2              I am deeply appreciative, again, of your

          3   presence.  It is heart warming to see competitors sit

          4   so amicably at a table--

          5              (Laughter.)

          6              CHAIRMAN SOARIES:  --and we respect your

          7   right to proprietary information.  If we ask

          8   questions that go beyond a border which should not be

          9   crossed, we respect your right to say so.

         10              We recognize that there may be matters

         11   being litigated in various companies and would not

         12   expect you to violate any principles of common sense

         13   or corporate responsibility.

         14              Generally, again we appreciate the fact

         15   that this very public proposition is in large measure

         16   being managed by private companies.  Where I'm from--

         17   we're from New Jersey, Dr. Chung, people go into

         18   business to make money.  Therefore, somehow we accept

         19   the responsibility to behave in such a way to balance

         20   of the interests that companies have to make money

         21   with the need the country has to have a process of

         22   voting that has integrity.  And our questions will be





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          1   within that frame.

          2              Mr. McClure, I am going to try to ask a

          3   few brief questions and then have the Commissioners

          4   take over.

          5              You mentioned risk assessment.  I wasn't

          6   clear from your testimony whose responsibility you

          7   think that is.  Whose responsibility is it to do risk

          8   assessment work in this industry?

          9              MR. McCLURE:  I don't think anybody can

         10   identify to take responsibility for the security

         11   requirements outside of that contained in the Voting

         12   System Standards.  And as those standards increase in

         13   their requirement levels of security, some element of

         14   risk assessment needs to be included as part of that.

         15              So whether that's part of the standards

         16   development or with some augmented group of people, I

         17   don't have an answer for you on that.

         18              CHAIRMAN SOARIES:  I see.  All of us know

         19   that much of what creates the pressure around issues

         20   related to integrity is perception.  We all know

         21   that.  As Commissioner Hillman noted, the perception

         22   was that lever machines count our votes.  And so for





                                                                      146



          1   90 years no one raised a question of having a way to

          2   verify the fact that that happened.

          3              And some of our concerns relate to our

          4   responses to people who have perceptions of your

          5   industry.  One of the perceptions is that your

          6   industry is quite incestuous, and that there is a

          7   cross-breeding of roles that really create a basis

          8   for suspicion.

          9              So I would like to understand, having said

         10   that, Mr. McClure, you are a vendor whose work will

         11   be subject to standards, but you are also Project

         12   Manager for the IEEE Project 1583 Voting Systems

         13   Standards Project?

         14              MR. McCLURE:  Correct.

         15              CHAIRMAN SOARIES:  From the outside,

         16   should someone be concerned about the fact that as a

         17   vendor you are also managing a process that could

         18   recommend standards under which your products could

         19   be scrutinized?

         20              MR. McCLURE:  Actually, if you take a look

         21   at the promulgation of any standard that's been

         22   developed by IEEE or other bodies, those are put





                                                                      147



          1   together by interested parties in the industry,

          2   whether it's vendors within the industry, whether

          3   it's just technical observers or other people who

          4   want to participate, that's generally were standards

          5   come from.

          6              And so the IEEE embraces a process of

          7   consensus standards, and that involves a number of

          8   different people from different disciplines.  In

          9   fact, one of the measures of the validity of a ballot

         10   for voting on a standard is:  Is it balanced?  Does

         11   it have representative across the spectrum of

         12   potential contributors so it's not biased in any one

         13   manner?

         14              There are other vendors on that group, and

         15   we are providing a lot of information to help educate

         16   some of the security people that are involved.  So it

         17   brings a balance to that group, and it is a necessary

         18   part to develop these kinds of public standards.

         19              CHAIRMAN SOARIES:  Good.  Thank you.

         20              DR. CHUNG:  May I make a comment on that?

         21              CHAIRMAN SOARIES:  Sure, Dr. Chung.

         22              DR. CHUNG:  I do have concerns about those





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          1   particular issues.  Even though I recently joined the

          2   committee just because I thought every's in there, I

          3   must have a voice as well, for the standard for

          4   industry traditionally has been set primarily to meet

          5   the compatibility issues.  Or, that if there has to

          6   be the same material, it be the same, all the same.

          7              Voting machine was not supposed to be

          8   spec'd like a compatible system.  We don't talk to

          9   each other in our system.  It's just to tabulate the

         10   result out and that the result be able to be

         11   reported.

         12              I have a huge concern that IEEE actually

         13   gets involved in specifications of setting something

         14   that is merely on performance level.  I would prefer

         15   to see it to be set by NIST and under your

         16   supervision.

         17              CHAIRMAN SOARIES:  Okay, thank you.

         18              Mr. Radke, January 29th of this year your

         19   company issued a press release that said:  The same

         20   Diebold Election System used in Maryland has proved

         21   to be more than eight times more accurate than paper

         22   balloting in other states.





                                                                      149



          1              How do you know that?

          2              MR. RADKE:  That would be based on such

          3   things as under-voting statistics and so on.  Again,

          4   it's a statistical fact based on the information that

          5   we had for those elections.

          6              CHAIRMAN SOARIES:  So when you use the

          7   word "accuracy," you haven't really taken into

          8   account the possibility of tampering and issues such

          9   that Dr. Rubin raised?

         10              MR. RADKE:  Actually, no.  We feel our

         11   system is very secure and so that is not taken into

         12   consideration.  And quite honestly, no, there were no

         13   reports of any tampering or fraud involved with that

         14   election.

         15              CHAIRMAN SOARIES:  Would you help us

         16   understand the circumstances surrounding the

         17   installation of patches in Georgia in the 2002--

         18   before the 2002 primary--

         19              MR. RADKE:  Yes--

         20              CHAIRMAN SOARIES:  --where the allegations

         21   were that those patches were neither certified by the

         22   ITA nor cleared with Georgia election officials?





                                                                      150



          1              MR. RADKE:  Actually, I believe Bret

          2   Williams could talk to you more clearly about that

          3   than I could, but I'll say what needed to be done

          4   there was a change, a modification to the operating

          5   system not to the tabulation software on our touch

          6   screen voting systems.  It did not affect the

          7   tabulation process at all.

          8              We had a situation where, quite honestly,

          9   we had a few screens that had difficulties on some of

         10   the units and it was affected by the operating

         11   system.  So since it did not affect the tabulation

         12   process at all and did not affect that software, the

         13   operating system was modified.

         14              And after those modifications were done,

         15   all the logic and accuracy testing was completed

         16   after that was done.  So all the machines, every

         17   touch screen was tested before it was deployed for

         18   that election.

         19              CHAIRMAN SOARIES:  Thank you.  You made a

         20   very strong statement about the parallel monitoring

         21   system and the results--

         22              MR. RADKE:  Yes, sir.





                                                                      151



          1              CHAIRMAN SOARIES:  --in California where

          2   in one jurisdiction it was 100 percent.

          3              MR. RADKE:  Actually, sir, touch screen

          4   voting stations, a select number were pulled from

          5   each jurisdiction and brought back to an area and

          6   tested.  So it was not one from just one

          7   jurisdiction.  It was from multiple--

          8              CHAIRMAN SOARIES:  A sample.

          9              MR. RADKE:  Yes.  In fact, all four of our

         10   Acuvote TSX jurisdictions had equipment pulled from

         11   them and were tested.

         12              CHAIRMAN SOARIES:  And did you say that

         13   the secretary of state supervised that parallel

         14   monitoring process?

         15              MR. RADKE:  His staff, yes, conducted part

         16   of that; correct.

         17              CHAIRMAN SOARIES:  I'm trying to

         18   understand.  If the secretary of state of California

         19   knows that parallel monitoring can produce those

         20   kinds of results, that's the same secretary of state

         21   who de-certified your equipment in four counties. 

         22   Correct?





                                                                      152



          1              MR. RADKE:  Yes, sir.

          2              CHAIRMAN SOARIES:  How does that--can you

          3   help us--we're not from California--can you help us

          4   understand--

          5              MR. RADKE:  I cannot speak for the

          6   secretary of state.

          7              CHAIRMAN SOARIES:  Well he will be here. 

          8   I'll ask him.  I was just wondering from a corporate

          9   perspective.

         10              Has your company learned any lessons as a

         11   result of having the CEO express such a strong

         12   political preference while being in the vendor

         13   business in elections?

         14              MR. RADKE:  You have no idea how many

         15   lessons we have learned from that.

         16              (Laughter.)

         17              MR. RADKE:  Yes.  In fact, our CEO, as

         18   stated in the media, has pulled back from all fund

         19   raising activities.  It's a situation where he does

         20   regret making that statement, and again has backed

         21   away entirely from that situation.  And basically

         22   that's the story in a nutshell, quite honestly.





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          1              He has not been involved with any fund

          2   raising activities for about a year now.

          3              CHAIRMAN SOARIES:  I'm glad to hear that.

          4              Dr. Chung, has your company done any

          5   research that measures the likelihood of a person

          6   looking at the paper if the machine has a paper

          7   trail?

          8              DR. CHUNG:  "Research" I wouldn't call,

          9   but I was in all the elections that we hold.  In the

         10   10 days in the election in California, and in one

         11   days I visited all the polling places, from what I

         12   saw 80 percent or more of the people looked at the

         13   paper record.

         14              CHAIRMAN SOARIES:  You wouldn't call that

         15   "research" would you?

         16              DR. CHUNG:  I wouldn't call it research

         17   because everybody would say I would be biased.

         18              CHAIRMAN SOARIES:  We don't have

         19   sufficient research to come to scientific conclusions

         20   from a useability standpoint.

         21              DR. CHUNG:  No.  I would treasure next

         22   time somebody do it.





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          1              CHAIRMAN SOARIES:  Okay, good.

          2              Mr. Welsh, I really have the same question

          3   for you and for Mr. Radke.  I am dealing with public

          4   perception now.  Much of what we respond to is coming

          5   from people who are not inside the industry.

          6              I think, if I am not mistaken, the

          7   president of one of your companies is related to the

          8   vice president of one of your companies.  Is it 

          9   Yurosovich?

         10              MR. WELSH:  That is correct.

         11              CHAIRMAN SOARIES:  Is that true?

         12              MR. WELSH:  Bob Yurosovich.

         13              CHAIRMAN SOARIES:  Bob Yurosovich is--

         14              MR. WELSH:  --works for Diebold.

         15              CHAIRMAN SOARIES:  He is the vice

         16   president of Diebold?

         17              MR. WELSH:  President.

         18              CHAIRMAN SOARIES:  He's the president of

         19   Diebold.  And Todd Yurosovich?

         20              MR. WELSH:  Runs our customer service

         21   operations.  They both happen to be born and raised

         22   in Omaha.  Both were in the election business.





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          1              CHAIRMAN SOARIES:  If you didn't work for

          2   your companies, if you were just an average person

          3   and you bumped into the fact that two brothers are

          4   top executives in the largest providers of electronic

          5   voting equipment in the country, just as an average

          6   person would you want to know more about that?

          7              MR. RADKE:  Sir, could I answer that

          8   question initially, and then I'll let Mr. Welsh

          9   answer.

         10              CHAIRMAN SOARIES:  Yes.

         11              MR. RADKE:  Not knowing the testing that

         12   goes on with the systems and all the checks and

         13   balances involved in that, you might want to ask one

         14   more question because of that, yes, but quite

         15   honestly when that person would become educated in

         16   knowing that there is the ITA testing that is

         17   completed, the state testing of the systems and

         18   acceptance testing and so on, and then the logic and

         19   accuracy testing for every election, I think once

         20   people realize that those are in place and there are

         21   stringent checks and balances, and you do have

         22   Democrats and Republicans running the polls at every





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          1   location and so on, I mean that's some very good

          2   information they need to know.

          3              CHAIRMAN SOARIES:  Well the problem is

          4   people keep hearing that the certification process is

          5   inadequate and we need more funding and we need more

          6   time.  And so I think as information begins to

          7   spread, the average person who is not in on the

          8   details has questions, and I think they are putting

          9   demands on us in light of this perception.

         10              Again, the lever machine was the

         11   beneficiary of public perception that assumed

         12   integrity in outcomes.  I think the electronic

         13   machines are being scrutinized by a different kind of

         14   perception, and our job really is to protect the

         15   interest of the average person who doesn't look at

         16   ITAs and certification.

         17              And ESS, your web site makes some very

         18   strong statements about never having any security

         19   problems, and again perception.  People don't know

         20   the difference between an encoder and an encryption.

         21              The Nebraska problem that you have, has

         22   your company learned anything about the Adams County,





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          1   Nebraska, problem that created some ripple effect

          2   around the country?

          3              MR. WELSH:  Well the Adams--I don't think

          4   this microphone is working--

          5              CHAIRMAN SOARIES:  It will be on in a

          6   second.

          7              MR. WELSH:  The Adams County situation, I

          8   am frankly not that familiar with and I'll say this. 

          9   I retired last year.  I am still on the Board of

         10   Directors of the Company, but I am not actively

         11   involved in the day-to-day business. 

         12              So I am not in a position to tell you what

         13   did or did not happen in Adams County.  I'm really

         14   not.  If you would like a written synopsis of--

         15              CHAIRMAN SOARIES:  Yes, if you could get

         16   somebody who goes to work at your company--

         17              MR. WELSH:  I will do that.

         18              CHAIRMAN SOARIES:  --to send me just a

         19   little note on the Adams County, Nebraska, situation.

         20              MR. WELSH:  We'll do that.

         21              CHAIRMAN SOARIES:  Because it is very

         22   difficult for the average person to separate what may





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          1   look like an isolated situation in one place from a

          2   general level of confidence in voting.

          3              I just want to ask Sequoia one question.

          4              MR. WELSH:  I can make one comment that I

          5   would like to say about Adams County.  They use

          6   precinct--I mean they use optically scanned ballots. 

          7   So there was a paper record of the entire vote

          8   process.

          9              CHAIRMAN SOARIES:  Yes.  Sequoia has

         10   developed something called the ABC Edge Touch Screen

         11   With Voter Verified Paper Records.  What standards

         12   did you consider relevant in the development of that

         13   technology?

         14              MR. CHARLES:  The voter verifiable

         15   printer, or the product name for it is Verivote

         16   Printer, is something that we developed based on

         17   discussions that we've seen in the marketplace in

         18   questions that were raised in the California Touch

         19   Screen Voting Task Force.

         20              We used our experience.  We used the

         21   existing federal standards as a guideline.  And we

         22   also used the draft California standards as a





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          1   template for how to put that together.

          2              It is currently in federal testing right

          3   now.  What they are testing for is all of the

          4   environmental requirements, all of the accuracy, the

          5   reliability, all of those features.  And the

          6   functionality pieces of it are modeled along the

          7   lines of what the California Secretary of State's

          8   office has put together as draft regulations.

          9              CHAIRMAN SOARIES:  Okay.  Commissioner

         10   Hillman.

         11              VICE CHAIR HILLMAN:  As I did with the

         12   previous panel, I have two questions but one of which

         13   I would ask you all to submit in formation in writing

         14   on.

         15              That is, I would like to know your

         16   experiences with the ITA Certification process--any

         17   observations, suggestions, recommendations you would

         18   have--and a comparison of that certification process

         19   with state certification processes that you all may

         20   have gone through.

         21              My question revolves around customer

         22   service.  I spent most of my career in the nonprofit





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          1   and government sectors and we were always pointed to

          2   the customer service attitudes of corporations as

          3   examples of what we should build into our work.

          4              I think maybe some of that has changed a

          5   little bit over the years, but nonetheless customer

          6   service always stands high when people are talking

          7   about mission and product.

          8              And as I think about who your customers

          9   are, I wonder if there ever comes a time when there

         10   is a conflict between what the voter wants or

         11   expects, what the election administrator believes he

         12   or she needs to do to properly administer the

         13   election, and what your company is trying to achieve

         14   either toward the bottom line or for the marketing of

         15   your product.

         16              And if each of you could just briefly

         17   comment on that, I would appreciate it.

         18              MR. CHARLES:  If I can start, customer

         19   service is essential in the election environment. 

         20   Not only is it important to make sure that you

         21   provide the product and provide it on time or on

         22   schedule so that election officials have what they





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          1   need, you need to anticipate problems that they may

          2   have and prepare them for those.

          3              We as a company have set a rule that we're

          4   not going to bid on business or accept business that

          5   we're not able to support.  That has cost us some

          6   business at times, but in exchange we have had an

          7   extremely successful track record of providing

          8   operational support to the customers that we have.

          9              I think that the service we provide is the

         10   foundation that election officials use to tabulate

         11   votes and to have confidence.  We need to make sure

         12   that we provide all of the support that they need,

         13   and the public needs to understand that that support

         14   is not only essential to the conduct of the election

         15   but for the preparation that takes place several

         16   months before.

         17              We are concerned when rules change at the

         18   last minute or new requirements are set too close to

         19   an election to allow election administrators to put

         20   the processes in place and to test the processes and

         21   procedures before an election.

         22              I think that is something that if I can





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          1   stress anything to this panel, it is that we set the

          2   rules well enough in advance that we can meet the

          3   requirements and election officials can implement

          4   them in a timely fashion.

          5              MR. WELSH:  In our particular case, when I

          6   testified in front of Congress several years ago when

          7   HAVA was just a brain child and being considered, one

          8   of the points that I made in that presentation was

          9   that you can spend all the money you want to spend on

         10   technology and you're not going to get better

         11   elections.  Better elections only come through

         12   education, training, and that includes the electorate

         13   as well as those in an election administration.

         14              I was very strong in my statement, and I

         15   still feel this today, that jurisdictions probably

         16   should be spending almost as much money on the

         17   education and training aspects of the electoral

         18   process as they do on the equipment and services and

         19   systems.

         20              CHAIRMAN SOARIES:  You don't have to

         21   speak, now.

         22              (Laughter.)





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          1              DR. CHUNG:  I don't exactly know your

          2   questions, more in the sense is there ever a conflict

          3   between let's say the jurisdiction asking us as a

          4   vendor to do what might violate some possibly some

          5   laws that we know of, I've never seen something that

          6   we will help the jurisdiction that will not be good

          7   for the voters, as your question put it.

          8              So if there is ever, and it did happen to

          9   us, is that we believe there's a conflict between

         10   what the jurisdiction wants us to do and what we

         11   believe is not allowed by law, in that case we will

         12   ask them to sign an agreement that they take the

         13   responsibility.  We don't touch it.  We will help

         14   them to do it.  Then if they do it, that's their

         15   responsibility.

         16              VICE CHAIR HILLMAN:  So you said that did

         17   happen?

         18              DR. CHUNG:  It will happen.  It happen

         19   once.

         20              VICE CHAIR HILLMAN:  Thank you.

         21              MR. RADKE:  I would have to say there's

         22   actually two points I'd like to discuss here very





                                                                      164



          1   quickly.

          2              Number one is the fact that, as you know,

          3   election laws change and we have to react to that. 

          4   And I think it is imperative that everyone has a

          5   clear understanding of what that means as far as the

          6   certification process, implementation process, and so

          7   on.  And quite honestly we just wrestled with this in

          8   California.  That was one of the issues that we did

          9   face, and that is why we had to go with the state

         10   certification instead of an FEC certification for the

         11   election that did take place in March.  And that was

         12   a difficult situation.

         13              It has taken over nine months for us to

         14   get software through for certification for 2002

         15   standards, and that affected us with the State of

         16   California.

         17              The second point I'd like to make, and I

         18   would have to agree with the statement that was made

         19   before, voter outreach is critical to success.   I

         20   have to applaud the State of Georgia because we did

         21   statewide implementation deployment there for the

         22   2002 gubernatorial election, and they spent I believe





                                                                      165



          1   it was an additional $4- or $4.5 million on voter

          2   outreach.  And because of that, after the election

          3   concluded they did a survey and found that

          4   approximately 97 to 98 percent of all the voters had

          5   absolutely no problems using the system.  So it was a

          6   phenomenal success from that standpoint.  That was

          7   159 counties at one time.

          8              MR. McCLURE:  As I understand your

          9   question about customer service and some maybe

         10   conflicts between voter needs and county officials,

         11   Hart InterCivic has been in the election business for

         12   100 years printing ballots, and their entry into the

         13   DRE market was really based on a sterling reputation

         14   of customer service over the years.  You don't stay

         15   in any one business and not treat your customers very

         16   well.

         17              When we developed the eSlatetm Voting

         18   System, we actually identified five different

         19   customers for an election system:  Voters, poll

         20   workers, election officials, state officials, and

         21   federal level officials.  So that has a pretty broad

         22   scope of customer needs, and each part of the system





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          1   needs to be able to address the needs of those

          2   customers.

          3              As far as voter versus what's best for the

          4   voter, county official, elected official, some of the

          5   challenges that we have been faced with is knowing

          6   some useability issues versus a county who has been

          7   accustomed to running a process a certain way, and

          8   where we have found ourselves brokering what was in

          9   the best interests of a useability type of situation

         10   versus adhering to a paper process that they used

         11   previously.

         12              So there had been some interesting

         13   discussions and efforts with county officials and

         14   outreach to voter to try and bring those two

         15   together.

         16              VICE CHAIR HILLMAN:  Thank you.

         17              CHAIRMAN SOARIES:  We have a few moment

         18   left.  Do you have questions?  We have got to ask in

         19   such a way to facilitate quick responses because

         20   we've got to get back in time after lunch.

         21              COMMISSIONER DeGREGORIO:  Thank you, Mr.

         22   Chairman.  





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          1              Kim Brace mentioned this morning that

          2   there are 10 states that do not release data on over

          3   and under voting.  Do you all have a problem with

          4   data from machines that you sell in these states, or

          5   any state, releasing the data on over and under

          6   voting?

          7              MR. McCLURE:  No.

          8              MR. CHARLES:  No.

          9              (Panel nods.)

         10              CHAIRMAN SOARIES:  That was so easy to

         11   say.  Do you have like an association?

         12              (Laughter.)

         13              CHAIRMAN SOARIES:  Are there certain

         14   things that you--

         15              COMMISSIONER DeGREGORIO:  Is that your

         16   next question?

         17              VICE CHAIR HILLMAN:  Their heads worked in

         18   unison.

         19              COMMISSIONER DeGREGORIO:  The next one may

         20   be a little more difficult to reach a consensus on,

         21   but there's been a debate about this open-source

         22   software and whether it should be released or not.





                                                                      168



          1              Do you believe that a widespread review

          2   would increase or decrease voting system security,

          3   and why?

          4              MR. McCLURE:  One of the challenges when

          5   applying an open-source code environment is what are

          6   we comparing to.  And probably the most relevant

          7   example is Linux.

          8              Linux is an operating system, and it's an

          9   open-source system, and by its nature if you are a

         10   user of Linux and find a bug you are responsible for

         11   fixing it.

         12              So if we apply that model to the voting

         13   system industry, I'm not sure, number one, that it

         14   applies; and, number two, there are a number of

         15   concerns that if we were to expose our software--I

         16   mean I believe personally that nobody sitting here at

         17   this table has anything to hide, but what do we do

         18   with the workload and the criticism of our software

         19   and our code, whether it is unfounded or has some

         20   basis?

         21              Everybody has an opinion about good

         22   software design.  We happen to be following a





                                                                      169



          1   guideline that is in the federal voting system

          2   standard.

          3              CHAIRMAN SOARIES:  Could I do this?  This

          4   is a very--this topic deserves a panel all by itself. 

          5   And if you could just allow me to lead for a second,

          6   if you would just send us comments on the open source

          7   versus closed source issue.  

          8              And if you would, include in that this

          9   issue of commercial off-the-shelf software which is

         10   not subject to certification, but which is subject to

         11   modification for adaptation which then should perhaps

         12   make it subject to certification.  There's some

         13   tension there between the commercial off-the-shelf

         14   software that kind of slips in under the radar.

         15              Again, this is the perception of many

         16   people, when it in fact should be subject to

         17   certification given the amount of modifications that

         18   occur.  I'm sorry.

         19              COMMISSIONER DeGREGORIO:  That's fine, Mr.

         20   Chairman.

         21              CHAIRMAN SOARIES:  We'll never get there

         22   if I don't do something.





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          1              (Laughter.)

          2              COMMISSIONER MARTINEZ:  One quick

          3   question.

          4              Mr. McClure, as a matter of routine

          5   practice when you sell your system to a voting

          6   jurisdiction, a county government or a municipal

          7   government, do you send out your own company's

          8   technicians to go and service that equipment during

          9   an election?  How does that process work?

         10              MR. McCLURE:  We're involved in the

         11   installation process.  And as part of an installation

         12   contract, we will have election support as part of

         13   that.  But the system is set up that the day it's

         14   sold, a county would not need our support for any

         15   reason.  They can run and operate the system on their

         16   own.  It's just as part of the change management we

         17   continue to be involved.

         18              We've been in Harris County for a couple

         19   of years now.  I didn't even know they had an

         20   election going on there recently.  So that our level

         21   of involvement has dropped off with some of our first

         22   customers.  So it is mainly as a support, and it is





                                                                      171



          1   on county request.

          2              COMMISSIONER MARTINEZ:  Mr. Charles, is

          3   that the same thing with your company?  As a matter

          4   of routine practice, do you send out your own

          5   technicians?

          6              MR. CHARLES:  It will vary by

          7   jurisdiction.  Jurisdictions that are large enough to

          8   have the technical expertise on site can do that. 

          9   Other times they will contract with us to assist in

         10   the administrative process. 

         11              All of the tallying and those functions

         12   are done by government officials, but some of the

         13   more technical components may be done.  We also offer

         14   a training and certification process so that

         15   technicians in counties that are large enough to do

         16   it can come back to our manufacturing facility and

         17   become factory-trained technicians to do their own

         18   repairs, if necessary.

         19              COMMISSIONER MARTINEZ:  One of the

         20   criticisms that I've heard is the level of discomfort

         21   that is out there if the vendor is out there in the

         22   field servicing their own product with their own





                                                                      172



          1   technicians during an election. So you understand the

          2   nervousness that I think the average lay person would

          3   have when they find that out, quite frankly.

          4              So is there some guidance that you give

          5   your technicians?  I mean, a machine breaks down;

          6   don't reload the software?  Or don't do certain

          7   things, to make sure that you're not putting

          8   something in new, I suppose, that hasn't been through

          9   some sort of a checks and balances process?

         10              MR. CHARLES:  I think that is the earliest

         11   step.  What technicians do on election day is really

         12   trouble shoot and provide poll workers with the

         13   guidance they need to work through a glitch.  

         14              A lot of times what a technician will do

         15   is essentially in-field training.  If a poll worker

         16   doesn't understand how to operate something, that

         17   technician will train them how to do that.

