brennan center for justice

• Mandatory reporting by vendors is required only if the EAC-certified system “malfunctioned”during a federal election. Thus, if a vendor becomes aware of a problem that occurred whenthere were no federal candidates on the ballot, it is apparently under no obligation to reportthe problem to the EAC.• Reporting under this system is limited to vendors and election officials for a very specific type ofproblem. For instance, it is not clear that manufacturers would have to report potential flaws theydiscover before they result in actual loss of votes on Election Day, or “merely” because they causedelay and long lines rather than a loss of data.• Independent investigators and voters with credible reports, no matter how numerous or serious,are not entitled to report problems.• Even where county election officials voluntarily provide anomaly reports (exposing themselvesto potentially unhappy vendors, as discussed on pages 25 - 26), the EAC is not requiredto provide this information to other users of such systems unless various criteria are met,including verification from “the relevant State’s chief election official.” 28• Some election officials have complained that neither the EAC nor the vendors are required tonotify election officials immediately upon learning of a malfunction. Douglas A. Kellner, co-chairof the New York State Board of Elections, in a letter to the EAC praising them for issuing theirfirst Voting System Technical Advisory last June, noted that it came two months after the EACwas first notified of the problem and urged “the EAC to put in place a system that would allow animmediate preliminary notice to be distributed to all jurisdictions using the equipment involvedas soon as EAC staff has been able to verify a report.” 29For these and other reasons, most state and local election officials we interviewed tell us that they must still relyalmost exclusively on the voting system vendors for information about malfunctions, defects, vulnerabilitiesand other problems that the vendors have discovered, or that have occurred with their voting systems in otherstates. Vendors are frequently under no legal obligation to provide such information. While purchase orservice contracts sometimes bind election officials to inform vendors of malfunctions, vendors are not alwayssimilarly obligated to inform officials of problems reported to them. 30 As Jane Platten put it, “One of themore frustrating aspects of encountering problems [with voting systems], often while preparing and testingfor elections as well as on election day or during tabulation, is that the vendors themselves often know aboutthe problems and never disclose any details whatsoever prior to the moment of crisis.” 31Of course, vendors do frequently notify election officials of problems when they occur, and often providesoftware patches or other procedural safeguards to ensure that such problems do not occur in the future.Unfortunately, in at least some instances, vendors have appeared slow to acknowledge such problems. 32More to the point, there is no centralized location where election officials can find information about anomalies,malfunctions, usability concerns, 33 and other problems discovered with systems they are currently usingbefore each election. A change in election administrators can sometimes mean a loss of knowledge about allof the potential problems with a voting system as well as procedural safeguards necessary to prevent thoseproblems. 34The result, as this report demonstrates, is that all too frequently the same failures in the same votingsystems occur in one jurisdiction or another, election after election. Often, these malfunctions – andtheir consequence, disenfranchisement – would have been avoided had election officials and/or publicadvocates known about previously encountered problems and had an opportunity to fix them.Brennan Center for Justice | 9