1

UNITED STATES ELECTION ASSISTANCE COMMISSION

PUBLIC MEETING

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TUESDAY, AUGUST 23, 2005 - 1:00 P.M.

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THE ADAM'S MARK HOTEL

DENVER, COLORADO

1 CHAIR HILLMAN: Okay, this hearing of the

2 United States Election Commission will come to

3 order. Before we begin, just a couple of

4 announcements, may I ask everybody to make sure

5 that your phones, pagers, and all other electronic

6 devices are either turned off or silenced, so as

7 not to disrupt the proceedings. This meeting is

8 scheduled to run from 1:00 to 5:00 p.m. There will

9 be three panels and it will end with a 30 minute

10 period, in which various individuals have signed up

11 to do short testimonies. Please stand and join me

12 in the Pledge of Allegiance.

13 ALL: I pledge allegiance to the flag of

14 the United States of America, and to the Republic

15 for which it stands, one Nation, under God,

16 individual, with liberty and justice for all.

17 CHAIR HILLMAN: If we could have a roll

18 call, please?

19 MS. THOMPSON: Thank you, Madame Chair.

20 Commissioners, please answer by saying present or

21 here when I call your name. Gracia Hillman, Chair?

22 CHAIR HILLMAN: Here.

23 MS. THOMPSON: Paul Degregorio, Vice-

24 Chairman?

25 MR. DEGREGORIO: Here.

1 MS. THOMPSON: Ray Martinez,

2 Commissioner?

3 MR. MARTINEZ: Here.

4 MS. THOMPSON: Donetta Davidson,

5 Commissioner?

6 MS. DAVIDSON: Here.

7 MS. THOMPSON: Madame Chair, that is four

8 members present.

9 CHAIR HILLMAN: Thank you. We have

10 before us the agenda for today's hearing. Are

11 there any changes to the agenda? If not, it would

12 be appropriate to adopt the agenda.

13 MS. DAVIDSON: So moved.

14 MR. MARTINEZ: Second.

15 CHAIR HILLMAN: All in favor?

16 MS. DAVIDSON: I.

17 MR. MARTINEZ: I.

18 MR. DEGREGORIO: I.

19 CHAIR HILLMAN: Okay. Presentations on

20 proposed Voluntary Voting System Guidelines, that

21 is the subject of today's hearing. This is the

22 third of three hearings that the Election

23 Assistance Commission is holding on the proposed

24 Guidelines. The Guidelines were posted for public

25 comment on or about the 29th of June. They will be

1 available for public comment for a 90 day period,

2 which means the end of the comment period is about

3 September 30. In addition to the comments that we

4 have received via e-mail, and fax, and other

5 mechanisms to our offices, we are receiving

6 testimony from individuals who we have invited to

7 present for us, or individuals who have signed up

8 for the public comment period. All of it provides

9 invaluable information and insight into the work

10 that we are doing. This is, of course, the first

11 time that the Election Assistance Commission will

12 be issuing Voluntary Voting System Guidelines under

13 its authority, as mandated by the Help America Vote

14 Act. This is a process that we take very

15 seriously. It's a huge task. It's an enormous

16 responsibility, but a very important one. And

17 while many of the issues that we address are very

18 technical in nature, this also speaks to the

19 essence of the confidence that the voters have in

20 the voting systems that they use when they go to

21 the polls to vote on election day. And so, without

22 further comment, unless there are any opening

23 remarks from Commissioners -- no? We will get into

24 the panel. Our first panel, local election

25 officials, and in the order that they will present,

1 we have Bob Terwilliger?

2 MR. TERWILLIGER: That's right.

3 CHAIR HILLMAN: Terwilliger, I'm going to

4 keep saying that and it's going to roll right up --

5 who is Auditor Snohomish [phonetic], am I doing

6 that right?

7 MR. TERWILLIGER: Um-hmm.

8 CHAIR HILLMAN: That is such a challenge,

9 I love it -- Snohomish County, Washington. Also

10 with us is Lance Grough, Executive Director of the

11 Chicago Board of Elections, and Russ Ragsdale,

12 Clerk and Recorder, City and County of Broomfield.

13 That means the City is Broomfield and the county is

14 Broomfield?

15 MR. GROUGH: Yes, ma'am.

16 CHAIR HILLMAN: That's great, terrific.

17 Thank you very much for accepting the invitation to

18 be here. And we will begin, I understand that we

19 each have written testimony from the three of you,

20 so we do have that to refer to. And we ask that

21 you take up to about seven minutes to just do a

22 review and overview of your testimony, and then we

23 will have questions to follow that. Thank you.

24 MR. TERWILLIGER: Thank you, Madame

25 Chair. I appreciate the opportunity to be here

1 today. My name is Bob Terwilliger. I am currently

2 the elected Snohomish County auditor from the State

3 of Washington. I've been the elected auditor since

4 1993, and for ten years before that I was Chief

5 Deputy Auditor. In addition, I have a law degree

6 and served three years in the Snohomish County

7 Prosecuting Attorney's Office, as a Deputy

8 Prosecuting Attorney, advising the County Auditor's

9 Office on legal matters related to Election Law.

10 I'm also a member of the EAC Standards Board, so

11 I've been directly and indirectly in the elections

12 and voter registration business for over 25 years.