         18              In an election, if there is a problem with

         19   a machine, the machine is shut down.  It's not

         20   reloaded with new software.  There's no field level

         21   logic and accuracy testing, or any of those types of

         22   things.  Those incidents are rare, but never would





                                                                      173



          1   anybody do any sort of reprogramming at all of an

          2   election.  There is simply an operation that takes

          3   place on election day.

          4              CHAIRMAN SOARIES:  Let me thank the

          5   Commissioners for their restraint, and thank you for

          6   your discipline.  I want to say that, again, this

          7   Commission understands the impact we could have on

          8   your industry and therefore we are committed to

          9   behaving in such a way to not provide disincentives

         10   for private investment in your line of work.

         11              At the same time, we understand the need

         12   for public accountability on this very sensitive

         13   issue and we hope to balance those two.  When you

         14   feel that we are behaving such that it is a

         15   disincentive or threat to your doing business, we

         16   need to know that.  Because I think in our lifetime

         17   we will need the private sector as a key partner in

         18   making both happen.

         19              Mr. Welsh, I want to thank you for coming. 

         20   I am honored to meet you and, no disrespect intended,

         21   but the next time we have a meeting I would hope your

         22   company would make a decision to send someone who





                                                                      174



          1   goes to work every day and can answer questions about

          2   current and potential future activities, and we just

          3   want that to be part of our record.  

          4              But you did a fine job.  Your written

          5   testimony is eloquent, and I am sure your tenure at

          6   the company was successful.  But every company has

          7   chosen to send people who go to work every day.  One

          8   sent a CEO, and I just will communicate with ES&S our

          9   disappointment with that decision, in spite of our

         10   satisfaction with your presentation.

         11              MR. WELSH:  I am still active on the Board

         12   of Directors.  I'm just not active in day to day.

         13              CHAIRMAN SOARIES:  I understand.

         14              For those who are guests, we are going to

         15   break for lunch and I've got to give you some

         16   critical information.  We are going to start our

         17   third panel sharply at 12:45.  

         18              (Whereupon, at 12:02 p.m., the hearing was

         19   recessed for lunch, to reconvene at 12:45 p.m., this

         20   same day.)

         21   

         22   





                                                                      175



          1                     AFTERNOON SESSION

          2                                            (12:45 p.m.)

          3              CHAIRMAN SOARIES:  We are ready to

          4   reconvene.  We are ready to begin our third panel.  I

          5   want to thank the audience.  We have not begun yet,

          6   but we are preparing to begin.

          7              I would like to thank the audience for

          8   their cooperation, those who were here this morning,

          9   you were a perfect audience.  I hope that we will

         10   continue this afternoon in the same spirit of

         11   civility and order.

         12              I would like to remind you to turn off, or

         13   at least turn to a silent mode your electronic

         14   devices.  That will be very helpful to us.

         15              We have two of our four distinguished

         16   panelists seated.  We have number three now, and I

         17   know I have seen evidence that number four is close

         18   by. 

         19              We have as our first panel this afternoon

         20   the practitioners of the voting process, persons who

         21   have high respect among their peers and certainly

         22   have the respect of this Commission.





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          1              Let me say as I prepare to introduce our

          2   panelists that the Election Assistance Commission

          3   takes seriously the word "assistance" in our title. 

          4   We perceive our role as one where we offer assistance

          5   to the people on the ground who do the work.  

          6              And for those who may be new to the

          7   process, please be reminded that it is not the

          8   responsibility of the EAC or the Federal Government

          9   to dictate to voting jurisdictions what kind of

         10   voting equipment they use.

         11              This hearing is being held today based on

         12   an assumption that there will be jurisdictions that

         13   use electronic voting.  As Commissioner Martinez

         14   mentioned in his opening remarks, we will also be

         15   working on developing guidance for punch card

         16   districts, for optical scan districts, and for lever

         17   districts.

         18              So the fact that we're focusing on

         19   electronic voting should not be used to infer that we

         20   recommend any particular type of voting device. 

         21   Rather, we are here to assist voting jurisdictions

         22   and elected administrators and voters once they





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          1   decide what kind of voting device to use.

          2              Our panel consists today of the Director

          3   of Elections for the State of New Mexico, Denise

          4   Lamb; the County Clerk and Registrar for Los Angeles

          5   County, Connie McCormack; the Assistant Secretary of

          6   State and Director of Elections Administration for

          7   the State of Georgia, Kathy Rogers; and the Secretary

          8   of State of California, Kevin Shelley.

          9              Mr. Shelley was scheduled to speak first. 

         10   We will proceed, and we will switch his order to

         11   accommodate whatever time he arrives.

         12              Let us begin with Assistant Secretary of

         13   State Kathy Rogers.

         14         STATEMENT OF THE HONORABLE KATHY ROGERS,

         15           DIRECTOR OF ELECTIONS ADMINISTRATION,

         16         OFFICE OF THE GEORGIA SECRETARY OF STATE

         17              MS. ROGERS:  Thank you, Chairman Soaries.

         18              CHAIRMAN SOARIES:  We will need you to

         19   speak as directly into the mikes as you can to

         20   facilitate the technology.

         21              MS. ROGERS:  Thank you, Chairman Soaries,

         22   and Commissioners of the EAC.





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          1              The 2000 Presidential Election served as a

          2   wakeup call to a Nation of voters and to election

          3   officials.  Alarmed by the high number of under votes

          4   recorded by voting equipment in Florida, Secretary of

          5   State Kathy Cox compiled data on under votes

          6   experienced with Georgia's then-existing equipment,

          7   which was a huge mix of lever, punch, and optical

          8   scan.  Even paper ballots in two counties.

          9              The findings were staggering.  Not only

         10   did Georgia have a higher under vote rate than

         11   Florida, at 3.5 percent our under vote rate far

         12   exceeded the national average of 1.9 percent, and was

         13   reported by the Cal Tech/MIT Study to be the third

         14   worst in America.

         15              Further analysis documented extremely

         16   large variations in the same county using the very

         17   same equipment.  The findings and the wake-up call

         18   report were alarming enough that in 2001 the General

         19   Assembly passed Senate Bill 213 which created the

         20   21st Century Voting Commission.

         21              This multi-partisan group was tasked with

         22   studying the accuracy and reliability of all





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          1   nationally qualified voting systems and to provide a

          2   report to the General Assembly.

          3              Altogether, the State of Georgia conducted

          4   a full year of study, evaluation, and due diligence

          5   before we made our recommendation to adopt a

          6   statewide uniform electronic system of voting.

          7              Georgia is extremely fortunate to have the

          8   Center for Election Systems at Kennesaw  State

          9   University as our independent technical capable

         10   partner responsible for testing and certification of

         11   all election equipment.

         12              Upon completion of national testing,

         13   experts at the Center for Election Systems under the

         14   direction of Dr. Brett Williams reviewed the system

         15   for compliance with state law and tested the system

         16   for the presence of any unauthorized or fraudulent

         17   code.

         18              After the equipment has been certified,

         19   the vendor is then allowed, and only then allowed, to

         20   install equipment in the local jurisdictions.

         21              Once it has been installed by the vendor

         22   in the local jurisdictions, technicians from the





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          1   Center for Election Systems travelled to each county

          2   to test the equipment independently and to verify the

          3   accuracy and to verify that it's the same system

          4   which was certified at both national and state level.

          5              In the 2002 general election, technicians

          6   from the Center for Election Systems tested and

          7   touched over 22,000 individual touch-screen units,

          8   over 9000 encoders, and 159 election management

          9   servers.

         10              To date, today our independent testers

         11   continue to travel to each of Georgia's 159 counties

         12   to independently test and verify that the system is

         13   the system that was given to us by the vendor.

         14              November 2nd, 2002, was an extremely

         15   historic day for Georgia.  For the first time, every

         16   voter was afforded the opportunity to cast a ballot

         17   in the same manner using the very same equipment.  A

         18   voter in one county did not receive the advantage of

         19   better technology while his counterpart in a

         20   neighboring county voted on antiquated voting

         21   equipment prone to high error rates.

         22              Voters who had previously never cast an





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          1   independent ballot shared with us their feeling of

          2   pride and accomplishment at being able to utilize the

          3   features of electronic voting that allowed them to

          4   vote independently for the very first time.

          5              The Carl Vincent Institute of Georgia at

          6   the University of Georgia conducted a public opinion

          7   survey following the 2002 general election that found

          8   that Georgians overwhelmingly prefer electronic

          9   voting to other methods.

         10              More than 70 percent of respondents said

         11   they felt very confident in the voting system.  97

         12   percent of voters said that they experienced no

         13   difficulties when using electronic voting.

         14              Six years ago, Georgia's antiquated voting

         15   platform at the top of the ballot U.S. Senate under

         16   vote was 4.8 percent of all ballots cast.  In 2002, a

         17   direct comparison at the top of the ballot:  U.S.

         18   Senate race was a mere 0.87 percent.  That is a more

         19   than five-fold reduction in under voting.  It is a

         20   decrease of 71,000 ballots that showed no choice in

         21   the top-of-the-ballot race.  And it is clear and

         22   convincing evidence that an electronic voting





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          1   platform that prohibits over votes and offers a

          2   summary screen to the voter to check and review can

          3   dramatically improve the accuracy of the vote count.

          4              The paper receipt debate has generated a

          5   great deal of inaccurate, false, and misleading

          6   information.  No system, whether electronic,

          7   mechanical, or paper based can be made 100 percent

          8   invulnerable to attack.  But the facts are that our

          9   current uniform system of voting is more secure than

         10   any type of voting in the history of Georgia

         11   elections.

         12              We did not in the State of Georgia simply

         13   sign a contract with a vendor and walk away from this

         14   process.  To the contrary, the Secretary of State's

         15   office in Georgia has continued to provide oversight

         16   and direction through every step of the process, and

         17   we continue to do so today with the assistance of the

         18   Kinnesaw Center for Elections.

         19              Let us briefly consider the practical

         20   realities of paper receipts:

         21              How is each receipt collected?  

         22              How does the voter view it?  





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          1              What is the official record of the

          2   election?  

          3              If it's the paper, then what happens if so

          4   much as one piece of paper is mangled or destroyed by

          5   a mechanical printer?  

          6              Is the entire election then in jeopardy?

          7              How do poll workers handle the complex

          8   addition of a paper receipt?

          9              Not only must poll workers be carefully

         10   trained, but equipment must be designed to minimize

         11   the technical and operational requirements.

         12              Just as important, we should make certain

         13   that the addition of a paper receipt, if implemented,

         14   does not put us back into the same soup of

         15   unacceptably high under vote rates that we have

         16   worked so hard in Georgia to overcome.

         17              In the vacuum of a computer science lab, a

         18   new paper receipt prototype may appear very simple

         19   and very foolproof, but in the real world of

         20   elections with equipment that must be accessible to

         21   voters with widely differing levels of education,

         22   literacy, language proficiency, experience, and





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          1   physical ability or disability, it is crucial that

          2   the user interface be simple, straightforward, and

          3   intuitive.

          4              Georgia spent enormous time doing its

          5   homework before we implemented our system, and that

          6   due diligence paid off with plummeting undervote

          7   rates across all demographic groupings.

          8              It would be tragic if a hurried and

          9   inadequately researched requirement for a paper

         10   receipt makes that voter interface so complicated

         11   that it increases the voter confusion.

         12              The Office of the Secretary of State of

         13   Georgia is not opposed to any change which

         14   contributes further to the umbrella of security.  We

         15   do, however, oppose any change which will erase all

         16   of the giant steps that we have taken forward in the

         17   last two years.

         18              This Commission has a very difficult task,

         19   to separate fact from fiction and assess the

         20   strengths and vulnerabilities of voting system

         21   alternatives.  The claims and ascertations of

         22   electronic voting opponents must be scrutinized with





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          1   the same ferocity that's been applied to the

          2   statements and actions of equipment vendors and

          3   election officials.

          4              I would respectfully suggest that any new

          5   standards adopted not only be carefully vetted in a

          6   computer and technical environment, but that they be

          7   proven to first do no harm in real-world election

          8   settings with American voters and plenty of them.

          9              No responsible election official would

         10   come before you and claim that any system on the

         11   market is the best that can ever be devised.  A

         12   culture of continuous improvement is one that we have

         13   adopted in Georgia elections.

         14              I am confident that this Commission will

         15   exercise great care in evaluating electronic voting. 

         16   Thank you for allowing me to share my thoughts.

         17              CHAIRMAN SOARIES:  Thank you so much,

         18   Secretary Rogers, and thank you for your hospitality

         19   when we came to Georgia to visit for the primaries. 

         20   Please extend my heartfelt greetings to Secretary Cox

         21   who could not be here.

         22              We have been joined by the Secretary of





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          1   State of the small State of California.  Secretary

          2   Shelley, welcome to Washington.  Welcome to the

          3   hearing.  We changed the order to get started, but we

          4   would be happy to receive your testimony now.

          5        STATEMENT OF THE HONORABLE KEVIN SHELLEY, 

          6              SECRETARY OF STATE OF THE STATE

          7                       OF CALIFORNIA

          8              MR. SHELLEY:  Thank you very much, Mr.

          9   Chairman, and members. 

         10              For all the Monty Python fans that may be

         11   here--anyone who remembers the show from the 1970s--I

         12   will respectfully introduce my comments by saying: 

         13   And now for something completely different.

         14              I want to thank this Commission for

         15   holding these hearings, and for the difficult

         16   challenges that lay ahead.  

         17              As California Secretary of State, I have

         18   no greater priority than making sure as many votes as

         19   possible are cast and very vote is fairly counted. 

         20   That is why we are working so hard to make sure that

         21   every Californian can cast their vote with

         22   confidence.





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          1              Unfortunately, many voters are entirely

          2   either discouraged or too disconnected to make their

          3   voice heard at the polls.  We certainly cannot bring

          4   these voters back to the polls if they are also

          5   distrustful of the way their ballots are counted.

          6              That is why I would like to briefly update

          7   you on our efforts to restore voter confidence in the

          8   integrity of the voting process.  As many of you

          9   know, just last week I followed the unanimous

         10   recommendation of our panel of advisors and banned

         11   the use of the Diebold TSX Touch Screen Voting

         12   Systems in four counties.

         13              Similarly, I followed that same panel's

         14   unanimous recommendation to decertify all touch

         15   screen systems in California until security measures

         16   are in place to safeguard the November vote.

         17              In particular, I am requiring counties to

         18   install a voter-verified paper trail before November,

         19   or to meet a series of security measures before I

         20   recertify those systems.

         21              These measures include everything from

         22   ensuring the physical security of touch screen





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          1   machines, to prohibiting connections to telephone

          2   modems during voting.

          3              Many of these recommendations stem from

          4   the Robber Report which previous speakers have

          5   referenced. 

          6              I recognize these steps have been

          7   controversial in some quarters.  Some local election

          8   officials do not agree that touch screens are

          9   vulnerable.

         10              I want to say here publicly that I greatly

         11   respect and admire the work of these county

         12   registrars.  I am acutely aware of the fact that they

         13   are on the front lines; that they are the ones the

         14   public relies on to put on an election, and that time

         15   and again they have come through for the voters.

         16              And respectfully, to my good friend, Kathy

         17   Cox in Georgia and Kathy Rogers who runs the election

         18   day to day, I am proud to say in California that I

         19   believe we have the finest local election officials

         20   anywhere in the country.

         21              It is with great reluctance that I

         22   disagree, however, with the assessment of many as to





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          1   the security and reliability of touch screen systems. 

          2   But I want to be clear. 

          3              I do believe touch screen systems can be

          4   reliable and secure, but the evidence to date

          5   suggests that they are neither right now.  Touch

          6   screen systems can and should be more secure and more

          7   reliable.

          8              I know this panel will play a key role in

          9   facilitating the changes needed.  We have come a long

         10   way since November 2000.  California's March 2nd,

         11   2004, primary election was the first election in

         12   modern times in which no prescored punch card voting

         13   machines were used in our State.

         14              It was also the first election in which

         15   over 40 percent of California voters were eligible to

         16   cast their ballots on electronic voting machines. 

         17   Interestingly, that same 40 percent of our electorate

         18   is also 40 percent of all the touch screens currently

         19   in use in America.

         20              Touch screen voting machines create the

         21   possibility of making voting easier, and drawing the

         22   disenfranchised to the polls.  In particular, touch





                                                                      190



          1   screens have obvious advantages for the disabled and

          2   non-English speaking voters.

          3              Unfortunately, touch screens share many of

          4   the problems we experience with our home computers. 

          5   Both are complex, prone to glitches, and vulnerable

          6   to security challenges.

          7              As much as I welcome the demise of punch

          8   cards, we must recognize that the use of computer

          9   systems in voting poses profound challenges to

         10   election officials and regulators--far more profound

         11   than any of us realize when the President signed HAVA

         12   18 months ago, and perhaps more profound than we

         13   realize even now.

         14              I have come to Washington today, proud to

         15   join this distinguished panel, to speak before you

         16   and to speak about those challenges in the hope that

         17   we can work together to address them.

         18              I have had a number of opportunities to

         19   speak with you, Mr. Chair, and Madam Vice Chair, and

         20   I look forward to working with the other

         21   Commissioners. 

         22              I am convinced the EAC can take a number





                                                                      191



          1   of measures that will greatly enhance the likelihood

          2   that touch screens will fulfill their promise of

          3   opening the polls to more voters and ensuring that

          4   every vote counts.

          5              Today I would like to address three

          6   important issues. 

          7              CHAIRMAN SOARIES:  Secretary Shelley?

          8              MR. SHELLEY:  Yes.

          9              CHAIRMAN SOARIES:  If you have the same

         10   document I do, you are about a third of the way

         11   through?

         12              MR. SHELLEY:  No, it's a short version.

         13              CHAIRMAN SOARIES:  Okay.  Good.

         14              (Laughter.)

         15              MR. SHELLEY:  But I got the hint.

         16              (Laughter.)

         17              MR. SHELLEY:  Three important issues:

         18              One, the need for an accessible voter

         19   verified paper trail.

         20              Two, improving Federal and State testing

         21   procedures.

         22              And three, the need for enhanced poll





                                                                      192



          1   worker training.

          2              One, first I would like to address the

          3   need for accessible voter-verified paper trails.  I

          4   was proud to be the first secretary of state to

          5   require an accessible voter-verified paper audit

          6   trail.  I firmly believe that of all the changes that

          7   can improve touch screens, this paper trail is the

          8   most important.

          9              We know that the possibility exists for

         10   data to be corrupted or lost either due to security

         11   breaches, human errors, or malfunctions.  While the

         12   likelihood of malfunctions is small, the likelihood

         13   of security breaches and human error in my view is

         14   much greater. 

         15              Is there anyone out there who would

         16   attempt to hack an election?  I would like to think

         17   not.  But the history of the Internet suggests

         18   otherwise.  And the irretrievable loss of election

         19   results in even a single county in the Nation could

         20   make the problems experienced with punch cards in

         21   Florida look like a minor glitch.

         22              A paper trail provides an iron-clad way to





                                                                      193



          1   recount votes, knowing that the paper record will

          2   match the ballots actually cast.  

          3              Moreover, and perhaps even more important,

          4   voters understandably feel more confident when they

          5   can verify that their votes are being recorded as

          6   intended.  That increased level of confidence alone

          7   justifies moving forward with a verifiable paper

          8   trail right away.

          9              In November 2003, I announced that I would

         10   require an accessible paper trail by 2005.  Last

         11   week, in light of problems that occurred in the March

         12   2nd, 2004, primary election, I modified this order

         13   requiring that immediately any purchase of new touch

         14   screen voting systems in California must have an

         15   accessible voter-verified paper trail.

         16              We are in the process of adopting our

         17   first set of standards which will be in place by the

         18   end of the month of May.  I urge the EAC to follow

         19   suit and initiate its process for the adoption of

         20   federal standards immediately.

         21              I know many say that we can't have a

         22   voter-verified paper trail in place by November, but





                                                                      194



          1   I come here today to challenge that notion.  I

          2   challenge all of us, if we can work aggressively

          3   together, to see if we cannot indeed have a paper

          4   trail in place by the November 2004 election.

          5              Many manufacturers and vendors we have

          6   talked to appear poised to roll out this paper trail. 

          7   They're just waiting for standards if we can push

          8   forward to make them happen.  This panel must begin

          9   that process.

         10              Two, improving testing--very quickly, Mr.

         11   Chairman.  This panel performs an important function

         12   at the federal level which is similar in many ways to

         13   the functions of my office at the state level. 

         14              We are called upon to set standards for

         15   voting equipment and to oversee testing.  At both the

         16   federal and state levels, I submit, that presently we

         17   are poorly equipped to meet this challenge with

         18   respect to touch screen equipment.  

         19              A brief story from the March 2nd election

         20   illustrates the point.  In the final weeks before

         21   California's March primary election, every touch

         22   screen system vendor sought approval of last-minute





                                                                      195



          1   changes to software, firmware, or hardware. 

          2              One vendor actually submitted ten requests

          3   for last-minute changes.  This 11th hour deluge of

          4   requests for software, firmware, and hardware changes

          5   was alarming.  Very alarming.

          6              Many of these changes had not received

          7   federal  qualification, and in some cases had not

          8   even  been tested for federal qualification.  

          9              Equally troubling, election equipment

         10   vendors had no backup plan if last-minute

         11   applications failed testing.

         12              The result was a choice between using

         13   equipment that had not been fully tested and

         14   approved, or using no equipment at all.  One of those

         15   11th hour requests came from a manufacturer to permit

         16   the use of a machine referred to as a precinct

         17   control module.

         18              CHAIRMAN SOARIES:  Mr. Secretary, with all

         19   due respect, so far your document matches my document

         20   and you are now two-thirds of the way through.

         21              MR. SHELLEY:  I thought you had the long

         22   version.





                                                                      196



          1              CHAIRMAN SOARIES:  Okay.

          2              MR. SHELLEY:  Let me race to conclusion.

          3              CHAIRMAN SOARIES:  And you will have a

          4   chance to--

          5              MR. SHELLEY:  Let me race to conclusion. 

          6   Let me race to conclusion.

          7              CHAIRMAN SOARIES:  All right.  On the

          8   point of testing, we need to have a more aggressive

          9   approach that we can set as the new constituted

         10   Commission to work with the independent testing

         11   authorities, to work with NIST, to work with all the

         12   disparate federal entities that are kind of out there

         13   in the stratosphere bringing them under your aegis,

         14   if possible.

         15              Obviously you need money.  I know I stand

         16   ready, as my colleagues do, to urge the Federal

         17   Government to support you in that effort so you can

         18   provide a truly regulatory function.

         19              Let me say finally in conclusion, the

         20   third component was poll worker training.  Poll

         21   workers have perhaps one of the hardest jobs in

         22   America, which is to get in there at the crack of





                                                                      197



          1   dawn and work a full shift, you know, 15, 16, 17 hour

          2   days.  It's a very difficult and very demanding job.

          3              I think the level of training hasn't kept

          4   up with all this new technology, as we saw on March

          5   the 2nd where, when we had failings in certain

          6   counties, the poll workers weren't trained to handle

          7   this.

          8              I want to commend Kathy Rogers and Kathy

          9   Cox, who I had the privilege of speaking to Ms. Cox,

         10   the Secretary of State of the State of Georgia

         11   recently.  

         12              I think they have a state of the art poll

         13   worker program.  Their college, their Institute is

         14   something that I look forward to hopefully modeling

         15   our own approach in California after.

         16              But until we have standards practices

         17   across the country to deal with these new

         18   technologies, I think the human element can't quite

         19   keep up with all of that technology that's being

         20   imposed.

         21              With that, let me conclude.  Thank you

         22   very much, and I'll be happy to answer questions.





                                                                      198



          1              CHAIRMAN SOARIES:  Thank you so much not

          2   only for coming so far to have restrictions imposed

          3   on you, but coming in and sharing with us and

          4   ensuring that we know as much as we can know about

          5   your experience.

          6              Connie McCormack, you have been described

          7   by your Secretary of State as one of the finest local

          8   election officials in the country.  As I introduce

          9   you, let me say the two of you being here really

         10   helps us far beyond the issue electronic voting. 

         11              HAVA protects and preserves the

         12   distinction between the role of the Federal

         13   Government and the role of the State in voting.  

         14              What HAVA does not do explicitly is really

         15   flesh out the role of the state and the local

         16   election administrators, and some of the tension that

         17   is resulting from HAVA around the country will inform

         18   us as we communicate with Congress about the future

         19   implications of HAVA.

         20              So having said that, welcome to the local

         21   election administrator for Los Angeles County.

         22      STATEMENT OF CONNY McCORMACK, COUNTY CLERK AND





                                                                      199



          1         REGISTRAR, LOS ANGELES COUNTY, CALIFORNIA

          2              MS. McCORMACK:  Thank you, Mr. Chairman,

          3   and members of the distinguished panel.  I truly

          4   appreciate the privilege of addressing your

          5   Commission today.

          6              I would like to offer the perspective of

          7   someone who has been a registrar of voters and an

          8   elections administrator for 22 years in 3 of the

          9   largest election jurisdictions in the United States: 

         10   Dallas County, Texas; San Diego County, California;

         11   and for the last 8 years in Los Angeles County,

         12   California.

         13              Los Angeles County is the most populous

         14   county in the United States with 4 million registered

         15   voters and 5000 precincts to set up and hire and

         16   train poll workers for.

         17              Over the past 22 years, I have had the

         18   opportunity to oversee elections on four different

         19   types of voting equipment.  I started out with lever

         20   machines in Dallas, Texas, moved to punch cards, have

         21   now done optical scan, and have put in a touch screen

         22   system.





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          1              I have first-hand experience three times

          2   of doing that, and I can tell you that there is no

          3   greater challenge for an election official in this

          4   country than to change voting equipment.

          5              In 1982, I converted from lever machines

          6   to punch cards in Dallas, Texas.  In 2000, I put in

          7   electronic voting in Los Angeles County in

          8   conjunction with the early voting environment.  But

          9   every one of those 4 million voters has the

         10   opportunity to vote early in the elections starting

         11   in 2000.

         12              And just last year, November 2003,

         13   instituted, replaced our punch card system that we

         14   had used for 35 years through the recall election,

         15   and a month later introduced in our big election,

         16   November '03 election, a new optical scan system.

         17              I think what your Commission is certainly

         18   facing, and what the Nation is facing, and what

         19   election officials both a state and local level are

         20   facing--and there are thousands of us at the local

         21   level; it doesn't matter if you've got 4 million

         22   registered voters or 2000, the challenge is huge--and





                                                                      201



          1   the challenge in the next two years is to make a

          2   change in almost all of those jurisdictions to become

          3   HAVA compliant.

          4              It is going to be a huge sea change in the

          5   election voting process.  And into this very

          6   environment of constant change and about-to-happen

          7   change is erupting this fire storm of a controversy

          8   over this voter verified paper record concept, and

          9   whether or not it's necessary or whether or not it's

         10   advisable to reconfigure the existing current

         11   technology to be able to generate as yet pretty much

         12   an unspecified and largely untested contemporaneous

         13   at the same time as the voter is voting a paper

         14   record.

