1



       1

       2

       3

       4            U.S. ELECTION ASSISTANCE COMMISSION

       5                      PUBLIC MEETING

       6

       7               Taken at 1225 NEW YORK AVENUE

       8                   NORTHWEST, SUITE 1100

       9                  WASHINGTON, D.C.  20037

      10

      11                   Taken on the date of:

      12                  TUESDAY, MARCH 22, 2005

      13

      14

      15

      16

      17

      18

      19

      20

      21  Start time: 10:00 o'clock, a.m.

      22  Taken by: JACKIE SMITH, a Court Reporter

                                                         2



       1 U.S. ELECTION ASSISTANCE COMMISSION:

       2       Gracia Hillman, Chairman

       3       Paul DeGregorio, Vice-chair

       4       DeForest Soaries, Commissioner

       5       Ray Martinez III, Commissioner

       6       Juliet Thompson, General Counsel

       7       Carol Pacquette, Interim Director

       8 SPEAKERS:

       9       Peggy Sims, Research Specialist, EAC

      10       Mark Skall, National Institute of Standards

      11            & Technology

      12       Kim Brace, President, Election Data

      13            Services

      14       Honorable Pedro Cortes,

      15            Secretary of the Commonwealth, Pennsylvania

      16       Tony Sirvello III, Executive Director,

      17            IACREOT

      18       Edward A. Hailes, Jr, Senior Attorney,

      19            Advancement Project

      20

      21

      22

                                                         3



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

       2             CHAIR HILLMAN:  Good morning.  This

       3 meeting of the United States Election Assistance

       4 Commission will come to order.

       5       If you would all please stand and join me

       6 in, "The Pledge of Allegiance."

       7            (The Pledge of Allegiance.)

       8             CHAIR HILLMAN:  We would have the

       9 roll call, please.

      10             ADMINISTRATIVE STAFF:  As I call your

      11 name, please respond by saying, "here."

      12 Commissioner Soaries?

      13             COMMISSIONER SOARIES:  Here.

      14             ADMINISTRATIVE STAFF:  Commissioner

      15 Martinez?

      16             COMMISSIONER MARTINEZ:  Here.

      17             ADMINISTRATIVE STAFF:  Commissioner

      18 DeGregorio?

      19             COMMISSIONER DEGREGORIO:  Here.

      20             ADMINISTRATIVE STAFF:  All here.  All

      21 present, Ma'am Chair.

      22             CHAIR HILLMAN:  Good morning,

                                                         4



       1 everybody.  If I could remind you, please, to

       2 turn off your cell phones, pagers, other

       3 electronic devices that might distract from the

       4 meeting, it is appreciated.  Thank you.

       5       Okay.  We have before us the agenda for

       6 today's meeting, and if everything's okay, it

       7 would be appropriate to adopt the agenda.

       8             COMMISSIONER SOARIES:  So move.

       9             COMMISSIONER MARTINEZ:  Second.

      10             CHAIR HILLMAN:  Okay.  We have a

      11 motion to approve the agenda.  All in favor.

      12       Good.  Minutes from the February 23rd

      13 meeting when we were in Columbus, Ohio, any

      14 corrections to the minutes?  If not, it would be

      15 appropriate for a motion to approve.

      16             COMMISSIONER MARTINEZ:  Move to

      17 adopt, Madam Chair.

      18             VICE-CHAIRMAN DEGREGORIO:  Second.

      19             CHAIR HILLMAN:  All in favor.  Thank

      20 you.

      21       Okay.  We will move now directly into

      22 reports that will be given this morning.  The

                                                         5



       1 first report is on Title II requirements

       2 payments update.  Peggy Sims, research

       3 specialist.

       4             MS. SIMS:  Good morning.  I am

       5 pleased to report that in the month since our

       6 last report, we have processed over 13 million

       7 dollars more in HAVA requirements payments to

       8 three states, and that comprises almost 1.7

       9 million from funds appropriated in fiscal year

      10 '03, and more than 11.8 million in funds

      11 appropriated in FY '04.

      12       This brings total requirements payments

      13 processed by EAC to more than 1.7 billion

      14 dollars, to 51 states.  And by states, I include

      15 the eligible territories.  That is of the more

      16 than 2.3 billion appropriated for this purpose

      17 in 2003, 2004.

      18       All 51 of these states have received their

      19 2003 requirements payments, and those total

      20 almost 766 million.  Forty-one of these states

      21 have also received their payments for FY 2004

      22 appropriations, and those total over 952

                                                         6



       1 million.

       2       The latest disbursements leave us just over

       3 601 million to be distributed from FY '03 and

       4 '04 funds, which means my future reports are

       5 likely to be brief.  Only four states have not

       6 received any requirements payments.  They are:

       7 Alaska, Guam, South Dakota, and New York.

       8 Together, they comprise almost 179 million in

       9 outstanding requirements payments.

      10       Certifications from two of those states are

      11 pending.  Those are Guam and South Dakota.

      12 South Dakota is awaiting the conclusion of a

      13 30-day Federal Register publication period for

      14 its 2004 state plan, and the 38th day is April

      15 9th, so we can proceed after that.  Guam needs

      16 to fulfill its HAVA compliant, administrative

      17 complaint procedures with the EAC, which is a

      18 prerequisite to receiving requirements payment.

      19       Two other states have not yet filed

      20 certification for any requirements payments.

      21 They are Alaska and New York.  Alaska recently

      22 submitted a revised state plan to the EAC which

                                                         7



       1 has a revised budget.  Once EAC has published

       2 this plan in the Federal Register for 30 days,

       3 the state did submit certification for

       4 requirements payment.  Alaska plans to certify

       5 for its FY '03 funds first, and the FY '04

       6 later, when the state has appropriated its five

       7 percent match for those funds.

       8       New York notified EAC last week that its

       9 state legislature is trying to take the steps

      10 necessary for the state to qualify for its

      11 requirements payments, namely, appropriating the

      12 five percent match and developing the

      13 administrative complaint procedures that are

      14 requisites to receiving those funds.

      15       A certification for Michigan for a partial

      16 2004 requirements payment is pending, and

      17 requires follow-up to insure the state recovers

      18 payments for the five percent match.

      19       Two other states, Delaware and Montana,

      20 cannot certify for their 2004 requirements

      21 payments until after they submitted a plan that

      22 covers the use of those funds, and EAC has

                                                         8



       1 published the plan in the Federal Register for

       2 30 days.

       3       The remaining outstanding balance

       4 represents the 2004 requirements payments, for

       5 which seven states have not yet certified.

       6 Those seven states are:  California, Hawaii,

       7 Maine, New Jersey, North Dakota, Oregon, and

       8 Texas.

       9       Main and New Jersey have notified United

      10 States that they are likely to submit

      11 certifications for their '04 requirements

      12 payment within the next week or two.

      13       Texas is awaiting the conclusion of the

      14 30-day Federal Register publication period for

      15 its 2004 state plan before submitting the

      16 certification for any of its FY '04 requirements

      17 payments.  Once again, that is after April 9th,

      18 we can proceed.  They can submit verification,

      19 and we can proceed.

      20       Hawaii, North Dakota, Oregon are seeking

      21 required five percent match from their

      22 legislatures.  And there are indications that

                                                         9



       1 California may approach EAC about its FY '04

       2 requirements payments when the new Secretary of

       3 State has been confirmed and installed.

       4       This concludes my report.  Are there any

       5 questions?

       6             CHAIR HILLMAN:  Commissioner.

       7             VICE CHAIRMAN DEGREGORIO:  Peggy, how

       8 many states have received '03 and '04 money?

       9             MS. SIMS:  Fifty-one states have

      10 received '03, and 41 have received '04.

      11             CHAIR HILLMAN:  Commissioner

      12 Martinez, questions?

      13             COMMISSIONER MARTINEZ:  No questions.

      14             COMMISSIONER SOARIES:  I think you

      15 have disappointed Vice-Chairman DeGregorio.  He

      16 was prepared to go to Guam to see what was going

      17 on.  There is some motion coming from Guam.

      18             CHAIR HILLMAN:  I do have a question

      19 for you.  On the four states that had not yet

      20 received their payments for '03, '04, Alaska,

      21 Guam, South Dakota, New York, for the

      22 certifications pending for Guam and South Dakota

                                                        10



       1 and the paperwork submitted by Alaska, is that

       2 for both '03 and '04?

       3             MS. SIMS:  Well, South Dakota and

       4 Guam have submitted certifications for '03 and

       5 '04.  They are pending.

       6       Alaska is going to submit its '03

       7 certification once that federal state plan had

       8 been published for 30 days.  They do not have

       9 their five percent match for FY '04 funds.  My

      10 understanding is, their new fiscal year starts

      11 July 1st, so they are seeking appropriations for

      12 the five percent match after that date.

      13             CHAIR HILLMAN:  Okay.  Thank you.  If

      14 there are no others questions, we thank you,

      15 very much, Ms. Sims.

      16       If we could please have Mark Skall, from

      17 the National Institute of Standards and

      18 Technology.  And we're going to have a Power

      19 Point, so I guess Vice-Chair, unless we want to

      20 become a part of his Power Point presentation.

      21             MR. SKALL:  We're just waiting for

      22 the projector, counting down, so maybe it's

                                                        11



       1 doing something.

       2       Good morning.  I'd eight like to thank the

       3 Commissioners for inviting me to give this

       4 update on the very important work that we're

       5 doing.

       6       So NIST has quite a few responsibilities,

       7 as outlined in the Help America Vote Act, or

       8 HAVA, two of them with respect to the technical

       9 guidelines development committee that is charged

      10 under HAVA with providing recommendations to the

      11 EAC for voluntary voting system guidelines.

      12       The NIST director chairs the TGDC, and NIST

      13 provides technical support to the TGDC in the

      14 development of the voluntary voting system

      15 guidelines, including security methods to detect

      16 and prevent fraud, human factors, including

      17 technology for individuals with disabilities,

      18 and many other things as well.

      19       Since the first meeting of the TGDC, NIST

      20 and the TGDC have been very engaged in working

      21 and developing these voluntary voting system

      22 guidelines.

                                                        12



       1       In July, 2004, NIST chaired the first

       2 plenary session of TGDC.  Work plan was adopted.

       3       September of 2004, we conducted TGDC public

       4 hearings to gather data and information on human

       5 factors, privacy, computer security,

       6 transparency, core requirements, and testing.

       7       October of 2004, we posted voting software

       8 hashes for use by states.  These hatches are

       9 part of our National Software Reference Library.

      10 What this does is to allow states to determine

      11 whether, in fact, the software that they have

      12 purchased and has been delivered to them is the

      13 same as the software that's been tested.

      14       And the way this is done is, we have a

      15 reference library of hashes which are unique

      16 fingerprints for all software.  What we do is

      17 provide hashes for software after its been

      18 tested.  Then, when the states get the software,

      19 they can create hashes, compare the hashes, and

      20 if, in fact, they do compare identically, they

      21 know that the software has not been identified.

      22       October through December of 2004, we

                                                        13



       1 conducted 17 TGDC subcommittee teleconferences.

       2       January, 2005, we held a second plenary

       3 session of TGDC, where 31 resolutions were

       4 adopted, defining this NIST's technical guidance

       5 tasks.

       6       From February to March time frame, we're

       7 completing the technical guidance for the most

       8 critical tasks of TGDC's resolutions, and

       9 develop voluntary voting system guidelines for

      10 the 2006 election.

      11       March, 2005, we held a third plenary

      12 session of the TGDC where the TGDC provided

      13 feedback and endorsement of the NIST draft work

      14 products.  There was also one resolution adopted

      15 there.

      16       April, 2005, we're going to have the

      17 initial TGDC recommendations for voting system

      18 guidelines, and forward that to the EAC.

      19       August Of 2005, we're going to complete the

      20 second round of technical guidance tasks in the

      21 TGDC resolutions.

      22       And November 2005, complete the third now,

                                                        14



       1 the TGDC resolution in July, established three

       2 subcommittees to gather and analyze information.

       3 They are security, and transparency human

       4 factors, and privacy, and core requirements, and

       5 testing.

       6       These subcommittees meet at least every two

       7 weeks via teleconference.  This NIST voting team

       8 participates in these teleconferences, and the

       9 public is provided access as well.