13 It's clear that since the presidential elections of

14 2000 and 2004, and in the State of Washington since

15 the governor's race in 2004, the public in general

16 and various interest groups, specifically, have

17 become interested, energized, and involved in all

18 aspects of election and voter registration

19 processes. This, I believe, is long overdue and is

20 good in healthy turn of events. Nowhere is this

21 interest more prevalent than in and around the

22 concern for how election tabulation software and

23 hardware is developed, manufactured, tested, and

24 deployed, and used in the process of counting

25 ballots. This series of events involves vendors,

1 election officials, testing authorities, and the

2 public. The purpose of my comments today is to

3 offer my impression of the draft Voting System

4 Guidelines, volume one. My comments are limited to

5 two through six. The sections dealing with issues

6 outlined in seven through nine are the [inaudible]

7 well founded in the concepts and precepts of

8 computers, and the associated technology,

9 performance standards, and testing standards which

10 is well beyond my expertise. In general, I believe

11 the standards set forth in sections two through six

12 follow common sense precepts that, to a large

13 degree, are already followed by elections officials

14 around the country. As you have experts here to

15 talk about the accessibility issues for the

16 disabled, my only comment on those sections is that

17 the level of specificity and the breadth of

18 populations intended to be served by those

19 standards will all add additional costs. For many

20 jurisdictions, even with the HAVA money, the cost

21 implications are overwhelming, and certainly will

22 be so once the HAVA money is gone. Therefore, it is

23 critical that the mandatory requirements for voters

24 with disabilities be limited to serve the largest

25 numbers of a disabled community is possible, while

1 at the same time recognizing that not every single

2 disability can be accommodated in a polling place

3 environment. As a county that converted its

4 polling placing environment from one of optical

5 scan central count to electronic DRE central count

6 in 2002, I am especially interested in the sections

7 dealing with electronic voting. In our county,

8 650,000 population, 359,000 registered voters,

9 220,000 who vote by mail, we have deployed

10 electronic voting without any major mishaps. We do

11 not use any wireless communication mode. We do not

12 transmit any data via the internet. We have a

13 stand alone, central count, ballot tabulation

14 environment. We count all ballots centrally. We

15 employ parallel monitoring for all elections. We

16 calculate pre-logic and accuracy test to all

17 machines to be deployed in any given election. And

18 we also conduct a logic and accuracy test,

19 supervised by the Secretary of State's office,

20 three days before the election, and again on

21 election day before we count ballots. And finally,

22 we conduct a post-election logic and accuracy test

23 on all machines used in the election. We understand

24 the need to demonstrate the trustworthiness of

25 votes cast on electronic voting machines. One area

1 over which counties, and to a large degree, the

2 state election offices as well have had to rely on

3 has been the area of testing the hardware and

4 software by independent testing laboratories. The

5 requirements for more rigorous testing for hardware

6 and software is set forth in sections three and

7 four are, in my opinion, are long overdue. My only

8 suggestion would be to move rapidly to certify more

9 independent testing authorities, and to require

10 their process of testing be open to the public so

11 trust can be built wit the public regarding the

12 testing process. For example, if there was

13 sufficient testing authorities certified on a

14 regional basis, then those interested members of

15 the public, or interest groups in a region, could

16 attend the testing process to ensure that the

17 standards, as adopted by the EAC are being adhered

18 to on a regular basis. More openness about the

19 testing of the source code, while at the same time

20 protecting proprietary interests of the vendors is

21 a good thing. Also, the records of the software and

22 hardware that have been tested and certified must

23 always be current, and what is being used in the

24 local jurisdictions must always correspond to what

25 has been tested and certified. Section five talks

1 about telecommunication issues and protocols, which

2 again are beyond my expertise. Finally, I would

3 like to make some comments on section six, which

4 deals with the standards for electronic voting. In

5 order for the independent dual verification systems

6 to be useful, the standards for this option must be

7 developed quickly and hopefully economically as

8 well. Being a county that has electronic voting at

9 the polls, and also being from a state that has

10 required voter verified paper audit trails,

11 effective January 1, 2006, my county is faced with

12 spending $1 million to comply with this

13 requirement. If other jurisdictions can benefit

14 from the quick development of independent dual

15 verification systems at a reasonable cost, then the

16 two major issues surrounding electronic voting, as

17 stated in the draft, Voluntary Voting System

18 Guidelines, which are whether electronic voting

19 systems are accurately recording ballot choices,

20 and whether the ballot record contents can be

21 audited precisely, post election, may be resolved

22 without resorting to the expense of alternative of

23 voter verified paper audit trails. The requirement

24 for voter verified paper audit trails that various

25 states, including Washington, have passed, may well

1 complicate the polling place environment without

2 any real proof that the two major audit issues for

3 electronic voting have been met. I am convinced

4 that the process we have in place in Snohomish

5 County for programming, testing, deploying, and

6 auditing of the electronic voting machines, coupled

7 with the enhanced and more rigorous testing

8 standards than the draft Voluntary Voting System

9 Guidelines for software and hardware are sufficient

10 to demonstrate that electronic voting machines are

11 accurate and trustworthy. The voluntary, excuse

12 me, the voter verified paper audit trail solution

13 for the independent dual verification systems need

14 to be both available at a cost within reach of

15 local election jurisdictions and in a manner

16 transparent to the voter to be effective and

17 showing that electronic voting is both accurate and

18 trustworthy. Thank you.

