brennan center for justice
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or potential vulnerabilities by any person, including, among others, machine vendors, election officials,and voters. Vendor reporting of such problems should be mandatory. Reporting from others shouldbe permissive. Additionally, while voters, election officials, and others should be able to simply uploadtheir reports to the database via the Internet (subject to review by the appropriate agency), vendors wouldbe required to both upload the reports to the database via the Internet and send the reports to theappropriate government agency via certified mail.As already discussed (supra p. 25), given their ongoing reliance on voting system vendors to repair andservice their systems, election officials should have the option of filing reports confidentially, meaningthey can request no individuals except other election officials know their identity. This would encouragemore honest and timely reporting by those most likely to observe voting system malfunctions.a searchable, central database could“serve as a repository to let me knowwhat issues exist with the machine,rather than having to rely on whatSimilarly, it makes sense to provide whistleblowersworking for voting machine companies and/or stateand local governments with the option of requestingthat personal information be kept confidential. Toensure confidentiality, Congress would probablyhave to provide a FOIA exemption for reports filedby election officials. 201the vendors spoon-feed me.”A searchable database would have benefits beyondthe issuance of “advisories” to customers upon arokey suleman, executive director of problem’s discovery. In part because of high turnoveramong election officials, such advisories can get lostthe district of columbia’s board offrom election to election (see, e.g., the Humboldtelections and ethicsCounty, California case study discussed supra pp.12 - 13). Moreover, officials looking to purchase ordeploy new systems will not necessarily have easyaccess to advisories issued by a vendor or the EAC (in the case of EAC certified systems) in the recentor distant past. By making it simple for election officials and the public to search for problems andworkarounds associated with voting systems at any time, a well designed database could increase thelikelihood that jurisdictions looking to use new machines would learn about potential problems beforepurchase or use.A. Provision DetailsA bill or new regulations addressing this issue should set specific requirements for reports, including:(1) a description of the make and model of the voting machine involved; 202 (2) the jurisdiction(s) inwhich the machine is being used, if applicable; (3) a description of the nature of the problem or concernwith the machine; (4) the date of the discovery of the problem or concern; (5) the name and contactinformation for the person submitting the report; (6) a verification by the person submitting the reportthat the information submitted is true and accurate and that the person consents to such informationbeing included in the database; (7) versions of hardware, software, and firmware affected; and (8) anysuggested workarounds and fixes, or instructions for how to retrieve this information when it becomesavailable.28 | Brennan Center for Justice
Regulations should stipulate that the database be searchable by: (1) the date of discovery of the problemwith the voting machine; (2) the make and model of the voting machine involved; (3) the nature of theproblem with the machine; (4) the jurisdiction in which a system is used; and (5) such other categoriesas the appropriate government agency deems necessary. Additionally, we propose that the legislationor regulatory framework include a provision that prohibits the appropriate government agency fromdisclosing to anyone other than an election official the contact information of an election official, voter,or vendor employee who submits a report to the database without the express written consent of theperson submitting this information. 203The database should also be searchable by and distinguish among reports submitted by (1) electionofficials, acting in their official capacities on behalf of their governmental units; (2) vendors; and (3)all other submitters, including voters, whistleblowers and anyone else. Voters, election officials, andvendors are likely to discover very different issues with voting systems, and their reports are likely tocarry different weights with different audiences. This division should particularly help election officials,voting rights groups, and any agency investigating potential problems.Finally, the agency responsible for creating and maintaining the database should probably be givensome ability and responsibility to review reports before they are posted, to ensure that on their face theybelong on the database. Allowing anyone to report anything without a filter could allow individuals tooverload the database with useless or irrelevant reports, resulting in an essentially useless database. 