      10       NIST and subcommittee members meet,

      11 occasionally, face to face, but the majority of

      12 the work is done in teleconferences, and the

      13 research is done, typically, in between

      14 subcommittee meetings.  After a subcommittee

      15 meeting, we will try to document the action

      16 items.  If there are no action items that come

      17 out of the subcommittee meeting, then this team

      18 will get together to decide what action items we

      19 need to prepare for the next teleconference.

      20       The results are submitted at the TGDC

      21 plenaries.  Plenaries are held to discuss

      22 issues, review work products, and achieve

                                                        15



       1 consensus.

       2       Resolutions are adopted at these meetings.

       3 And, again, 31 resolutions were adopted at the

       4 January, TGDC plenary.

       5       At the March, TGDC meeting, we provided 22

       6 separate draft work products that responded to

       7 the resolutions in January.  And, again, an

       8 additional resolution was adopted as well in the

       9 March plenary.

      10       The initial recommendations for the

      11 voluntary voting system guidelines will be

      12 produced for the April, 2005, TGDC meeting.  I

      13 believe that is April 20th and 21st, at NIST.

      14       Now, we have a lot of resolutions assigning

      15 work to NIST, and we have produced quite a few

      16 work products.  Before we could actually

      17 organize these work products, we really needed

      18 to develop, we felt, an implementation strategy.

      19 That strategy was governed by the two somewhat

      20 conflicting goals.

      21       The first goal is really to develop the

      22 best long-term guideline possible.  We had a lot

                                                        16



       1 of experience at NIST in developing standards

       2 and guidelines.  We think we know how to do

       3 these in the best way.  And, clearly, for the

       4 country, we want the best, long-term guideline

       5 possible.

       6       In order to do this, we certainly want to

       7 build on the strengths of existing standards,

       8 particularly the 2002 VSS, but we also need to

       9 change areas in that standard that need

      10 improvement.  And the resolutions point to many

      11 areas where we're asked to look at things that

      12 may need some sort of substantive change, things

      13 like the software coding standards, quality

      14 management standards.

      15       We need to look at every requirement to see

      16 if it is specified precisely, and if not,

      17 rewrite it.  Additionally, I think, to get the

      18 best possible guideline, we need to reorganize

      19 requirements in a more logical way.     The

      20 second goal that is driving us is the very near

      21 time goal that we know the states need to

      22 conduct the 2006 election.  Clearly, we want to

                                                        17



       1 provide as much help as possible.  In a way,

       2 this implies the need to minimize changes in the

       3 2002 VSS because we're aware of the fact states

       4 are working with systems that have already been

       5 qualified.

       6       In the changes though, those would,

       7 obviously, cause traumatic effects on the 2006

       8 election cycles.  The states, we believe, also

       9 need help in filling in the gaps, things that

      10 the 2002 VSS does not address, so we have come

      11 up with what we believe is really a pretty

      12 unique strategy to develop two divided lines:

      13 The first, what we call an augmented 2002 VSS

      14 for April, and the second, a new, redesigned

      15 voting system guideline which will be completed

      16 in November.

      17       The augmented 2002 VSS improves the 2002

      18 VSS by filling in gaps, accessibility and

      19 usability.  If the states are implementing ones,

      20 these are ways you should do them. There needs

      21 to be guidance on how to do wireless, and other

      22 security issues.

                                                        18



       1       Clearly, we want to correct existing errors

       2 in the 2002 VSS, and we want to address issues

       3 facing the states, such as trying to insure that

       4 the installed voting system software is the same

       5 as the software that's been tested.

       6       So we also were asked by the TGDC to

       7 prioritize solutions.  Now that we have an

       8 implementation strategy, we can use that to

       9 determine our priorities.  We have come up with

      10 three groups of priorities, based on

      11 resolutions.

      12       Group l targets highest priority

      13 resolutions.  These resolutions augment and

      14 correct the 2002 VSS, and guidance.  And

      15 requirements based on these resolutions will be

      16 produced in April.

      17       Group 2 targets second highest priority

      18 resolutions.  These develop a new guide to build

      19 upon the 2002 VSS, but change substantially many

      20 areas; security, human factors, and revision and

      21 test ability of requirements.  We plan on having

      22 initial work products for these in April, and

                                                        19



       1 completed in November.

       2       Group 3 targets the remainder of the

       3 resolutions, the lowest priority resolutions,

       4 but important nonetheless.  They will not be

       5 addressed until after April, and then they will

       6 be completed in November.

       7       So, just spending a little time on Group l,

       8 which is probably one of the most interest to

       9 everybody right now, there's six main areas.

      10 The first are requirements for voter-verified,

      11 paper audit trail.  And for those of you who

      12 haven't memorized the resolutions, I have given

      13 the resolutions that this work refers to.

      14       Accessibility and usability requirements

      15 based on current technology, software

      16 distribution set up, which is very important in

      17 trying to insure that the software gets set up

      18 in a way to minimize disruptions of the guidance

      19 or the unit of the wireless technology.

      20       We're going to develop a conformance

      21 clause, which is confusing, because you read

      22 requirements and you don't necessarily know who

                                                        20



       1 the requirements pertain to, and exactly what

       2 has to be done to conform to that particular

       3 standard.

       4       We're revising the glossary, and it is

       5 actually going to be an on-line glossary,

       6 accessible to everybody.

       7       Group 2, I won't go through these in

       8 detail, but just to point out that one of the

       9 resolutions talks about analyzing the 2002 VSS

      10 in detail, to determine which requirements are

      11 not well written and needs to be written better,

      12 and more precise and testable.

      13       Analysis, looking at the larger picture of

      14 how you do voter audits, of which paper audit

      15 trails are just one method of many other

      16 methods.  Test strategies are very, very

      17 important in this group.  We're going to analyze

      18 the federal standards that we have developed for

      19 federal agencies with respect to security, and

      20 see how those pertain to voting systems.

      21       And this is the third, the third group of

      22 standards, are the lowest priority one.

                                                        21



       1       In summary, I'd just like to say that we

       2 believe we have made tremendous progress in

       3 development of the work products, working with

       4 the TGDC.

       5       Again, for consideration at the March 9th,

       6 TGDC meeting, we have prepared 22 separate

       7 preliminary reports.  The feedback from the

       8 March plenary was that NIST should continue to

       9 develop technical reports and work-related work

      10 products consistent with those preliminary

      11 reports.  We continue to be on target to produce

      12 the initial set of recommendations for the April

      13 meeting.

      14       And the initial set of recommendations will

      15 consist of the completed, augmented 2002 VSS.

      16 And the name we finally agreed upon, and that

      17 is, of course, subject to change, will be the

      18 Voluntary Voting System Guidelines, Version l.

      19       So, thank you for this opportunity, and I

      20 welcome questions.

      21             CHAIR HILLMAN:  Thank you, very much,

      22 Mr. Skall.

                                                        22



       1       Before we get into questions, could I ask

       2 that you just, for the record, remind us of the

       3 website that people can visit to get more

       4 details about NIST and the TGDC.

       5             MR. SKALL:  Vote@nist.gov.  V-O-T-E

       6 at N-I-S-T, dot, G-O-V.

       7             CHAIR HILLMAN:  Thank you, very much.

       8 Yes, sir.  We have a few minutes.  Commissioner

       9 Martinez.

      10             COMMISSIONER MARTINEZ:  Thanks for

      11 coming.  Thanks for your presentation.  Good to

      12 see you again.

      13       I want to start, I will ask a couple of

      14 brief questions.

      15             CHAIR HILLMAN:  A few to two, that's

      16 good.

      17             COMMISSIONER MARTINEZ:  I caught

      18 myself, Madam Chair.

      19       To drive home the point, you all are doing

      20 work at the direction of the TGDC group, in

      21 other words, all of your work product is driven

      22 by resolutions that were at some point in the

                                                        23



       1 last six to eight months adopted by the

       2 Technical Guidelines Development Committee,

       3 which is a board that is created via statute,

       4 which is in the Help America Vote Act, correct?

       5             MR. SKALL:  Correct.

       6             COMMISSIONER MARTINEZ:  And the work

       7 that you are doing is not a requirement, but a

       8 response to the states that have moved out on

       9 this issue, and in some way, either via

      10 administrative director or legislative mandate,

      11 have decided that voter-verified, paper audit

      12 trail is what is best for their jurisdiction.

      13       So NIST and TGDC is responding to that by

      14 putting a set of objective, repeatable test

      15 requirements for states that want to use

      16 voter-verified, paper audit trail?

      17             MR. SKALL:  That is absolutely

      18 correct, and we will introduce that as well in

      19 April.  These are in no way taking the position

      20 on whether voter-verified, paper audit trails

      21 are the way to go or not.

      22       They are saying if, in fact, you are going

                                                        24



       1 that way because of state legislation, whatever

       2 reasons, this is how to do it to obtain the best

       3 possible result.

       4             COMMISSIONER MARTINEZ:  And the final

       5 question I have is, if we describe security as

       6 consisting of both software integrity and

       7 procedural matters, in other words, access to

       8 the voting systems, certification of the voting

       9 systems, the initial work product that will be

      10 delivered by NIST for consideration in April

      11 will touch upon both aspects of those.  In other

      12 words, the software reference library touches

      13 upon integrity of software, and the set-up, and

      14 validation procedures, not to mention HDPA, as

      15 it touches upon software integrity or procedural

      16 security.

      17             MR. SKALL:  Thank you for bringing

      18 that up.

      19       Yes, I would absolutely agree, and that is

      20 a very important point I would like to

      21 reemphasize.

      22       The previous standards really only talked

                                                        25



       1 about requirements for voting systems, and

       2 requirements for testing laboratories, or

       3 testing entities.

       4       This goes beyond that, talks about that,

       5 but also talks about requirements, procedural

       6 requirements for voting officials, as well as

       7 issues like the software reference library and

       8 certification.  So it is one-stop shopping, is

       9 the way I would describe it.

      10             COMMISSIONER MARTINEZ:  Thank you.

      11             CHAIR HILLMAN:  Great.

      12       Commissioner Soaries.

      13             COMMISSIONER SOARIES:  Picking up on

      14 the dialogue there, I never interpreted Group l

      15 as being work that confines itself to the area

      16 of security.  It includes security, but it is

      17 not related to security.

      18             MR. SKALL:  Right.

      19             COMMISSIONER SOARIES:  And I say

      20 that, Commissioners, because I think on the one

      21 hand, there is an implicit statement that one

      22 could infer, simply by the adopt of guidelines

                                                        26



       1 for voter-verified, paper audit trail, and there

       2 is an implicit assumption that one could infer

       3 that it at least is embraced as legitimate

       4 voting technology.

       5       On the other hand, I think we do well to

       6 reiterate your point, Commissioner Martinez, not

       7 only because we're not regulatory, but also

       8 because the issue is not only one of security

       9 but one of audit ability.

      10       And at some point, we'll want to clarify to

      11 what extent we believe any technology enhances

      12 security versus audit ability versus usability,

      13 or the other high level categories.  But as we

      14 get close, the closer we get to embracing some

      15 specifics, the more explicit we have to be in

      16 terms of articulating the benefit that we

      17 ascribe to a particular standard.

      18             MR. SKALL:  Thank you for those

      19 remarks.  We're very aware of the issue, and the

      20 implications, and the perceptions when we write

      21 this.  In fact, we have had input from

      22 Commissioners and other people.  And what we're

                                                        27



       1 doing is looking very closely for the April

       2 delivery, and trying to describe security in

       3 general, talk about our threat model that we

       4 have developed, how we're responding to the

       5 threat model by the various things we're doing,

       6 and discuss various ways just to put everything

       7 in that context.

       8       So, yes, thank you.  It's kind of a tricky

       9 line to walk, because we really do want to give

      10 specific guidance for a real problem, while at

      11 the same time, making sure that we're very, very

      12 clear on policy, that we're not advocating that,

      13 that there are many other ways, and we will try

      14 to explain that in the narrative section.

      15             COMMISSIONER SOARIES:  And I only

      16 raise that because in the media, and in many

      17 conversations and forums, the issue of

      18 electronic voter security has been reduced to

      19 the single discussion of voter-verified paper

      20 trail.

      21       And, of course, we have not participated in

      22 that, but what I would not want us to appear to

                                                        28



       1 do is to have come to that conclusion ourselves,

       2 when all of us know better than that.