         15              I think it would be instructive to take a

         16   few minutes to reflect back on what has happened in

         17   this country when we last had the last major paradigm

         18   shift in voting equipment in this country.  

         19              That started in the late 1960s and went up

         20   through the early '80s, so there was more time to do

         21   it, but it was a huge paradigm shift.  Because many

         22   jurisdictions changed at that time from paper-based





                                                                      202



          1   manual tabulating systems, which we even had in Los

          2   Angeles up until 1968, and changed to computerized

          3   punch card voting systems.

          4              Now this was the first time computers had

          5   entered the election world in any major way.  And

          6   again it's only 35 years ago.  I think it is

          7   instructive to think about how people felt about that

          8   back then.

          9              Similar concerns were made--in fact, I

         10   brought a copy of the Los Angeles Time, October 8th,

         11   1969, story with a headline that screams:  "HOW

         12   ELECTIONS CAN BE RIGGED VIA COMPUTER".  

         13              It is a long story, and reading from this

         14   article is enlightening.

         15              CHAIRMAN SOARIES:  Ray wasn't even born

         16   then.

         17              (Laughter.)

         18              MS. McCORMACK:  Well I won't say the same

         19   for myself, but I wasn't yet a voter.

         20              (Laughter.)

         21              MS. McCORMACK:  The vendor back then in

         22   Los Angeles was IBM, so it was a very respected then





                                                                      203



          1   and continues to be now vendor of computer

          2   technology.  In this article, I think you would find

          3   you could hear it almost ringing today.  It reads:

          4              "One IBM official stoutly denied it is

          5              technically possible to tamper with the

          6              vote counting process.  But this view is

          7              disputed by scores of experts in the

          8              field.  Most agree that there is a growing

          9              number of computer experts knowledgeable

         10              enough to devise ways of modifying the

         11              program so as to alter the vote count. 

         12              There are relatively few people who have

         13              sufficient access to the program to do

         14              anything about it."

         15   That sounds pretty familiar, doesn't it?  I think

         16   both sides of this raging debate right now are

         17   seeking the same over-riding goal, and I think we

         18   need to keep that in mind because all of us want the

         19   same thing.

         20              We want accurate casting, tabulation, and

         21   reporting of all votes in accordance with the voter's

         22   intention.  That is what we all want.  And the fact





                                                                      204



          1   is--and it is indisputable--the evidence is

          2   indisputable, that touch screen DRE voting systems

          3   have the proven track record of doing the best job

          4   available of all voting systems to do just that.

          5              While paper trail proponents are arguing

          6   for a verifiable ballot, elections administrators

          7   such as myself want to assure a verifiable system.

          8              To lower the risk of failure and avoid the

          9   triumph of unintended consequences, it is really

         10   important in my view that pilot programs be

         11   instituted and undertaken to verify whether or not

         12   these paper trail systems would actually work as

         13   anticipated and not inadvertently cause problems

         14   while attempting to solve hypothetical ones.

         15              The small-scale experiments to date, the

         16   pilot programs we know about to date, deploying

         17   prototype paper trail systems do not bode well for a

         18   successful large-scale deployment.

         19              Starting in November of 2002 in Sacramento

         20   County, California--California always likes to feel

         21   like we're out front of everything, so the Registrar

         22   of Voters there put in a small-scale pilot program in





                                                                      205



          1   early voting with a paper trail on a computerized

          2   touch screen system.

          3              The Registrar wrote a report assessing

          4   that experience.  He found that voters were confused

          5   that they couldn't take the paper replica with them. 

          6   Additionally, he found there were frequent instances

          7   when the attached printers jammed and required the

          8   machines to be taken out of service.

          9              And I quote, "When the printed record

         10   stuck, they had to be extracted with many creative

         11   tools that were at hand, including a windshield wiper

         12   and a back scratcher."

         13              Last year in November 2003 in Wilton,

         14   Connecticut, there were also--you heard earlier in

         15   the technical panel--a few other examples of trying

         16   out this technology.  This is what I really adhere to

         17   and really am focused on is you try to do more pilot

         18   programs.

         19              The Deputy Registrar in Wilton,

         20   Connecticut, reported that the voter interface issues

         21   were, "appalling," and that his created "numerous

         22   problems for voters and placed great stress on the





                                                                      206



          1   poll workers."

          2              Elections administrators really have

          3   anticipated the major obstacles of moving this paper

          4   trail issue from concept to reality, especially in

          5   jurisdictions with long, complex ballots.

          6              I brought with me today an actual ballot

          7   of the November 2002 election in Alameda County,

          8   California.  California is known to have long

          9   ballots, and I use Alameda as an example because it

         10   was their first implementation of a touch screen

         11   voting system county-wide.

         12              This is the ballot (indicating).  You can

         13   see it is quite large.  We have a lot of issues and

         14   propositions on the ballot in California.  As a

         15   matter of fact, our current Secretary of State was

         16   running for Secretary of State for the first time on

         17   this ballot about 18 months ago.

         18              CHAIRMAN SOARIES:  It must have been a

         19   good ballot.

         20              (Laughter.)

         21              MS. McCORMACK:  A long ballot.  Now the

         22   actual experience of the voters in Alameda County





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          1   when they introduced the system, on the touch screen

          2   they were able to review that ballot with all these

          3   races in two different colors, and when they had

          4   skipped a race inadvertently--if it was intentional

          5   they could just skip it--but if it was inadvertent,

          6   touch that color and go back and the review screen

          7   really helped them to make sure that the under voting

          8   was less, as Kathy has described.

          9              However, if we're going to move this type

         10   of a ballot into a paper trail and only print the

         11   Measure A, not even the title of it, and only put

         12   'yes' or 'no' on the ballot, and it's this whole back

         13   thing (indicating), about two inches on this, but

         14   this whole ballot, just to print out the voter's

         15   choice in voter-verified small print, English only,

         16   for this ballot is 37 inches long.

         17              So now this is what elections

         18   administrators are thinking about, is how do we put

         19   this under glass?  What kind of speed is the

         20   scrolling going to be?  Is it going to be fast enough

         21   for certain voters, slow enough for others?  And I

         22   did bring this for the record.





                                                                      208



          1              CHAIRMAN SOARIES:  Ms. McCormack, Ms. Lamb

          2   came from New Mexico and it's a long trip.

          3              MS. McCORMACK:  Yes, okay.  I'm on my last

          4   sentence.

          5              (Laughter.)

          6              MS. McCORMACK:  I thank you.  I would just

          7   like to briefly mention that there have been hundreds

          8   of thousands of voter satisfaction surveys.  Kathy

          9   mentioned them earlier as well. 

         10              I think we need to talk about the survey

         11   data, that it's overwhelming that voters are

         12   confident in this equipment.  These surveys are

         13   empirical evidence that there's no crisis of voter

         14   confidence, but rather a tiny vocal minority making

         15   false claims to the contrary.

         16              In conclusion, after 22 years of working

         17   in this field, I can tell you I know one thing. 

         18   Election administration is a difficult endeavor. 

         19   Adding an unnecessary requirement to turn our

         20   electronic systems into dual electronic and paper

         21   systems would in my opinion create a number of

         22   problems that could shatter the system and





                                                                      209



          1   significantly erode public confidence.  None of us

          2   wants to see that happen.

          3              Thank you for your time.

          4              CHAIRMAN SOARIES:  Thank you so much.  May

          5   I see that paper ballot.  And the large one, too.

          6              (Ballot examples handed to the Chairman.)

          7              CHAIRMAN SOARIES:  Denise Lamb from the

          8   Great State of New Mexico.

          9                 STATEMENT OF DENISE LAMB

         10                   DIRECTOR OF ELECTIONS

         11                    STATE OF NEW MEXICO

         12              MS. LAMB:  Thank you, Chairman, and it is

         13   a great State.

         14              I would like to thank you, like all the

         15   speakers today have, for the opportunity to come

         16   here.  I really appreciate it.  I am going to make my

         17   comments brief because I suspect you have questions

         18   and I will try to keep my comments to a minimum.

         19              I would like to share some concerns with

         20   you about the debate that is currently taking place. 

         21   Our State began its transition to first generation

         22   DREs in the 1980s.





                                                                      210



          1              We have successfully used them in many

          2   elections over the years.  We have conducted recounts

          3   recognized by the courts in our State, and we found

          4   the systems to be reliable and sound.

          5              The systems are completely accepted by

          6   voters and, until recently, not a single voter ever

          7   suggested that they could only be sure their vote was

          8   counted by the provision of a paper receipt.

          9              CHAIRMAN SOARIES:  Denise, would you move

         10   your mike a little closer to you so that we can hear. 

         11   Good.  Thank you.

         12              MS. LAMB:  22 of our 33 counties currently

         13   use DREs, and only the smaller jurisdictions use

         14   paper-based systems for precinct voting.

         15              Consistently the most troublesome election

         16   issues we have had in our State have been with paper

         17   ballots in terms of counting the absentee ballots,

         18   issues of voter intent, things of that nature.

         19              This debate has been fraught with

         20   misinformation and misrepresentation.  We cannot lose

         21   sight of the fact that the impetus for the second-

         22   generation DREs, or touch screen systems, was not due





                                                                      211



          1   to HAVA.  But because other systems are inaccessible

          2   to the visually impaired, the disabled, language

          3   minorities, and illiterate voters there were a number

          4   of lawsuits that began well in advance of HAVA,

          5   brought about I think rightfully so by the disabled

          6   community for access to the polls.

          7              During some of the discussions in my

          8   State, I have been appalled at the insensitive

          9   comments that I have heard from some individuals when

         10   I point out the necessity of all voters having an

         11   equal right to secrecy of the ballot and independence

         12   in casting that ballot.

         13              I think it is a sad comment on our

         14   democracy that each extension of voting rights in the

         15   United States has been bitterly opposed by groups or

         16   individuals who have never faced the same obstacles

         17   to voting as encountered by others.

         18              In my opinion--and I believe it is one I

         19   share with most election officials--too much focus

         20   has been placed on technology in this debate. 

         21   Election administrators need management standards to

         22   accompany the voting system standards.  This is





                                                                      212



          1   something the election community has supported for

          2   many years.

          3              By "management standards," I mean

          4   standards that can be used by every state that

          5   include procedures for secure system storage,

          6   maintenance, delivery, setups, startup, shutdown, and

          7   polling place operations.

          8              These standards could also address

          9   parallel monitoring, restriction of access to

         10   equipment, and ensuring that local election officials

         11   maintain control over ballot creation.

         12              We also need a centralized entity to

         13   accept and distribute reports when equipment does

         14   malfunction to ensure that this information is made

         15   available to all election administrators across the

         16   country.

         17              Finally, I believe we need to take an

         18   extra step that may be unpopular in the election

         19   community.  We need to conduct thorough post-election

         20   audits as part of every state's canvassing process. 

         21   New Mexico has used a triple audit of its elections

         22   for many years.  The returns from each precinct,





                                                                      213



          1   including audit tapes, from every machine in the

          2   state are examined at the state level with a

          3   comparison of machine tapes to rosters of local

          4   jurisdictions' canvass.

          5              This allows the state to examine the

          6   returns for residual voting patterns, programming

          7   errors, and other possible malfunctions and polling

          8   official errors.

          9              After the state completes its review,

         10   independent certified public accountants review the

         11   materials to discover exceptions or anomalies.  This

         12   process takes time.  It takes nearly three weeks for

         13   our state.  However, I believe that the confidence

         14   that it can engender is worth the effort.

         15              Again, I know you are pressed for time and

         16   I'm keeping my comments brief, but I do really want

         17   to thank you for the opportunity to speak to you

         18   today.

         19              Thank you.

         20              CHAIRMAN SOARIES:  Thank you so much. 

         21   Thank each of you.  We have two state-level officials

         22   and two local officials, actually three state-level





                                                                      214



          1   officials and one local official, and we are just

          2   very appreciative of your willingness to come a great

          3   distance and share at such a critical time.

          4              We have the benefit on this Commission of

          5   having a former local elections administrator, and we

          6   have asked him to lead the questions for this panel.

          7              COMMISSIONER DeGREGORIO:  Thank you, Mr.

          8   Chairman.

          9              Secretary Rogers, I was in Wilmington,

         10   Delaware, in February to observe their Presidential

         11   Primary Election and they used the DRE system.  They

         12   have a system where at the end of the night they take

         13   the results off the machines by cartridge.  They also

         14   print out the results.  

         15              They take those cartridges and they put

         16   them in a device that reads the results.  They took

         17   these cartridges.  They compared each one of them. 

         18   And I asked the question.  I says, why would it

         19   change?  Why would you not get the results of these

         20   cartridges, because they indicated to me that they do

         21   an audit the next day to compare the printed results

         22   to the cartridge results.





                                                                      215



          1              And I stayed for the next day and  found

          2   that in 3 of I think about 500 polling places the

          3   cartridges did not produce results, but the printout

          4   did.  And so they just produced another cartridge

          5   from the machine which compared to the printout, and

          6   the results were the same.

          7              In Georgia under your system, how do you

          8   do a recount with the DREs?  There is a concern that

          9   these memory cartridges may not work.  Have you had

         10   recounts under your system?  And are you merely

         11   reproducing the results on these cartridges, or how

         12   do you actually do the recount there?

         13              MS. ROGERS:  Our law currently states that

         14   recounts are conducted in the same manner in which

         15   the votes are tallied.  So for all the optical scan

         16   ballots, which is what we use for absentee ballots,

         17   those are actually scanned back through the

         18   tabulator.

         19              The memory cards are uploaded again, tapes

         20   are printed, reports are printed, and that is how the

         21   recount is handled.

         22              One little known fact is that our system





                                                                      216



          1   has the ability to print the images and we can do a

          2   hand count.  So that ability is there.

          3   

          4   

          5   

          6   

          7   

          8   

          9   

         10   

         11   

         12   

         13   

         14   

         15   

         16   

         17   

         18   

         19   

         20   

         21   

         22   





                                                                      217



          1              Laser jet printers what could be 4 million

          2   pieces of paper to hand count. So that ability is

          3   there.  The problem is that if we went into that type

          4   of recount method, under our current election

          5   structure we have runoff elections three weeks after

          6   the primary.  We would never be able to put the

          7   candidates on the ballot, have our runoff ballots

          8   ready for absentee voting and be able to go into the

          9   next election if we actually printed out that piece

         10   of paper.

         11              But I would respectfully remind the

         12   Commission that with lever machines there was never -

         13   - and we had 67 -- 72 counties on lever machines. 

         14   There was no ability to recount.  You simply read the

         15   numbers off the back of the machine again.  So this

         16   is very similar to that. 

         17              With optical scan ballots you also have

         18   the ability to upload the card again, but we do scan

         19   those ballots.  There is where you will get your

         20   difference occasionally.  I don't know, I'm like

         21   Connie, I've worked with a multitude of different

         22   voting systems in my career and have you heard the





                                                                      218



          1   term "marginally marked ballot"?  A marginally marked

          2   optical scan ballot is one in which a very tiny mark

          3   may be made by the voter.  It has always been my --

          4   the way I've seen it happen and during a recount is

          5   that marginally marked ballot is the one that the

          6   next time the machine may or may not count that as a

          7   vote and that's what changes your vote totals.  So

          8   it's not that you're getting more accuracy out of

          9   that, actually you are getting a reflection that the

         10   voter wasn't sure. 

         11              COMMISSIONER DeGREGORIO:  So what you are

         12   saying to me is that since you've instituted these

         13   machines you've never reproduced the ballots in a

         14   recount; that you can do that, but you haven't done

         15   so yet?

         16              MS. ROGERS:  Correct.  We can do that.  We

         17   have reproduced some just for our own benefit just to

         18   see how it worked and that it did work as part of the

         19   testing of the system.  But we have not required that

         20   of our jurisdictions.

         21              MS. McCORMACK:  Paul, could I add to that

         22   because I have done a recount on the same touch-





                                                                      219



          1   screen equipment that we have.  For our early voting

          2   we had a close race in the Malibu mayor's race was 22

          3   votes apart in the year 2000 when we introduced the

          4   equipment.  And we did print out all of the images

          5   and do a manual recount of that race.  And one of the

          6   other points in the equipment that Cathy and I share

          7   is triple redundancy.  There's the hard disk, then

          8   there's the flashcard, and then there's the paper

          9   record that's the accumulated paper record as well as

         10   the capacity to print out an image.

         11              Well, as Cathy mentioned, I used lever

         12   machines for one election.  It was my first election

         13   as an election administrator.  And I said to my

         14   bosses, "these go."  These are not where we want to

         15   be.  There are tremendous inaccuracy problems with

         16   the levers not working correctly and we had some

         17   significant problems with those and no way did we

         18   capture those lost votes.  They were lost votes.  And

         19   so we were not making comparisons to all the

         20   different kinds of systems here, but you did mention

         21   you wanted to.   So I wanted to mention that we have

         22   done that.





                                                                      220



          1              In other jurisdictions in California,

          2   Riverside, for four years using this equipment has

          3   conducted six different recounts, one including a

          4   couple hundred thousand votes, printing out the

          5   records.

          6              COMMISSIONER DeGREGORIO:  Thank you.

          7              Secretary Shelly, first of all, we only

          8   were able to get your testimony just moments before

          9   you came into the room and I was only able to read it

         10   through just once.  I didn't have the advantage of

         11   reading it again, but I know there at the end, which

         12   you didn't get to, you make some very good

         13   recommendations to us regarding training of poll

         14   workers regarding the need for independence, of

         15   independent testing authority and such things.

         16              However, this weekend, not having your

         17   testimony, I downloaded your report because I wanted

         18   to be familiar with California and with the problems

         19   that you addressed in your report.  But in that

         20   report I found a very interesting parallel monitoring

         21   program that a couple other people this morning have

         22   brought to our attention that they suggest may be





                                                                      221



          1   used in lieu of a paper trail.  And the way I am

          2   reading from your report, which was recommended to

          3   you by a committee that you had, you directed a

          4   program where there would -- in eight counties you

          5   would randomly select voting machines to be set aside

          6   for experts to vote on March 2nd.  So similarly

          7   actual voting conditions to determine the accuracy of

          8   the machines to record, tabulate, and record votes. 

          9   And it was developed as a supplement to the current

         10   accuracy testing program.  The goal, as stated in

         11   your report, was to determine the presence of a

         12   malicious code by testing the accuracy of the

         13   machines to record, tabulate and report votes using a

         14   sample of DRE equipment in selected counties under

         15   actual voting conditions on election day.

         16              Now, in looking at the findings, okay, of

         17   that parallel monitoring program, according to your

         18   own report, it says, "the results of the

         19   reconciliation analysis indicate that the DRE

         20   equipment tested on March 2nd recorded the votes as

         21   cast with 100 percent accuracy."

         22              Now, someone suggested that this parallel





                                                                      222



          1   monitoring program could be considered as an

          2   alternative to the paper trail that's been suggested

          3   by you and others.  Can you tell me about how you

          4   feel about the results of this report and how did it

          5   weigh into the decision that you made to ban certain

          6   equipment for this election in California?

          7              MR. SHELLY:  Happily we'll do that, sir.

          8              Let me first -- before answering though, I

          9   just want to -- I need to briefly address a comment

         10   that was made in the presentation by the panelists in

         11   referencing some of the advocacy of the voter-

         12   verified paper trail as being quote/unquote "the

         13   false claims of a tiny minority."  I can absolutely

         14   assure you as a statewide elected official in a state

         15   with 35 million people, I would not base my decisions

         16   on the false claims of a tiny minority.  And I don't

         17   know any elected official who would.

         18              But in terms of parallel monitoring, we

         19   created that system for the March 2nd election and we

         20   are very proud of it.  And let me just articulate

         21   briefly what I have suggested for the ruling as it

         22   applies to this coming November election.  I don't





                                                                      223



          1   believe the parallel monitoring is an appropriate

          2   stand-alone alternative to a voter-verified paper

          3   trail, accessible voter-verified paper trail and I'll

          4   be happy to expand on that if need be.  So what I did

          5   in the ruling was I said, apart from the four

          6   counties that were decertified because they weren't

          7   federally qualified at Diebold TSX machines, the

          8   other ten counties -- 11 -- for the other counties, I

          9   said essentially, fine, that you can use your

         10   equipment, the touchscreen systems if you have a

         11   voter verified paper trail, or, if you need a number

         12   of security directives, including parallel

         13   monitoring.

         14              So parallel monitoring is, we believe in

         15   it.  We believe it should be expanded from what we

         16   used in the March 2nd election. We don't believe it's

         17   an appropriate stand-alone security measure, but we

         18   believe it's an excellent tool.  And I'm very pleased

         19   that both vendors and county election officials have

         20   advocated for its use.  There was some reluctance

         21   when we first adjusted it for last March 2nd, and I'm

         22   pleased, you know, that it's catching on.  Because I





                                                                      224



          1   think it's a good tool for the future.

          2              COMMISSIONER DeGREGORIO:  So you're

          3   suggesting it as an alternative?

          4              MR. SHELLY:  What we have done in our

          5   directive is the following.  I conditionally

          6   decertified a number of our counties based upon the

          7   following premise, that they can receive

          8   recertification should they have a voter verified

          9   paper trail.  But acknowledging fully, as much as

         10   like perhaps many of you, I don't know, hope that we

         11   can have a standard at the federal level in place by

         12   November.  I acknowledge that that may not be the

         13   case.  So I did not want to be irresponsible and just

         14   say, you can't use the machine unless you have a

         15   voter verified paper trail because of that perhaps

         16   limited possibility. 

         17              So we said, instead, if you can't achieve

         18   that goal because we won't have a standard, you can

         19   be recertified if you do a number of things.  One of

         20   the things is parallel monitoring, a number of others

         21   are various security measures, no modems.  Many of

         22   the counties already do these and do them very, very





                                                                      225



          1   well.  And I commend them for that.

          2              We also, as one of the conditions for

          3   recertification are requiring that the counties

          4   involved with the touchscreens to provide the option

          5   of voting optical scan, not in lieu of.  And

          6   essentially they already do this now for provisional

          7   voters.  So it just means you print some extra

          8   provisionals or absentee ballots that they already

          9   do.  And we've indicated that we will, of course,

         10   provide the funds for that and we've asked, actually

         11   the vendors.  But if that doesn't happen, we stand

         12   ready through our Help America Vote Act resources to

         13   do so as an unfunded mandate.

         14              So, sir, we have suggested a series of

         15   security measures that we believe will provide the

         16   level of confidence in the election process this

         17   fall.  And essentially the option of voting on paper

         18   in many respects is like a voter-verified paper

         19   trail, because it addresses that lack of confidence

         20   issue that the voter doesn't have the ability to see

         21   his or her vote.

         22              So for the voter that feel comfortable





                                                                      226



          1   voting the touchscreen they can vote on paper.  For

          2   the voter that does feel comfortable, they can vote

          3   on the touchscreen with the security measures in

          4   place, including parallel monitoring.

          5              CHAIRMAN SOARIES:  All right.  Now, let me

          6   just get this clarification.  I don't want to stop

          7   you.  It sounds as if what you've described as a

          8   decertification -- 

          9              MR. SHELLY:  Conditional decertification,

         10   yes.

         11              CHAIRMAN SOARIES:  -- of machines -- 

         12              MR. SHELLY:  Yes.

         13              CHAIRMAN SOARIES:  -- but a

         14   recertification of counties.

         15              MR. SHELLY:  Well, no, no, no.

         16              CHAIRMAN SOARIES:  I'm trying to -- 

         17              MR. SHELLY:  I'm sorry.  I'm sorry.  No,

         18   it's recertification of that same equipment.

         19              CHAIRMAN SOARIES:  Being used by the

         20   jurisdiction?

         21              MR. SHELLY:  I apologize.  I'm using the

         22   wrong term.





                                                                      227



          1              CHAIRMAN SOARIES:  No, no, I just want to

          2   make sure I understand.

          3              MR. SHELLY:  I'm using the wrong verbiage.

          4              COMMISSIONER DeGREGORIO:  You mentioned

          5   mandates, in state mandates.  And certainly your

          6   directives could be considered a mandate to the

          7   election officials across California.

          8              MR. SHELLY:  Sure.

          9              COMMISSIONER DeGREGORIO:  Is the state of

         10   California with its financial problems that exist

         11   today prepared to assist local jurisdictions with

         12   financial support to institute these mandates?

         13              MR. SHELLY:  Yes, because it doesn't come

         14   from our general fund.  To the extent that there is

         15   an unfunded mandate, those funds, if they aren't

         16   otherwise picked up by vendors comes from the very

         17   resources that have been made available by the

         18   federal government. 

         19              Now, a number of counties have done

         20   something very wise and I appreciate that.  And that

         21   is, for example, in San Diego they had within their

         22   contract that if there was a decertification any new





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          1   system that was certified for use or otherwise

          2   determined to be used in that county the cost would

          3   be picked by the vendor.

          4              For example, in the decertification of San

          5   Diego, the vendor in this instance, Diebold, in their

          6   very contract with San Diego, has to pick up all

          7   those costs.  A number of other counties have the

          8   same terminology within their contracts.

          9              COMMISSIONER DeGREGORIO:  Anybody estimate

         10   how much this is going to cost?

         11              MR. SHELLY:  The backup paper ballots,

         12   it's a million dollars.

         13              COMMISSIONER DeGREGORIO:  Statewide?

         14              MR. SHELLY:  Statewide.

         15              COMMISSIONER MARTINEZ: For?

         16              MR. SHELLY:  The option to vote paper and

         17   the backup paper is a million dollars statewide.

         18              COMMISSIONER DeGREGORIO:  Ms. McCormack,

         19   we hear that election officials commonly use patches

         20   that have not been certified by independent testing

         21   authorities.  If this is the case, then why did they

         22   do that?





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          1              MS. McCORMACK:  The entire certification

          2   process, I think, I do welcome the fact that it's

          3   being reviewed now at a higher level and it's been

          4   such a discrepancy between administrations from what

          5   we used to have with the certification process in

          6   California now under the new Secretary of State.

          7              And even in Secretary Shelly's own report

          8   he indicated that he needed to beef up the

          9   certification process.  And I think we all welcome

         10   that.