19 CHAIR HILLMAN: Thank you, very much.

20 Mr. Grough, Chicago, Illinois.

21 MR. GROUGH: Thank you. Madame Chair, if

22 it's all right with you, I did give written

23 comments, but if I could not read from them because

24 there's some items that I'd like to add, if the

25 Commission would give me that --

1 CHAIR HILLMAN: Certainly.

2 MR. GROUGH: -- permission. Thank you.

3 Yeah, it's funny, I've been in the election

4 business for over 30 years now, and when I first

5 got to the Chicago Board of Election, I thought all

6 you had to do was get a polling place, get the

7 ballots out there, have the voters vote, you count

8 them and you're done. Well, my second day on the

9 job I found out that's not true. There are so many

10 items that, you know, the election officials have

11 to concentrate on. And recently, after the 2000

12 election, the public has now become an expert also.

13 And after that cry after the 2000 presidential

14 election, HAVA was enacted, and that's why this

15 Commission was put in place. And I have to applaud

16 this Commission. If you look at the way this

17 Commission is made up, you have officials that know

18 state election, local election, advocacy groups,

19 campaigns. This Commission has, probably out of

20 all the federal commissions I've seen, has seen

21 what we have been asking for many years. And I

22 have to applaud this Commission. And I also would

23 like to state that I've seen your budget. I've

24 seen your number of employees that you have

25 working; I would like to urge Congress, and

1 whatever we can do in Illinois, to give you the

2 tools to operate with. I know the size of your

3 staff. I just run the city elections for the City

4 of Chicago, and I have 163 full-time employees, and

5 you're overlooking the entire United States, so

6 there has to be some kind of accountability and

7 Congress should know about that. What I'd like to

8 talk about is that, you know, the single most

9 challenging aspect now facing election authorities

10 in the United States is compliance with HAVA. And

11 this requirement, and one item I would like to talk

12 about is people with disabilities. In the City of

13 Chicago, we believe everybody, everybody has the

14 right to vote. Everybody has the right to cast

15 their ballot in secrecy, and I'd like to get --

16 like to talk more about that. But just to let you

17 know, in the last two weeks the Chicago Board of

18 Elections just implemented a contract, a $26

19 million contract with a new vendor that we will be

20 having -- we have gotten rid of punch card voting,

21 we are probably the last name standing. We thought

22 punch card got a black eye, but due to public

23 pressure, we're making that change. And what we're

24 doing is we're going to a dual system, and I'd like

25 to explain that. We're going to have optical

1 ballots being counted in the precincts, along with

2 the DRE machine, so we can take care of people with

3 disabilities, and under section 203 of the Voting

4 Rights Act, language capabilities. On DRE you're

5 able to use multiple languages. We're going to

6 take both of those units that are being counted in

7 the precinct, and we're going to download the

8 memory card from the optical and the memory card

9 from the DRE into one unit that will combine

10 totals, will also print out those totals, and I

11 know a lot of people don't want to hear those, but

12 they will transmit those wirelessly to our office.

13 And looking at the standards, I'd like to commend

14 this Commission for keeping the availability, or

15 allowing us to do this wireless transmission. We

16 think it's very necessary in the City of Chicago.

17 We have 2,709 precincts scattered throughout the

18 City of Chicago, and to get the results to us as

19 soon as possible we think is very critical. And

20 I'll talk about security question and answer with

21 the Commission after that. We also have gone to

22 name on ballot, and in fact, from going from punch

23 card voting, using optical ballot as large as our

24 ballot is in the City of Chicago, our ballot is

25 going to be 22 inches long, which is the longest in

1 the industry. And even with that we still may have

2 to go to two different ballot cards, which is going

3 to make our job that much harder. We talk about

4 money; well, consider we are going from punch card

5 to name on ballot will increase our printing cost

6 by about a third, so we're looking at about $1.2

7 million in printing ballots alone for the City of

8 Chicago. In the year after the 2000 election, a

9 lot of jurisdictions ran to optical scan and found

10 out that they weren't the end all and do all of

11 equipment. In fact, I'd like to say right now that

12 there's not a DRE that I've seen that could handle

13 everything. There's not one DRE out there that can

14 handle all the needs for the disability. And in

15 fact, your standards that you've just published,

16 I'd like to applaud you that they have probably the

17 toughest standards, meaning to meet with the

18 disability community, but with less than seven

19 months to go before our next election,

20 approximately 210 days before we have our primary

21 election, these standards are strictly voluntary,

22 and they've just been published; they haven't even

23 been adopted yet. We had to purchase equipment,

24 and we're in the process of having it delivered.