       3             MR. SKALL:  Absolutely.

       4             CHAIR HILLMAN:  All set.

       5             COMMISSIONER SOARIES:  Thank you.

       6             CHAIR HILLMAN:  Mr. Vice-Chairman.

       7             VICE-CHAIRMAN DEGREGORIO:  Thank you,

       8 Madam Chair, and thank you for reminding people

       9 of the vote.nist.gov website, because I know

      10 that, Mark, you have posed much of your work, if

      11 not all of your work, on that website, and I

      12 certainly want to commend you for the work that

      13 you have done because it has been substantial,

      14 and it has been difficult to deal with many of

      15 these resolutions, all of which we want to be

      16 priority no. 1, but the TGDC did its due

      17 diligence to try to prioritize things for your

      18 staff.

      19       You are continuing to receive comments from

      20 people.  People can continue to comment on the

      21 drafts that have been posted on the website.

      22 For instance, the March 9th draft contains a lot

                                                        29



       1 of detail, a lot of information, particularly on

       2 the VVPAT issues, the wireless transmission

       3 issue.  There is some good information that

       4 people can be instructed on and provided

       5 information on.  I assume you are still

       6 receiving comments.

       7             MR. SKALL:  Actually, we're still

       8 receiving comments, and soliciting comments from

       9 various people.

      10       And I want to remind Commissioners and the

      11 public, clearly, we're not working in a vacuum,

      12 that we try to meet with all people who have any

      13 insight; state officials, technology experts, to

      14 try to get as much information as possible.  So

      15 we welcome comments, we welcome ideas, and we're

      16 willing to consider them all.  They help us

      17 through our work.

      18       VICE-CHAIRMAN DEGREGORIO:  Okay.  I know

      19 that the states and local election officials are

      20 looking for this guidance.  They are looking

      21 forward to it.  We have many Secretaries of

      22 States sitting behind you in the room.  We have

                                                        30



       1 Donnetta Davidson, who is on the TGDC, I know

       2 has provided some reality check at times on that

       3 committee.  If I am a state official, and if I

       4 am a local election official, looking past

       5 April, as this Commission has its work to do

       6 post April and a process that is mandated under

       7 HAVA to vet the guidelines.

       8       But do you believe that the states, the

       9 information, the guidelines that provide the

      10 initial set of recommendations, would be helpful

      11 to the states that are right now looking to buy

      12 equipment to meet the Title III, the new

      13 requirements under HAVA?

      14             MR. SKALL:  Yes, absolutely.

      15 Certainly, the work on accessibility and

      16 usability, we believe, will be very helpful.

      17 And everything we put in there, we put in there

      18 specifically because we believe there are gaps

      19 in the 2002 VSS, specifically, gaps of areas

      20 that would be of interest and need for the

      21 states to perform their work for 2006.

      22       VICE-CHAIRMAN DEGREGORIO:  Thank you.

                                                        31



       1             MR. SKALL:  One thing, Commissioner

       2 DeGregorio, I can't promise you a trip of Guam,

       3 but we have many international committees that

       4 we're involved in.  You let me know, and I will

       5 put your name down.

       6             VICE-CHAIRMAN DEGREGORIO:  Thank you.

       7 I was at a meeting at the Carter Center last

       8 Thursday in Atlanta, and there were folks there

       9 from Central and South America, election

      10 officials, and others.  It is interesting that

      11 they are following our work in this area.

      12       Many countries of the world use electronic

      13 technology; Brazil, Netherlands, Venezuela,

      14 India, and many don't have the kind of

      15 guidelines that we're putting forth, working on

      16 here.

      17       And I know that I have been told that

      18 people are following the website and looking to

      19 guidelines we're going to produce in America to

      20 perhaps copy them in their countries in the use

      21 of electronic technology, in particular.  So I

      22 think this is not work being done for our

                                                        32



       1 country, but it is going to have a worldwide

       2 impact when it is all done.

       3             MR. SKALL:  That is fascinating.

       4             VICE-CHAIRMAN DEGREGORIO:  They use

       5 electronic voting.

       6             CHAIR HILLMAN:  Okay.  I have one

       7 quick question for you.  In the grouping of the

       8 priorities under Group l, you talk about work

       9 that augments and correct its 2002 VSS, VSS

      10 being Voting System Standards.  And we're now

      11 using the terms guidelines, instead of

      12 standards, is that correct?

      13             MR. SKALL:  Correct.

      14             CHAIR HILLMAN:  So what kinds of

      15 corrections do we refer to?

      16             MR. SKALL:  There's a lot of trivial

      17 corrections; typos, misspellings, statements

      18 that don't parse.  We were hoping to look at

      19 more substantive corrections, such as looking

      20 into the error rates and things that may, in

      21 fact, need some changes.  We don't think we'll

      22 be able to get those.  So they are mainly, from

                                                        33



       1 examining each of the requirements one by one,

       2 we have just found errors that have been made.

       3 They have been stated, so they are fairly

       4 trivial, but important enough to correct, we

       5 believe.

       6             CHAIR HILLMAN:  Okay.  So we're not

       7 talking about substantive?

       8             MR. SKALL:  No.

       9             CHAIR HILLMAN:  Any other questions?

      10             COMMISSIONER SOARIES:  At the risk of

      11 having my hands smacked, was NIST involved, in

      12 any way, in the creation or the adoption of the

      13 1990 or 2002 Voting System Standards?

      14             MR. SKALL:  No, not in the adoption

      15 of those standards, although we've done work in

      16 reviewing some of that in the '90s, but we were

      17 not involved in the creation or adoption of the

      18 standards.

      19             CHAIR HILLMAN:  Okay.  Thank you,

      20 very much.

      21       Okay.  Our next report is on the EAC

      22 Election Day Survey and analysis update by Kim

                                                        34



       1 Brace, who is President of Election Data

       2 Services.

       3       Election data services is working under

       4 contract for EAC to do the analysis.  Thank you.

       5 Welcome.

       6             MR. BRACE:  Thank you, Madam Chair,

       7 members of the Commission.  Thank you for the

       8 opportunity to report to you today on what

       9 Election Data Services' contract to tabulate and

      10 analyze three studies that the Election

      11 Assistance Commission had undertaken.

      12       These studies include; the Election Day

      13 Survey, the Military and Overseas Absentee

      14 Ballot Survey, and the National Voter

      15 Registration Act survey.  Each of those surveys

      16 were designed to provide EAC with important

      17 information on the status of election

      18 administration in this country, so that you can

      19 identify and prioritize issues affecting voter

      20 enfranchisment, and participation in the

      21 electoral process.

      22       Two of the surveys, election day and UOCAVA

                                                        35



       1 survey, are brand new and contain questions that

       2 have never been asked before in any

       3 jurisdiction.  In each instance, these surveys

       4 have been sent to the 50 states of the nation,

       5 as well as the five territories covered by the

       6 Help America Vote Act, but these are not just 55

       7 surveys, because in each instance, the states

       8 had to gather information from their counties

       9 and their townships.

      10       In total, we hope to have information from

      11 8,014 counties and townships that have a role in

      12 administrating elections in this nation.  Some

      13 of the data that's been asked for was not

      14 collected, tallied, or generated ever before.

      15 As a result, many election administrators had to

      16 attempt to retrieve and compile the data,

      17 sometimes after the election took place.

      18       I am here to report to you on our efforts

      19 to pull together the information from the first

      20 two of those surveys; the Election Day Survey,

      21 and the UOCAVA survey.

      22       As part of our initial effort, we had to

                                                        36



       1 deal with a wide variety of responses that came

       2 in from the states.  Some sent in data, and

       3 spread sheets, and some sent data in Word

       4 documents.  Even the spread sheets came in

       5 different forums despite the efforts to fill out

       6 a sample with the questionnaire, some had

       7 individual question responses, while others had

       8 individual counties on different tabs in the

       9 spread sheet.  Some sent in PDF documents, and

      10 others faxed in their answers.

      11       Needless to say, it took us a while to get

      12 all these differently formated responses from

      13 all these different jurisdictions into a uniform

      14 database.

      15       Concerning the Election Day Survey, the

      16 survey requested county and township information

      17 on a variety of topics from the November general

      18 election.  These topics include voter

      19 registration and turn-out, absentee and

      20 provisional ballots, over votes and under votes

      21 for federal offices, precincts and polling

      22 places, poll workers, and voting equipment.

                                                        37



       1 State responses have been standardized and

       2 imported now into a special database created for

       3 this project.

       4       Several data integrity and quality

       5 assurance reports have been created.  I am here

       6 today to report to you about the completeness of

       7 the survey responses.

       8       The Election Day Survey contains some 50

       9 different data items from each county and

      10 township level jurisdiction.  We're missing

      11 surveys from three states right now, and

      12 territories, and have received only state wide

      13 information from one other.

      14       The rates of completion and the response

      15 rates received so far vary widely.  One state

      16 gave us about 91 percent of all the data that

      17 was asked for, but another state, it was less

      18 than 20 percent.  These are calculated on the

      19 basis of both having answers to specific

      20 questions and having data from all the

      21 jurisdictions in the state.  In some instances,

      22 individual counties had individual data items

                                                        38



       1 missing.  In others, all responses from a county

       2 were missing.

       3       We have also found that entire questions

       4 were not answered from anywhere in the state.

       5 In total, the completeness rates for the state

       6 responses end up with about five states being

       7 over 80 percent complete, and 23 states with 60

       8 to 80 percent complete.  But we do have, as I

       9 said, two states are less than 20 percent

      10 response.

      11       And as I indicated, three states that have

      12 not responded.  Three states or territories that

      13 have not responded so far.  As I have already

      14 indicated, we have had a wide variety of

      15 responses on individual questions.  And that

      16 fact alone has caused us problems in attempting

      17 to analyze the information.

      18       In my prepared testimony, I have included a

      19 table that reviews each of the questions asked,

      20 and provides data on what percent of the

      21 jurisdictions in the nation provided data for

      22 that question.  It also shows what percent of

                                                        39



       1 the registered voters are included in those

       2 jurisdictions, so that one has additional

       3 context in which to review the information.

       4       Concerning individual subjects,

       5 registration data has been spotty in what's been

       6 provided.  We have data on active registration

       7 from two-thirds of the nation's jurisdictions,

       8 but for inactive registrations, from less than

       9 half.  We have been able to determine that 16

      10 states combine active and inactive registration,

      11 and their counts of overall registrations in the

      12 state.

      13       On the other hand, the other 34 states

      14 report only active registrations when they say

      15 how many people are registered.  We have nearly

      16 90 percent of the jurisdictions reporting how

      17 many total ballots were cast in last fall's

      18 election, but as I indicated to you last May in

      19 my earlier testimony, not all states elect this

      20 information.  Some states just have the votes

      21 cast for the highest office, as an indication of

      22 turn-out, even though we know from other states

                                                        40



       1 that not everyone votes for that highest office.

       2 More states are reporting total turn-out than in

       3 earlier years now, but there are still at least

       4 a half dozen states that don't provide that

       5 number.  Roughly two-thirds of the jurisdictions

       6 provided information on absentee ballots, but

       7 less than 45 percent told us how many persons

       8 cast provisional ballots, and just one-third

       9 said how many were actually counted.

      10       We have got information on the number of

      11 poll workers from about 70 percent of the

      12 jurisdictions, but only about a third of them

      13 said whether they had fewer poll workers than

      14 what was required.  We still don't know the

      15 total number of precincts or polling places in

      16 the nation, and we're getting slim information

      17 on whether these locations are handicapped

      18 accessible.

      19       Despite the problems with the missing data,

      20 we have assembled a list of subjects and column

      21 calculations for the Election Day Survey report.

      22 These subjects are the percent registered, and

                                                        41



       1 voting age population, and of citizenship voting

       2 age population, percent turn-out of voters,

       3 voting age population, and of citizenship voting

       4 age.

       5       Concerning registration, because not all

       6 states are uniform in terms of active or

       7 inactive, for states where inactive is included

       8 in total registration, we will look at what

       9 percent of total registration is inactive.  And

      10 for states without inactive in their total

      11 registration, we will look at what percent

      12 increase will inactives add to the total size of

      13 a voter file, as these states look towards

      14 statewide implementation of a statewide voter

      15 file.

      16       Where have the ballots come from?  For

      17 total ballots cast, what percent came from

      18 polling places, what percent from absentees,

      19 from early voting and from provisional ballots.

      20 And absentee activity, what is the percent of

      21 registered ballots returned compared to what

      22 percent of return ballots were counted and not

                                                        42



       1 counted.