         11              So I think in the past when we've had all

         12   these changes and laws, and we do get changes in laws

         13   all the time; we conducted the last three primary

         14   elections in California on three different sets of

         15   laws.  One time it was closed primary, then it became

         16   and open primary and in the last election we called

         17   it "the slightly ajar primary" because it wasn't open

         18   and it wasn't closed.

         19              [Laughter.]

         20              MS. McCORMACK:  The nonpartisans had a

         21   choice to go to one or the other.  But then the

         22   people who were registered with a party had to vote





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          1   with that.

          2              It's very confusing for the poll worker,

          3   for the election official and changes to software

          4   that have to accommodate that.  And in LA County we

          5   have our own tabulation software we've been using for

          6   about 30 years.  And, of course, obviously it's been

          7   through a lot of patches.  And in the recall election

          8   we did have a situation because we used the

          9   touchscreens for early voting.  And because there

         10   were 135 candidates on that ballot, not in

         11   alphabetical order, our sample ballots, which for the

         12   punch cards, the punch number was in numerical order

         13   which made it easier.  If the voter looked at their

         14   sample ballot and said, I want number 82 or 62 or

         15   101, to go and find it, it made it more difficult on

         16   the touchscreen.

         17              We asked the vendor to make a change to

         18   the software so that the number could be next to it

         19   on the touchscreen and they did that for us.

         20              You might remember we were doing that

         21   whole election in a pretty rushed environment.  Yes,

         22   in retrospect we should have done a better job to





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          1   submit that and we should have done that.  We didn't

          2   do it -- not submit is a nefarious thing.  We tested

          3   it and made sure it worked accurately.  We, at E

          4   minus seven, seven days before every election, we

          5   send up the software to the Secretary of State to go

          6   in escrow.  We've always done that and all the

          7   counties do that.  So it wasn't like we were trying

          8   to hide something.  Those changes to the software

          9   were in escrow at E minus seven and we had fully

         10   tested it.

         11              So, yes, in retrospect I wish we had put a

         12   letter together.  In the past when we had put letters

         13   together we would get an instant letter back that

         14   very rarely required any kind of recertification or a

         15   retest and to my knowledge never going back to the

         16   federal testing lab.

         17              So now I think we need to nail down and

         18   this commission can help with that, some appropriate

         19   process for that to happen, especially given the

         20   timelines that we sometimes have to confront with

         21   legislative that gets changed very rapidly, sometimes

         22   as soon as two to three months before an election.





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          1              MR. SHELLY:  Could I briefly expand on

          2   that from my friend and colleague, Ms. McCormack,

          3   because I think she raises a very important point. 

          4   That during the recertification process, for example,

          5   during these last several months in California, a

          6   number of county election officials have raised the

          7   issues with me that there had not normally been an

          8   expectation that for each and every new software

          9   recertification that it would need additional state

         10   approval.  And I have to say, I understand and I'm

         11   very empathetic to that point.  I mean, the law did

         12   require it, but frankly it hadn't been enforced by my

         13   very office.  It hadn't been enforced in previous

         14   years and it hadn't been enforced during some of the

         15   initial months of my tenure.  So I think all of us

         16   collectively, both on the federal level, the state

         17   level, and the local level, need, I think, to really

         18   figure out this certification process so that we can

         19   avoid the mistakes that have been made previously.

         20              COMMISSIONER DeGREGORIO:  Ms. Lamb, as the

         21   Chairman mentioned, New Mexico was on the forefront

         22   many years ago of installing DREs.  And you've had a





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          1   long history of DREs in New Mexico.  This commission

          2   is embarking on a process that's going to develop new

          3   guidelines for voting system standards.  And we fully

          4   expect those guidelines to be more stringent than the

          5   current guideline standards that exist that NASAF

          6   came up with.  How is your state going to meet these

          7   guidelines if your equipment is so old?

          8              MS. LAMB:  Mr. Chairman and Commissioner,

          9   what we will do is we will do what we always have

         10   done and that is follow any federal laws or mandates. 

         11   We are in the process of transitioning out our older

         12   first-generation DREs in any respect because they do

         13   not meet the accessibility requirements of HAVA.  And

         14   so several of our counties began that process.  Some

         15   began even in anticipation before HAVA was passed to

         16   make that transition.

         17              Electronic voting machines like any other

         18   electronic piece of equipment, while it doesn't

         19   receive the daily kind of wear and tear that a PC

         20   does at home.  After a few years' use, you certainly

         21   want to begin to upgrade that equipment anyway.

         22              COMMISSIONER DeGREGORIO:  Are you going to





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          1   use some of the $2.1 billion that we are going to

          2   soon release to the states and New Mexico will get

          3   it's share, and I assume you have some Title I money,

          4   to replace this equipment?

          5              MS. LAMB:  I don't believe that the Title

          6   I money applies for New Mexico.  We don't have punch

          7   cards or lever machines at this time.  But we are

          8   going to use the money to replace the equipment, the

          9   older generation DREs that are not accessible to

         10   visually impaired and blind.

         11              And I do want to say that there is another

         12   advantage that the newer generation equipment does

         13   have for our state, in particular.

         14              In New Mexico we have eight non-written

         15   native American languages.  That poses an additional

         16   challenge when it comes to the voter verified receipt

         17   issue for us.  We haven't quite figured out yet how

         18   you would supply a piece of paper in a non-written

         19   language.

         20              COMMISSIONER MARTINEZ:  Mr. Chairman.

         21              CHAIRMAN SOARIES:  Yes, Commissioner

         22   Martinez.





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          1              COMMISSIONER MARTINEZ:  Thank you, Mr.

          2   Chairman.  Just a few quick questions.

          3              Secretary Shelly, in your remarks just a

          4   few minutes ago you talked about an unfunded mandate. 

          5   And I just want to clarify that.  The mandate is

          6   yours, I mean, we understand that; right.  So you're

          7   suggesting the use of federal HAVA funds to

          8   compensate your local jurisdictions that have to now

          9   do some additional things as a result of your

         10   mandate.  When you talk about an unfunded mandate,

         11   it's not coming from the federal government, yet

         12   you're suggesting the use of federal funds to pay for

         13   that?

         14              I mean, we're not the ones that are saying

         15   -- I mean, I'm just trying to clarify -- 

         16              [Simultaneous conversation.] 

         17              MR. SHELLY:  Is that an inappropriate use

         18   of the funds?

         19              COMMISSIONER MARTINEZ:  No, no, that's for

         20   lawyers to decide.  But I'm wondering if that's -- I

         21   mean, that's what you said.  I mean, is that -- did I

         22   understand that correctly?





                                                                      236



          1              MR. SHELLY:  What I meant with Ms.

          2   McCormack and a number of other elected officials we

          3   talked about for any of these unfunded mandates, to

          4   the extent that they are interpreted as such, I mean,

          5   you know, if we know the legal terminology that are

          6   mandated by this state or federal government or by

          7   any government entity, and it's an unfunded mandate

          8   and it's determined as such that then we would

          9   reimburse those jurisdictions with the funds and we

         10   would use those funds.

         11              We determined in consultation with the

         12   federal government that it was perfectly appropriate. 

         13   If it's not, that's certainly new to me today.

         14              COMMISSIONER MARTINEZ:  I'm not suggesting

         15   that at all.  I'm just making sure that's what I

         16   heard you say.

         17              MR. SHELLY:  Yes.

         18              COMMISSIONER MARTINEZ:  And let me just

         19   make the broader point as to why I'm asking the

         20   question.

         21              MR. SHELLY:  Yes, certainly.

         22              COMMISSIONER MARTINEZ:  I mean, obviously





                                                                      237



          1   Title I monies or early-out monies were to replace

          2   antiquated voting systems where a jurisdiction

          3   decided to use those monies.  So that's what she's

          4   talking about when money is forced to replace voting

          5   equipment.

          6              MR. SHELLY:  I'm not suggesting using

          7   Title I.  No, no, no, no.  Discretionary funds.

          8              COMMISSIONER MARTINEZ:  I'm with you, I'm

          9   with you.  The Title II funds that we are about to

         10   begin distributing are for broader purposes and

         11   perhaps that's one of the purposes.  I'm not opining

         12   about whether it's appropriate or not.  I was just

         13   trying to make sure that I understand that that's

         14   what you were saying.

         15              From my perspective and it's not our job

         16   to get on a soapbox here at this particular hearing,

         17   but, you know, the Title II funds are not just for

         18   replacing voter equipment.  I understand how

         19   important it is if a jurisdiction decides to use the

         20   money for that purpose, but there's the people aspect

         21   of voter -- of election administration that I've been

         22   stressing quite a bit during my short tenure as a





                                                                      238



          1   Commissioner.

          2              MR. SHELLY:  Uh-huh.

          3              COMMISSIONER MARTINEZ:  And you actually

          4   did it as well, and I applaud you for doing it, poll

          5   worker training, poll worker recruitment, voter

          6   education, nonpartisan voter education activities

          7   where a jurisdiction switches from one voting system

          8   to another.  It's important to make sure that

          9   nonpartisan voter education -- I'm sure you would

         10   agree with that.

         11              MR. SHELLY:  Yes, of course, sir.

         12              COMMISSIONER MARTINEZ:  So from my

         13   perspective I'm just asking the question, because now

         14   we're reprioritizing the use of HAVA dollars to a

         15   certain extent.  And I'm not saying that's

         16   inappropriate, I'm just wanting to find out and to

         17   make clear that that is what you are suggesting

         18   essentially?

         19              MR. SHELLY:  Well, I mean, there are Title

         20   I, there are Title II, there's the 102, Title II,

         21   Title III, I mean --

         22              COMMISSIONER MARTINEZ:  Let this be clear





                                                                      239



          1   -- 

          2              MR. SHELLY:  -- and there's the

          3   discretionary funds that are within the discretionary

          4   use of the secretary of state -- 

          5              COMMISSIONER MARTINEZ:  What Congress has

          6   funded, and I assume that the funding is not coming

          7   in an infinite -- it's finite -- 

          8              MR. SHELLY:  Yes.

          9              COMMISSIONER MARTINEZ:  -- right?

         10              MR. SHELLY:  Yes.

         11              [Laughter.] 

         12              COMMISSIONER MARTINEZ:  I didn't say that

         13   very clearly, but we know what we're talking about. 

         14   The money is not going to keep coming.

         15              MR. SHELLY:  Yes, of course not.

         16              COMMISSIONER MARTINEZ:  You know, I think

         17   to make our case work, but the point being, the point

         18   being that we know where the funding is coming from

         19   Congress, we know what pots are available today.

         20              MR. SHELLY:  Yes.  Yes.

         21              COMMISSIONER MARTINEZ:  So the discretion,

         22   for example, the pilot projects, and research and





                                                                      240



          1   grant opportunities 271, 281 of HAVA authorized, but

          2   unfortunately not funded.  So we don't have those

          3   monies available to distribute.

          4              MR. SHELLY:  Yes.

          5              COMMISSIONER MARTINEZ:  What we have

          6   available to distribute are Title I which has been

          7   distributed in full.

          8              MR. SHELLY:  Yes.

          9              COMMISSIONER MARTINEZ:  And Title II which

         10   is about to be distributed to states beginning Monday

         11   when the 45-day public comment period ends.  

         12              MR. SHELLY:  Yes.

         13              COMMISSIONER MARTINEZ:  And so we know

         14   which funds we're talking about.  And, again, I'm not

         15   suggesting inappropriateness because that's for

         16   lawyers to decide.  I'm not here today as a lawyer. 

         17   So that's not what I'm suggesting.  I just, again,

         18   want to be clear that the cost that needs to be borne

         19   by the local election officials in your state, it's

         20   going to have to come from someplace.  You're

         21   suggesting it come from the vendors.  If they say no,

         22   for whatever reason, and they legally can say that,





                                                                      241



          1   if they can, I don't know that.  Then the next pot of

          2   money appears to be the HAVA fund is what I heard you

          3   say.

          4              MR. SHELLY:  Yes.  Sir, can I just -- let

          5   me just -- 

          6              CHAIRMAN SOARIES:  I love to hear lawyers

          7   talk.

          8              [Laughter.]

          9              CHAIRMAN SOARIES:  When they're not

         10   talking about me.

         11              [Laughter.]

         12              MR. SHELLY:  I think I understand your

         13   question, sir.  Let me -- if I can just briefly say,

         14   you know, I considered, as Connie and others know, I

         15   considered decertifying some of those other counties. 

         16   But I thought it was irresponsible.  I thought it was

         17   irresponsible for the disabled to prefer and have

         18   used the DREs.  I thought it was irresponsible for

         19   non-English speaking voters.  I thought it was

         20   irresponsible for county election officials who have

         21   to pull of an election in six months.  But I thought

         22   it was responsible to require the provision of the





                                                                      242



          1   option of voting on paper, parallel monitoring, a

          2   technical security plan from the secretary of state,

          3   full federal testing and qualification which hasn't

          4   always been followed in the past, full state testing

          5   and certification which hasn't always been followed

          6   in the past, no last-minute changes which sometimes

          7   would happen within 10 days.  We put a 46-day

          8   timeline on it.  No wireless connection.  Poll worker

          9   training where the emphasis must provide adequate

         10   hands-on training for each poll worker for the DRE

         11   and any other device that was used.  

         12              We take it very seriously and not trying

         13   to be cavalier in coming up with suggested

         14   requirements that either (a) were too onerous or (b)

         15   too costly; but rather would protect the integrity of

         16   the process.  And that's what we came up with.

         17              The other alternative was outright

         18   decertification and I didn't think that was

         19   responsive.

         20              COMMISSIONER MARTINEZ:  No, I understand

         21   that fully and I appreciate that answer.  And I am

         22   not passing -- despite the lawyerly tone of my





                                                                      243



          1   questions, I'm not trying to pass judgment on what

          2   you've done, I'm just trying to clarify from my -- 

          3              MR. SHELLY:  I understand, sir.  It's a

          4   very legitimate inquiry.

          5              COMMISSIONER MARTINEZ:  Right.  Okay.  I

          6   appreciate that.

          7              CHAIRMAN SOARIES:  In the few minutes we

          8   have remaining, I will abstain from asking questions,

          9   but I will have a comment.

         10              Commission Hillman, Vice Chair Hillman and

         11   then we will close this session.

         12              VICE CHAIRMAN HILLMAN:  I have two

         13   questions and I think that they both could do with

         14   quick answers.  For Cathy Rogers, about how many co-

         15   workers have to be recruited to conduct a general

         16   presidential election in the state of Georgia?

         17              MS. ROGERS:  We have approximately 3,000

         18   precincts.  You have a minimum of four poll workers

         19   to a precinct and that number could go up potentially

         20   as high as 12.  So if you multiply that out, you've

         21   got at least nine to 14,000 poll workers.

         22              VICE CHAIRMAN HILLMAN:  Did the





                                                                      244



          1   introduction of the electronic voting equipment make

          2   it any different when it came to recruiting poll

          3   workers to do those jobs?

          4              MS. ROGERS:  No, not at all.  We had a lot

          5   of election officials who were saying, oh, we're

          6   going to lose our poll workers.  They're going to be

          7   afraid of the technology.  But when we did the poll

          8   worker training, and let me just say, poll worker

          9   training is very, very important.  But the secretary

         10   of state's office in Georgia has taken on a new

         11   endeavor of assisting our counties with that poll

         12   worker training. They need extra funds.  They need

         13   extra training.  They need help in training poll

         14   workers.  And I think that states are going to have

         15   to step in and help their counties now.  But with

         16   that endeavor and we did not see that happen.  A

         17   very, very small percentage of poll workers did drop

         18   off, but the same small percentage that I saw back in

         19   1998 when I put in a new optical scan system.  Some

         20   people are just afraid of change and won't accept it. 

         21   But for the most part it was embraced.

         22              VICE CHAIRMAN HILLMAN:  Okay.  Thank you. 





                                                                      245



          1              A quick question for you Denise.  Over the

          2   years that you've been using the electronic voting

          3   equipment, and let me just say that when I have the

          4   opportunity to visit with you all in Sante For

          5   example, I did have a wonderful introduction to the

          6   inside/outside, upside down of the older DRE machine

          7   with a wonderful explanation.  That was provided to

          8   me by an employee of the -- I believe of the

          9   secretary of state's office.  But I'm just wondering

         10   over the years how have you all used vendor

         11   technicians in the course of the elections?

         12              MS. LAMB:  Mr. Chairman, Commissioner

         13   Hillman, we don't use vendor technicians during the

         14   course of elections.  We have the state send

         15   technicians from each county to be certified and they

         16   get certified by the state.  I believe when you were

         17   there they did certify a few people. 

         18              We require that the vendors have people

         19   available by telephone in order to assist us if

         20   there's a problem.  With most computerized systems,

         21   if you have a problem on election day, you are not

         22   going to fix it on election day.  You have to pull





                                                                      246



          1   that system out of service and have a backup system

          2   available.  And you also have emergency paper

          3   ballots.  That was the case, I think, even back with

          4   lever machines.  They had emergency paper ballots in

          5   case there was a malfunction.  And so we rely on our

          6   own counties to have technicians to take care of the

          7   machines, not only on election day, but during the

          8   course of the year for maintenance as well.  They

          9   have technicians on contract.

         10              VICE CHAIRMAN HILLMAN:  Thank you.

         11              CHAIRMAN SOARIES:  We are out of time. 

         12   Let me say that there were two objectives that we had

         13   in inviting you here and in reading your testimony. 

         14   One was to help understand the issues that you need

         15   us to address, and I want to thank you because this

         16   issue of certification and timeliness is something

         17   that we accept in terms of a challenge.

         18              The issue of national data on equipment

         19   malfunctions is an issue that we take very seriously

         20   as a clearinghouse as Commissioner Martinez said. 

         21   And to the extent that you've raised very important

         22   issues, we accept that challenge immediately and will





                                                                      247



          1   respond to your concerns so that you will know which

          2   of those issues translate into short-term remedies

          3   and which of those issues translate into long-term

          4   work.

          5              But beyond the issues which instruct us,

          6   we are looking for best practices.  And the idea of

          7   parallel monitoring may be something that people

          8   would rather take to based on the success in

          9   California.

         10              The inclusion of Kennesaw University as a

         11   disinterested third party that has both practical and

         12   academic expertise is something that Georgia

         13   contributes to the process.  We won't get into it

         14   today, but in Los Angeles, among other things, you've

         15   done a great job of recruiting college students to be

         16   poll workers which satisfies both the numerical need

         17   and technology.  It fills a technology gap because

         18   the younger people know more about technology. 

         19              And so know that your contributions to our

         20   process are both in the areas of issues and in best

         21   practices.  Because at the end of the day we can't

         22   tell districts what to do.  But what we should be





                                                                      248



          1   doing is positioning ourselves to not only write

          2   checks, but to offer information the districts can

          3   use based on experiences you've had to get it right

          4   in November.  Some are trying to push us into a very

          5   narrow corner as if we were established to make one

          6   decision.  And that decision frankly is not even in

          7   our domain.

          8              We will not decide on what machines people

          9   should buy.  We will make decisions, as Paul said, on

         10   standards and we will work as quick as we can to fit

         11   up our capacity to do so. 

         12              Again, in closing, we consider ourselves a

         13   resource to the people on the ground.  You and others

         14   like you, the National Association of Secretaries of

         15   State with Leslie Reynolds have been very helpful to

         16   us to date, very helpful to the standards that we

         17   have and have pledged their support in the future.

         18              The National Association of State Election

         19   Directors, likewise, has borne great responsibility

         20   and we consider ourselves your partners and we hope

         21   that we will behave such that you will consider us

         22   your partner.





                                                                      249



          1              Thank you so much.

          2              Our research and human interaction panel.

          3              Thank you so much for being here

          4   panelists.  If the audience would make a quiet

          5   transition that would help us.  We need the

          6   audience's cooperation.  We are prepared to begin.  

          7              As I've stated to our panelists and

          8   audience -- I think next time we'll have our hearing

          9   at the Defense Department.

         10              [Laughter.] 

         11              CHAIRMAN SOARIES:  Order in the military.

         12              Ladies and gentlemen, audience, thank you

         13   for your cooperation.  We are going to now begin our

         14   panel where we consider research and human

         15   interaction factors.  We are happy to have Dr. Sharon

         16   Laskowski, National Institute of Standards and

         17   Technology who has a primary role in helping us with

         18   the report we recently submitted to Congress on human

         19   factors.

         20              We have Dana DeBeauvoir from Austin, Texas

         21   who was a country clerk and practitioner with

         22   expertise in this regard. 





                                                                      250



          1              And joining us momentarily will be Alice

          2   Miller the Executive Director of the D.C. Board of

          3   Elections.

          4              Welcome Dr. Laskowski, and thank you so

          5   much for your help predating this moment and for your

          6   presentation that you have come prepared to give.

          7              DR. LASKOWSKI:  Good afternoon.  As you

          8   know I'm a computer scientist at the National

          9   Institute of Standards and Technology.  I wish to

         10   thank the Election Assistance Commission for this

         11   opportunity to speak about how to improve the

         12   usability and accessibility of voting products and

         13   systems and the role of NIST in this endeavor.

         14              NIST has been asked in the Help America

         15   Vote Act to assess that research standards and

         16   guidelines in the areas of human factors, usability

         17   and accessibility in terms of their applicability to

         18   voting products and systems.  As a result of this

         19   investigation, we have compiled a set of

         20   recommendations that, if followed, should measurably

         21   improve the usability and accessibility of voting

         22   systems.





                                                                      251



          1              In the usability field, the definition of

          2   a system encompasses the users and all the elements

          3   required to accomplish some goal within a specific

          4   environment.  The human factors and usability for

          5   voting systems focus on the process of the voter

          6   casting a ballot as intended.  And also the

          7   interaction of the poll worker with the voting

          8   system.

          9              This primarily involves the user interface

         10   the voter is presented by the product such as a DREE

         11   and the environment and related equipment at the

         12   polling place.

         13              In this context we have not examined

         14   issues such as the accuracy of the product, counting

         15   the votes, the quality of the hardware, the software,

         16   or the underlying security of voting systems as these

         17   in general do not involve user interaction.

         18              From a usability perspective, the voting

         19   system is defined by the voters themselves, the

         20   physical environment in which they vote, such as the

         21   polls or home for Internet-based voting; the

         22   psychological environment associated with voting, for





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          1   example, stress induced by long lines at the polls or

          2   time pressure associated with personal deadlines; the

          3   equipment, both hardware and software used for

          4   voting, such as paper ballots, optical scanning and

          5   DREs; the ballot itself; the quality of support

          6   provided if required by the voter by poll workers;

          7   and any documentation and training provided to the

          8   voter, poll workers and other election

          9   administrators.

         10              Usability is a measure of the

         11   effectiveness, efficiency of satisfaction achieved by

         12   the users.  Effectiveness includes accuracy and

         13   completeness such as the number of user errors. 

         14   Efficiency includes resources such as time expended

         15   by the voter.  And satisfaction includes the

         16   subjective comfort and acceptability of the results

         17   to the voter.

         18              Accessibility is defined as the degree to

         19   which a system is available to and users by voters

         20   with disabilities.  These are standard definitions

         21   that have been formulated to provide the means for

         22   explicit measurements for usability and they are





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          1   certainly applicable to voting systems.

          2              This means that we can measure usability

          3   voting products such as DREs.  Currently we are

          4   unsure about the extent to which usability problems

          5   exist because for the most part voting products and

          6   systems have not been tested for usability.  

          7              To give a simple example, for touchscreen

          8   ballots, if a voter selects a candidate by mistake

          9   and wants to deselect that choice, it's certainly

         10   possible with a touchscreen we do not know whether

         11   any of the current implementations causes voters

         12   confusion and errors or not.  It is possible to

         13   create standards which address usability and

         14   accessibility.

         15              For an independent testing authority, ITA,

         16   to qualify a voting product as conforming to such a

         17   standard tests must be designed to measure these

         18   levels of usability and accessibility.

         19              When a requirement involves human

         20   interaction, the way in which it is to be tested

         21   depends on the type of requirement.  For example, a

         22   desired requirement could be tested by inspection. 





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          1   But a performance benchmark needs to be tested with

          2   actual users.  This implies that the standards have

          3   to be written with the testing in mind.  These

          4   standards should also be relatively independent of

          5   specific implementations.

          6              In addition, aspects of the voting system

          7   beyond the user interface itself such as the ballot

          8   design and documentation also needs to be examined

          9   with usability and accessibility in mind.

         10              The NIST recommendations are, and there

         11   are ten of them:

         12              1.             Develop voting system

         13                             standards for usability

         14                             that are performance-based,

         15                             high level, that is

         16                             relatively independent of

         17                             the technology, and

         18                             specific, that is precise.

         19              2.             Specify the complete set of

         20                             user related functional

         21                             requirements for voting

         22                             products in the voting





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          1                             system standards.

          2              3.             Avoid low-level and general

          3                             product design

          4                             specifications for

          5                             usability.  Only those

          6                             product design requirements

          7                             that have been validated as

          8                             necessary to ensure

          9                             usability should be

         10                             included as shell

         11                             statements and standards.

         12              4.             Build a foundation of

         13                             applied research for voting

         14                             systems and products to

         15                             support the development of

         16                             usability and accessibility

         17                             standards.

         18              5.             To address the removal of

         19                             barriers to accessibility

         20                             the requirements developed

         21                             by the Access Board, the

         22                             current voting system





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          1                             standards and the draft

          2                             IEEE standards should be

          3                             reviewed, tested, and

          4                             tailored to voting systems

          5                             and then considered for

          6                             adoption as updated VSS

          7                             standard.  The feasibility

          8                             of expansion to include

          9                             both self-contained and

         10                             closed products and open-

         11                             architecture products

         12                             should also be considered.

         13              6.             Develop ballot design

         14                             guidelines based on the

         15                             most recent research

         16                             experience of the visual

         17                             design communities

         18                             specifically for use by

         19                             election officials and in

         20                             ballot design software.

         21              7.             Develop a set of guidelines

         22                             for facility and equipment





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          1                             layout.  Develop a set of

          2                             design and usability

          3                             testing guidelines for

          4                             vendors and state supplied

          5                             documentation and training

          6                             materials.

          7              8.             Encourage vendors to

          8                             incorporate a user center

          9                             designed approach into

         10                             their private design and

         11                             development cycle including

         12                             formative or diagnostic

         13                             usability testing as part

         14                             of private development.