25 It meets the 2002 standards, but I don't think it

1 all meets the 2006 standards that you guys have --

2 that the Commission has proposed. And that's going

3 to cause a problem with us. I don't know if the

4 Commission is going to ask for all equipment to be

5 retested or not, that's something I will follow up

6 with a paper to this Commission, because in our

7 contract we do have that the company has to meet

8 all standards for the 2006, so we're hoping that

9 happens. Before this Commission published your

10 standards, we had to meet with the disability

11 groups in Illinois to go over our equipment, and

12 that took approximately two months and we're -- as

13 you know, if you have a large group of people that

14 are reviewing equipment, you will not always agree

15 on one item. And we have many that we did not

16 agree on. But we are going to try to put basically

17 everything in place, as much as possible. But

18 under the proposed Voting System Guidelines

19 contained, as I said, many high goals -- desirable

20 goals for this, and the EAC should be commended as

21 giving us that. But please allow me to take a few

22 minutes and review some of the Human Factor

23 Guidelines that our ability to complete, and in my

24 own personal opinion, the feasibility of some of

25 these points. It is my opinion and that of my

1 staff, there is no single voting system in the

2 market today that will meet all the different needs

3 and requirements for every type of disability.

4 Despite our best effort, we are aware that we are

5 not going to satisfy every disability advocate, but

6 we're going to do everything we can. And I think

7 with your guidelines, a lot of those answers, a lot

8 of those things will be answered. In the City of

9 Chicago, we are equipping all 2,709 precinct

10 polling places with one DRE designed to meet these

11 needs of the disability. Our DRE units incorporate

12 headsets, I'm sorry, and audio instructions to

13 navigate the blind voter through the ballot. And

14 we recently redesigned the navigational box to make

15 it more user friendly for those voters that need

16 it. This is an accomplishment that after several

17 meetings with our disability groups that we came up

18 with some new equipment that's being added that

19 wasn't part of our contract. For those voters with

20 no sight, the ability to have a screen go blank we

21 thought was an advantage. A lot of our disability

22 group says, well, some have partial eye sight that

23 having the entire screen going blank is not what we

24 wanted, so we had to make those modifications. The

25 guidelines suggested that electronic imaging

1 display be capable of providing all information in

2 at least two different font types. Well, the

3 equipment that we have in the present time does not

4 do that. Hopefully, by the November election, we

5 should have that in place. The advocacy guidelines

6 also suggested that we provide for persons using

7 paper ballot who have poor reading vision. Well,

8 for those persons, we have invited magnifying

9 materials that we have been doing for the last 20

10 years. What I'd like to say is that, you know, we

11 hear the problem of money. Money always seems to be

12 a problem, but, you know, somebody -- I met

13 somebody that says if you've never been in my

14 shoes, you don't know what I go through. I have a

15 friend that is blind, and for the first time this

16 March election he'll be able to vote without any

17 assistance. And I don't think you can put a price

18 tag on that. And I'd like to applaud the

19 Commission. I'd like to end that and take

20 comments. I'd like to end that and say that I

21 applaud this Commission for doing everything you

22 have, and I think we need to go farther. Thank you.

23 CHAIR HILLMAN: Thank you, very much.

24 Mr. Ragsdale, and that's Broomfield County,

25 Colorado, right here in Colorado, right?

1 MR. RAGSDALE: Yes, it is --

2 CHAIR HILLMAN: Okay --

3 MR. RAGSDALE: -- Madame Chair, thank

4 you.

5 CHAIR HILLMAN: -- thank you.

6 MR. RAGSDALE: I am the Clerk and

7 Recorder of the City and County of Broomfield. My

8 name is Russ Ragsdale. Broomfield is located on

9 the northern edge of the Denver metro area, and as

10 such, I'd like to welcome, extend a welcome to the

11 Commission and to the Standards Board who will be

12 meeting the next two days in Colorado. I hope your

13 stay is both productive and enjoyable. I would be

14 remised if I didn't take this opportunity to also

15 congratulate the Commission on the appointment of

16 their newest Commission, former Colorado Secretary

17 of State, Donetta Davidson.

18 MS. DAVIDSON: Thanks, Ron.

19 MR. RAGSDALE: Donetta and I -- I've had

20 the distinct pleasure of being able to work with

21 Donetta, for what, the last 70 or 80 -- well, it's

22 probably been less than that, maybe only 20 years

23 --

24 MS. DAVIDSON: A long time.

25 MR. RAGSDALE: -- but she has taught me a

1 lot about the world of elections and I appreciate

2 that. And Colorado's loss is truly the nation's

3 gain, so I wish you the best in your new adventure.