       2       For provisional ballots, we will look at

       3 what percent of the cast provisional ballots

       4 were counted, and what percent of overall

       5 ballots were, in fact, provisional.

       6       Concerning drop-off analysis, we will look

       7 at Presidential, U.S. Senate, and Congressional

       8 races to see how many people fall off down the

       9 ballot.  We will look at rates of under votes

      10 and over votes for each of these, and we will

      11 compare this information with the type of voting

      12 equipment used.

      13       For poll workers, we hope to have an

      14 overall number of poll workers in place in this

      15 country, but we'll also look at the average

      16 number of poll workers per precinct, and per

      17 polling place.

      18       Concerning polling places, we will look for

      19 the total number of precincts and polling

      20 places, and then hope to have what percent of

      21 the polling places are, in fact, accessible.

      22 All of this, so far, is related to the Election

                                                        43



       1 Day Survey.

       2       Now, I'd like to turn my attention to the

       3 second survey that we're reviewing, the U.S.

       4 UOCAVA survey.  That survey requested county and

       5 township level information, again, for the

       6 November 4th general election from each of the

       7 states, territories, in the District of

       8 Columbia.

       9       The topics covered included a wide variety

      10 of topics; number of absentee ballots

      11 transmitted to domestic military citizens,

      12 overseas military citizens, and overseas

      13 citizens collectively, and the number of advance

      14 ballots transmitted to these individuals, number

      15 of absentee ballots returned by each of these

      16 groups, the manner in which each of these

      17 ballots were returned by mail, by fax, by

      18 e-mail, number of absentee ballots returned by

      19 military and overseas that were actually

      20 counted, and what were the reasons why absentee

      21 ballots returned were not counted, were there no

      22 postmarks, no voter signature, no verifiable

                                                        44



       1 signature, no date of signature, notary public,

       2 so forth.  And then the number of federal

       3 write-in, absentee ballots received from

       4 uniformed services and overseas.

       5       So far, the responses to the UOCAVA survey

       6 have been received from 44 states.  The most

       7 complete responses dealt with Questions 2 and 7,

       8 that I have outlined dealing with the number of

       9 advanced military and federal, write-in absentee

      10 ballots that have been sent and returned by the

      11 military overseas.

      12       In about 15 states, the responses to all

      13 questions are complete or nearly complete for

      14 all jurisdictions.  Many states, however, did

      15 not respond to certain questions.  One reason

      16 for the low response rate might be that many

      17 states did not regularly track this data, as I

      18 indicated earlier, and were unable to retrieve

      19 this information after an election.  A better

      20 response might be expected in the future when

      21 systems can be set up in advance by identifying

      22 the items for the survey.

                                                        45



       1       In summary, I hope to report to you soon on

       2 the wide variety of activities coming out of

       3 these surveys.  And with that, I'll be happy to

       4 answer any questions you might have.

       5             CHAIR HILLMAN:  Thank you, very much.

       6 As you noted when you began your report, that of

       7 the two surveys that you just reported on, they

       8 were both brand new and contained questions that

       9 had never been asked before of election

      10 officials.  And when we embarked on at least the

      11 Election Day Survey, we, too, the EAC, was brand

      12 new, and we knew that there were things that we

      13 would learn along the way.

      14       From your report, it sounds like we have a

      15 lot of lessons that we've learned.  And I'm just

      16 wondering if you were prepared to summarize some

      17 of the key lessons learned in the collection of

      18 this data, knowing that one of the purposes of

      19 this is so that when you report to Congress and

      20 to the American public, we can report based on

      21 statistics, and not just anecdotal information.

      22             MR. BRACE:  Certainly, Madam Chair.

                                                        46



       1       We plan, as part of the overall report, to

       2 have a whole series of recommendations for the

       3 Commission on how this kind of data could be

       4 compiled, whether or not it could be compiled

       5 ahead of time.

       6       Certainly, the main thing that we have

       7 heard from a number of the states is to get the

       8 information out to them ahead of time so that

       9 they have an opportunity to go to their

      10 jurisdictions and have those jurisdictions

      11 collect that information in a systematic way.  I

      12 know that these came in late because of your

      13 delays that occurred, just in terms of getting

      14 appointed.

      15       And so, unfortunately, we're caught with

      16 the 2004 election with not having complete,

      17 because the surveys got out there late.

      18       But I think in terms of looking at the

      19 future, it does have a good benchmark from which

      20 we can begin to take a look at and try to get

      21 states to collect this kind of information.

      22       As I indicated before, not everybody

                                                        47



       1 collects total number of persons that went to

       2 the polls, but I know, because of your efforts

       3 in the past year, we have had more states that

       4 are now collecting that.

       5       We're not at a hundred percent yet though,

       6 but certainly, I know that many states are

       7 starting to take a look at that.

       8       As you also take a look at the

       9 implementation of the statewide voter

      10 registrations systems, I believe that getting

      11 guidelines to the states early on, the kind of

      12 data that would be good to pull out of those

      13 data sets will be critical, and that's what we

      14 intend to state in our report.

      15             CHAIR HILLMAN:  Would you say that

      16 it's important for the EAC to continue

      17 collecting this election day data on a regular

      18 basis, going forward?

      19             MR. BRACE:  Oh, absolutely.  And I

      20 think, in looking at the data right now, we're

      21 collecting it at the county level, but I know

      22 some of our analysis capabilities are probably

                                                        48



       1 hindered by having that gross level of data.

       2       Ultimately, it would be nice to have data

       3 at the precinct level so one could look at

       4 specifically what's going on, in terms of these

       5 error rates or this information from these

       6 particular parts of the jurisdiction.

       7       As one looks at the overall impact on

       8 different demographic routes, it is very hard to

       9 have that information at the county level, and

      10 be able to give a concrete analysis of that.

      11 Having data at the precinct level would be much

      12 better.

      13             CHAIR HILLMAN:  We're testifying

      14 before the House Appropriations Subcommittee in

      15 mid April.  And so it would be useful to have

      16 some information from you prior to that, that we

      17 could consider for our testimony to explain why

      18 the collection of this data will be, in the long

      19 term, useful and necessary.

      20             MR. BRACE:  By all means, Madam

      21 Chair, and we'll have a lot of information for

      22 you shortly.

                                                        49



       1             CHAIR HILLMAN:  Great.  Thank you.

       2       Commissioner Martinez.

       3             COMMISSIONER MARTINEZ:  Kim, I guess

       4 I want to make a quick distinction about the

       5 Election Day Survey is one that the EAC has

       6 asked, essentially, for voluntary compliance

       7 from the states.  There is nothing in HAVA that

       8 says we're supposed to do that.

       9             MR. BRACE:  That's correct.

      10             COMMISSIONER MARTINEZ:  On the other

      11 hand, using HAVA information, there is a

      12 provision in HAVA which requires the EAC to

      13 collect information, not just statewide, but

      14 down to the local jurisdiction level so that we

      15 can be informed as to how many using HAVA

      16 ballots are being sent out, and how many are

      17 being returned, and counted.

      18       I don't have the precise word, but I think

      19 that, essentially, captures the requirement in

      20 HAVA.  And I think the work under NVRA is

      21 statutory, that we're supposed to collect this

      22 information.

                                                        50



       1             MR. BRACE:  That's correct.

       2             COMMISSIONER MARTINEZ:  There are

       3 very compelling reasons why the EAC would need

       4 to have the election survey information so we

       5 can get a better snapshot as the Chair

       6 articulates, from a more statistic based

       7 perspective, as opposed to one that is merely

       8 anecdotal, as I think that is very compelling.

       9       With regard to the other two surveys, those

      10 are, in fact, mandated, if not our governing

      11 statute by our NVRA.

      12             CHAIR HILLMAN:  Mr. Vice-Chair.

      13             VICE-CHAIRMAN DEGREGORIO:  Thank you,

      14 Madam Chair.

      15       Kim, I believe this information is going to

      16 be very helpful to everyone throughout the

      17 country.  Because we get this kind of

      18 information, and sometimes what I find,

      19 particularly when you see voter registration

      20 take place, you point that out on how you

      21 separate this by the inactive and active

      22 registrations because some states don't put the

                                                        51



       1 inactive in their totals, makes them look pretty

       2 good, and the turn-out up there is in the high

       3 70s and 80s, but if you include the inactive, it

       4 comes down.

       5       It is always been a contention at the

       6 state, saying, well, you have got this and this

       7 in there.  What you're saying is, when you

       8 provide this data, you will try to do that

       9 detailed analysis and provide the details of

      10 ones that include inactive and the ones that

      11 don't.  So when we do a comparative analysis,

      12 you will take that into consideration.

      13             MR. BRACE:  Surprisingly, the fact

      14 that whether or not a state does it this way or

      15 does it this way has never been compiled before.

      16 So this is one of the pieces of information that

      17 we're trying to pull together just by looking at

      18 reviewing the data, and then going back for the

      19 states to confirm what we're seeing in the data.

      20       VICE-CHAIRMAN DEGREGORIO:  I know your

      21 staff is going back to the states that have

      22 given or are providing data that's not complete.

                                                        52



       1 And particularly not the UOCAVA survey that

       2 Commissioner Martinez just spoke about, because

       3 you have some very specific questions, some of

       4 which are taken right out of the statute.

       5       It does concern me because you indicate the

       6 Questions 2 and 7, it just indicates the number

       7 of advance ballots transmitted.  No. 7, number

       8 of write-in ballots received, but it doesn't get

       9 to No. 3, the number of absentee ballots

      10 returned by these voters, which is really very

      11 important, I think, for any kind of analysis, to

      12 find out not just how many ballots are

      13 transmitted to military and other overseas

      14 citizens, but how many came back.

      15             MR. BRACE:  Yes.  Unfortunately, what

      16 we're seeing so far, again, our main

      17 concentration has been on the Election Day

      18 Survey, but we have been compiling and moving

      19 forward with the UOCAVA one.

      20       Unfortunately, what we're seeing is that

      21 the response rates are worse, in terms of the

      22 UOCAVA, even though, as Commissioner Martinez

                                                        53



       1 said, it is a required set of data, but we're

       2 finding that it is harder to pull that

       3 information out and get the locals to provide

       4 that information.

       5             VICE-CHAIRMAN DEGREGORIO:  Thank you.

       6             COMMISSIONER SOARIES:  Madam Chair, I

       7 support the concept of having precinct level

       8 data because I think at some point, when we

       9 attempt to align certification issues that is

      10 equipment and then standard/guidelines which

      11 creates some expectations, the only way to

      12 measure or project success is to have data.

      13 And if we have no data, then we never know the

      14 ultimate impact of our work.

      15       Now, the state of Georgia, I don't dare to

      16 speak for them, but I do know the state of

      17 Georgia was one of the early states that made a

      18 decision pre-HAVA to change all of their voting

      19 equipment.  And it was driven, in large measure,

      20 by precinct level date data that measured over

      21 votes and under votes.  And the disparities by

      22 precinct was so significant, they didn't even

                                                        54



       1 study the problem.  They just sought to change

       2 all of the equipment.  And we're going to

       3 Georgia, of course, to look at their process.

       4 But there is a relationship between equipment

       5 standards and data.  And if we have integrity in

       6 all areas, then I think our work will be well

       7 informed, and we'll be able to measure our own

       8 progress.  So I endorse that guidance effort.

       9       To go to Commissioner Martinez's question,

      10 I don't know what it's going to take to get the

      11 kind of responses.  I don't know if it's our

      12 being better facilitators about the data

      13 processing process, I don't know if it's timing.

      14 I don't know if it's some changes in HAVA.  I

      15 don't know what it takes.  Hopefully, our

      16 discussion with the National Association, with

      17 the Secretary of States, and the National

      18 Association of State Election Directors will

      19 help inform us as to how we can best help them

      20 work on this collective project, because it's in

      21 the country's interest to know what happens on

      22 election day.

                                                        55



       1             MR. BRACE:  You are absolutely

       2 correct in identifying those two groups.  They

       3 are critical in this whole process.  This is

       4 why, for the past twenty years, I have always

       5 attended the NASAD meetings every single time

       6 that they have met because you can have an

       7 opportunity to meet with each of the state'

       8 election directors, and then get clues from them

       9 on what's going on, but certainly using that

      10 opportunity to try to push them to provide the

      11 kind of data.