204B. Responsible AgencyThe EAC could construct and maintain the database. The EAC is already in the business of establishing“voluntary” guidelines to which new voting systems are tested. Section 202 of HAVA gives the EACthe responsibility of serving as a “national clearinghouse and resource for the compilation and reviewof information” related to the administration of elections. And, as already discussed (supra pp. 8 - 9)the agency collects anomaly reports provided by vendors and election officials for the few systems it hascertified. The EAC does not currently list the data it receives from vendors and election officials in thekind of searchable database that other agencies use, and that we believe would be most useful to electionofficials, but there is no reason it could not do so in the future (in fact, this may be largely addressedwith the adoption of a new clearinghouse policy in the near future).More problematically, the EAC has taken the position that its powers to facilitate the understandingand resolution of problems with non-EAC certified voting equipment is extremely limited, absentexplicit Congressional authority that does not currently exist. 205 As the vast majority of machinescurrently in use in the United States have not been certified by the EAC, 206 this could represent aserious impediment to the creation of a database under the auspices of the EAC, absent a clarificationfrom the EAC or Congress. As the Government Accountability Office has noted, if Congress explicitlyexpands the EAC’s powers in this regard, it should also consider providing the EAC with the additionalresources necessary to take on this additional work. 207 The EAC’s Voting System Testing and CertificationProgram currently employs only five staff members. 208Alternatively, the Comptroller General and the GAO could assume responsibility for the database.The GAO has a strong reputation of competence and impartiality, and it has a well-established trackrecord for acquiring and publicizing information. 209 It has also already done a considerable amount ofwork related to HAVA and voting machines, 210 and has in fact noted the void that currently exists inidentifying and resolving problems with non-EAC-certified voting systems, in particular. 211Brennan Center for Justice | 29
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or potential vulnerabilities by any person, including, among others, machine vendors, election officials,and voters. Vendor reporting of such problems should be mandatory. Reporting from others shouldbe permissive. Additionally, while voters, election officials, and others should be able to simply uploadtheir reports to the database via the Internet (subject to review by the appropriate agency), vendors wouldbe required to both upload the reports to the database via the Internet and send the reports to theappropriate government agency via certified mail.As already discussed (supra p. 25), given their ongoing reliance on voting system vendors to repair andservice their systems, election officials should have the option of filing reports confidentially, meaningthey can request no individuals except other election officials know their identity. This would encouragemore honest and timely reporting by those most likely to observe voting system malfunctions.a searchable, central database could“serve as a repository to let me knowwhat issues exist with the machine,rather than having to rely on whatSimilarly, it makes sense to provide whistleblowersworking <strong>for</strong> voting machine companies and/or stateand local governments with the option of requestingthat personal in<strong>for</strong>mation be kept confidential. Toensure confidentiality, Congress would probablyhave to provide a FOIA exemption <strong>for</strong> reports filedby election officials. 201the vendors spoon-feed me.”A searchable database would have benefits beyondthe issuance of “advisories” to customers upon arokey suleman, executive director of problem’s discovery. In part because of high turnoveramong election officials, such advisories can get lostthe district of columbia’s board offrom election to election (see, e.g., the Humboldtelections and ethicsCounty, Cali<strong>for</strong>nia case study discussed supra pp.12 - 13). Moreover, officials looking to purchase ordeploy new systems will not necessarily have easyaccess to advisories issued by a vendor or the EAC (in the case of EAC certified systems) in the recentor distant past. By making it simple <strong>for</strong> election officials and the public to search <strong>for</strong> problems andworkarounds associated with voting systems at any time, a well designed database could increase thelikelihood that jurisdictions looking to use new machines would learn about potential problems be<strong>for</strong>epurchase or use.A. Provision DetailsA bill or new regulations addressing this issue should set specific requirements <strong>for</strong> reports, including:(1) a description of the make and model of the voting machine involved; 202 (2) the jurisdiction(s) inwhich the machine is being used, if applicable; (3) a description of the nature of the problem or concernwith the machine; (4) the date of the discovery of the problem or concern; (5) the name and contactin<strong>for</strong>mation <strong>for</strong> the person submitting the report; (6) a verification by the person submitting the reportthat the in<strong>for</strong>mation submitted is true and accurate and that the person consents to such in<strong>for</strong>mationbeing included in the database; (7) versions of hardware, software, and firmware affected; and (8) anysuggested workarounds and fixes, or instructions <strong>for</strong> how to retrieve this in<strong>for</strong>mation when it becomesavailable.28 | Brennan Center <strong>for</strong> Justice