4 I'd like to start off with kudos and appreciate to

5 the Technical Guidelines Development Committee. The

6 Voluntary Voting Systems Guideline is an amazing

7 piece of work that was created in a very short

8 period of time. I find it very thorough as --

9 looking through it, I did find some typos. I did

10 find some specific items that I'd like clarified,

11 but overall I think it's an incredible piece of

12 work, and I think it's a great starting point for

13 our future in elections. A couple of the areas

14 that I want to focus on is one, how it deals with

15 the interface with the voter, the end user, so to

16 speak; how it is directed at the vendors and

17 developers of elections systems, and of course,

18 it's impact on local election officials. The VVSG

19 provides a great deal of focus on the voter as it

20 should. The usability for the voter and how our

21 election systems interface with those voters, and

22 how they are treated by our election systems. If I

23 may quote from the volume one, section 2.2.7, the

24 human factors, it describes the difficulties of

25 designing usable and accessible voting system. I

1 think it does a good -- articulates very well, and

2 there is a couple of these points I'd like to bring

3 forth. The first is voting is performed

4 infrequently, so there is limited opportunity for

5 voters and poll working to gain familiarity with

6 the process. This is an infrequent process, the

7 one of elections, and I would like to bring that on

8 to the local election officials too. For those of

9 us in mid to small size jurisdictions, often times

10 we don't even have full-time staff working on

11 elections. They have other tasks as the year goes

12 by. So, I just want to point that out in time

13 that's -- one of things I'd like to bring out, is

14 this is a wonderful document, but we need to also

15 make sure that it translates well. How does it

16 play Vioria [phonetic], so to speak? How does it

17 translate to the mid and small size jurisdictions.

18 The second point that's on that -- in that same

19 section is jurisdictions may change voting

20 equipment, thus opiating [phonetic] whatever

21 familiarity the voters might have acquired. Again,

22 it's the familiarity -- that's the tool that, I'm

23 sure, my colleagues to my right also appreciate.

24 Familiarity in any of the elections aspects that

25 the voters may have, whether it's the location of

1 polling place or the use of voting equipment.

2 Unfortunately, with all the changes we're seeing in

3 the world of elections, familiarity is becoming a

4 rare commodity. There's also another thing I would

5 like to vote out to is that in our mobile society,

6 more often than jurisdictions changing voting

7 systems, you will see voters moving from one

8 jurisdictions to another. And in those states that

9 have not adopted a uniform voting system, those

10 voters will be faced from election to election to

11 different voting equipment. For instance,

12 Broomfield, I have three neighboring counties, and

13 among the four of us we have two flavors of optical

14 scan systems and two flavors of DREs. So depending

15 on what neighborhood the voter depends to live in,

16 they may be dealing with a new voting system from

17 election to election. Also, in volume one, in the

18 fifth section, it sets forth three broad

19 principles, that I believe, are fundamental tenants

20 that I would love to see stitched into a sample and

21 hung on the wall of every election official in the

22 country. Those tenants are, one, all eligible

23 voters shall have access to the voting process

24 without discrimination. Two, each cast ballot

25 shall accurately capture the selections made by the

1 voter. Three, the voting process shall preserve

2 the secrecy of the ballot. That sums it up, that's

3 what our mission is, as local election officials.

4 And I really appreciate that being articulated in

5 the VVSG. It also focuses considerably on

6 accessibility for voters with disabilities, as it

7 well should. And it's a requirement from HAVA, and

8 it's something we're all going to have to face that

9 challenge, as local election officials, in our

10 world. I'm really interested to see what testimony

11 you received today from the representatives from

12 the disability community, and see how they feel

13 about the VVSG. As Mr. Terwilliger said, some of

14 these items in here are from folks that have more

15 knowledge in those particular areas, and this is

16 the case for me, with the handicapped

17 accessibility. VVSG, is to large part, directed at

18 the vendors and developers of elections systems, as

19 it should be. This is a certification process.