      12       I know Commissioner DeGregorio and myself

      13 were out in the Portland last summer to speak

      14 before the NASAD group, and reminded them of the

      15 importance of the data that was going to be

      16 collected by the EAC.

      17             COMMISSIONER MARTINEZ:  Madam Chair,

      18 if I can make one comment about what

      19 Commissioner Soaries said.  That is very much to

      20 the point.  We're going to hear in the next part

      21 of this meeting about our function as a national

      22 clearinghouse.  And to get to Commissioner

                                                        56



       1 Soaries's point, to act in an incredible fashion

       2 with integrity as a clearinghouse, it would seem

       3 to me best practices, yes, but anecdotal

       4 experience is take a look at it and decide if we

       5 want to replicate these practices, but it is

       6 disseminating information that does not have

       7 integrity.

       8       We cannot get there unless the data

       9 reflects the true picture of what is happing.

      10 So it is critical, and I think all of us would

      11 agree it is critical, from all perspectives,

      12 with what this agency's supposed to be doing.

      13             MR. BRACE:  One of the things you

      14 could take a look at is, look at back in the

      15 late 1970s, Roy Saltman, who at that time worked

      16 at NIST, actually put together a very good

      17 document that went into detail about the

      18 particular problems that occurred in a given

      19 election. That was crucial in providing a lot of

      20 insight, and it's one of the key roles that,

      21 indeed, the EAC could move towards in the

      22 future.

                                                        57



       1             CHAIR HILLMAN:  Okay.  Thank you,

       2 very much.  We look forward to your next report.

       3       All right.  If we could have the next panel

       4 to assemble at the table, please.

       5       Okay.  Thank you.  Before we begin with the

       6 next panel, I want to acknowledge some special

       7 guests that we have in the audience today.  We

       8 have about five Secretaries of State with us,

       9 and I'd like to begin by introducing Secretary

      10 Rebecca Vigil-Giron from the State of New

      11 Mexico, and also president of the National

      12 Association of Secretaries of State, and

      13 Secretary Donnetta Davidson from the state of

      14 Colorado, Secretary Mary Kiffmeyer, from

      15 Minnesota, and Secretary John Gale from

      16 Nebraska.

      17       And please forgive me if I have overlooked

      18 any secretaries.  I will get to the fifth

      19 gentlemen in a moment, but if I have overlooked

      20 anybody in the audience, please let me know

      21 you're here.

      22       Okay.  Our next panel of presentations is

                                                        58



       1 to address its role of the United States

       2 Election Assistance Commission as a

       3 clearinghouse.

       4       It is a mandate of the Help America Vote

       5 Act that the EAC provide this service, and

       6 collect, and make available information and data

       7 that is pertinent to the administration of

       8 federal elections in the United States.  And so

       9 as we try to wrap our arms around that humongous

      10 task, we will begin with today's discussion and

      11 presentation from three different perspectives,

      12 state, local, and community activist

      13 organization, voter advocacy, voting rights

      14 concerns.

      15       Let me introduce the panelists, nd I will

      16 ask that you, lease, just go in the order as I

      17 am introducing you.  Secretary Pedro Cortes,

      18 welcome, from the state of Pennsylvania.  It

      19 says Commonwealth of Pennsylvania.

      20       Coming from the Commonwealth of

      21 Massachusetts, I understand, Mr. Tony Sirvello,

      22 III, Executive Director of the International

                                                        59



       1 Association of Clerks, Recorders, Election

       2 Officials, Treasurers.  Anybody else?

       3 Affectionately known as our IACREOT.  And

       4 Mr. Edward Hales, jr, Senior Attorney for the

       5 Advancement Project here in Washington, DC.

       6       Secretary Cortes.

       7             MR. CORTES:  Chair Hillman,

       8 Commissioners of the United States Election

       9 Assistance Commission, good morning.  My name is

      10 Pedro Cortes, and I serve as Pennsylvania's

      11 Secretary of the Commonwealth.  In this

      12 capacity, I manage the Pennsylvania Department

      13 of State, the agency charged with overseeing the

      14 states electoral process.

      15       Thank you for inviting me to participate in

      16 today's meeting.  I appreciate the opportunity

      17 to speak on ways that the EAC can continue to

      18 assist the states in its role as a

      19 clearinghouse.

      20       The suggestions I am about to present will

      21 surely benefit me in Pennsylvania, and my

      22 colleagues in other states and territories.

                                                        60



       1 Before I proceed with my recommendations, please

       2 allow me to note that in December, 2004, the

       3 Governor established an Election Reform Task

       4 Force to consider a host of election issues.

       5 They include voter participation, provisional

       6 absentee voting, accessibility compliance, and

       7 the upgrading of our voting equipment.  I served

       8 as the chairperson of the task force.  I have

       9 confident that the deliberations of the task

      10 force will yield valid recommendations to

      11 improve the electoral process in Pennsylvania.

      12       The above being said, Pennsylvania looks

      13 forward to receiving further guidance from the

      14 EAC on how to properly and realistically

      15 implement the mandates of the Help America Vote

      16 Act.  To this end, it would be extremely helpful

      17 if the EAC could provide additional information

      18 and clarification on the following areas; No. 1,

      19 voting system standards.

      20       I am aware that the EAC and the National

      21 Institute of Standards & Technology are working

      22 diligently to issue a draft of Voluntary Voting

                                                        61



       1 System Standards for guidance by next month,

       2 April, 2005.  Many states, including

       3 Pennsylvania, eagerly await these guidelines in

       4 order to purchase new voting equipment.

       5       Given that the states must have a

       6 HAVA-compliant voting system in place by January

       7 1, 2006, I would appreciate if the EAC could

       8 provide or develop a suggested time line for how

       9 states can meet this mandate.  Ideally, the time

      10 line would consider the period vendors may need

      11 to incorporate the new guidelines into their

      12 equipment, federal and state testing, and

      13 certification requirements and procurement of

      14 such equipment.

      15       No. 2, statewide voter registration list.

      16 In addition to the forthcoming EAC guidance on

      17 the statewide voter registration list, I would

      18 suggest a comprehensive assessment of the

      19 different voter registration systems states have

      20 implemented or plan to implement.  The goal of

      21 such an assessment would be to identify best

      22 practices and challenges that state have had to

                                                        62



       1 overcome.

       2       Questions to consider include whether the

       3 system was built in house, or with the help of

       4 an outside vendor, how the database works, how

       5 voter information is exchanged from in between

       6 the state election office and end users, and

       7 related developmental and end user issues.

       8       No. 3, cost to implement HAVA.  I am

       9 frequently asked by legislative advocacy groups,

      10 reporters, and the public, how much it will cost

      11 to implement HAVA and to hold elections on new

      12 mandates.  More specifically, how much money

      13 states and local governments will have to

      14 contribute.

      15       I would welcome a study that answers the

      16 above, along with information on how states plan

      17 to address and pay for their various

      18 accessibility requirements.  For example, making

      19 polling places fully accessible, and providing

      20 services to voters with limited English

      21 proficiency.

      22       No. 4, frequently asked questions on the

                                                        63



       1 EAC website.  Election officials and voters

       2 alike would benefit from additional questions

       3 and answers on the frequently asked questions

       4 section of the Commission's website.  Relevant Q

       5 and A can be taken from the EAC training

       6 sessions, such as the one held at the most

       7 recent National Associations of Secretaries of

       8 State Winter Conference.  Answers in the FAQs

       9 section could even include a hyper link to

      10 advisory opinions the EAC has issued on the

      11 given subject.

      12       In conclusion, I would like to, once again,

      13 thank the EAC for giving me the opportunity to

      14 present these recommendations at today's

      15 meeting.

      16       I also want to thank the EAC for its

      17 commitment to help Pennsylvania and other

      18 jurisdictions implement provisions of the Help

      19 America Vote Act.

      20             CHAIR HILLMAN:  If Commissioners

      21 couldn't mind, we can hold our questions to the

      22 end of the presentation.  Thank you.

                                                        64



       1       Mr. Sirvello.

       2             MR. SIRVELLO:  Good morning, Chair

       3 Hillman, Vice-Chair DeGregorio, Commissioner

       4 Soaries, and Commissioner Martinez.

       5       On behalf of my organization, our

       6 president, Gertrude Walker, Supervisor of

       7 Elections in Fort Pierce, Florida, I want to

       8 thank you for inviting me to participate in this

       9 panel.

      10       The business of election administration in

      11 the United States is as varied and diverse as

      12 its 50-member states.  The individuals

      13 responsible for such administration are called

      14 by many names; supervisor, administrator, county

      15 clerk, county auditor, secretary, chairman,

      16 commissioners, etc.  And the laws of each of

      17 these individuals enforce, verify the axiom of

      18 what works here may not work there.

      19       For example, all mail ballot elections in

      20 Oregon would not work in my home state of Texas.

      21 When a federal law is passed which brings about

      22 continuity in federal elections, for example,

                                                        65



       1 National Voter Registration Act of 1993, and the

       2 Help America Vote Act of 2002, there is produced

       3 some common ground among the states in areas of

       4 election administration, for instance, the

       5 requirements in Section 303 relating to a

       6 statewide voter registration list.  And yet

       7 there remains flexibility among the states as to

       8 the methodology used to implement such a system,

       9 as is evidenced by those states that have

      10 already initiated a statewide voter registration

      11 system and have prior to the passage of HAVA.

      12       This is where the Election Assistance

      13 Commission, in its capacity as a clearinghouse,

      14 can provide invaluable assistance to the states

      15 and local jurisdictions as an information source

      16 and an election administration storage bank.

      17       As a predecessor to the clearinghouse

      18 function of the Election Assistance Commission,

      19 the Office of Election Administration of the

      20 Federal Election Commission, for many years,

      21 performed just such a function.  The heart and

      22 soul of that operation, of course, currently,

                                                        66



       1 staff members of the Election Assistance

       2 Commission, Peggy Sims, Brian Hancock, Bryan

       3 Whitener.

       4       As a member of the OEA's advisory panel, I

       5 was privileged to work closely with and

       6 participate and make use of many of the

       7 resources, voting system standards program,

       8 election case law, computerizing election

       9 management, ballot access procedures, absentee

      10 ballot issues and options, recent innovations in

      11 election administration.  These publications

      12 provided background and how-to information for

      13 election officials throughout the United States

      14 and were instrumental, in many cases, for

      15 bringing about a community of interest and

      16 knowledge among election officials. They were

      17 especially beneficial to newly elected or newly

      18 appointed administrators.

      19       As a precursor, I solicited opinions from

      20 the many local election officials, and I

      21 received several excellent responses.  In so

      22 doing, I would like to give the individuals

                                                        67



       1 credit for responding back.  One item that

       2 appeared on most of the responses was a

       3 suggestion that the EAC collect information on

       4 contracts and requests for proposals for new

       5 voting equipment, thereby creating a library of

       6 RPs and contracts for voting equipment

       7 procurement, and publicizing availability of

       8 same to election jurisdictions.

       9       This idea was at the top of the list

      10 provided by supervisor of elections in Florida.

      11 I am speaking from personal experience, I

      12 requested completed forms in several

      13 jurisdiction in preparing the RFP for Harris

      14 County, Texas for the purchase of a new voting

      15 system and new election management system.

      16       In keeping within that same focus, others

      17 suggested that it would be helpful to gather

      18 information on the deployment and administration

      19 of the equipment after purchase.  For instance,

      20 how many pieces of equipment are needed per

      21 registered voter, turn-out history, what type

      22 and how much training is recommended for the

                                                        68



       1 implementation of the new equipment, what

       2 approach should be taken to reach out to the

       3 voting communities.  What about the storage of

       4 the new voting equipment, what about the

       5 transportation of the new voting equipment.

       6 These suggestions were high on the list of

       7 director of elections for Kansas City, Missouri,

       8 and stressed a study on absentee ballot and

       9 early voting, and how those systems had been

      10 abused to prey on early voters.

      11       Again, state laws are diverse in a liberal

      12 or conservative approach to early ballot access.

      13 Sharon, along with others, asked for suggestions

      14 on recruitment, training of poll workers, a

      15 dilemma faced by most election jurisdictions in

      16 the country, and one that I know Commissioner

      17 Soaries has had special interest in.  Sharon

      18 wondered if perhaps an election workers pool

      19 could be set up similar to the jury pool, and it

      20 would be created to stockpile available workers.

      21       Other suggestions included a national

      22 publication of instances where vote fraud has

                                                        69



       1 been prosecuted, and a single source for

       2 researching case law on elections.