         15              9.             Develop a uniform set of

         16                             procedures for testing the

         17                             conformance of voting

         18                             products against applicable

         19                             accessibility requirements;

         20                             and

         21              10.            Develop a valid, reliable,

         22                             repeatable, reproducible





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          1                             process for usability

          2                             conformance testing of

          3                             voting products against the

          4                             standards described in the

          5                             first recommendation with

          6                             agreed-upon usability

          7                             pass/fail requirements.

          8              In general, the single, most critical need

          9   NIST has identified is a set of usability standards

         10   for voting systems that are performance-based and

         11   support objective measures and associated conformance

         12   test procedures that can be used for qualification

         13   and certification of voting products.

         14              We also recommend that in the short term

         15   states perform their own usability testing before

         16   procurement as well as after procurement with their

         17   own ballots to mitigate any potential usability

         18   problems that might occur.

         19              We expect that these recommendations will

         20   be taken into consideration by the technical

         21   guidelines development committee when it becomes

         22   operational under the EAC as described in the HAVA. 





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          1              Thank you.

          2              CHAIRMAN SOARIES:  Thank you so much.

          3              You can tell who the computer scientists

          4   are out there.  They were on the edge of their

          5   chairs. 

          6              [Laughter.]

          7              CHAIRMAN SOARIES:  The rest of us were

          8   writing down words to look up in our dictionaries.

          9              [Laughter.] 

         10              CHAIRMAN SOARIES:  Thank you so much, Dr.

         11   Laskowski.  I have questions for you after.

         12              Ms. DeBeauvoir.

         13              Ms. DeBEAUVOIR:  Perfect.  Thank you so

         14   much.

         15              Mike on, mike?  Thank you. 

         16              CHAIRMAN SOARIES:  Okay.  Here it comes.

         17              Ms. DeBEAUVOIR:  I began my first election

         18   in 1987 when I was a baby clerk conducting a punch

         19   card election for Austin, Texas which is about --

         20   it's now 700,000 voters.  When I first conducted that

         21   punch card election and saw what it looked like

         22   behind the scenes I was pretty disturbed and





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          1   immediately started working on my jurisdiction to get

          2   us out of it.

          3              Three years later I convinced my

          4   commissioners first to switch to an optical scan

          5   central count which is a huge undertaking for a large

          6   county like us, but it was the cheap way to get us

          7   out of punch card voting.

          8              I will say that we were such a large

          9   jurisdiction that I was very close to having to

         10   butterfly my ballot in order to get everything on

         11   there.  And even back then I knew that was going to

         12   be a scary proposition.

         13              Two and a half years ago I again

         14   transitioned our county to a DRE touch-button system. 

         15   So I may be the only one here to talk about that

         16   particular piece of equipment.  And I did an

         17   extensive voter education campaign in all of those

         18   transitions.  And I think what I've learned from the

         19   previous transitions and now this one, and especially

         20   the more current conversation, what I would like to

         21   do is add to further the conversation about how

         22   voters feel and what we can do about voters while I





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          1   also concur with many of the statements that Connie

          2   McCormack made.

          3              I've also been through the thinking

          4   process about how I would put a large ballot into a

          5   voter verified paper piece of ballot and it looks

          6   very similar in Austin, Texas as in Los Angeles.

          7              Now, I think what's important for voters

          8   is we've got to educate them because right now

          9   there's this sort of free-floating thing happening

         10   out there and we've got to find ways to educate

         11   voters so that they focus on exactly what the problem

         12   is so that then we know exactly what the solution is.

         13              The engineers in the audience would refer

         14   to that as "risk assessment" and "risk mitigation." 

         15   Because what I want to talk about is the kinds of

         16   things that voters mention to me.  They stop me in

         17   the supermarket all along and ask me some of these

         18   kinds of questions. 

         19              They ask me, well, you know, can we stuff

         20   the ballot box like we used to do with paper ballots? 

         21   Can ballot stuffing occur?  The answer to that

         22   particular risk assessment is a mitigation tool that





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          1   is procedural.  Okay.  

          2              They ask about post-election tampering. 

          3   They want to know if there is any way you can tell at

          4   the counting station if somebody is doing something

          5   behind the scenes or any of that.  The mitigation to

          6   that risk has to do with real time audit logs, with

          7   segregation of duties, with opening up the doors and

          8   letting the general public watch what you're doing

          9   and having trained personnel who are your own people.

         10   

         11              The other thing that they ask me about is

         12   hacking.  Hacking has been probably the thing I get

         13   asked the most about.  You know, we can just hack

         14   into the system and change votes.  If there is no

         15   external communication pathway, then we are wasting

         16   our time talking about hacking.  And in most systems

         17   they are closed.  So it's not possible to hack it. 

         18              Internet voting is very scary.  But not a

         19   closed system.  So we can just bypass hacking and

         20   let's go to some of the other forms of tampering that

         21   have been mentioned to me.  The one that's probably

         22   been mentioned the most by voters is the Trojan Horse





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          1   or Bomb or something that's been planted in the

          2   software and then it's going to react later, either

          3   in a time clock or triggered buy some particular

          4   action.  The mitigation to that particular risk is,

          5   you know, a lot of different steps that we currently

          6   don't have really good tools for.  And this is one of

          7   the things that I believe that the Commission can be

          8   helpful for in the future.  And that is, that if --

          9   one of the things that was mentioned earlier is, if

         10   we were to use hash code testing to prove that the

         11   version of the software that I am using on the

         12   system, you know, that I'm conducting that election

         13   on and it is only that software version, then that

         14   helps take care of that problem.  

         15              Once, again, the risk assessment -- I

         16   mean, the mitigation matches the assessment problem.

         17              I'm going to move very quickly because I

         18   want to give you the opportunity to ask questions.

         19              Probably the one risk that I think I take

         20   most seriously is some form of an inside job.  And

         21   I'm still not sure exactly how, you know, this would

         22   occur.  But, you know, let's just say that I would





                                                                      264



          1   consider that a higher probability than some of these

          2   other examples of risks.  And the way you do that is,

          3   I think first of all you have to do very, very

          4   serious logic and accuracy testing.  I have submitted

          5   in my materials to you a procedure that we could

          6   teach county clerks and elections administrators --

          7   from counties who perhaps don't have as much

          8   technical experience as my county does -- how to set

          9   this up and do it themselves so that they not only

         10   proof their ballot, but they prove that it really

         11   does count.

         12              There's also, we could use cyclical

         13   redundancy testing at the central counting station

         14   prior to counting votes and we can demonstrate the

         15   use of sum checks.  Sum checks are in the equipment

         16   right now.  You can't see them.  So let's demonstrate

         17   them.  Let's figure out a way to show people that

         18   this is what is happening.  Then, coupled with

         19   criminal background checks on all temporary and

         20   permanent employees, now you've got a significant

         21   layering of mitigators on top of that so that you've

         22   increased your confidence that, you know, inside job





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          1   is going to be much, much more difficult to

          2   accomplish.

          3              And finally switching or doubling votes. 

          4   I actually had in an optical scan environment an

          5   attorney who requested a recount because he was

          6   convinced that the vote totals for the two candidates

          7   had been switched because the plug was plugged in

          8   upside down.

          9              Now, it was a three-prong plug.

         10              [Laughter.]

         11              Ms. DeBEAUVOIR:  This is a real story,

         12   this is a real story.  It really did happen.  And we

         13   had to go hallway through this thousands and thousand

         14   of ballot count -- recount before this guy finally

         15   understood that, no, you know, it's not switching

         16   votes at all. 

         17              [Laughter.] 

         18              Ms. DeBEAUVOIR:  I have seen some fun

         19   stuff. 

         20              I think what we really need to ask

         21   ourselves is, what risks do we really face?  And I

         22   think we do need to do further risk assessments.  But





                                                                      266



          1   just in those few that I've mentioned, the ones that

          2   voters talked to me about, in none of those cases is

          3   a voter-verifiable paper ballot the answer.  In none

          4   of those higher risk, the ones, the problems that

          5   everybody talks about does voter verifiable ballot

          6   prevent it.  And what I would say to you is that it

          7   is not acceptable to me as somebody who has to deploy

          8   equipment into the field that the only protection I

          9   have for knowing that I've got a safe and secure

         10   system is a voter -- and not even all of them, but a

         11   sampling of voters who are going to tell me after the

         12   fact that I've got something wrong.  No, I want

         13   prevention from the fact, not detection after the

         14   fact.

         15              CHAIRMAN SOARIES:  Thank you.  Thank you

         16   very much.  We know that Ms. Miller was detained and

         17   if she can get here before 2:30, we would be happy to

         18   hear from her.  But we do have her written testimony.

         19              Dr. Laskowski, you talked about a level of

         20   uncertainty that exists around usability and my mind,

         21   when you say that, goes to the first time I voted in

         22   my district on a touchscreen machine when I was





                                                                      267



          1   alarmed, I was pleased, and I was quite experimental. 

          2   I saw a keyboard at the bottom of the machine and I

          3   had never seen a keyboard in a voting machine before

          4   so I typed in my name.  And I didn't know how to

          5   untype it and so I pushed "vote" and I ended up being

          6   elected to an office because I was a write-in

          7   candidate for whom there was no opposition.

          8              [Laughter.]  [Applause.] 

          9              CHAIRMAN SOARIES:  So I wish I could have

         10   verified that before I pushed "vote."

         11              [Laughter.] 

         12              CHAIRMAN SOARIES:  That is a true story.

         13              [Laughter.] 

         14              CHAIRMAN SOARIES:  When I hear persons

         15   from your field talk about usability studies, I guess

         16   what I would have called that before meeting you was

         17   market research.  But it's different.  Could you help

         18   us understand the difference between market research

         19   for a product and usability studies from a science --

         20    from a science aspect?

         21              DR. LASKOWSKI:  I think the biggest

         22   difference is that in usability engineering process,





                                                                      268



          1   when you're doing a usability evaluation, you want to

          2   work with an appropriate sample of your users with

          3   the actual product and observe the interaction with

          4   the product because that's how you detect errors.

          5              The error you described was one leading to

          6   failure to cast your vote as intended.  You can also

          7   occasionally observe errors that don't cause the

          8   failure that the user can correct.  But in doing

          9   those kinds of observations that tells you a couple

         10   of things.  It tells you what sorts of errors and

         11   just by looking at say, spoiled ballots or residual

         12   errors at the end, that doesn't give you that kind of

         13   detailed information as to what is the actual sources

         14   of the errors.  It also tells you ways you can

         15   mitigate or improve the user interface to alleviate

         16   those errors.

         17              CHAIRMAN SOARIES:  So the challenge that

         18   we have, if accepted, to include in new standards,

         19   the requirement for performance-based usability

         20   testing?

         21              DR. LASKOWSKI:  Yes, if we look at best

         22   practice in the industry -- 





                                                                      269



          1              CHAIRMAN SOARIES:  Right.

          2              DR. LASKOWSKI:  -- the software industry,

          3   for example, we see that they do testing.  They're

          4   all testing with users on critical tasks, et cetera,

          5   looking for these kinds of things and so we know that

          6   that can ensure a certain level of usability and

          7   indeed that is the most reliable way of identifying

          8   those kinds of errors.

          9              CHAIRMAN SOARIES:  Yeah.  I guess my

         10   question is, there's a consensus of concern at this

         11   table as it relates to the ITAs themselves.

         12              DR. LASKOWSKI:  Ah, yes.

         13              CHAIRMAN SOARIES:  And you're working on a

         14   process that we'll end up partnering on.  What are

         15   the implications for certifying ITAs, if any -- 

         16              DR. LASKOWSKI:  Currently the ITAs do not,

         17   as you know, do usability testing. 

         18              CHAIRMAN SOARIES:  Right.

         19              DR. LASKOWSKI:  It's not part of the

         20   mandatory and part of the current BSS, it's the

         21   usability -- 

         22              CHAIRMAN SOARIES:  But if it were to





                                                                      270



          1   become a part of it -- 

          2              DR. LASKOWSKI:  -- and so they would have

          3   to have -- first, a well-defined test methodology

          4   would have to be developed to support the testing so

          5   that an ITA could be certified as qualified to

          6   perform that as having suitable personnel and a set

          7   up in laboratory to perform those tests.

          8              CHAIRMAN SOARIES:  So given the pool of

          9   candidates for potential ITA certification to become

         10   ITAs, does that narrow the pool?  Does it have an

         11   impact on the possible number of candidates?

         12              DR. LASKOWSKI:  Well, they would have to

         13   hire probably additional personnel or lab personnel

         14   and lab facilities.

         15              CHAIRMAN SOARIES:  So it shouldn't have a

         16   negative impact on -- 

         17              DR. LASKOWSKI:  It's in line with their

         18   current process.

         19              CHAIRMAN SOARIES:  Okay.

         20              DR. LASKOWSKI:  It's no different than the

         21   current process except that there's additional skill

         22   involved. 





                                                                      271



          1              CHAIRMAN SOARIES:  Good.

          2              DR. LASKOWSKI:  But there are lots of

          3   usability professionals around that can advise them

          4   on how to do that type of thing.

          5              CHAIRMAN SOARIES:  Ms. DeBeauvoir, much of

          6   what we are talking about, again, is in the gray area

          7   of perception, and perception is impacted by

          8   communications and some of what we are having to

          9   think through is, how do we communicate to the

         10   public?  On the one hand one can communicate in a way

         11   that causes the public to think that we are just

         12   na ve and defenders of the status quo.  On the other

         13   hand one can communicate in a way that predicts

         14   Armageddon and just scares people to death.  

         15              Ms. DeBEAUVOIR:  Yes.

         16              CHAIRMAN SOARIES:  How do you balance that

         17   in this area?

         18              Ms. DeBEAUVOIR:  The whole issue of voter

         19   education, well, for one thing, it's going to cost

         20   money.  And we are going to need professionals to

         21   help develop those communication tools with voters.

         22              There's one thing that I think we could do





                                                                      272



          1   right off the bat that would so help voters.  And

          2   that is, in all of the area equipment that's out

          3   there right now, they're required to have a summary

          4   screen.  If we really focused people to teach them

          5   how to use the one tool they already possess that's

          6   basically the same thing as a voter verified paper

          7   ballot, that would be a huge improvement right there. 

          8   Just focus on getting them to understand and use that

          9   summary screen.

         10              Now, what that says to them is it puts the

         11   power back in their hands to, you know, accept

         12   responsibility for their ballot, to make their

         13   choices and it's something tangible and easy message. 

         14   You could get it across in a 60-second commercial.

         15              And I think there are other examples of

         16   things that we really need to focus on.  But that

         17   whole concept of voter education is, you know, we

         18   need professionals to help us reach out and talk to

         19   voters.

         20              The other thing too is that I think you

         21   have to create a climate where it's okay to ask

         22   questions.  And that happens in the polling places,





                                                                      273



          1   early voting on election day, we have to have really

          2   warm and nice people in the polling places so that

          3   voters feel comfortable saying, you know, I don't get

          4   this.  That's a hard thing for a lot of people to do

          5   and we need to really encourage that climate.

          6              CHAIRMAN SOARIES:  My last question,

          7   Denise Lamb talked about eight native American

          8   languages that are unwritten which really is

          9   exacerbated in the general population by high levels

         10   of illiteracy.  And what I'm wondering is if

         11   illiteracy or a limited reading proficiency is a

         12   usability issue or is it a different issue?

         13              DR. LASKOWSKI:  I would view it as a

         14   usability issue for a specific segment of the

         15   population.  But when you start thinking about making

         16   more accessible user interfaces, things like audio,

         17   the blind also work in these examples as well.

         18              CHAIRMAN SOARIES:  Commissioner.

         19              COMMISSIONER DeGREGORIO:  Thank you, Mr.

         20   Chairman.  Ms. Laskowski, first let me compliment you

         21   and NIST for your work.  Of the four Commissioners I

         22   have interacted with NIST the most over the past few





                                                                      274



          1   months and been very impressed by the leadership that

          2   I have seen in NIST and Dr. Susan Zebun is here and

          3   Alan Eustis is here who work on the voting program

          4   with NIST and Craig Burkhart from the Department of

          5   Commerce which NIST is under is also here.  And this

          6   report that you all have put together is an important

          7   document, a very important document.  We hope to have

          8   it on our web page by the end of the week so people

          9   can download it and read it themselves because the

         10   recommendations are important, very important.

         11              It's amazing to me how much money has been

         12   spent on election equipment in the country and just

         13   no research has been done, really, according to your

         14   report and to what I see in other places into really

         15   these human factors.  And I found it fascinating

         16   several segments, several pages of your report where

         17   you describe the differences in DREs and how they

         18   treat over votes and under votes.

         19              A week from today we are going to go

         20   before a committee of the house to plead for funds

         21   for next year.  And a significant portion of the

         22   funds we are going to ask for will help support the





                                                                      275



          1   putting together guidelines and standards and to do

          2   some of the research that you suggest here.  What do

          3   you think would be a reasonable time if we do get the

          4   funding that we could probably -- that you could

          5   probably conduct some thorough research by scientists

          6   into this area and come up with a study that would be

          7   used by vendors in election jurisdictions across the

          8   country?

          9              DR. LASKOWSKI:  I think that within one to

         10   two years you could have a fairly good foundation and

         11   a structure for which to do testing and some basic

         12   investigation on what are the values of the

         13   parameters we are talking about in terms of

         14   performance with respect to usability and

         15   accessibility and that would serve as a springboard

         16   for sort on ongoing iterative kind of investigation,

         17   ongoing research as the technology changes and as we

         18   learn more.

         19              COMMISSIONER DeGREGORIO:  I mean, I think

         20   if there was a human factors report written years ago

         21   about punch cards and butterfly ballots, I mean, this

         22   issue might have been discussed years ago and people





                                                                      276



          1   might have encouraged people not to do that, not to

          2   have butterfly ballots because of the confusion that

          3   it presents to the voter as they cast a ballot.

          4              Ms. DeBeauvoir, Texas is one of those

          5   states that Ken Brace mentioned this morning that

          6   doesn't report over votes and under votes.  How about

          7   in your county, do you report the over vote and under

          8   vote?

          9              Ms. DeBEAUVOIR:  I report over votes and

         10   under votes and now that I am in a DRE environment I

         11   only report under votes because there are no over

         12   votes.

         13              COMMISSIONER DeGREGORIO:  Okay.  Why do

         14   you think election officials in Texas are reluctant

         15   to report some of these results?

         16              Ms. DeBEAUVOIR:  Oh, the reluctance is

         17   purely because voters start asking questions and they

         18   get confused and then they get, you know, angry and

         19   upset.  And it has tended -- more information has

         20   tended to produce more confusion.  So it was a

         21   service to voters to just try to just make it

         22   concise, you know, here's who won and here's exactly





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          1   how many votes they got.  There was nothing else in

          2   it but that.  I kind of gave up and said, I'm going

          3   to report it all.

          4              CHAIRMAN SOARIES:  Well, thank you so much

          5   for sharing with us as the other candidates.

          6              VICE CHAIRMAN HILLMAN:  We have a couple

          7   of minutes, can I ask a question?

          8              CHAIRMAN SOARIES:  I'm sorry.

          9              [Laughter.]

         10              VICE CHAIRMAN HILLMAN:  That's all right. 

         11   You're doing such a good job of moving this train

         12   down the track, some of us are getting left behind. 

         13              CHAIRMAN SOARIES:  I'm sorry, I apologize.

         14              VICE CHAIRMAN HILLMAN:   That's quite all

         15   right.

         16              [Laughter.]

         17              VICE CHAIRMAN HILLMAN:  Two quick

         18   questions.  Following up on the NIST report, the

         19   human factors report as it's being referred to, other

         20   than scientists, who has input into the assessment of

         21   all the factors that are considered in the

         22   development of the report and how do they --





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          1              How do they get that opportunity?

          2              DR. LASKOWSKI:  I'm not sure I understood

          3   your question.  In terms of the authors of the

          4   report, or--

          5              VICE CHAIR HILLMAN:  The development of

          6   the report.  Other than scientists, who has input

          7   into the development of the report, and how do

          8   they--how is the broader community able to have input

          9   into some of the findings and recommendations put

         10   forward?

         11              DR. LASKOWSKI:  Who had input, or who--

         12              VICE CHAIR HILLMAN:  Had input.

         13              DR. LASKOWSKI:  Well what we did is we

         14   made a point of talking to as many of the different

         15   stakeholder communities as we could.

         16              So for example we talked to people from

         17   the National Federation of the Blind to see what kind

         18   of testing they had done, et cetera, and various

         19   advocacy groups.

         20              We went to the conferences where there

         21   were vendors showing their machines, and we talked to

         22   the vendors and tried out the machines, et cetera.





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          1              We talked to various election officials to

          2   get their points of view.  So we tried to do as much

          3   footwork as we could to talk to others outside the

          4   scientific community from their perspective, because

          5   when you talk about useability and accessibility, you

          6   have to understand all the players involved to make

          7   sense of it.

          8              VICE CHAIR HILLMAN:  Thank you.  And a

          9   quick question for you.  Having heard everything that

         10   we have heard today, and what I have heard before and

         11   what I have read, I mean we have election officials

         12   who know the challenges, who have tried to address

         13   the challenges, and the vendors and, you know, the

         14   standards that have been set and so on and so forth,

         15   I just wanted to ask your opinion as to why you

         16   believe the concern about the voter being able to

         17   verify what he or she has cast on the ballot has

         18   taken on the life, that will be my word, the life it

         19   has taken on.

         20              Because it does appear that there have

         21   been conversations about this maybe even prior to

         22   2000, but certainly since 2000, and there have been





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          1   considerations, and there have been mistakes, and

          2   there have been errors, but in the end, you know,

          3   when we are talking about customer satisfaction, the

          4   voter satisfaction, just any opinion that you have on

          5   that.

          6              MS. DeBEAUVOIR:  I do think it started

          7   small and has snowballed.  I think that with the lack

          8   of--voters don't really understand all of the

          9   procedures that surround an election.  They don't

         10   know.  They just think somehow it magically appears

         11   in the polling place, and then at ten o'clock at

         12   night they know who won, and they really don't give

         13   it that much thought.

         14              Until they get involved and start working

         15   in a polling place, it does not occur to them that

         16   there is so much pre-election and election day

         17   procedural work that has to happen, and it has to

         18   happen correctly, that I think they don't know.

         19              And by not knowing that, they don't know

         20   the checks and balances, which means then they are

         21   just operating on trust.  So I think we have to

         22   substitute that.





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          1              Now lack of trust with more information. 

          2   They need to understand all of the ins and outs, and

          3   the paper audits, and comparisons that are done as a

          4   standard practice, and that goes for every state,

          5   every type of system used.

          6              VICE CHAIR HILLMAN:  Thank you.

          7              CHAIRMAN SOARIES:  Commissioner?

          8              COMMISSIONER MARTINEZ:  I'll ask one quick

          9   question, Mr. Chairman, of Ms. DeBeauvoir.  And in

         10   the interest of full disclosure, I just moved from

         11   Austin, Texas, and the last time I voted was in the

         12   Texas March primary with your system.

         13              My question is:  Although I guess certain

         14   logic is that DREs simplify the voting process, in a

         15   certain sense it might be an easier, aesthetically

         16   perhaps system for a voter to use, is it more complex

         17   when it comes to behind the scenes in your poll

         18   worker training?  Do you have to redesign training

         19   modules and maybe have more poll workers because of

         20   the complexity of manipulating the system and

         21   ensuring its integrity?  Is that true?

         22              MS. DeBEAUVOIR:  The answer is 'yes' and





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          1   'no.'  In the initial part when you're first doing

          2   implementation, there's a start-up period where you

          3   do have to rewrite all of your training materials,

          4   and training manuals, and get everything in order. 

          5   And that includes for the trouble shooters for

          6   election day, for early voting, for the people who

          7   are working the counting station, for the people who

          8   are getting all the supplies ready for the judges to

          9   pick up, for each aspect of that you have to

         10   completely rewrite and revamp.

         11              One that work is done, though, DREs

         12   simplify the job for administrators.  So after the

         13   training has taken place, and after the poll workers

         14   have had the opportunity to operate a couple of

         15   times, then it is actually an easier environment.

         16              CHAIRMAN SOARIES:  Thank you so much for

         17   your contribution, and we look forward to working

         18   with both of you in the days to come.

         19              MS. DeBEAUVOIR:  My pleasure.

         20              DR. LASKOWSKI:  Thank you.

         21              CHAIRMAN SOARIES:  Our final panel will

         22   consist of the people who work in organizations that





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          1   provide advocacy for voters.  I would like to call

          2   our Advocacy Organization Panel to come and prepare

          3   to make our closing presentations.

          4              I would like to thank the audience once

          5   again.  Some of you have been here all day.  Thank

          6   you for your cooperation and your presence.

          7              (Pause for audience noise.)

          8              All right, audience, don't make my take

          9   back my thanks.  All right, is everyone here?  Okay,

         10   we are going to begin our panel.  If the remaining

         11   panelists arrive, we certainly will accept them.  I

         12   would like to say welcome to our panel.  Audience,

         13   thank you very much.  Let me begin by assuring this

         14   panel that the fact that you are last on our agenda

         15   does not mean you are last on our minds.  Each of us

         16   on this Commission have in some way been groomed and

         17   impacted and inspired and in some ways trained by

         18   either your specific organizations or organizations

         19   who do what you do.

         20              I will say this now.  I didn't say it

         21   earlier, but one of the reasons we are able to

         22   maintain a spirit of bipartisanship on this





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          1   Commission is because most of us come from the

          2   nonprofit community.  Most of us come from advocacy

          3   roles, and none of us are what we might call

          4   professional politicians.  So it warms our hearts to

          5   have you here, and we felt that it was the most

          6   appropriate way to end this discussion which at times

          7   became very technical, and very machine-specific to

          8   really look at the impact of all of this on people's

          9   lives and on the quality of life in our communities.

         10              It is with great pride and joy that I

         11   introduce this our final panel.  Jim Dickson is the

         12   Vice President for Governmental Affairs with the

         13   American Association of People With Disabilities, and

         14   also is Vice Chair of the Leadership Council for

         15   Civil Rights.

         16              Kay Maxwell is the President of the League

         17   of Women Voters of the United States.  It was with

         18   your organization when I was 16 years old that I was

         19   involved in my first voter registration campaign.  I

         20   am so happy to meet you, Kay Maxwell.

         21              Angela Arboleda is with the Civil Rights

         22   Policy Analyst, National Council of La Raza.





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          1              And Melanie Campbell, Executive Director

          2   and CEO of the National Coalition on Black Civic

          3   Participation, where our Vice Chair was a keynote

          4   speaker yesterday and I was working on getting ready

          5   for this hearing.

          6              And Chellie Pingree, President of Common

          7   Cause.  A distinguished group of advocates, and we

          8   are thrilled you're here and anxiously await your

          9   remarks, beginning with Jim Dickson.