20 This is what the vendors are going to have to live

21 up to. I think it sends a strong message to the

22 vendors and developers of the systems that the

23 systems must be auditable, the functions must be

24 demonstrable and verifiable, and essentially the

25 system must work. And we appreciate you setting

1 that standard as high as you have. Because a large

2 portion of these guidelines are directed

3 specifically at system developers, it is

4 necessarily technical in nature. And quite

5 honestly, reading through this volume in the last

6 two months, a lot of it has gone over my head from

7 a technical aspect. What I would -- what I would

8 ask the Commission to do is keep in mind the

9 development of a practical guide for the local

10 election officials. In other words, converting

11 this document to something -- I guess, to be honest

12 to you, I don't see too many of my peers having

13 this sitting on their desk and referring to it as a

14 resource to help them establish their processes and

15 procedures in the elections office. It's an

16 absolutely fantastic foundation for us, but I think

17 we need to, and if you'd indulge me, develop a VVSG

18 for dummies, myself being one of the dummies of

19 course. Somehow so that we can convert this to the

20 reality. I think, when I read through this, one of

21 the things that I was feeling was a disconnect

22 between the effort towards the vendors and the

23 voters, the disconnect with the local election

24 officials. Please don't minimize the role of the

25 local election official in this process. We are,

1 after all, the folks in most cases who are going to

2 be procuring, implementing, managing, and

3 maintaining these systems into the future. We need

4 to have the information and resources available to

5 understand how to implement these in practical

6 terms. What HAVA requires, as Mr. Grough point

7 out, we have requirements with HAVA coming up. On

8 January 2006 we're going to be required to have

9 essentially a DRE in every polling place for voter

10 accessibility. What we're asking there, in some

11 small to medium size jurisdictions, is

12 sophisticated election equipment, electronic

13 election equipment. In jurisdictions that have

14 little to no experience in managing information

15 systems, this is going to be a challenge and we

16 need to be able to make sure those folks get the

17 right instructions and education on how to

18 implement this and how to get that across to the

19 voters. One of the efforts by the Election

20 Assistance Commission is the publication of the

21 Election Management Best Practices, and that

22 attempts to bring to the election officials around

23 the country real life situations, real life

24 solutions to the challenges we're facing.

25 Unfortunately, I think that's been a passive

1 effort, and I would like to ask the Commission to

2 convert that to a more aggressive effort. If you

3 could compel, or I could start doing that, or the

4 three of us here, it might be a good idea to start

5 compelling our colleagues to submit those

6 solutions. Left to our devices, we're relatively

7 resourceful out there, and we are going to have to

8 share those ideas and those solutions as we meet

9 these challenges with the rest of the nation. And

10 in conclusion, one thing that's very clear after

11 reading through the VVSG, successful implementation

12 will not be a solo effort. We cannot do it as a

13 solo effort at the local level. It cannot be done

14 as a solo effort at the state level, nor the

15 federal level. It's going to take all three of us

16 working in unison. So I would ask that, yes, we

17 need more additional resources, such as the

18 information clearinghouse, and yes, of course, we

19 will need more funding as we come along with this.

20 And Donetta, not to put pressure on you so early in

21 your new joy, but we're going to be relying on you

22 too. Thank you.

23 CHAIR HILLMAN: Thank you very much. Mr.

24 Ragsdale, you're absolutely right. Given the size

25 and the numerous technical references in the

1 guidelines, it's not the kind of document that one

2 can just flip to and go to section whatever,

3 whatever, to get some guidance. So we appreciate

4 your request and recommendation about a practical

5 handbook, if you will. But you've also done a

6 rather unique thing, which I for one appreciate

7 very much. And that is you managed to find the

8 statement of principles in there. And it's one

9 that really resonates to a very important issue.

10 And I wish, if you would for me, for the record,

11 just read that wonderful statement of principle

12 that you found in there about the accessibility

13 issue. And I'm not sure if it's in the written

14 testimony that we have, but I want to make sure

15 that we have that for the record.

16 MR. RAGSDALE: This comes from volume

17 one, section 2.2.7. It actually enumerates three

18 principles; the first being, I believe this is the

19 one you're referring to, all eligible voters shall

20 have access to the voting process without

21 discrimination. Is that the one?

22 CHAIR HILLMAN: Right, yes, indeed.

23 MR. RAGSDALE: I think that, in

24 conjunction with the other two that I read are --

25 CHAIR HILLMAN: Right.

1 MR. RAGSDALE: -- like I say, that should

2 be hung on the wall of every election official

3 throughout the country.

4 CHAIR HILLMAN: Well, we do --

5 MR. RAGSDALE: They are well articulated.

6 CHAIR HILLMAN: -- we are challenged to

7 find ways to translate some of the work we do into

8 the kind of language and explanation that every

9 voter can appreciate, with respect to the work that

10 we are doing with election officials on behalf of

11 voters. And so it was nice to see you find that

12 statement in the midst of those several hundred

13 pages there. Thank you.

14 MR. RAGSDALE: You're welcome.

15 CHAIR HILLMAN: We are now ready for

16 questions, and Commissioner Davidson, if you'd like

17 to begin.

18 MS. DAVIDSON: One of the questions I had

19 --

20 CHAIR HILLMAN: Excuse me, one second,

21 just to let me say that we have about 10 minutes

22 again, for questions and to receive responses from

23 the panelist --

24 MS. DAVIDSON: Okay.

25 CHAIR HILLMAN: -- okay?

1 MS. DAVIDSON: One of the question --

2 see, I thought I was going to be last, so I was

3 going to pick up on everybody else's questions. The

4 testing and what you're doing in Washington, and in

5 your DREs, and the statements you made in testing

6 -- before the Secretary the State coming out being

7 part of the tests three days before, can you go in

8 to a little bit of that testing area of how you're

9 accomplishing that?

10 MR. TERWILLIGER: Approximately two to

11 three weeks before each election we actually test

12 the mechanics of each DRE that's going to be

13 deployed to a polling place --

14 MS. DAVIDSON: Okay, the mechanics, okay.

15 MR. TERWILLIGER: And then we also vote a

16 prescribed, predetermined ballot to make sure that

17 the machine is accurately recording the choices

18 that are available on the ballot styles that are on

19 that machine. And we certify that that's been

20 done, not on two machines, but on every machine

21 that's deployed in the election. The Secretary of

22 State test is a more general test where members

23 from the public, party observers, come in and pick

24 out three or four precincts randomly and test on

25 three or four machines that are -- that have the

1 entire program ballot on it, and then when we bring

2 the machines back in on election day, we do the

3 same mechanical test, and also the same pre-

4 described test ballot that we did beforehand to

5 make sure that it's still recording correctly. So

6 if we have any machines with problems, we know.