       3       Cliff -- in Texas offered several items

       4 they would like to see.  Cliff would like to see

       5 EAC act as a clearinghouse of information for

       6 the federal voting system program.  He proposes

       7 a study on the best method of communication

       8 between overseas and military voters and the

       9 local election official. Cliff suggested there

      10 would be a move towards national standardization

      11 of voter ID requirements with EAC acting as a

      12 clearinghouse for such an initiative, the super

      13 site polling location.

      14       Location is a key issue in the country

      15 today.  Cliff proposed EAC should be the

      16 clearinghouse for its adaptability for the

      17 voting process, especially in jurisdictions

      18 covered by Section 5 of the Voting Rights Act.

      19 Cliff endorses the idea of Super Tuesday being

      20 declared a national holiday, even suggesting

      21 that public transportation to and from a super

      22 poll site be free on election day.

                                                        70



       1       Karen Hottendure, Emporia, suggested

       2 providing links to all breaking election news,

       3 and I don't think Karen is advocating putting my

       4 good friend Doug Chapin out of business.

       5       There are many other suggestions relating

       6 to EAC as a clearinghouse of election

       7 administration, but the ideas just illuminated

       8 best sum up the responses from unique, local

       9 officials.  It is a daunting task you undertake,

      10 because many times, election administration is

      11 only as relevant as the next piece of

      12 legislation passed.

      13       If I might add, a library of state election

      14 codes would be benefit those jurisdictions that

      15 might want to enact a piece of legislation in

      16 their respective states with the background of

      17 what it took to move that piece of legislation

      18 through the adopting states.

      19       Again, I had personal experience with that,

      20 and the fact that in 1980s, I stole the law from

      21 Vice-Chair DeGregorio's home state, Missouri, on

      22 how to make public buildings accessible as

                                                        71



       1 polling places, free of charge.  And I took the

       2 statute right out of the Missouri statute, and

       3 introduced it in the Texas Legislature, and it

       4 is now law.

       5       In summation, the role of the EAC as a

       6 clearinghouse of information is one of extreme

       7 importance.  The EAC, now recognized as the

       8 federal agency, and I capitalize that, as T-H-E,

       9 for election administration and implementation,

      10 would offer a base of knowledge, facts, and

      11 suggestions that election officials throughout

      12 the nation could look to for guidance and

      13 assistance.

      14       And, in conclusion, I would like to offer

      15 the assistance of my organization and its 1,600

      16 members to help you in any way possible in this

      17 endeavor.  Thank you.

      18             MR. HAILES:  I am pleased to join my

      19 fellow panelists in addressing some of the

      20 specific recommendations we have for the

      21 clearinghouse function of this Commission.  It's

      22 truly an honor to serve in this capacity.

                                                        72



       1       I am, again, Edward A. Hailes, Jr., a

       2 senior attorney with Advancement Project, which

       3 is a legal advancement and policy action group

       4 that provides direct assistance to community

       5 groups who work on the ground to help achieve a

       6 just democracy.

       7       We believe that the clearinghouse function

       8 of this Commission is extremely important.  We

       9 know that many of the recommendations made today

      10 will require sufficient funding.  If we can

      11 help, through our testimony and action, in

      12 bringing that about, we certainly will.

      13       We believe that the role of this Commission

      14 will greatly enhance capacity for ration

      15 justice, and most importantly, challenge current

      16 election policies and procedures in order to

      17 magnify participation in our democracy.  And I

      18 want to make a note that while we emphasize

      19 importance of compiling and disseminating best

      20 practice, it is may not be a bad idea to point

      21 out worse practices, not to be emulated, but to

      22 be avoided.

                                                        73



       1       During 2004 election, my Advancement

       2 Project worked on the ground and provided legal

       3 counsel to a number of voter registration

       4 groups.  We were challenged in conducting

       5 extremely sensitive research, to document

       6 specific standards and procedures for several

       7 counties, which varied in the implementation of

       8 HAVA throughout the land.  It was very

       9 challenging to attempt to point out to the voter

      10 registration groups with whom we worked what

      11 specific procedures were followed by one county

      12 versus another.  And many other groups, some of

      13 them in this room, League of Women Voters, they

      14 also produced some technical assistance tools to

      15 find a way to help groups know what their rights

      16 and responsibilities are under the law.

      17       It would help, in the clearinghouse

      18 function of this Commission, to post information

      19 that shows the wide disparity of procedures that

      20 are implemented that are supposed to be in

      21 conformity with HAVA and NVRA across the land.

      22 I think Americans are often startled to find out

                                                        74



       1 there is such a wide disparity of procedures and

       2 standards across the country.  Most people

       3 believe that election systems are the same

       4 across the country, as they are in their own

       5 specific jurisdiction.  And when they attempt to

       6 help groups in other counties, they find that

       7 the rules may be different.

       8       It is, indeed, a startling reality that we

       9 have these complete differences in local

      10 practices and laws.  And Advancement Project and

      11 many other groups attempted to pull together

      12 brochures and charts to present to local groups

      13 in showing how the specific rules were being

      14 enforced in their jurisdiction.  So we know

      15 there is this need for this Commission to find a

      16 way to put information in the hands of voters,

      17 and not just election officials.

      18       I want to emphasize that voters are in need

      19 of the assistance of this Commission.  They need

      20 information.  In plain language, they need

      21 information that is written in language other

      22 than English.  They need information that will

                                                        75



       1 help to put a spotlight on election procedures

       2 and policies.

       3       I also wanted to emphasize, as I listen to

       4 Mr. Brace talk, about the difficulties in

       5 collecting information from states, specifically

       6 on a county and township level.  And as

       7 Commissioner Soaries said, the precinct-based

       8 data operation is so essential, that we also

       9 remember that race-specific data is important to

      10 the election.

      11       HAVA and NVRA required both uniform and

      12 discriminatory implementation of the law, and so

      13 it is very important, on a precinct basis, to

      14 collect, analyze, and disseminate race-specific

      15 data.

      16       Lastly, I sort of want to emphasize, and I

      17 am rely mostly on the information in my written

      18 testimony, but because in our experience, we've

      19 seen a combination of barriers affect the voice

      20 of poor communities of color in participating in

      21 our democracy, that it would help to have the

      22 Election Assistance Commission focus attention

                                                        76



       1 on voter intimidation screens, including

       2 discriminatory challenges to voters poorly

       3 designed ballots, inaccurate ballot translation,

       4 a shortage of translators to assist voters who

       5 speak languages other than English, failure to

       6 process registration on time, or at all,

       7 inaccurate registration roles, over broad

       8 percentage of voter roles, and unreasonably long

       9 lines.  At Advancement Project, we certainly

      10 want to make ourselves continually available to

      11 assist in your process of being this

      12 clearinghouse.

      13       One of my colleagues says more items

      14 related to election administration are really

      15 clear in the house, that there is no

      16 misunderstanding about requirements and specific

      17 procedures, and that the voter registration

      18 groups and racial justice organizations that

      19 provide an advocacy role in compliance with the

      20 Voting Rights Act will actually be able to come

      21 to this Commission and get the data analyses

      22 that would help to put pressure on those

                                                        77



       1 election officials who are not following the

       2 law.

       3       We, clearly, make ourselves available,

       4 again, to assist you.  I believe you're on the

       5 right road. We're pleased to see how many of the

       6 hearings going into the field where people from

       7 voter registration groups can come to the

       8 Commission and offer their views.

       9       So, again, we thank you for inviting us and

      10 we hope to continue a relationship and a

      11 partnership with the EAC.

      12             CHAIR HILLMAN:  Thank you, very much,

      13 Mr. Hailes.  I think your testimony is best

      14 summarized by a word that we use all the time,

      15 and that is transparency of the process.

      16       Commissioner Soaries.  Did I call on you

      17 too soon?  I can come back to you.

      18             COMMISSIONER SOARIES:  No.

      19       First, I am grateful to each of you for

      20 your presence, and for your willingness to share

      21 these recommendations, and your offer to support

      22 our process of having capacity to do all of this

                                                        78



       1 great work.  It's been, our evolution has been a

       2 process, rather than our arrival being an event.

       3 So this helps us to think through where we're

       4 going.

       5       The IACREOT perspective on data collection

       6 would help me.  Our discussion earlier about our

       7 desire to have data, but we understand that no

       8 election official, no clerk, is sitting in his

       9 or her office waiting to do more work at the

      10 request of the Federal Government.

      11       So, in your mind, Tony, how do you think we

      12 can best approach this in a manner that is not a

      13 burden, but rather a benefit to everyone

      14 involved?

      15             MR. SIRVELLO:  Well, I think

      16 Commissioner Soaries, that one of the things Kim

      17 Brace said, the secret is to ask for the

      18 information before the election.  Because I

      19 know, as a previous election administrator

      20 myself for many years, when you get a survey

      21 after the election is over, you go to someone

      22 that is perhaps handling overseas ballots, and

                                                        79



       1 you say, "How many of these were sent APO and

       2 HFO?"  "We don't know.  We didn't keep that

       3 information."

       4       But if we knew ahead of time that you're

       5 going to ask for this information and it is

       6 going to be of assistance to the entire country

       7 in future elections, I think that would be the

       8 key.  And I think something else that happens

       9 sometimes, that you always have to put

      10 definitions on what you're doing also, because

      11 one of the things that Kim said was to talk

      12 about the number of people that showed up at the

      13 polling place, the number of people that voted.

      14       Well, obviously, because of the

      15 introduction of provisional ballots in 2004,

      16 that number went up substantially from 2002.

      17 And if you just put the raw figures there, you

      18 would not know that the reason for the increase

      19 was because of the new law.

      20             COMMISSIONER SOARIES:  I just want to

      21 make a quick comment in response to the obvious

      22 consensus on the panel that there be a

                                                        80



       1 clearinghouse that provide information, laws,

       2 procedures, etc.

       3       One of our challenges is that we're working

       4 on something that the country's been doing for

       5 about 230 some odd years, and that the Federal

       6 Government's only been working on for over a

       7 year.  And the model that was crafted for

       8 American democracy was a state-based model that

       9 assumed loyalty, identification, and effects, on

      10 a state basis.

      11       Today, we have media and we have mobility

      12 unlike never before in history.  People get news

      13 from USA Today before they do in their local

      14 papers.  And so we take seriously this need to

      15 have a central locale for information in a

      16 society where people will live in New York the

      17 first part of the year, Florida the second part

      18 of the year, and compute back and forth.

      19 It is a daunting task, particularly when you are

      20 attempting to do it in a way that is unobtrusive

      21 and helpful, rather than punitive.

      22       So you have given us some good, general

                                                        81



       1 recommendations, but the more specific you can

       2 be after today, the more helpful you would be.

       3 I am done.

       4             CHAIR HILLMAN:  For the moment.

       5       Vice Chairman.

       6       VICE-CHAIRMAN DEGREGORIO:  Secretary

       7 Cortes, you brought up a very important subject,

       8 and that is, the cost to implement HAVA.  And I

       9 think we all recognize as a Commission that when

      10 the Federal Government provided for these

      11 mandates under HAVA, they didn't certainly

      12 provide all the funds because they haven't fully

      13 funded HAVA.  And there is $800,000,000 left to

      14 appropriate to fully fund HAVA, much less do

      15 other things that HAVA has mandated, but it is

      16 discovered that it is going to cost more money.

      17 And I think your idea to do a study to find out

      18 how much it has cost the states, local

      19 governments, is, indeed, a good one.  Because I

      20 know in my home county, St. Louis, Missouri,

      21 there is a big story how they are struggling to

      22 replace punch cards, they'd like to go to DRE,

                                                        82



       1 but they don't have enough money.  They are

       2 looking at optical scan, but they realize that

       3 is expensive too.

       4       So it is the whole issues of what HAVA has

       5 cost local and state governments.  You have

       6 worked hard on your statewide voter registration

       7 database, and recognize that's a process that

       8 takes time and money to implement.  I don't know

       9 if you are working with NAS, perhaps that

      10 mechanism, to try to figure this out, and maybe

      11 help instruct us in some way that we can perhaps

      12 do some study here or ask Congress to do a study

      13 to find out what the costs are all about.

      14       So I think a case could be made to Congress

      15 to fully fund HAVA, perhaps add more, as time

      16 goes on.