         10       STATEMENT OF JIM DICKSON, VICE PRESIDENT FOR

         11        GOVERNMENTAL AFFAIRS, AMERICAN ASSOCIATION 

         12                OF PEOPLE WITH DISABILITIES

         13              MR. DICKSON:  Thank you, Mr. Chairman. 

         14   Thank you for conducting this hearing with a civil

         15   tone.

         16              I have two disabilities.  I am blind and I

         17   am blunt.

         18              (Laughter.)

         19              MR. DICKSON:  I have been voting for 36

         20   years.  This January, because of touch screen voting,

         21   I voted secretly and independently for the first time

         22   in my life.  That was an incredibly empowering





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          1   experience.  It made me proud to be an American.

          2              But I need to tell you about the

          3   experiences that I have experienced relying on third-

          4   party assistance, which is the only alternative for 

          5   disabled people to use.  The experiences that I am

          6   going to relate happened to me, but I can tell you

          7   because I have worked in elections for 22 years full-

          8   time that these experiences happened to millions of

          9   other American voters:  people who are disabled,

         10   people who have limited English proficiency, and

         11   people who are low-literate.

         12              I had a poll worker say to me, in my very

         13   first chance to vote I might add:  "You want to vote

         14   for WHO?!"  And loud enough so it could be heard in

         15   adjoining polling booths.

         16              In another election, I had a poll worker

         17   say to me:  "You voted for President and Governor. 

         18   We're really busy and nobody knows who these people

         19   are down on the ticket, so aren't we through?"

         20              On yet another occasion--and I want to add

         21   because of my career I've moved around.  All of these

         22   have happened in different jurisdictions.





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          1              On another occasion, I had a poll worker

          2   say to me when we got to the referenda:  "Nobody

          3   understands these.  You don't want me to read them,

          4   do 'ya?"  I had to fight with the poll worker to hear

          5   the referenda.

          6              On another occasion, I had a poll worker

          7   say to me:  "We are really busy.  Why don't you come

          8   back later?"

          9              These experiences happen to tens of

         10   millions of Americans.  We have a crisis in this

         11   country of low voter participation, and one of the

         12   reasons is because tens of millions of us cannot vote

         13   a secret ballot.  We have had to rely on strangers,

         14   trust that they mark the ballot accurately, and we

         15   have had to put up with the insults and indignities

         16   that I have just described.

         17              There are two secretaries of state in this

         18   country who are in the forefront of this electronic

         19   debate:  Secretary Blackwell in Ohio has taken what I

         20   think is a thoughtful, careful, deliberate approach,

         21   and it has resulted in for the first time in the

         22   Buckeye State hundreds of thousands of people will be





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          1   able to vote secretly and independently for the first

          2   time.

          3              He looked at the systems.  He hired

          4   independent examiners.   Very importantly, he

          5   required that the systems be looked at as hardware,

          6   as software, and in the context of elections.

          7              There were improvements called for.  Those

          8   improvements were made.  And as a result, based on

          9   action by the Ohio Government, on Monday 31 counties

         10   in Ohio are going to be using touch screens for the

         11   first time this fall.

         12              Unfortunately, Secretary Shelley's actions

         13   have resulted in 2 million Americans losing the

         14   ability to have--2 million Californians, 2 million

         15   Californians who had a secret ballot will not have it

         16   this fall because of his decertification.

         17              The secretary is being rosy eyed to think

         18   that the standards he just promulgated can be met in

         19   six months.  I have talked to county election

         20   officials and their plan is to go to central count

         21   optical scan. 

         22              We know that central count optical scan





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          1   counts fewer votes than even punch cards.  We know

          2   that central count optical scan is three to four

          3   times more likely to not count the vote of a person

          4   of color than a person who is white.

          5              The secretary's action means that, at a

          6   minimum, at a minimum, there are going to be 350,000

          7   Californians who are going to leave the voting booth

          8   in March and will not have their vote counted.  And

          9   this has been done in the name of a theory, a theory

         10   that has no fact. 

         11              When computer scientists say to us:  How

         12   do you know the system hasn't been hacked?  That

         13   reminds me of the question:  When did you stop

         14   beating your wife?

         15              It is not a way to carry on public

         16   discourse.  It is not a way to build confidence in

         17   our voting system.

         18              This piece of paper is what California

         19   election officials are going to have to count if they

         20   get a paper trail.  I have been in polling places and

         21   in election offices when votes have been tabulated. 

         22   This (indicating) is the prototype.





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          1              What is going to happen when we count

          2   votes when a poll worker who is sleep-deprived, who

          3   has been up for 15 straight hours, drops the roll

          4   (dropping roll of paper)?

          5              Thank you for your attention.

          6              CHAIRMAN SOARIES:  There goes our civility

          7   right down the tube.

          8              (Laughter.)

          9              CHAIRMAN SOARIES:  Thank you, Jim.

         10            STATEMENT OF KAY MAXWELL, PRESIDENT

         11                U.S. LEAGUE OF WOMEN VOTERS

         12              MS. MAXWELL:  Thank you, Mr. Chairman, for

         13   the opportunity here today to present the views of

         14   the League of Women Voters.  

         15              The immediate issue facing this Commission

         16   and our Nation is the 2004 General Election.  We

         17   simply cannot afford a replay of 2000 when millions

         18   of Americans questioned the outcome and the

         19   legitimacy of the Presidential Election.

         20              The 2004 election is in danger.  Most

         21   Americans will vote on the same machines that they

         22   did in 2000.  Reforms to ensure proper and accurate





                                                                      291



          1   voter registration rolls are far from complete, and

          2   citizen concern about the security of voting systems,

          3   access to the vote, and the counting of votes

          4   threatens the upcoming election.

          5              The League believes that effective steps

          6   must be taken immediately, and we call on you, the

          7   Election Assistance Commission, to promulgate

          8   emergency best practices for the 2004 election.

          9              We favor such steps as enforceable

         10   statewide security plans.

         11              Physical protection of voting systems to

         12   guard against tampering.

         13              Standards to govern voting machine

         14   preparation, testing, and vote counting.

         15              And polling place practices to ensure that

         16   machines work properly and that all voters do have

         17   equal access.

         18              In addition, specific security measures

         19   are needed for each significant type of voting

         20   machines that Americans will use in 2004.  Punch

         21   cards will be used by 20 percent of the voters. 

         22   Lever, by 15 percent.  About 30 percent on optical





                                                                      292



          1   scan.  And electronic, by about 30 percent. 

          2              Each type of system rates a particular

          3   security and access concerns that must be addressed. 

          4   It is vitally important that the debate about the

          5   2004 election not scare voters away from the polls. 

          6   Telling people that their vote won't count can

          7   discourage voter participation.

          8              We have to encourage people to vote, while

          9   at the same time we work to improve access and to

         10   ensure that every vote will count.

         11              Now the League believes that DREs can be

         12   an important part of election reform efforts.  Well

         13   managed systems such as that you've heard described

         14   in Georgia have strong public support, improve

         15   access, and reduce errors in casting and counting the

         16   vote.

         17              But important questions have been raised

         18   about DRE security, and the management and

         19   operational practices that affect DRE performance in

         20   the real world.

         21              We take these questions seriously and

         22   believe they must be dealt with by this Commission





                                                                      293



          1   and by state and local election administrators.

          2              It is important to carefully examine each

          3   issue and to craft solutions that meet specific

          4   problems.  There is no panacea or silver bullet for

          5   the problems we face.  We must rigorously match

          6   problems to solutions.

          7              DREs must be properly tested, maintained,

          8   managed, and operated.  Otherwise, they will have

          9   substantial problems.  And there are examples of DREs

         10   being mismanaged.  So it is vitally important to

         11   ensure that DRE systems, as well as other systems,

         12   are properly managed.

         13              At the same time, we should not assume

         14   that only one type of voting machine is vulnerable to

         15   attack, mismanagement, or operational problems. 

         16   Issues about the accuracy and reliability of DREs may

         17   also apply to optical scan and other systems.

         18              We must ensure the certification, testing,

         19   and accuracy of the software and hardware used in all

         20   voting systems.

         21              Now because the election is just months

         22   away, we must focus on the problems and possible





                                                                      294



          1   solutions we face immediately.  More systemic

          2   solutions may be needed, but now, six months before a

          3   Presidential election, is not the time to make major

          4   changes in our large and diverse election systems.

          5              Murphy's Law has not been repealed.  Now

          6   is the time to make management and operational

          7   changes that can be absorbed before the November

          8   election, and there are several important principles

          9   to keep in mind.

         10              First, fix the things that are broken. 

         11   Improved operational and management practices can

         12   deal with the reported problems of many DRE systems,

         13   but if particular machines or some types of machines,

         14   or machines by a particular manufacturer are the

         15   problem, then those machines should not be used.

         16              Quite a bit can be done to improve their

         17   reliability and security in time for the 2004

         18   election, and my written statement does out line

         19   several key action areas.

         20              Second, the use of certified systems that

         21   meet federal guidelines and standards is a

         22   fundamental safeguard.  There have been reports of





                                                                      295



          1   the use of uncertified systems, and that of course is

          2   simply unacceptable.

          3              Third, voting systems must not result in

          4   discrimination.  Older voting machines have varying

          5   rates of error depending on the characteristics of

          6   voters, including socioeconomic status and

          7   educational levels.

          8              And as you've heard today, election

          9   systems can currently provide full equality to people

         10   with disabilities or limited English proficiency.

         11              And technology is developing.  We don't

         12   have all the answers today that we will need to

         13   improve the election system for 2006 and 2008.  It

         14   may be that the systems we should be using in the

         15   future have not yet been designed.  

         16              Access issues need to be addressed. 

         17   Security issues and security solutions are also still

         18   developing.

         19              Now some of Ray's concerns about DREs pose

         20   a particular solution, the so-called voter-verified

         21   paper trail.  We urge the Commission to look at this

         22   proposal carefully and in detail.  There are many





                                                                      296



          1   questions that must be answered before we go down the

          2   VVPT route.

          3              In my written statement, eight issue areas

          4   are mentioned.  In examining these types of

          5   questions, the League has not been persuaded of the

          6   wisdom of the voter-verified paper trail.

          7              Proponents argue that the paper record can

          8   be counted to accurately determine the outcome of an

          9   election.  But for this to work, it seems that every

         10   voter must verify every ballot.  Otherwise, there is

         11   no assurance that the paper trail is accurate. 

         12   Unverified pieces of paper don't add accuracy or

         13   security.

         14              And even with paper records that are voter

         15   verified, there are questions about the accuracy,

         16   reliability, and fraud potential for the counting of

         17   paper records with a long history of lost, mangled,

         18   and manipulated paper ballots.

         19              An alternative theory of the  voter-

         20   verified paper trail holds that the paper record is

         21   valuable even if voters aren't required to verify it,

         22   since it may indicate that a particular machine is





                                                                      297



          1   malfunctioning.

          2              There are a number of problems with this

          3   scenario.  First, if a malicious programmer or an

          4   outside hacker can change the electronic record of

          5   the vote, such a skilled person can make the printer

          6   provide a  paper record that doesn't expose any

          7   error. 

          8              And second, what happens if nine voters

          9   don't look at their paper record but the tenth voter

         10   reports that the paper record is wrong?  Should we

         11   assume that the previous nine votes were also wrong? 

         12   Do we need to call those voters back and ask them? 

         13   Do we need to somehow retrieve their votes from the

         14   system?

         15              Under the optional verification system, we

         16   clearly cannot rely on those unverified pieces of

         17   paper for a later recount. 

         18              And there are certification issues.  In

         19   our written statement there are seven concerns that

         20   we indicate need attention.  We are not aware that

         21   any VVPT systems have been certified according to

         22   federal guidelines that deal specifically with the





                                                                      298



          1   key concerns.

          2              We believe the questions about the VVPT

          3   system are sufficiently severe that the paper trail

          4   system doesn't make sense for 2004.  We are concerned

          5   that it doesn't make sense for the long term, either,

          6   but technology is constantly changing and the debate

          7   over election systems is still developing.

          8              The League of Women Voters believes our

          9   Nation must focus on solving the very real

         10   operational and management issues for voting systems

         11   in 2004.  We urge the Election Assistance Commission

         12   to assist in this task, and we pledge our assistance

         13   in those efforts.

         14              Thank you.

         15              CHAIRMAN SOARIES:  Thank you, very much. 

         16   Angela.

         17        STATEMENT OF ANGELA ARBOLEDA, CIVIL RIGHTS

         18             POLICY ANALYST, NATIONAL COUNCIL

         19                        OF LA RAZA

         20              MS. ARBOLEDA:  Chairman Soaries, and

         21   Commissioners DeGregorio, Martinez, and Vic Chair

         22   Hillman:





                                                                      299



          1              On behalf of the National Council of La

          2   Raza, NCLR, thank you for holding this hearing on

          3   issues that are very important for the Latino

          4   community.

          5              NCLR is the largest national Latino civil

          6   rights organization in the U.S. serving as an

          7   umbrella organization for more than 300 local

          8   affiliated community based organizations.

          9              I appreciate the opportunity to appear

         10   before you today to support a thorough revision of

         11   voting technology.  I respectfully request that my

         12   written testimony be entered in the record in its

         13   entirety.

         14              For many years, NCLR, the Latino

         15   community, and other language minority groups have

         16   been patiently waiting for technology that responds

         17   to the need of limited English proficient citizens. 

         18   For the first time, thanks to technological advances,

         19   we have the potential to fully empower language

         20   minority voters, those with sight impairments, and

         21   people with limited literacy levels.

         22              In my testimony I will discuss the





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          1   advantages and challenges of different voting

          2   technologies and systems with respect to language

          3   minority voters.  

          4              Despite the legal protections in the

          5   Constitution and specific provisions in the Voting

          6   Rights Act that protect limited-English proficient

          7   voters, there is evidence that some jurisdictions do

          8   not comply with federal language assistance

          9   requirements.

         10              In my written testimony, I provide  select

         11   examples of barriers faced by language minorities,

         12   including Latinos, Asians, and Haitian voters, all

         13   showing inaccurate translations, lack of

         14   interpreters, and lack of bilingual materials.

         15              Mr. Chairman, these and other language-

         16   related barriers have a disparate, disproportionate,

         17   and negative effect on Latinos and other ethnic

         18   minorities.

         19              In the absence of both policy

         20   interventions and technological improvement, language

         21   minority voters are more likely to be turned away or

         22   deterred from voting, and less likely to have the





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          1   opportunity to cast a fully informed vote than other

          2   Americans.

          3              NCLR believes that there are three

          4   considerations to guide the decisions in making

          5   reforms to the Nation's voting systems.  Voting

          6   technology must provide for, number one,

          7   nondiscrimination.

          8              The administration of elections must be

          9   guided by nondiscrimination practices.  This includes

         10   ensuring that the most secure and modern technology

         11   is available to all voters in every precinct.

         12              Number two, second-chance voting and voter

         13   verification.  The Help America Vote Act requires

         14   that for the first time a voter be able to correct

         15   and confirm his or her ballot before it is cast and

         16   counted.

         17              And number three, compliance with national

         18   certification standards.  Federal certification

         19   standards required under HAVA require that voting

         20   technology meet basic but important conditions to

         21   ensure that ballots are appropriately cast and

         22   counted, machines are secure and reliable, and that





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          1   they provide for second-change voting and

          2   verification.

          3              In light of these considerations, and

          4   after reviewing DREs and their capabilities, we

          5   believe that DREs have the inherent capacity to allow

          6   language minorities, people with disabilities, and

          7   those with limited literacy skills the opportunity to

          8   vote independently and privately.

          9              Data show that voters prefer electronic

         10   voting because it is easier to use, thus increasing

         11   voter confidence.  Problems with over voting and

         12   under counting ballots are reduced with electronic

         13   voting systems.

         14              DRE voting technology meets the voter

         15   verification provisions required under HAVA.  DREs

         16   can work accurately and effectively, but like all

         17   voting systems they require adequate procedural

         18   safeguards and management.

         19              And lastly, allegations of wrong doing by

         20   a particular manufacturer are not a justification to

         21   scrap the technology or punish all manufacturers.

         22   





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          1   -- an alarming mis-steps by leading manufacturers as

          2   well as several reports of administrative and

          3   technological glicks in the early use of these

          4   machines.

          5              This apparently has eroded confidence in

          6   DREs among some groups.  NCLR believes that it is

          7   essential to take additional measure to improve

          8   security and ensure voters that a ballot cast is a

          9   ballot counted.  However, we note that to date the

         10   voter verified paper trail, VVPT, technology is

         11   unproven.  It has not been certified as a system that

         12   fully provides access to language minorities and

         13   people with disabilities.

         14              Since no VVPT system is certified, it is

         15   simply unrealistic to expect that it can be both

         16   certified and widely implemented in time for the 2004

         17   election.

         18              Finally, NCLR urges that the following

         19   recommendations be taken into account to ensure the

         20   limited English proficient voters have the right to

         21   cast a ballot with certainty and assurance that it

         22   will be counted.  NCLR recommends (1) that the





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          1   Elections Assistance Commission, EAC, promptly

          2   develop voting systems guidelines or best practices,

          3   including standards that address security concerns of

          4   computers, computer data storage and network used in

          5   standards for both DREs and VVPTs as well as future

          6   technology; (2) the EAC take steps to ensure that

          7   voting technology complies with national

          8   certification standards with ample time for election

          9   officials to put in place any security systems

         10   necessary to ensure voter confidence and

         11   participation; (3) the EAC articulate that extensive

         12   poll worker training of voting technology is

         13   essential as new systems are implemented; (4) the EAC

         14   support broad voter education efforts to help the

         15   public understand how to use this new voting

         16   technology systems; (5) the EAC commissions or

         17   supports a rigorous study that assesses the costs and

         18   benefits of DRE systems with respect to limited

         19   English proficient voters; and (6) the EAC focus

         20   public attention to other equally important aspects

         21   of the electorial process to promote more effective

         22   and equitable election administration.





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          1              Minority voters encounter difficulties at

          2   different stages in the electorial process which may

          3   preclude them from ever actually encountering modern

          4   technology in the first place.  These issues should

          5   be scrutinized carefully by all committed to the

          6   principles of equal opportunity in the electorial

          7   process.

          8              I thank the Chairman and Commissioners

          9   once again for providing NCLR an opportunity to share

         10   our views.

         11              CHAIRMAN SOARIES:  Thank you so much for

         12   coming and for your views, both oral and written. 

         13   Thank you.

         14              Ms. Campbell?

         15              MS. CAMPBELL:  Thank you, Mr. Chairman and

         16   members of the Commission for inviting us, the

         17   National Coalition to participate today in this

         18   hearing.

         19              For over 28 years, the National Coalition

         20   has brought together national, state and local

         21   organizations to address the disenfranchisement of

         22   Black voters.  The 2000 presidential election exposed





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          1   the cracks in the nation's electorial infrastructure. 

          2   While Florida was just the tip of the iceberg, the

          3   paper ballot fiasco raised public awareness of the

          4   importance of reliable voting technology, poll worker

          5   training and voter education.

          6              In the aftermath of the election debacle,

          7   the National Coalition launched the "Know Your Rights

          8   Election Protection Project."  This cutting edge

          9   voter protection initiative represents a

         10   collaboration of over 60 national organizations,

         11   including the Lawyers Committee for Civil Rights

         12   Under Law, the NAACP Legal Defense and Educational

         13   Fund, People for the American Way Foundation, the

         14   National Urban League, Center for Policy

         15   Alternatives, the Asian Pacific American Labor

         16   Alliance, Puerto Rican Legal Defense Fund, Democracy

         17   South, Black Leadership Forum, Common Cause, Georgia

         18   Coalition for the People's Agenda, the National

         19   Newspaper Publishers Association, and so and so

         20   forth, over 60 national, regional and local

         21   organizations.

         22              The overarching goals of the Know Your





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          1   Rights Election Protection Project are to provide

          2   voters with the information on how they can protect

          3   their voting rights at the polls as well as to help

          4   restore voter's confidence in the fairness of the

          5   voting process.  To achieve this goal, we must

          6   address both real and perceived barriers.  For our

          7   democracy to work, our voting systems must be

          8   transparent, secure and reliable.

          9              Any voting technology that raises

         10   questions about the integrity of the process should

         11   raise alarm bells.  No voting system is 100 percent

         12   accurate and humans are falliable.  That is why we

         13   have a system of checks and balances.  The goal is

         14   not perfection.  Instead, it is accountability and

         15   safeguards.

         16              The National Coalition has been in the

         17   business of increasing Black voter participation

         18   since 1976.  Since Black Americans have historically

         19   been disenfranchised, there's a deeply entrenched

         20   skepticism regarding the voting process.  The Florida

         21   recount validated deeply rooted concerns about

         22   fairness in the voting process.  Electronic voting





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          1   poses a number of concerns when assessed against the

          2   backdrop of the ongoing voting rights movement. 

          3   Concerns fall into three broad categories for us: 

          4   casting, counting and confidence.

          5              Casting, most voters are accustomed to

          6   receiving a physical ballot when they enter a polling

          7   location as we all know here today.  A ballot is a

          8   tangible item that represents their voice and voters

          9   journey to the polls on election day in an effort to

         10   exercise their civic duty with an expectation that

         11   their vote will really make a difference.  When using

         12   a touch screen of voting, there is no physical

         13   evidence of the vote and the absence of a physical

         14   ballot leaves many voters unsure about the process.

         15              Some wonder, if, perhaps, they made a

         16   mistake.  Others wonder where did their vote really

         17   go.  I can say that personally because I have voted

         18   on the system and I'm in this business full-time and

         19   wasn't sure what I just did when I voted in this last

         20   primary.  How it is captured and what will happen if

         21   a system fails.  And for some, in the voting age

         22   population, who have more limited dealings with





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          1   computer technology, the touch screen process seems

          2   almost surreal.

          3              Second, counting, in order to vote,

          4   individuals must be 18 years old, registered and

          5   either request an absentee ballot or travel to the

          6   polls on election day.  Until 2000, in spite of past

          7   under and over counts, there was a general

          8   expectation that every eligible vote was counted.

          9              The electronic process is not understood

         10   by voters or even poll workers who tend to be retired

         11   senior citizens who have worked in the polls for

         12   years.  Computer malfunctions in the digital age are

         13   common and consumers have learned to keep receipts

         14   and documentation of transactions in the event that

         15   they have to prove a computer error.  Given this

         16   experience, with everything from airline

         17   reservations, banking or the posting of bill

         18   payments, consumers have learned that, while

         19   computers tend to be accurate, mistakes and

         20   malfunctions occur.  Based upon this general

         21   experience, it is not unreasonable to expect that the

         22   average voter will simply trust the computer nor





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          1   should them.

          2              Electronic systems can fail due to

          3   problems with hardware, software, lack of training on

          4   the part of poll workers or our gravest concern,

          5   intentional tampering with the process.  It should be

          6   noted that in the absence of such failures,

          7   electronic systems are faster and more accurate than

          8   mechanical systems and would tend to minimize under

          9   and over counts.  The demand for a transactional

         10   record in the voting process is essential to

         11   providing voters with a check and balance process

         12   that will help to ensure their vote is recorded and

         13   counted.

         14              Thirdly, confidence, which we believe is

         15   one of the most critical elements of this discussion. 

         16   Voter confidence is the anchor of our American

         17   democracy.  In my experience over the past 20 plus

         18   years in motivating and mobilizing voters, I have

         19   found that voters must feel confident of their

         20   ability to properly cast their ballot or they will

         21   not venture out to the polls to participate.  It is

         22   equally important that voters believe that their vote





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          1   will be counted, otherwise, they will stay at home

          2   and not bother.  The decline in civic participation

          3   is well documented and attributed to a range of

          4   factors, which in numerous cases can be overcome with

          5   education.

          6              It is critical that proper education is

          7   employed to ensure that voters not only know their

          8   rights, but they also gain a basic understanding of

          9   how new voting systems machines operate.

         10              Checks and balances, those who have worked

         11   in the field of civic participation over the years

         12   have a practical understanding of the many checks and

         13   balances inherent in the existing system and the call

         14   for voter verifiable paper ballots is actually a

         15   demand for a further check as we transition into a

         16   new system.

         17              I commend the Election Assistance

         18   Commission for convening this public hearing on the

         19   use, reliability and security of electronic voting

         20   systems.  While the development of technical

         21   standards should be left to the technicians, the

         22   standards must not be developed in a vacuum.  Simply





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          1   stated, the standards must take into account human

          2   factors such as voters confidence in the technology

          3   and the impact on civic participation.  Voter

          4   verification is an issue that the National Coalition

          5   has monitored since the first legally-sanctioned

          6   online primary election in 2000.

          7              I actually ventured into Arizona, along

          8   with several other organizations, including

          9   (inaudible) Legal Defense Fund, to monitor that

         10   process.  And, at the end of the day, what was very,

         11   very clear is that it wasn't so much that people,

         12   once they were confident in the machinery itself,

         13   liked it.  It went along age lines, also.  By the end

         14   of the day, the concern that we left with was that

         15   when it came to the verifiable issue that the folks

         16   who were doing this election would not address that

         17   issue.  It was not address and so then, again, voter

         18   confidence was what was at stake.

         19              Moving forward, it is important to

         20   acknowledge why we are here and why we believe that

         21   it is incumbent upon this Commission to explore the

         22   need for voter verification in greater depth.  Let us





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          1   recall that the historical Florida count was the

          2   major impetus for reform.

          3              I would like to turn to one final example

          4   in an effort to outline concerns from the field. 

          5   Georgia, as we all know, was the first state to

          6   deploy a uniform electronic voting system statewide. 

          7   In 2002, the Georgia Coalition for the People's

          8   Agenda, which is an affiliate of our organization,

          9   lead our Know Your Rights Project in Georgia,

         10   providing training and monitoring of the statewide

         11   implementation of the new E-voting machines

         12   manufactured by Debold Election Systems.

         13              Early in the deployment process, the

         14   question of voter verification arose.  The state

         15   relied heavily upon the vendor to respond to

         16   questions about the new equipment.  Each machine is a

         17   stand-alone, which I'm sure you all heard this today

         18   earlier, but where votes are captured on a hard drive

         19   in the machine.  This data is retrieved and reported

         20   electronically at the end of the day.  When the issue

         21   of a voter-verified paper trail was raised, there

         22   were typically two responses.  The machines, which





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          1   had already been contracted by the state, were not

          2   equipped to generate a receipt.  And, two, in order

          3   to keep voting private, voters could never be

          4   provided a copy of their ballot because this would

          5   certainly lead to new forms of intimidation.  Both

          6   responses missed the point.  Voters wanted assurances

          7   that the vote cast will be accurately recorded and

          8   counted.