7 MS. DAVIDSON: Do you see that there's a

8 need for a best practices, and this is a little bit

9 off the subject, but a best practices for every

10 type of equipment out there, of what states are

11 doing, and getting information back so we can

12 develop some best practices to help some of the

13 counties that are maybe mid-sized to small sized,

14 to help develop some ease in what they should be

15 doing? On the other end, making sure that they're

16 accomplishing every bit of the testing that they

17 should be doing?

18 MR. TERWILLIGER: I do. I do agree with

19 my fellow -- Russ over here though that I come from

20 a state where the smallest jurisdiction has 1,400

21 registered voters in it, and the largest has 1.2

22 million registered voters in it. So staffing and

23 expertise, et cetera, are not going to necessarily

24 provide for the ability to do the level of testing

25 that I can do with a staff that I have. So, it's

1 going to take a marriage between the state's

2 elections offices and the local elections offices

3 to develop those best practices and then work in

4 partnership, which we do a pretty good job of in

5 the State of Washington, to make sure that this is

6 being done, where the staffing component at the

7 local level is not there to do that.

8 MR. GROUGH: But just to make a comment

9 to follow-up with Bob. The logic and accuracy

10 test, once your ballot is known and you download

11 your ballot into your equipment, I think that is --

12 a lot of the states have that requirement. You

13 know, every piece of equipment before it goes out,

14 we have to run a pre- audit test deck through it,

15 after that, we seal up the equipment. The Thursday

16 before the election, we have to run a test through

17 our central computer system. Once that has been

18 deemed to be okay, we lock that down and nothing

19 can be touched or changed until, you know, until

20 Election Day.

21 MS. DAVIDSON: Um-hmm.

22 MR. GROUGH: And even election day we run

23 another audit on the system. So, I mean, there are

24 a lot of checks and balances that we go through

25 that the public does not understand. I mean it's

1 not like you just put the ballot in and you go with

2 it. I mean there's a lot of testing that we have

3 to make sure that everything, you know, is on the

4 up and up. And we have -- community groups are

5 invited to come in and review our testing. You

6 know, I mean it's an open practice and that's what

7 we'd like everybody to know.

8 MS. DAVIDSON: Don't you think it would

9 bring some unity in to, you know, the transparency

10 of the election if we can make our voters

11 understand how much testing there is that goes on

12 with equipment?

13 MR. GROUGH: We really do; we really do.

14 I mean we run articles in the newspaper prior to

15 let everybody know that we are going to do this

16 testing and that you're invited to review it.

17 MR. TERWILLIGER: I think what happened

18 nationally, and certainly what's happened in the

19 State of Washington as a result of a governor's

20 race that was absolutely incredible in terms of the

21 closeness of it all is there are public groups and

22 individuals that are so much more interested, so

23 much more paying attention now, that the time is

24 right to have those best practices identified so

25 that they can be the check and balance as much as

1 we are on ourselves to make sure that we're really

2 following those best practices when they're

3 identified. So often the public is -- doesn't have

4 the time or hasn't taken the interest because they

5 didn't think there was ever any reason to be

6 involved. But now I think they're very aware that

7 there is. And it's not that many of us haven't, or

8 all of us haven't been doing those testing

9 procedures, but it's one of those things that's

10 just an unknown. And now I think we need to make

11 it clear that we do it and we need to make it

12 totally accessible for anybody that wants to come

13 in and observe it, to observe it.

14 MS. DAVIDSON: I know Colorado has just

15 changed laws, and I think many states have also,

16 trying to up the amount of testing and the amount

17 of credibility that is put in to the process prior

18 to the election and after the election. Russ, do

19 you have anything you want to add to that?

20 MR. RAGSDALE: Just that going,

21 Commissioner Davidson -- in Colorado we had the

22 allocation for a public logic and accuracy test

23 prior to the election, and that was the only public

24 testing that was required by law. And essentially

25 that public LNA was a confirmation of the internal

1 testing that had taken place the week before. And

2 as was stated earlier, the public wasn't aware of

3 how much internal testing was done, and how much

4 diagnostic tests were performed on the equipment.

5 We have been shown the light that needs to be

6 transparent. We need to invite the public in to

7 watch that because it's a very positive step.

8 MS. DAVIDSON: Thank you.

9 CHAIR HILLMAN: Thank you very much.

10 Commissioner Martinez?

11 MR. MARTINEZ: Thank you, Madame Chair.

12 Just a few quick questions, and I want to start

13 with just a statement, and that is -- kind of pick

14 up where my colleague, Commission Davidson has left

15 off, and that is the issue of transparency. And I

16 want to say that I've been privileged in the 20

17 months or so, serving as a Commissioner, to be able

18 to visit lots of jurisdictions, including, really

19 all three of yours. Not personally to your county

20 and jurisdiction, Mr. Ragsdale, but to Colorado as

21 a Commissioner, not to long ago and the invitation

22 of then Secretary Davidson to talk to you and your

23 colleagues at one of your training sessions. Mr.