      17             MR. CORTES:  In fact, one, I wanted

      18 to note, for the record, my recommendations came

      19 about as a result of requesting feedback from

      20 our office, our NAS Office. Leslie Reinholtz and

      21 the rest of the staff have a good sense of what

      22 are the pressing needs of all the states.  I did

                                                        83



       1 not want to do this in a vacuum.  I see my

       2 presence here as speaking broader than just

       3 Pennsylvania, but trying to address concerns

       4 that are common, not only to the commonwealth,

       5 but to the other jurisdictions.  And in that

       6 light, the recommendations that I provided here

       7 this morning addressed the broader concerns that

       8 most of the jurisdictions have.  I believe it is

       9 appropriate, and I believe that NAS will be

      10 happy to collaborate and partner with the EAC in

      11 drafting a type of survey that would yield the

      12 information that we believe is necessary to

      13 address the questions, because I get them every

      14 single day.

      15       Two weeks ago, I was sitting before a panel

      16 of somewhat angry state representatives and

      17 senators that grilled me for an hour and 40

      18 minutes, each body, to try to explain my budget,

      19 which the bulk of its elections.  Even though

      20 we're getting a fair amount of dollars from the

      21 Federal Government, everybody wants to know how

      22 do we make up for the difference, understanding

                                                        84



       1 very clearly that our states and our counties,

       2 for that matter, are in a very difficult

       3 financial predicament.  And when you have

       4 competing forces of health and human services,

       5 national security, while it is important, it

       6 seems like we are falling off the top of the

       7 totem pole when it comes to allocation of

       8 dollars.  That is why it is important to have a

       9 better sense, and in all of these things, I am

      10 hoping that it could be anecdotal and/or

      11 empirical data that will give me and other

      12 states a sense of best practices, and what is

      13 working, and what is not working in other

      14 states.

      15       That collective reasoning would be very

      16 helpful, I know, for Pennsylvania.  I believe,

      17 also for the other jurisdictions.

      18       VICE-CHAIRMAN DEGREGORIO:  Thank you.

      19 Tony, having being a member of IACREOT since

      20 1995, I am familiar with you too, and I know

      21 that you have all shared information, best

      22 practices yourself.  You have a booth at your

                                                        85



       1 conferences to do that.

       2       I know you have addressed in your testimony

       3 that you welcome our clearinghouse functions,

       4 that you have used the clearinghouse function of

       5 the OEA prior to the EAC.  How do we address

       6 some of the friends in the local election

       7 community who worry that Mr. Hailes, and his

       8 organization, and folks out there in the

       9 advocacy communities, might see a best practice

      10 or something in our clearinghouse that is a good

      11 idea and put pressure on them saying, how come

      12 you are not doing this in your county, because

      13 here, the EAC's put this up as a idea, but

      14 you're not doing this.  IACREOT folks are good

      15 about taking information, but how do you address

      16 the sensitivity of the local election officials

      17 who feel pressured by something that we feel is

      18 a good idea?

      19             MR. SIRVELLO:  As a former election

      20 official yourself, you probably remember that

      21 what we all do, and many times you can talk to

      22 vendors, talk to advocacy groups.  You can do

                                                        86



       1 whatever you want to do, and as soon as you

       2 finish that conversation, you call someone else,

       3 another local election official, and you say,

       4 are you following this program, and you get

       5 comments from your peers.  And I think that's

       6 what we would do in this particular case through

       7 IACREOT.  We would, on our website which we're

       8 in the process of revising ourselves, perhaps we

       9 could put in our website jurisdictions that have

      10 adopted this type of program, and other members

      11 of IACREOT could contact those election

      12 officials.

      13       I have found most of the election officials

      14 in IACREOT are very, very progressive in their

      15 thinking and able to, you know, adopt whatever

      16 they think is going to make their job of running

      17 elections run smoother and better.  And most of

      18 them are very dedicated to the profession.

      19             VICE-CHAIR DEGREGORIO:  Mr. Hailes, I

      20 don't know if you want to comment on that.

      21             MR. HAILES:  Well, I think we should

      22 emphasize that we attempt, of course, to work

                                                        87



       1 with local election officials before we

       2 challenge them.  We have had some very useful,

       3 practical experiences in sharing information,

       4 and also a willingness to go to bat for local

       5 election officials to get more funding.  We

       6 often say, you may have not for you ask not, but

       7 if you go and say yes, elections are important

       8 and, yes, we need more money to do them

       9 properly, and you have your local NAACP, and

      10 League of Women Voters representatives going

      11 together to push for additional funding, it

      12 could be very successful.

      13             CHAIR HILLMAN:  Commissioner

      14 Martinez.

      15             COMMISSIONER MARTINEZ:  Thank you,

      16 Madam Chair.

      17       I guess I want to start by just a comment.

      18 Picking up on, again, what Commissioner Soaries

      19 said, and also thanking Tony for your testimony,

      20 and we have to be mindful that what works in one

      21 local jurisdiction or even a state jurisdiction

      22 does not mean it is going to work everywhere

                                                        88



       1 else.

       2       I think as Congress passes laws like, as

       3 you pointed out NVRA, and in particular HAVA,

       4 where it reflects a strong consensus,

       5 particularly with HAVA, and overwhelming

       6 bipartisan representation, that at least in

       7 certain areas, uniformity is perhaps prudent, or

       8 a move toward better uniformity is prudent.

       9       A point that you articulate, Commissioner,

      10 here is that it is almost inevitable, given by

      11 the way our society is today as opposed to how

      12 it has been in the past.  So I think it's an

      13 important thing to keep in mind.

      14       We're struggling to not upset the balance

      15 that we have here between state rights and

      16 federal intervention, and what we call

      17 federalism, essentially.  We're very mindful of

      18 that on this end.  We don't want to, by any

      19 means, whether in the national clearinghouse hat

      20 or anything else we're called upon to do under

      21 the statute, that we not upset that balance, and

      22 we consider it seriously on our end.

                                                        89



       1       So I will start with that opening comment,

       2 and I will go to this; the EAC is called upon by

       3 our governing statute to wear a couple different

       4 hats, to act as a clearinghouse, which we have

       5 had a very articulate discussion and very good

       6 perceptive, but also on the other hand, to give

       7 guidance in other sections of our governing

       8 statute on how to implement some of the issues

       9 that you and Secretary Cortes touched upon.  For

      10 example, statewide voter regular databases.

      11       So, Mr. Secretary, what I think I hear you

      12 saying when you touched upon that very issue is

      13 that there is a way for the EAC to perhaps wear

      14 both hats at the same time, and that is, as you

      15 said you anticipate as a secretary, as somebody

      16 trying to implement a statewide voter database,

      17 that the EAC will prudently wear its hat to give

      18 guidance where it can on how to best implement

      19 these mandates, and yet at the same time, to

      20 also give examples of how other states are doing

      21 this, in the form of best practices, to help

      22 inform your decision-making as you are trying to

                                                        90



       1 implement these mandates.

       2       Any thoughts about that particular balance,

       3 Mr. Secretary?

       4             MR. CORTES:  Thank you, Commissioner

       5 Martinez, and you're right.  I have to, however,

       6 qualify my statements to know that in this case,

       7 specific to your question of the roles as a

       8 clearinghouse as well as providing guidance, I

       9 have to qualify my answer by saying, now I'm

      10 going to speak on my personal capacity for

      11 Pennsylvania, because I understand it is very

      12 difficult, as you have pointed out, to reconcile

      13 state rights versus federalism.

      14       Many of our colleagues, rightly so, are

      15 concerned about the role of the EAC and the

      16 possibility, slim as it appears right now, that

      17 that clearinghouse function moves into guidance,

      18 and that moves into something else,

      19 decision-making authority, that eventually

      20 touches a core with some states that feel very

      21 strongly about state rights, but however, in my

      22 personal capacity, representing Pennsylvania, I

                                                        91



       1 believe that it would be very helpful to me.  I

       2 don't hide behind state, federal statutes, to

       3 answer the concerns of the advocacy groups or

       4 legislature saying, well, I am being pushed to

       5 do so this way, so it is what is it, I don't do

       6 it that way.  I seek guidance of the proper

       7 meaning of that word.  I am learning.  State and

       8 local officials are learning to implement new

       9 requirements that have come about as a result of

      10 NVRA or the Help America Vote Act.

      11       All of us are acting in good faith.  When I

      12 say all of us, state and local officials, but we

      13 don't have all the answers.  And, obviously,

      14 none of us do.

      15       I would welcome additional information

      16 about the state registry because I get these

      17 questions anyhow from, again, whether it is the

      18 press, legislators, and they want to know how do

      19 we compare to other states.  And you do that

      20 with the understanding that we're guided by

      21 different statutes, state statutes, and

      22 constitutions.  But to put it in a nutshell, I

                                                        92



       1 would welcome, and I guess to venture to say

       2 that some of my colleagues, most of my

       3 colleagues, would welcome working with the EAC,

       4 not only in the clearinghouse capacity, but

       5 providing guidance as an extension of the

       6 clearinghouse.

       7             COMMISSIONER MARTINEZ:  I think that

       8 actually captures my position as well.  That's

       9 really what I saw in your testimony, and that is

      10 a way to capture this responsibility in a way

      11 that is also under the hat that we have to wear

      12 as offering guidance.

      13       And I would also suggest that we can wear

      14 both of those hats.  I am speaking in my

      15 individual capacity as well, and not for my

      16 colleagues.  I am speaking as one Commissioner.

      17 There is a way that we can wear these hats and

      18 truly not offend the notion that state and local

      19 governments are traditional, and should continue

      20 to be, by and large, the entity that administers

      21 our elections, both federal, state, and local

      22 elections.  And that is an tradition that we

                                                        93



       1 have embraced, and I don't see anything in HAVA

       2 that tries to upset that particular delicate

       3 balance, quite frankly.

       4       I think there is a way, in working

       5 together, for this Commission to wear its hats

       6 as giving guidance and as a national

       7 clearinghouse, and not offend that traditional

       8 balance that I think we all embrace, quite

       9 frankly.

      10       Tony, any thought, from a local

      11 perspective, on the issue of the two hats that

      12 this Commission has to wear?  Because on the one

      13 hand, under Title III of HAVA, it says, give

      14 guidance, and on the other, it says, serve as a

      15 national clearinghouse.

      16             MR. SIRVELLO:  I agree with what the

      17 secretary said.  I think most of the members of

      18 my organization, and all of the local election

      19 officials, we look at the Commission as

      20 something new.  We have never had a federal

      21 agency, and I think most of our local election

      22 officials look at you all as partners to us in

                                                        94



       1 trying to help us reach some type of uniformity.

       2       I know at your presentation at our

       3 conference in San Antonio last year, we had one

       4 of the largest turn-outs we have ever had for

       5 one of our seminars.  We had members in there

       6 who have nothing to do with elections because

       7 they are interested in what you have to say.

       8       I don't think any of us look at you as the

       9 big, bad wolfe.  I think it is very possible

      10 that you can come up with these recommendations.

      11 I know some of other members have adopted the

      12 best practices.  I see this as an ongoing,

      13 working relationship that can only prosper.

      14             COMMISSIONER MARTINEZ:  One quick

      15 comment.  From my perspective, what the

      16 Commission puts out for best practices, it is

      17 intended, at least from my perspective, not just

      18 for our partners that traditionally would be the

      19 election administrators and state and local

      20 officials but, also encompasses advocacy

      21 organizations, community-based organizations,

      22 civil rights, voting rights organizations.  That

                                                        95



       1 is a useful tool, from your perspective, to go

       2 out there and take a look.  It entails a

       3 reasonable and prudent approach on the part of

       4 the advocacy group and not say I'm going to hold

       5 every jurisdiction accountable in the same way,

       6 in the same manner, because not everything plays

       7 across from one jurisdiction to the other.  You

       8 have to use that information in a prudent

       9 manner, but it is helpful in that perspective as

      10 well.

      11       Any quick comment?

      12             MR. HAILES:  Just from a personal

      13 experience, I formerly was employed as a general

      14 counsel for a federal agency that had a

      15 clearinghouse function.  It was not a regulatory

      16 agency.  And I realize how helpful this

      17 particular Commission was in providing useful

      18 reports.  And as long as the Commission remains

      19 credible and sensitive to the balance that you

      20 pointed out earlier, the Commission can be

      21 extremely helpful to both advocacy groups and to

      22 officials.  And I would recommend that you

                                                        96



       1 continue to think about how helpful the

       2 Commission can be to voters and the groups that

       3 represent their interests.