          9              Lastly, the response from the manufacturer

         10   for the people who were working on this project who

         11   the Georgia Coalition for Black Women contacted

         12   DeBold in the hope of establishing a community-based

         13   initiative to educate civic leaders and community

         14   organizers.  DeBold representatives never met with

         15   the organization in spite of the fact that the

         16   Coalition was on the front line contracted by the

         17   State of Georgia to assist with the deployment and

         18   voter education.  Unless community participation is

         19   in some way mandated for machine vendors, there is no

         20   incentive for them to engage the community.

         21              And, finally, I'd just leave a point of

         22   someone who I had a chance to meet and probably many





                                                                      315



          1   people in this room -- who passed away recently, and

          2   that was the late Akin Gibbs, founder of True Vote

          3   Systems out of Nashville, who quit his job as a

          4   well-paid accountant to establish the only

          5   minority-owned voting system firm in the country. 

          6   And he said it best.  There has to be a much better

          7   way.  Thank you.

          8              CHAIRMAN SOARIES:  Thank you, Ms.

          9   Campbell.

         10              Last, but certainly not least, Ms.

         11   Pingree.

         12              MS. PINGREE:  Well, thank you very much. 

         13   I want to thank all of you for being willing to serve

         14   as commissioners for the work that you have ahead of

         15   you, for including me and the concerns of Common

         16   Cause here today and also two of my colleagues on the

         17   panel who have deep concerns about this issue as well

         18   and have been working so hard on this issue.

         19              My complete remarks have been submitted to

         20   you.  I would just like to make a few remarks about

         21   the highlights of some of my concerns.  It's

         22   obviously been a long day.  You've spent a lot of





                                                                      316



          1   time thinking about this issue and I wanted to put it

          2   in a little bit of context that had meaning for me. 

          3   One of our board members, Robert Pastor is a

          4   professor at American University, used to work at the

          5   Carter Center, has spent many years working

          6   internationally in elections and he produced a recent

          7   report, looking at the 2000 elections in North

          8   America.  I just want to quote a little from his

          9   report.  "The millennium arrived on the doorsteps of

         10   North American in a most unusual way.  All three

         11   governments in Mexico, Canada and the United States

         12   had national elections in 2000, an unusual occurrence

         13   in itself."  He goes on to talk a little bit about

         14   the results of that election, but, more importantly,

         15   what there was to be learned from that process.

         16              "Despite this political trauma experienced

         17   by the American body politic in the Florida election

         18   of 2000 and despite the long national debate on ways

         19   to improve the electorial and campaign financing

         20   system that followed, no American leaders stood up to

         21   answer a question which now should be obvious to

         22   anyone.  What could we learn from our two neighbors? 





                                                                      317



          1   In fact, no one even posed the question.

          2              The omission from the debate reflects a

          3   debiliting flaw in the United States in arrogance and

          4   disrespect of our neighbors an unstated belief that

          5   we have nothing to learn and they have nothing to

          6   offer.  In fact, the most important concern coming

          7   out of that election and the most disturbing

          8   conclusion had to be that the United States

          9   electorial system is unquestionably the weakest in

         10   North America.  That resulted in the Help America

         11   Vote Act.  It resulted in the reason that you are

         12   here today, which we greatly appreciate, but also

         13   results in the many hours that we have ahead of us.

         14              As has been noted by many of the panelist

         15   here and previously, we are about to face what could

         16   be, pollsters tell us, a close election.  It

         17   certainly will be a closely watched election.  After

         18   Florida, and the concerns raised in 2000, and also

         19   after the Help America Vote Act, which gave Americans

         20   the confidence that something would be done.  Yet, we

         21   all know that because of the delays, the lack of

         22   funding, likely many of the problems will not be





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          1   solved.

          2              I am here, as you know, representing

          3   Common Cause, which I've been the president of for

          4   the last year.  An organization that has been around

          5   since 1971 founded by John Gardner.  We have been

          6   involved in every civil rights and voting rights

          7   issue in the last 34 years, from the 18-year old vote

          8   to the Help America Vote Act requiring funding and

          9   oversight.

         10              Our concerns are clear in our printed

         11   testimony.  We strongly and emphatically support a

         12   voter verified paper trail at this time for all

         13   voting systems.  We believe too many questions have

         14   been raised about electronic voting systems, about

         15   their manufacturers and the hasty implementation.  We

         16   do believe we need to take a step back and make sure

         17   we are doing the right thing for what we consider a

         18   very fundamental right.

         19              We also share those concerns.  Those deep

         20   concerns of many who have worked for years to ensure

         21   that all Americans have the right to vote, have equal

         22   access to voting and have the right to vote in





                                                                      319



          1   private.  But we do believe that no one's right to

          2   vote has meaning if the voter cannot be reasonably

          3   assured that their vote was counted as cast.  Some

          4   people have suggested that raising concerns about

          5   voting will discourage people from voting in

          6   November.  I think the cat is long out of the box. 

          7   And, in fact, we must raise those concerns.  We do

          8   not want to have another election day disaster and

          9   people asking us then why didn't you raise the alarm.

         10              I just want to speak briefly about my own

         11   experience.  I served for several years, in fact,

         12   much of my life as an elected official.  I have

         13   participated in many elections and have to admit that

         14   I've never voted on anything except a piece of paper. 

         15   I come from the State of Maine.  I served in the

         16   Maine Senate when party held the majority of the

         17   Senate, lost the majority to the other party because

         18   of a recount and that is one of the biggest concerns

         19   about DREs, is how do you have a recount in an

         20   election?

         21              As a citizen, I watched what went on in

         22   Florida.  As a participant in the process, I have





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          1   seen many times the need to have a paper verified

          2   ballot so that we could count it again.  I've also

          3   watched the speaker of the house lose their seat from

          4   a ballot-tampering scandle and I know how important

          5   it is to have practices in place and eternal

          6   vigilance in the polling place to make sure that

          7   whatever system we use there is no tampering.

          8              I also am proud to say that my daughter,

          9   Hanna, serves in the Maine legislature today and

         10   Maine is one of the first states to pass a bill to

         11   require a paper trail for voting.  Now they did so

         12   with support of both parties, signed by the governor. 

         13   It went under the hammer, as we say.  There was no

         14   opposition.  There was great support throughout the

         15   state, a state that has one of the highest

         16   percentages of voter in the country, considers it

         17   very important to exercise your right to vote.  The

         18   bill was also supported by the local affiliate of the

         19   Association of the Blind.  Their testimony in favor

         20   said that, while it was extremely important to vote

         21   in private, it was also extremely important to make

         22   sure your vote counted.





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          1              A couple of other points, we consider that

          2   safeguards must be put in place to assure voters of

          3   the accuracy and security of the voting machine. 

          4   Good procedures are important.  You've heard many

          5   outlined today.  All must be in place to make sure

          6   that the technology is not flawed.  Many people have

          7   said that this outcry for a paper trail is a

          8   centrally organized, well-financed campaign.  I think

          9   we all know that it has been a grassroots movement

         10   that has grown throughout the country.

         11              As a representative of an organization

         12   that has affiliates in 38 states and someone who's

         13   traveled extensively in the last year, I have seen

         14   the growing concern, starting with a small group of

         15   individuals and now becoming one of the questions I'm

         16   asked more frequently than anything else, what are we

         17   going to do to make sure that every vote is counted

         18   in this election?

         19              The companies that produce the equipment

         20   for elections must be held to a far higher standard

         21   of accountability and transparency.  Yet, another

         22   Common Cause concern over the last 34 years, the





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          1   influence of money and politics and the importance of

          2   clear laws around this state and the local election

          3   officials must be far more vigilant in their

          4   oversight of the vendors.  The government, not the

          5   vendors, must be in control of our system of voting. 

          6   Vendors should adhere to strict, nonpartisan policies

          7   and practices.  There must be a competitive and open

          8   contracting process for purchase of voting machines. 

          9   There must be strict conflict of interest codes for

         10   all elected officials and vendors.  Testing of the

         11   machines should be done publicly and by a truly

         12   independent body.  Testing should be done at every

         13   step of the process, including the random testing of

         14   machines on election day and there must be a truly

         15   independent inspection of software.

         16              One last remark from me.  I had the great

         17   -- Bosnia after the Dayton Accord, traveling around

         18   to 17 polling places with the embassador and the

         19   opportunity as an American to observe what was going

         20   on in a free country in their first opportunity to

         21   vote.  It is equally important that we protect those

         22   same rights here in our country.  We cannot see





                                                                      323



          1   ourselves as election observers in countries aboard

          2   if we are not willing to look honestly and

          3   forthrightly at the problems that we're facing, look

          4   into the long-term, make sure we reinvigorate* voter

          5   confidence, return people to the polls.

          6              I appreciate the work that you're doing. 

          7   I know how difficult your charge is and how limited

          8   your resources are, but we are counting on you to do

          9   the right thing.  Thank you very much.

         10              CHAIRMAN SOARIES:  Thank you so much and

         11   thank you to the entire panel.  Not only have you

         12   been helpful and very clear in your recommendations

         13   and raised very critical issues, you may be the panel

         14   that adhered to our time schedule better than any

         15   other panel.  You win the prize.

         16              (Laughter.)

         17              CHAIRMAN SOARIES:  Our vice-chair is a

         18   former executive with the League of Women Voters and

         19   has worked as a non-profit advocacy, Rita, I guess

         20   most of her adult life when she wasn't in the

         21   government.  And she's going to lead our questions to

         22   your panel.





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          1              COMMISSIONER HILLMAN:  Thank you.  I'll

          2   start with Ms. Pingree.  Other than the paper

          3   verification for the voter, what other concerns does

          4   Common Cause have about the use DREs in the

          5   elections?

          6              MS. PINGREE:  Well, I think, as many other

          7   people have expressed today, our biggest concerns are

          8   in the ability of the voter to verify their ballot

          9   and the opportunity to have a recount and ensuring

         10   that the machines are properly certified and their is

         11   no tampering or improper influencing of the machines

         12   in terms of the software.

         13              Many of the computer experts who have

         14   expressed their views have many concerns about this. 

         15   And, again, I think the fundamental question of,

         16   after you've cast your ballot on an electronic

         17   machine, if your vote is not preserved, how do you

         18   have a recount and how do you verify that the vote

         19   was exactly what the voter intended?

         20              COMMISSIONER HILLMAN:  I don't know if you

         21   were here earlier today, but there were -- I believe

         22   it was when we had the panel of election





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          1   administrators and they did talk about the machine

          2   having the capability to produce ballots, if

          3   necessary.  It would expensive.  It would be time-

          4   consuming, but if a recount required that, they could

          5   do that.  Does that address any of the concerns you

          6   have about the recount difficulty?

          7              MS. PINGREE:  Well, I think the concern

          8   that has been most often expressed is the ability for

          9   the voter to see the ballot itself and to know what

         10   was produced on the ballot to feel confident of that

         11   ballot and that to be able to be used if there needed

         12   to be a recount and also to verify and allow the

         13   voter to verify that ballot.

         14              COMMISSIONER HILLMAN:  Thank you.  Good.

         15              Ms. Campbell, a little earlier we had the

         16   county clerk from Travis County, Texas -- Austin,

         17   Texas testifying and I asked her opinion about why

         18   she thought that there was such a high level or lack

         19   of confidence that voters have -- a high lack of

         20   confidence, if that makes sense.  And she was talking

         21   about how voters don't know the process that happens

         22   on election day and, I mean, there's an awful lot





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          1   that goes on, as you well know from 3:30 or 4:00

          2   o'clock in the morning until midnight.  And then,

          3   depending on whether there is or isn't a recount or

          4   so on and so forth.  And you've addressed lack of

          5   confidence as one of the factors that keeps voters

          6   away from the poll.  What would you suggest or have

          7   you had time to give thought to how can the voter

          8   have a higher level of confidence, not just in

          9   whether the ballot they cast was what they intended

         10   to because they don't see it, but in the other parts

         11   of the process that have lead to lack of confidence?

         12              MS. CAMPBELL:  Thank you, Commissioner.  I

         13   mention Georgia as an example because it was the one

         14   state that did this statewide and, to the credit of

         15   the state, I believe the state government was open to

         16   including the community whereas the manufacturer did

         17   not.  And it's not to make DeBold the lighting rod. 

         18   It's just real life example that here you had a group

         19   of community organizations working together to assist

         20   in giving voters confidence by going out with the

         21   machines all across the State of Georgia and going

         22   the community groups, going the churches, going to





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          1   the community centers, going into the schools and I

          2   actually attended one of the town hall meeting, the

          3   church in Atlanta that Joseph Lowry hosted, and there

          4   was someone from the manufacturing company who was

          5   attending and people had the concerns.  People who

          6   have voting for decades asked questions and you

          7   couldn't get good responses.  And, so part of it, as

          8   I mentioned in our testimony, is that there has to be

          9   some checks and balances and some inclusion in the

         10   process as its developed with these companies and

         11   that is one concrete way to assist in that process in

         12   where you had a manufacturer who had the opportunity

         13   who would not even have a sit-down conversation does

         14   not assist in that arena.

         15              COMMISSIONER HILLMAN:  Just one follow-up

         16   question.  Do you think the voters would find it

         17   interesting to know the various security measures

         18   that election officials put in place from start to

         19   finish around the machines, the counting process, et

         20   cetera?

         21              MS. CAMPBELL:  I mentioned Arizona as an

         22   example, which I don't remember -- I did the short,





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          1   truncated version of my comments -- was that it's not

          2   so much people want to hear all the technical

          3   nuances, but just like you go to the bank and put

          4   your bank card in there, you have the option of

          5   having a receipt.  You can either say yes or you can

          6   say no.  But something as important as the vote, and

          7   it means to what this country is about, why do we not

          8   have this option?

          9              One last point, we had a discussion

         10   yesterday at the Press Club, which was mentioned. 

         11   And one of the things -- the discussion was Election

         12   2004 Are we Ready?  And the consensus was, no, we

         13   were not.  And there was panelist who made this

         14   point, Dr. Bill Scriggs, and lightly but it was a

         15   serious and surreal moment.  He said that why is that

         16   the lottery can pinpoint down to a science where a

         17   ticket was purchased and whether the person who -- I

         18   think some woman somewhere was about to -- I don't do

         19   the lotteries, so I don't know a whole lot about it,

         20   but that we can take that process, which is

         21   electronic and a person can come and say, oh, I lost

         22   my card and bought my ticket and it was lost.  They





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          1   were able to tell that woman down to a science, no,

          2   you didn't.  You weren't there.  This, that and the

          3   other because the system were in place to do that. 

          4   And something as simple as that is -- we have the

          5   technology.  We are in the 21st Century.  Why is it

          6   that the voting system is such that we say that there

          7   cannot be a process that is developed to give people

          8   confidence.  We do it for everything else electronic. 

          9   Why can't we do it for voting and that continues to

         10   be what we hear in the field and also what the

         11   discussion was yesterday.  There has to be a way and

         12   we are imploring this Commission, which I know this

         13   is part of the process, to help us find a way to give

         14   voters a confidence the system will work.

         15              CHAIRMAN SOARIES:  I want to make sure I

         16   understand that one point.

         17              MS. CAMPBELL:  About the lottery?

         18              CHAIRMAN SOARIES:  No.  If the development

         19   of the electronic voting device essentially simulated

         20   the experience of the lever machine, and if the

         21   electronic machine can do at least as much

         22   mechanically to record and count votes as the lever





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          1   machine, I'm still trying to understand what it is

          2   about the electronic machine that now requires more

          3   verification than the lever machine required, even in

          4   recounts?  The electronic machine has the capacity to

          5   produce more information in a recount than the lever

          6   machine did.  But I never heard this discussion -- I

          7   never raised the question myself when I was at that

          8   table and I'm trying to understand what is it about

          9   the electronic machine, which, in essence, simulates

         10   what had been the lever machine electronically that

         11   causes us to have less confidence in that than we did

         12   the lever machine, which produced less information?

         13              MS. CAMPBELL:  I don't have all the

         14   answers to that question, but I can only state it

         15   from the experiences of what we hear and what we

         16   experience in the capacity and also that the 2000

         17   election is what was the lighting rod to make people

         18   question the process.  Heretofore, people did not

         19   question the process.  I don't think, if the 2000

         20   election had taken place the way it did, you would

         21   have what we heard before, the national civics lesson

         22   that we are still experiencing almost four years





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          1   later.  And, from that process, you have more of an

          2   awareness of the process and the voting public has

          3   different kinds of questions and the solutions are

          4   something that we're all sitting here trying to

          5   explore so that at the end of the day what continues

          6   to be -- what we continue to hear and -- the

          7   technology side of it is, at the end the day, the

          8   common point is that people have to have some way to

          9   feel that their vote was verified.  And, because this

         10   discussion is around the technology, there are other

         11   elements of that.  We know that there's need for

         12   voter education because technology for some is

         13   something that's very intimidating.  So some things

         14   can be resolved just by people being able to touch

         15   that machine and know what the ballot is going to

         16   look like and I addressed that further in our

         17   testimony here.  And, so, at the end of the day, it

         18   boils down to the confidence issue as the issue.

         19              COMMISSIONER HILLMAN:  Angela -- is it

         20   Arboleda?

         21              MS. ARBOLEDA:  Arboleda.

         22              COMMISSIONER HILLMAN:  If we were having





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          1   this hearing January 1 of 2005, and we were talking

          2   about the November 2006 elections, what would your

          3   concerns be about the paper trail, the voter verified

          4   paper trail?  I mean, we would have, presumably, 18

          5   months to figure out, do studies and figure out what

          6   would or wouldn't work.  What would your concerns be

          7   if we weren't up against a November 2004 election?

          8              MS. ARBOLEDA:  Well, it would all depend

          9   on the results of the studies that we or that the

         10   Commission would conduct.  I cannot say what NCLR

         11   would say about VVPTs until those studies are, in

         12   fact, conducted.  What we do know for certain is that

         13   to date there is no VVPT technology that has been

         14   certified and therefore we believe that it is

         15   dangerous to tell the Latino community that the

         16   answer to language minority and Latino voters is to

         17   put all of their confidence on a paper trail instead

         18   of saying what we know is that some DREs have the

         19   capability to storing and recording this vote and

         20   what we need to invest time on is to ensure the

         21   Latino voters and other LEP language minority voters

         22   have the ability and education tools to have





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          1   confidence and to go into those polls and actually

          2   use the technology that can speak to them in the

          3   language that they're most comfortable in.

          4              The danger here is that precluding voters

          5   to use this technology will, in fact, deter language

          6   minority from actually participating in electorial

          7   process.  Melony alluded to the lack of civic

          8   participation and engagement.  We believe the lack of

          9   using DREs at this point actually adds to that

         10   problem.

         11              So, going back to your question, what will

         12   we say in 2006, I am eager to find out what those

         13   results of those studies are and I really don't have

         14   any answers until that happens.

         15              COMMISSIONER HILLMAN:  Okay.  Good.

         16              I have a question for you, Ms. Maxwell,

         17   but I wanted to ask Jim Dickson that same question. 

         18   So let me pose that to Jim and then I'll come back to

         19   you.

         20              And, Jim, that is, if we were having this

         21   discussion, this hearing January 2005, preparing for

         22   the November 2006 election, what concerns would you





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          1   raise about paper verification?

          2              MR. DICKSON:  Madame Commissioner and

          3   Mr. Chairman, my concern would be that we need to

          4   test it in the real world in a variety of states,

          5   since they all have different elections, different

          6   procedures and we have to do that incrementally.  We

          7   can't do it across the country.  It defies my

          8   comprehension to take an idea that has never really

          9   been used and install it nationwide is reckless.

         10              In terms of 2006 and your question, I

         11   don't think you can do the kind of development,

         12   analysis and research of this idea in less than five

         13   years and that number cuts a lot -- is generous

         14   because when we have developed voting systems and

         15   standards in the past, it takes years and years and

         16   years.  So, to try to telescope what is a multi-year

         17   process into 18 months is just not doable.

         18              COMMISSIONER HILLMAN:  Thank you.  Jim,

         19   when you started your testimony, you did mention

         20   about being able to vote in privacy for the first

         21   time this year in the District of Columbia with the

         22   new equipment and I just want to say that I have the





                                                                      335



          1   privilege and opportunity to be there when Jim did

          2   that and it was, in fact, a very powerful and

          3   impactful opportunity to witness Jim being able to do

          4   that by himself for the first time in his very short

          5   life.  We know you're not that old, Jim.

          6              (Laughter.)

          7              COMMISSIONER HILLMAN:  Ms. Maxwell, given

          8   what I know about your organization, I'm going to

          9   just guess that the phones have been ringing and the

         10   e-mail mailboxes have been full of people raising

         11   concerns about the use of DREs and paper trail or no

         12   paper trail and League has probably studied it and

         13   it'll be an interesting conversation at convention

         14   I'm sure.

         15              When did that kind of volume of activities

         16   around DREs land on the League's screen, if you will,

         17   time frame?

         18              MS. MAXWELL:  I think probably it was

         19   approximately a year ago.  Once HAVA was enacted and

         20   once we started getting organized with our leagues in

         21   the states across the country trying to get league

         22   members on the committees in the various states that





                                                                      336



          1   were going to be designing the implementation plans,

          2   as we started to have conversations about all the

          3   aspects of HAVA implementation from provisional

          4   ballots to all of the various issues that have been

          5   addressed today.  It's an issue that came up at that

          6   point in time.

          7              COMMISSIONER HILLMAN:  Setting aside the

          8   voter verified paper trail, and before 2000, were

          9   there concerns that the League was hearing about or

         10   discussing concerning the use of DREs?

         11              MS. MAXWELL:  No, not specifically.  I

         12   think most of the concern after the 2000 election

         13   related to all kinds of issues of people arriving at

         14   the polls and their names not being on the voter

         15   registration list or obviously all the problems that

         16   occurred, as we all know, with the punch cards in

         17   Florida.  It was more a concern of how the current

         18   systems were not functioning and had not functioned

         19   in the Year 2000 and I think we were looking at all

         20   of the ways that we could improve all of those

         21   systems, not just the machines.  So it was not a

         22   direct focus on DREs specifically at that point in





                                                                      337



          1   time.

          2              COMMISSIONER HILLMAN:  My next question,

          3   and my last one, is more to ask your opinion about

          4   something.  In the 1990s, New Mexico was introducing

          5   the use of what they described as the first

          6   generation DREs and it must have been interesting and

          7   exciting and I was with at the League in the '90s and

          8   we didn't discuss that.  I'm sure the New Mexico

          9   leagues knew all about it and it was probably

         10   interesting and exciting.  But nobody raised concerns

         11   about where did these votes go into virtual land and,

         12   certainly, 10 years ago, 12 years ago was an early

         13   time to introduce electronic systems.  Were we asleep

         14   at the switch or has something changed drastically in

         15   10 years that -- you know, should we have been paying

         16   more attention to this and been giving the New Mexico

         17   officials a run for their money 10 years ago?

         18              MS. MAXWELL:  Well, perhaps, ideally, had

         19   we had unlimited resources, as a staff, we could have

         20   been looking at all of these things.  But I think the

         21   fact of the matter is that, as all of us were going

         22   along assuming that our elections were operating





                                                                      338



          1   properly.  That all of our votes, however we were

          2   casting them, whether on levers, which happens to be

          3   what I still do and actually have never used a

          4   machine other than a lever machine.  But I think as

          5   we were looking at all this and assuming everything

          6   was fine and it really wasn't until the 2000 election

          7   that we discovered that things weren't fine and that

          8   it cost us the confidence that we had.  So I think

          9   asleep at the switch, no, concerned about a lot of

         10   different issues at the time.  This didn't happen to

         11   be on the radar screen, wish it had because I think

         12   we all would have been better served had we

         13   recognized some of the concerns and issues relating

         14   to our election systems.  But I'm not as concerned

         15   that, perhaps, we weren't focused as much on the

         16   machines themselves but that we should have, whether

         17   it be nationally or in every state, more focused, as

         18   I said on the accuracy of our registration lists. 

         19   Where we providing provisional ballots?  All of those

         20   other kinds of things that really make up an election

         21   system.  I think we were focused on a lot of those

         22   kinds of things and always have been in our





                                                                      339



          1   communities to be certain that an election runs well. 

          2   I mean, League members across the country are always

          3   at precincts and polling places observing and being

          4   sure that things are run properly.  So I think we had

          5   a broader focus and I frankly think that was the

          6   right focus, not just on a machine.

          7              COMMISSIONER HILLMAN:  Thank you.

          8              CHAIRMAN SOARIES:  Thank you,

          9   Commissioner.  Thank you panel.  We are very much

         10   aware that voting is a process and not a machine. 

         11   But you've helped us zoom in on the voting device,

         12   starting with electronic voting, in large measure,

         13   because of what all of you have conceded.  That after

         14   Florida, the machine became the star of the show. 

         15   All of you are involved in a much broader and deep

         16   involvement in the voting process and we would invite

         17   you to stay close because we have many more issues to

         18   confront, many miles before we sleep and we need your

         19   assistance.

         20              Commissioner DeGregorio.  And we're in

         21   such good time, I'll take credit for that, though.

         22              (Laughter.)





                                                                      340



          1              MR. DEGREGORIO:  Thank you, Mr. Chairman.

          2              Ms. Campbell, first of all, I want to

          3   thank you for bringing up the name of Akin Gibbs.  I

          4   had the opportunity to meet Mr. Gibbs several times

          5   at (inaudible) conferences, election officials

          6   conferences and he was a true warrior in the election

          7   field and I know that we all miss him and I think you

          8   for bringing up his memory today.  It's very

          9   important that we do.

         10              Ms. Maxwell, I want to compliment the

         11   League for the work that the League's done.  When I

         12   was director of elections, I worked very close with

         13   the local affiliate, but you continue to do good

         14   work.  I just read the best practices report that you

         15   did for provisional voting.

         16              MS. MAXWELL:  Thank you.  We're proud of

         17   that.

         18              CHAIRMAN SOARIES:  We want to license

         19   that, by the way.

         20              (Laughter.)

         21              MR. DEGREGORIO:  I appreciate the

         22   contribution that you make and all the organizations





                                                                      341



          1   represented here that you all make in the process. 

          2   And many of you mentioned the sit-down conversations

          3   you've had with state officials about concerns that

          4   you had in the election process dealing with

          5   electronic voting and probably other issues.  But

          6   there are over 7000 local election officials in the

          7   country and you all represent hundreds, maybe

          8   thousands of affiliates.  I know you are here leaders

          9   in Washington, but you represent a lot of affiliates

         10   throughout the country and, if you could share with

         11   me some of your experiences, positive and negative,

         12   with local election officials because part of what, I

         13   think, we want to do is try to work to get messages

         14   to local election officials to work with

         15   organizations, such as yourself, to understand the

         16   issues that are of concern to you and the people that

         17   you represent, not just about electronic voting, but

         18   voting registration.  Because we know that it's on

         19   the front lines in those local election offices where

         20   the voter registrations are going to get on the rolls

         21   or not on the rolls that you all send in representing

         22   people from your organizations.  So, if you can just





                                                                      342



          1   share with me some of those experience so that we, as

          2   we develop a plan here for the work that the

          3   Commission is going to do in the coming months that

          4   we can incorporate some of the suggestions that you

          5   may have.  You just don't have to share them all

          6   today, but you can share them with us later in

          7   written testimony.

          8              Let's start with Jim.

          9              MR. DICKSON:  Thank you for that question. 

         10   I want to first reiterate that the biggest historic

         11   problem we have had with voter disenfranchisement and

         12   therefore voter skepticism about voting, has been in

         13   the area of the lists, keeping them accurate and up-

         14   to-date.  And I would really encourage the Commission

         15   to very quickly start to address that issue.

         16   (End of Tape 17.)

         17   (Tape 18)

         18              MR. DICKSON:  The one overriding problem

         19   that -- this largely impacts state election

         20   officials.  Eleven years ago, the president signed

         21   into law the Motor Voter Law.

         22              COMMISSIONER DEGREGORIA:  MVRA.





                                                                      343



          1              MR. DICKSON:  MVRA.  Part of that law

          2   stipulates that disability and poverty agencies are

          3   suppose to function as voter registration sites in

          4   the same way that the department of motor vehicles

          5   does.  We have polling data and analysis as well much

          6   too much antidotal data that tells us that less than

          7   half of the agencies are implementing their

          8   requirement.

          9              Part of the Help America Vote Act provides

         10   funds to the states to build a new electronic data

         11   base.  I would urge the Commission and plead with you

         12   to require that any new electronic data base include

         13   the implementation of Section 7 of MVRA.  Half of all

         14   disabled Americans -- I'm doing quick math, 16

         15   million are not even registered.  When Congress

         16   passed the MVRA, it recognized that the department of

         17   motor vehicles would be a great place because lots of

         18   Americans go there.  But Congress also understood

         19   that people with disabilities, poor people have no

         20   need to go to the DMV and so it put Section 7 into

         21   place and that needs to be enforced and now there's

         22   the money to do it.  So I would encourage you, to the





                                                                      344



          1   extent you have the power to make that part of their

          2   data base plans.

          3              CHAIRMAN SOARIES:  I'd like to do this. 

          4   I'd like to make sure that the remaining responses

          5   stay within the scope of the electronic voting issue

          6   and, if there are other interaction items that are

          7   worthy of note, if you would put those in writing. 

          8   Otherwise, we'll get into a whole HAVA hearing and

          9   we'll be here until tomorrow.  There are a number of

         10   other HAVA related issues that are burning in our

         11   hearts, voter registration, you know, ID issues and,

         12   if I let the door open any wider, then I'm going to

         13   have lose my prize.

         14              (Laughter.)

         15              CHAIRMAN SOARIES:  So, if there are any

         16   interaction issues that Paul raises related

         17   electronic voting, please discuss those.  And, then,

         18   if those are others that are not related, if you

         19   would just send those in writing.  Thank you.

         20              MS. MAXWELL:  I would just make a couple

         21   of comments.  First of all, specifically, in terms of

         22   electronic machines, one of the things I mentioned





                                                                      345



          1   previously was the fact that League members across

          2   the country are participating in the HAVA

          3   implementation committees in the various states and I

          4   think serving a valuable service in bringing together

          5   the local and state officials in this process because

          6   we have members of local leagues, the state leagues. 

          7   So I think they serve a particular function in

          8   sharing the concerns of citizens with those who are

          9   making the kinds of decisions relating to all kinds

         10   of issues relating to HAVA, but, of course,

         11   specifically, on DREs.

         12              I think one of the other areas, and,

         13   again, it's peripherally related to DREs, but it is

         14   the whole education process.  And I know there are

         15   some funds out of HAVA that are suppose to support a

         16   lot of that, but I think one of the things that the

         17   league has always done and will continue to do, and

         18   it will include how to use these new machines, is to

         19   educate the voters because I think we are a trusted,

         20   nonpartisan source for that kind of information.  So,

         21   certainly, all of that will continue to be done.

         22              CHAIRMAN SOARIES:  True.  Thank you.





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          1              MS. ARBOLEDA:  Thank you for the

          2   clarification, Chairman Soaries.  I was scribbling

          3   like crazy because we have plenty of concerns with

          4   other sections in HAVA that affect disportionally the

          5   Latin community.  Specifically, to answer your

          6   question, I would suggest two things, extensive poll

          7   worker training in the operation of these machines

          8   voice, obviously, they are certified.  But poll

          9   workers need to have confidence in how to operate

         10   these machines so that they can transfer this

         11   knowledge to the voter who, perhaps, doesn't feel as

         12   comfortable using it.

         13              The second recommendation would be, as Kay

         14   mentioned, a broad voter education, obviously,

         15   nonpartisan campaign that speaks to the public that

         16   brings the people together and that demystifies the

         17   paranoia* that has been built in the past year. 

         18   Those two things are key.

         19              Also, to spell out what are these machines

         20   capable and incapable of doing in plain, simple

         21   language.  You know, you go to the screen and you

         22   touch the screen and you cast your ballot and this is





                                                                      347



          1   what happens.  I mean, it speaks to you in Spanish,

          2   if you need to or in Chinese or in Vietnamese or in

          3   Cantonese.  That is important.  You don't have to pay

          4   to use these machines.  People in my community are

          5   going, if I vote in those computers, do I have to

          6   pay?  We need to know this stuff.  So those are just

          7   a few recommendations and I look forward to another

          8   opportunity in discussing photo ID and other issues.

          9              (Laughter.)

         10              MS. CAMPBELL:  The only point I'd like to

         11   make is my personal experience that I said earlier

         12   that I actually -- going into the system where you

         13   had a bank card at that someone handed you, put it in

         14   the machine, you touch the thing and you handed it

         15   back and just the personal experience that, quite

         16   frankly, I left there thinking, did I really vote and

         17   I do this all the time.

         18              The only other thing --

         19              CHAIRMAN SOARIES:  It just didn't feel

         20   like voting.

         21              MS. CAMPBELL:  My confidence wasn't there

         22   when I left the polling place and it was my first





                                                                      348



          1   time voting of electronically.  I spent a number of

          2   my years in Georgia where in Fulton County where they

          3   had -- we liked the little chads, but, you know,

          4   that's another lifetime ago.  One of the things, when

          5   we talk about checks and balances I hope you will

          6   consider or even for the manufacturers to consider. 

          7   When Jim talked about the experience, I saw in

          8   Houston, Texas that experience of seeing someone not

          9   have the ability as a disabled citizen, who was a

         10   paraplegic, who in Houston, Texas in Harris County,

         11   specifically, and how they had to bring the paper

         12   outside and there was no privacy.  So I felt that and

         13   I would hope that you all continue this that it's not

         14   either/or.  It's kind of a both/and scenario.

         15              In my written statement, is that audio

         16   could be used as an option for other folks who may

         17   not be as literate and there are other kinds of

         18   things like that.  So that would be my only other

         19   comments to that.

         20              CHAIRMAN SOARIES:  Okay.  Ms. Pingree.

         21              MS. PINGREE:  Thank you.  I think my

         22   colleagues on the panel have mentioned quite a few





                                                                      349



          1   things, but I'd just like to go back to a couple of

          2   things that were in our recommendations,

          3   particularly, as it concerns local elected officials

          4   and those who are in a position to make the decision. 

          5   And some of these I consider structural problems with

          6   our system of purchasing machines, making polling

          7   place decisions.  I think I've read that we have

          8   something like 13,000 sovereign communities that in

          9   one way or another are making electorial decision. 

         10   And, while there's a lot of debate about how much of

         11   the decision-making should be federalized, how much

         12   should be left to local officials, particularly, when

         13   it comes to the purchase of machines and the

         14   companies themselves.

         15              The reason we have these recommendations

         16   in here is because we want to take some of that away

         17   from this whole debate.  One of them says vendor

         18   should adhere to strict, nonpartisan policies and

         19   practices.  There must be a competitive and open

         20   contracting process for purchasing of voting

         21   machines, strict conflict of interest codes for

         22   election officials and vendors, independent testing





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          1   of the machines.  I think all of these things would

          2   make the job of the local election official far more

          3   dependable.

          4              You know, a lot of people serve in these

          5   positions and don't want to be put in a position

          6   where they're considered having a conflict of

          7   interest or accepting some sort of gift in return for

          8   the purchase of the machine.  I mean, you've heard

          9   the stories and we need you to change the system so

         10   those questions just are no longer there.  So that,

         11   when we think about why we have the machines in place

         12   that we do, we believe that they are there for good

         13   reasons, for technically-appropriate reasons, not

         14   because of who you made a contribution to or who

         15   influenced you in that decision-making process.

         16              So I would just say, you know, taking as

         17   much of that away as possible, along with all of the

         18   other things that have to happen once the machines

         19   are in place could go a lot.

         20              The other thing I want to emphasize is,

         21   one of the reasons why I stood back and looked at the

         22   perspective, you know, what's happened in other





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          1   countries?  What do we do when we go observe

          2   elections in other countries?  You know, we have a

          3   very fundamental set of questions that we ask and

          4   it's embarrassing not to be asking them about

          5   ourselves or it's embarrassing to be in the position

          6   where our country now does not look as good as many

          7   other places that we've been criticizing for a long

          8   time.

          9              And I do think that's what happened in the

         10   2000 elections, while much of this was going for a

         11   long time -- bad lists, disenfranchised voters,

         12   machines that weren't working, improperly trained

         13   poll workers who didn't know how to clear the

         14   machines and all the things that had to be done.

         15              For the first time, internationally, we

         16   were looked at and we had to say, uh-huh, this is

         17   America.  We count on the vote.  We're one of the

         18   most proud democracies ins the world and we need to

         19   keep that perspective and give it to local election

         20   officials who sometimes don't have the opportunity to

         21   see all that there is to see.

         22              CHAIRMAN SOARIES:  Commissioner Martinez.





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          1              COMMISSIONER MARTINEZ:  Thank you,

          2   Mr. Chairman.

          3              Ms. Maxwell, my mother-in-law, Pat

          4   Stanley, is the president of the League of Women

          5   Voters in Midland County in west Texas.  So she'll be

          6   real embarrassed that I've just said that.

          7              (Laughter.)

          8              COMMISSIONER MARTINEZ:  With the camera

          9   rolling and I also might get an especially nice

         10   Christmas present this year for having it.

         11              MS. MAXWELL:  Well, Mother's Day is coming

         12   up.

         13              COMMISSIONER MARTINEZ:  Oh, yes.  Well,

         14   there's a Mother's Day present.

         15              I mention that because I'm familiar with

         16   the work that -- the very fine work of your

         17   organization.  I also, concurrent with my law

         18   practice, before joining the Commission in December,

         19   ran a non-profit 501(c)(3) organization that was

         20   dedicated to giving money to other 501(c)(3)s that

         21   did nonpartisan voter education and voter

         22   registration activities.  In that capacity, I relied





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          1   on a lot of the work that you all did at the League

          2   and the research that you all did.  And I'm wondering

          3   if there's any research at all that you know of that

          4   the League might be doing to see what the use of DRE

          5   machines in jurisdictions that are using them does to

          6   voter turn out?

          7              MS. MAXWELL:  We have not specifically

          8   done any research in that regard and, frankly, we

          9   don't have the capacity to do a lot of serious

         10   research in that kind that you described.  However,

         11   we are looking toward this upcoming election from the

         12   standpoint of at least asking our state and local

         13   leagues for some antidotal information and some basic

         14   questions that they might be looking at.

         15              The league in Connecticut this past

         16   primary election also was helping with the Secretary

         17   of the State in Connecticut as various machines were

         18   tried in that election and collecting some data.  But

         19   we are not really capable or -- we're capable.  We

         20   don't have the resources to carry out specifically

         21   that kind of effort that you described.  I certainly

         22   wish that we did because it's the kind of data that





                                                                      354



          1   we need and that needs to be gathered.

          2              COMMISSIONER MARTINEZ:  Right.  I agree

          3   with that.

          4              Ms. Arboleda, the same question.  I know

          5   that, obviously, NCLR does very fine work and very

          6   fine research as well.  I assume you have antidotal

          7   evidence to, perhaps, give an opinion as to what the

          8   use of DREs does for minority voters in terms of

          9   whether it helps voter turn out, which is a huge

         10   problem for Latinos or, perhaps, we just don't know

         11   yet because it's relatively new in most

         12   jurisdictions.  But, anything along those lines that

         13   NCLR might be doing or taking a look at?

         14              MS. ARBOLEDA:  Thank you,

         15   Commissioner Martinez.  On page 5 of my testimony, we

         16   have some research from California, San Bernadino

         17   County, specifically, that shows that 98 percent of

         18   voters consider electronic voting superior or very

         19   superior and this showed voter confidence.  We can

         20   only speculate from these numbers and others in my

         21   testimony that voter confidence raises people's

         22   ability and eagerness to turn out.





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          1              In other research and surveys of 14,000

          2   voters, it showed that 97 percent of the voters found

          3   the touch screens easy to use and easier than punch

          4   cards in some instances.  So that, unlike this,

          5   limited as it is, show us that LEP voters, limited

          6   English proficient voters are eager to use these

          7   machines.  It was told to me by one of my colleagues

          8   from EPOC that a group of older Chinese American

          9   people were taken to show them how to use this

         10   touchtone screens and they were having the best time

         11   of their life.  They were saying that it was like

         12   playing domino, technological domino and they

         13   understood it.

         14              They were eager to interact with the

         15   technology and these were older Chinese American

         16   women.  Most of them did not speak a word of English. 

         17   So the limited research that we do have show that

         18   DREs, in fact, provide an ease in their consciousness

         19   and in their minds and that they ensure that the

         20   voters turn out.

         21              MS. MAXWELL:  May I have just add one

         22   quick addendum to one?





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          1              CHAIRMAN SOARIES:  Yes.

          2              MS. MAXWELL:  In the same way that we did

          3   the best practices piece on provisional ballots that

          4   you referenced earlier, we are continuing to do some

          5   best practices papers on some of these other issues. 

          6   It's just not the extensive research that I presumed

          7   you were discussing.

          8              CHAIRMAN SOARIES:  Jim, you can speak as

          9   long as it's one minute.

         10              MR. DICKSON:  All right.  I want to call

         11   your attention to my written testimony.  I placed in

         12   there a summary of public opinion polls taken around

         13   the country which show overwhelming voter confidence

         14   in DREs across all racial, all age groups, all

         15   education groups.  I used less than a minute.

         16              CHAIRMAN SOARIES:  I don't think we should

         17   underestimate, in response to Commissioner Hillman's

         18   question, the historical context.  Not only does

         19   Florida 2000 place the voting device on the pedestal

         20   and create this international embarrassment, but we

         21   also have, following Florida 2000, a rapid decline in

         22   public confidence in corporate leadership and we





                                                                      357



          1   begin seeing the convergence of the perfect storm.

          2              We also have a war and, if you study the

          3   history of election reform in this country, it's when

          4   young people are dying on foreign soil that we become

          5   more sensitive to issues of expanding the franchise

          6   and getting it right.  And, so, if the fire got

          7   started, we also can't ignore the gasoline being

          8   poured on the fire by the president of a manufacturer

          9   promising to deliver an election for a sitting

         10   president.

         11              And I asked the representative of that

         12   company this morning if they've learned lessons and

         13   he said that they've learned lessons.  He wasn't

         14   specific in what the lessons were, but I just think

         15   that when we look at where we are today versus two

         16   years ago when HAVA was signed, HAVA did not have in

         17   mind this as its first challenge and all of these

         18   events have converged for this moment in time and I

         19   think it's more than a fire out in the field and all

         20   of those factors have contributed to our having to

         21   respond.

         22              But it's not negative.  It's just not





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          1   negative.  Some of the worse problems we've ever had

          2   in this country were resolved because there was some

          3   passionate debate that went on at the very least and

          4   we welcome that and we welcome persons from different

          5   perspective having the willingness to come to our

          6   table because your presence indicates that we can be

          7   the honest broker of a diversity of ideas.  But we do

          8   have to come to some common ground and synthesize

          9   these concerns so that we can have both short-term

         10   and long-term impact.

         11              I want to thank you again for your

         12   contribution to your process.  You can stay right

         13   there because we're about to wrap up and I'm afraid,

         14   if you move, they make noise.  Just don't move.  Each

         15   Commissioner will say their thank yous and comments,

         16   briefly and then I'll just summarize and give you

         17   some sense of where we're going next and then we'll

         18   be done.

         19              COMMISSIONER DEGREGORIO:  Thank you,

         20   Mr. Chairman.  And it's just a simple thanks to all

         21   of you.  To our panelists, to those who came today,

         22   those of you who had to be outside the room, we know





                                                                      359



          1   there are people outside who could not get in because

          2   of the difficulty and the overwhelming crowd that we

          3   had.  We thank the media coverage and we thank C-SPAN

          4   for covering this event and, hopefully, in a couple

          5   of days, you're able to click on at their website

          6   this proceeding and share it with your friends

          7   throughout the nation.

          8              It's been an honor for me to listen today,

          9   to ask some questions and I know that in addition to

         10   the testimony we heard today, we received volumes of

         11   e-mails and other faxes from people throughout the

         12   country who wanted to give us their thoughts in this

         13   important issue.  So it's an honor for me.  I learned

         14   a lot and look forward to taking the information we

         15   received today to put it to productive use.

         16              MS. HILLMAN:  And I join my colleagues in

         17   expressing my appreciation for the attention that the

         18   witnesses gave to their presentations.  It certainly

         19   help me learn an awful lot in a condensed period of

         20   time, but we don't have a lot of time.  So we do have

         21   to learn on the fly, if you will, so that we can help

         22   all of you, in particular, those who are responsible





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          1   for administering the elections, to generate the

          2   highest level of confidence among voters that we can.

          3              We have to accept the reality of what

          4   machines will be used in November.  What we can do

          5   between now and November regarding the use of any

          6   particular equipment, but that the voters know that

          7   it's not all gloom and doom.  That there are a lot of

          8   good things going on.  There are a lot of good

          9   organizations at work with election administrators to

         10   address this and the input is helpful and it almost

         11   makes me want to have another hearing next week.

         12              (Laughter.)

         13              CHAIRMAN SOARIES:  Mr. Martinez.

         14              COMMISSIONER MARTINEZ:  Thank you,

         15   Mr. Chairman.

         16              I, too, want to express my thanks to all

         17   of the panelists.  I thought that the presentations

         18   and the testimonies were well-prepared and very

         19   compelling and I've learned a lot.  I also want to

         20   thank the Chair and the Vice-Chair because really the

         21   impetus came from their collaboration several months

         22   ago when we were talking about what we needed to





                                                                      361



          1   right away aside from getting telephone and actually

          2   seeing if we had an office somewhere and other

          3   administrative responsibilities, which I know they

          4   handled very admirably as well.  The impetus for this

          5   hearing came from their collaboration.

          6              As we develop the vision for it, in my

          7   opinion, this is what we envisioned.  This kind of

          8   dialogue.  This kind of fact finding, if you will,

          9   for this Commission, which I think is extremely

         10   important.  I would simply end my participation today

         11   simply by reiterating what I started with this

         12   morning and, that is, we take our obligation, we take

         13   our responsibility very seriously.

         14              I'm honored to be serving with my fellow

         15   Commissioners and this is a historical act that is

         16   happening that the federal government has now become

         17   an active partner with our state and local

         18   jurisdictions, with our civil rights and voting

         19   rights advocates, with other stakeholders in trying

         20   to improve the administration of our federal

         21   elections.  That's an important -- a very humbling

         22   one as far as I'm concerned as well and this is a





                                                                      362



          1   major first step in us being able to do our jobs

          2   appropriately.  I thank you all for being here and

          3   I'm grateful to participate.

          4              Thank you, Mr. Chairman.

          5              CHAIRMAN SOARIES:  Let me close by, again,

          6   thanking Mike Levitt, the Administrator of the

          7   Environmental Protection Agency and acting Deputy

          8   Administrator Steve Johnson and Deputy Chief of Staff

          9   Ray Spears for working very hard to accommodate us. 

         10   We do have accommodations, but none that would

         11   facilitate this hearing and EPA has been so kind. 

         12   They've loaned us staff.  They've given us space and

         13   we just cannot thank them enough.

         14              Also, there are so many people here who

         15   participated in the crafting of HAVA.  People whose

         16   minds and hearts spent days and nights into this

         17   legislation, which not only formed this Commission,

         18   but which, in fact, made history in this country. 

         19   The United Auto Workers Union described HAVA as the

         20   greatest civil rights legislation of the 21st Century

         21   and I take that very seriously and it's an honor to

         22   know that we have that kind of network around the





                                                                      363



          1   country.

          2              So many election officials have come here

          3   today knowing that they would not have a chance to

          4   speak.  Some flew from Florida and other states and I

          5   just want to thank you.  Good to see you and it's an

          6   honor to know that you care enough about our work to

          7   show up physically.

          8              Congressional staffers are here and,

          9   because we have such a small staff, we just kind of

         10   adopt them and make them our staff.  They're our ad

         11   hoc advisers and our envision staff members and I

         12   thank the EAC staff, also.

         13              A way of fear that citizens votes will not

         14   count in the next presidential election is steady

         15   spreading throughout the country and that fear

         16   threatens to undermine the critical decisions that

         17   need to be made to ensure the integrity of our

         18   nation's voting process.  The good news is that, as

         19   Commission Martinez announced, starting next Monday,

         20   the federal government, under our leadership, will

         21   begin to distribute $2.3 billion to states to assist

         22   them in improving their voting process for federal





                                                                      364



          1   elections.  The bad news is that many states are

          2   afraid to spend the money because of problems that

          3   are now associated with new electronic voting

          4   devices.

          5              Prior to the 2000 presidential election,

          6   most Americans applied little thought to the actual

          7   mechanics of the voting process.  The term "hanging

          8   chad" had little meaning to most Americans.  But the

          9   events that occurred in Florida during the 2000

         10   presidential election created a new awareness and a

         11   national consensus that a flawed process could only

         12   produce flawed results.  And so Congress acted by

         13   passing the Help America Vote Act of 2002, HAVA,

         14   which President Bush promptly signed into law.

         15              The first objective of HAVA was to assist

         16   the states by funding the replacement of outdated

         17   voting equipment, punch card and lever machines.  For

         18   many states, the voting equipment of choice quickly

         19   became the electronic voting machine.  The computers

         20   were called in to rescue America's voting.  Of

         21   course, many Americans had already been using some

         22   form of electronic voting prior to 2000.





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          1              In fact, in 2000, over 12 percent of the

          2   country, almost 12 million registered voters, used

          3   electronic machines.  While some 29 percent, 46

          4   million registered voters, used optical scan

          5   machines, which are another form of electric voting. 

          6   So the computer was not new to the voting booth. 

          7   What was new was that the federal government was

          8   preparing for the first time in our nation's history

          9   to get involved in voting as a national enterprise.

         10              The rights of citizens to vote had been

         11   protected by constitutional amendments and by passage

         12   of federal laws like the Voting Rights Act of 1965

         13   and the National Voter Registration Act.  And, yet,

         14   the federal government had never before created a

         15   mechanism to define and support the administration of

         16   federal elections with both specific requirements as

         17   well as significant federal funding.  Clearly, the

         18   passage of HAVA with strong bipartisan support in

         19   Congress, signaled that a national consensus had been

         20   achieved.  None of us wanted another election of

         21   2000.

         22              Importantly, no one involved in creating





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          1   this new legislation, no one who envisioned HAVA

          2   believed that voting machines alone represented the

          3   solution.  Accordingly, among other things, HAVA

          4   mandates provisional ballots in every polling place

          5   to ensure that no voter is turned away.  That signs

          6   be displayed at every polling place informing people

          7   of their voting rights and that a complaint procedure

          8   be established in every state that allows citizens to

          9   have redress if they believe their voting rights have

         10   been denied.

         11              All of these mandates must be in place for

         12   the upcoming November election and these mandates are

         13   part of our mission.  But that still leaves us with

         14   the issue of the machines.  Many thoughtful people

         15   have come today and they've described the decision

         16   that was made that electronic voting machines, now

         17   used in 29 percent of the voting jurisdictions in the

         18   country, are neither secure nor reliable and can only

         19   be made so with the use of "voter verified paper

         20   ballot" and then others believe that the safeguards

         21   used in every election by experienced election

         22   administrators provide ample and adequate security





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          1   with regard to every type of voting machine,

          2   including electronic machines.

          3              And, so, here we are, the United States

          4   Election Assistance Commission.  And the EAC,

          5   comprised of four senate-confirmed, presidential

          6   appointees is created.  Much long waited, but here we

          7   are.  And so, along with providing much needed

          8   guidance and resources to states on the

          9   administration of federal elections, the EAC is now

         10   charged with updating federal standards relating to

         11   the certification of voting equipment.

         12              Due to the universally shared desire by

         13   all Americans to bring the highest level of integrity

         14   and fairness to the voting process, we conducted this

         15   hearing today to explore the strengths and weaknesses

         16   of the voting systems that will be used this

         17   November.

         18              We began today with electronic voting. 

         19   And, after today, we will look at every other major

         20   voting device that Americans will use.  Information

         21   gathered today by these public hearings will provide

         22   a basis for updating the voting system standards and





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          1   for issuing guidance and best practices information

          2   to all states.  The first such public hearing that

          3   took place today was on electronic voting and EAC has

          4   asked tough questions of vendors, election

          5   administrators, researchers about the security and

          6   reliability of electronic voting.

          7              Ultimately, all four EAC Commissioners,

          8   two republicans and two democrats, are all strongly

          9   committed to taking whatever actions are deemed

         10   appropriate to ensure that our next federal election

         11   will have the integrity that Americans expect and the

         12   fairness that democracy demands.  Thank you for being

         13   here.

         14              (Applause.)

         15              (Whereupon, at 4:15 p.m., the above-

         16   entitled matter was concluded.)

         17   

         18   

         19   

         20   

         21   

         22