       4             CHAIR HILLMAN:  Secretary Cortes, in

       5 the construct of the clearinghouse, one thing I

       6 would like to do is anticipate any consequences,

       7 favorable or unintended.  And I am just

       8 wondering if you can think of anything about the

       9 clearinghouse function that could interfere or

      10 get in the way of the communication between the

      11 state election officials and the local election

      12 officials?

      13             MR. CORTES:  As an attorney, I guess

      14 I am always guided by providing disclaimers to

      15 anything that I do, but I'll answer your

      16 question in a broader context.

      17             COMMISSIONER MARTINEZ:  They're used

      18 to it.  They do it all the time.

      19             MR. CORTES:  Chair Hillman, your

      20 question is one that is good, and I will expand,

      21 if you allow me the answer to include in that,

      22 how do we maintain a delicate balance and

                                                        97



       1 relationship between the state and local

       2 occasions, but the state, local and advocacy

       3 groups.

       4       One point that Commissioner Martinez

       5 alluded to was the fact that it is difficult to

       6 reconcile practices throughout the nation

       7 because we're guided by different states

       8 statutes.  Yes, there are some federal statutes

       9 that we can argue, very strongly, trump

      10 everything else, and therefore, the NVRA or HAVA

      11 tells you to do something, and this is the only

      12 way to do so.

      13       The challenge to what we do, and this is

      14 why I brought the subject of the disclaimers, is

      15 to try to create some reasonable expectations

      16 and do reality information to what the

      17 information is expected to do.  I am personally

      18 troubled by the notion of the voluntary voting

      19 systems guidelines.

      20       Voluntary throws me off big time, and I

      21 know you are following what the statute said,

      22 but it is hard for me to go to the taxpayers and

                                                        98



       1 local election officials, and say, these are

       2 just voluntary.  You may or may not do them.

       3 And that puts everyone in a position where I

       4 don't think we will ever get to the pains of

       5 Mr. Hails where you are going to be hold

       6 everybody to the same guidelines because someone

       7 may.to use them and others don't.

       8       I don't have a good answer, Madam Chair,

       9 for your question other than to say that, like

      10 you, I like to anticipate what may be the

      11 possible outcomes and ramifications of my

      12 actions.  I think that these guidelines in the

      13 best practices, what is not working has to be

      14 presented with proper background information to

      15 that says, listen, particularly for the advocacy

      16 groups, don't go on Pennsylvania and sue them

      17 left and right because they are not doing things

      18 like Idaho.  And I think that we strike a fair

      19 balance between the groups, but that's my one

      20 observation.

      21       Quite frankly, I don't have the answer but

      22 what I am thinking is that if we all part from

                                                        99



       1 the premise that may we're all trying to do the

       2 best we can, we're trier to enfranchise as many

       3 people as possible, I hope that we'll be able to

       4 see eye to eye more on some of these issues.

       5       Some people would argue it is an

       6 impossibility because of human nature.  I don't

       7 know if I answered your question, Chair.  I gave

       8 you some general thoughts that I think,

       9 hopefully, verbalize the complexity of what

      10 you're asking, and what you try to do.  I

      11 understand, and I appreciate it.

      12             CHAIR HILLMAN:  Just by talking about

      13 the complexity of it, you did answer my

      14 question, to acknowledge that it's not going to

      15 be an easy task to put together a clearinghouse

      16 that everybody will see as a useful resource

      17 versus see it as either something that they must

      18 do, must follow.

      19       As you said, it is voluntary.  In some

      20 instances, I have heard if only the voluntary

      21 wasn't there, then the states could get more

      22 done because they would say, we have to do this

                                                       100



       1 with respect to dialogue with their own

       2 legislature.  So therein lies a big challenge

       3 Tony.  This is just for my information.

       4       You referred in your remarks to the super

       5 site polling location.  Could you explain to me

       6 what is a super site polling location?  We super

       7 size it.

       8             MR. SIRVELLO:  I first heard about it

       9 in a meeting of the Florida Supervisor of

      10 Elections, and I think the gentleman that is

      11 actually advocating it is from Fort Collins,

      12 Colorado.  So I am sure Secretary Davidson would

      13 probably know more about this than I do, but the

      14 object behind it is to shrink polling places in

      15 number of sizes, but increase the number of

      16 voters who can go to this super site, thereby,

      17 obviously, making it easier to get polling

      18 officials on election day saving money, etc,

      19 etc.

      20       But as I said in my presentation, those

      21 states likes Texas that are covered by Section V

      22 of the Voting Rights Act, the Justice Department

                                                       101



       1 might have a problem with asking a minority

       2 voter who now drives three miles to a polling

       3 site to go to a place that is now 15 miles away,

       4 but it is one of the hot issues in the election

       5 world that is being discussed today.

       6       I know there's already been a bill

       7 introduced in the Texas Legislature to talk

       8 about it.  And, like I said, it's kind of like

       9 the topic dejour right now.

      10             CHAIR HILLMAN:  Okay.  Thank you.  I

      11 have a question for Mr. Hailes, and then I'm

      12 going to ask Tony if you would also respond

      13 after he does, because it ties into a comment

      14 you just made about what appears to be a good

      15 idea might put a burden on a segment of the

      16 voting population.

      17       My question goes to how the advocacy

      18 groups, and I use that term generously.  When

      19 people hear generously, they think left of left

      20 or right of right.  I'm talking about the full

      21 spectrum.  All the groups that care about

      22 citizen and civic participation and get

                                                       102



       1 involved, in some fashion at any time of the

       2 year, to encourage people to accept their

       3 citizenship responsibilities to be registered

       4 and to vote, but the dialogue between the groups

       5 and the election officials, particularly at the

       6 local level, seems to be uneven.  And,

       7 obviously, there is a lot of attention to it in

       8 a presidential election year or in a state

       9 that's got a hot governor's race, or a hot

      10 mayoral race.  That's not to discount hot local

      11 races in some small townships that are equally

      12 as important, but some groups are there all the

      13 time.

      14       There is a fixed chapter of the NAACP or

      15 local League of Women Voters, or Urban League in

      16 a particular place.  So there is an opportunity

      17 for ongoing dialogue all the time with the

      18 election officials about changes in new ideas.

      19       I think the burden is on both parties to

      20 open up and maintain dialogue, not just on the

      21 groups to go search something out, but on the

      22 election officials to do regular meetings or

                                                       103



       1 whatever communication vehicles might be

       2 necessary, but then some groups that organize

       3 around the time of the election just for the

       4 purpose of that election.

       5       So when you talked about groups being able

       6 to get information to understand what the voting

       7 procedure is in that town, what is law, what is

       8 just a procedure, what can be changed without

       9 changing the law, so on and so forth, my

      10 question is how do the groups that work on these

      11 issues year round, year after year, how is there

      12 able to be dialogue between those groups that

      13 are here just for an election cycle and gone, so

      14 there isn't the type of confusion that we saw in

      15 2004 with respect to whether or not voter

      16 registration forms were filled out properly, and

      17 who took the responsibility for the delivery of

      18 thousands and thousands of voter applications on

      19 deadline day, a disservice to the people who

      20 believed they were being registered to vote, not

      21 even to address the issue of the potential for

      22 fraud.  And it's something that bothers me a

                                                       104



       1 lot, because unless both parties have an

       2 understanding of what the other needs to

       3 achieve, communication breakdown is always the

       4 cause of problems.

       5             MR. HAILES:  I certainly agree, and I

       6 think one of the great examples, and there are

       7 several, but one great example of an ongoing

       8 effort in dialogue among groups and election

       9 officials is in Miami, Dade County.

      10       The Miami, Dade Election Reform Coalition,

      11 which actually has a website, actually meets

      12 regularly among themselves.  And it is a

      13 relatively inclusive coalition that looks at

      14 specific issues affecting each group, and they

      15 work together to figure out what's going wrong,

      16 and what could be better.  And then they meet

      17 with election officials and talk about the

      18 discussions they have.  They have been very,

      19 very successful in reaching understandings with

      20 election officials about how best to serve the

      21 best interests of as many eligible voters as

      22 possible.  And I think that's just one great

                                                       105



       1 example that I would commend this Commission to

       2 look into even more.

       3             CHAIR HILLMAN:  Okay.  On the issues

       4 of our materials being useful to the advocacy

       5 groups, if we fall down on that, let us know.

       6       One of the things that I found, I thought

       7 we would hear more from advocacy groups about

       8 the various things we were doing, and I was,

       9 quite frankly, surprised.  That either means we

      10 were doing things to your satisfaction, or we

      11 were doing things so badly that you didn't want

      12 to take the time to comment, not you, the

      13 groups, but I was surprised at how little we

      14 heard from groups, even to send us copies of

      15 their materials and reports to let us know

      16 things that were going on.

      17             MR. HAILES:  Well, over and over

      18 today, I have heard people talk how new the

      19 Commission is.  I did not, as my colleagues on

      20 the panel, relied only on my personal beliefs in

      21 coming to this hearing, but we did contact

      22 groups in the field who just simply didn't have

                                                       106



       1 an understanding of who the Commission is, what

       2 it does, and what is expected.

       3       And so I think it will take some time

       4 before people will really look to the EAC for

       5 information, and then you will start to get the

       6 responses, both critical and supportive, that

       7 will make your jobs even better.

       8             CHAIR HILLMAN:  As they say, be

       9 careful what I ask for.

      10             MR. HAILES:  That's right.

      11             CHAIR HILLMAN:  Tony, if you could

      12 just comment on the issue of the dialogue

      13 between election administrators and the advocacy

      14 and voting groups, particularly those that don't

      15 exist in the community.

      16             MR. SIRVELLO:  I found during my time

      17 as a local election official that it was better

      18 to be pro active instead of reactive.  For

      19 instance, when we put out an RP about our voting

      20 system in Harris County, we had a 37-member task

      21 force.  We invited a member of every group that

      22 had anything to do with elections, and

                                                       107



       1 therefore, it gave credibility to the process.

       2       As far as the groups that come up at the

       3 last minute, if you don't know about them, there

       4 is really nothing you can do to plan for them,

       5 but if you have done your homework and you have

       6 touched base with the groups that are there all

       7 the time, then I think whatever confusion they

       8 might cause would probably dissipate, except for

       9 the fact that the media always likes the bad

      10 news more than they look the good news.

      11       I want to make one comment.  We were

      12 talking about getting some kind of uniformity in

      13 the law.  During my time also as a local

      14 election official, I found out that there is one

      15 problem with getting election legislation

      16 passed, and that is generally because the people

      17 that are passing it have just been elected by

      18 the prior law, and they are very reluctant to

      19 change anything that might affect their

      20 election.

      21       It is a careful path you have to take to

      22 get it through.

                                                       108



       1             CHAIR HILLMAN:  Point well taken.

       2 Thank you.

       3       I want to thank the panelists, very much,

       4 for accepting our invitation, for being here,

       5 and sharing your words of wisdom.  Thank you,

       6 very much.

       7       Commissioners, let me just remind you that

       8 our April meeting will be held on April 26th,

       9 and we will meet in Boston.  And in the

      10 afternoon, we'll have a hearing also in Boston,

      11 and we'll be discussing the development of

      12 guidance on the statewide voter registration

      13 database.

      14       Are there any comments before we close the

      15 meeting?  If not, a motion to adjourn is in

      16 order.

      17             COMMISSIONER MARTINEZ:  So moved.

      18             COMMISSIONER SOARIES:  Second.

      19             CHAIR HILLMAN:  Thank you.

      20       (Whereupon at approximately 12:00 o'clock,

      21       p.m., the above proceedings was adjourned)

      22       *         *         *         *         *


                                                       109



        1

        2                   CERTIFICATE OF COURT REPORTER

        3

        4           I, Jackie Smith, court reporter in and for the 

        5  District of Columbia, before whom the foregoing meeting was

        6  taken, do hereby certify that the meeting was taken by me in 

        7  shorthand at the time and place mentioned in the caption 

        8  hereof and thereafter transcribed by me; that said transcript

        9  is a true record of the meeting; that I am neither counsel

       10  for, elated to, nor employed by any of the parties to the

       11  action in which this meeting was taken.

       12

       13                            _______________________________

       14                              JACKIE SMITH,

       15                              Court Reporter in and for

       16                              The District of Columbia

       17

       18

       19

       20

       21

       22
=