24 Terwilliger, you've hosted me and our Vice-Chair,

25 Paul Degregorio, not too long ago during your

1 recount process there in Snohomish County. And Mr.

2 Grough, we've been to Chicago many times. I was

3 just there a few weeks ago for the ABA conference,

4 and officially at your invitation on a couple of

5 different occasions. And I know first hand the

6 commitment to equality, security, and to

7 transparency that all of you exude from your

8 particular positions in the -- as election

9 administrators, so I want to applaud you for that

10 dedication and for taking that time to be here

11 today. This is an important and very challenging

12 project I think that we're all undertaking. And

13 I've said it before, perhaps you've heard me say it

14 from the podium that the confidence meter of the

15 American public, right now, seems to be moving, for

16 whatever reason, in the wrong direction, despite

17 the fact that, every jurisdiction I visit, I see a

18 commitment to dedication and integrity, quite

19 frankly. And so I think that all of us can work at

20 this together to make sure that the confidence

21 meter is headed back in the right direction. I

22 think it will happen. This is certainly a major

23 effort in that direction. Mr. Terwilliger, I want

24 to ask a couple of questions about, specifically,

25 in how the proposed guidelines would affect your

1 jurisdiction. I think when I was there a few

2 months ago you mentioned that, I think most of your

3 ballots on election, for election day come in via

4 mail, if I'm not mistaken, into Snohomish County?

5 MR. TERWILLIGER: That's correct.

6 MR. MARTINEZ: But yet you still, you do

7 use DRE machines for voters who are going to vote

8 on election day?

9 MR. TERWILLIGER: Correct.

10 MR. MARTINEZ: Right. And there is a

11 requirement, a proposed requirement in the proposed

12 Guideline in section -- on page 2.22 that says if

13 the normal procedure includes voter verified paper

14 audit trail, then the accessible voting system, in

15 your case, it would be your DRE system, should

16 provide features that enable voters who are blind

17 to perform this verification. The requirement goes

18 on to say, and I'm quoting, if the state requires

19 the paper record produced by the VVPAT to be the

20 official ballot, then that voting system shall

21 provide features that enable visually impaired

22 voters to review the paper record. You're in a

23 state that I believe through administrative action

24 by Secretary Reed has required a VVPAT by 1/01/06.

25 And I just wondered if you would comment on the

1 specificity of this particular requirement,

2 proposed requirement?

3 MR. TERWILLIGER: Actually, at this point

4 in time our state legislature has required a bi-

5 legislation --

6 MR. MARTINEZ: I see, okay.

7 MR. TERWILLIGER: -- so -- but it doesn't

8 identify that the VVPAT is the official ballot,

9 except in manual recounts.

10 MR. MARTINEZ: Okay.

11 MR. TERWILLIGER: And it does have a

12 requirement that we do a post election audit on up

13 to four percent of the machines that are in any

14 particular election, comparing the results off the

15 machines back to the VVPAT. Right now, we're

16 awaiting certification from our vendor for their

17 system to meet the terms and conditions that are

18 outlined in the 2002 Standards, to be able to have

19 the disabled community, and specifically the blind

20 community, be able to review the VVPAT in a way

21 that doesn't disclose or violate their right of

22 secrecy. So that's a work in progress and our

23 expectation is that we are going to have that

24 certified to us in January. We're not going to

25 meet the January 1 deadline, obviously --

1 MR. MARTINEZ: Right.

2 MR. TERWILLIGER: -- and then we'll go

3 forward from there

4 MR. MARTINEZ: So in terms of this

5 particular proposed language, it is -- it does not

6 conflict with the way your legislature has written

7 the VVPAT requirement, and that they haven't

8 addressed it as the official record other than for

9 recount purposes is what you're saying?

10 MR. TERWILLIGER: Correct.

11 MR. MARTINEZ: And then you also

12 mentioned the independent dual verification

13 systems, and I just want to explore that a little

14 bit more with you. I think what I hear you saying

15 is if work can be done to explore other means to

16 explore verification, other than through a paper

17 audit trail, that you would encourage that as a

18 local election administration?

19 MR. TERWILLIGER: Yes, I would. I think

20 there's been much testimony and some evidence to

21 the fact that there are potential issues in terms

22 of administering and maintaining the audit and

23 secrecy and actually conducting whatever audit or

24 recount exercise would have to take place on the

25 verified paper audit trail. I think technology, as

1 we all know it, advances so quickly, almost daily,

2 that if there can be developed some transparent way

3 for voters to know their ballots have been voted

4 and recorded correctly on this electronic voting

5 system that is equal to or great than what we're

6 talking about with the voter verified paper audit

7 trail, we should certainly explore that.

8 MR. MARTINEZ: Right.

9 MR. TERWILLIGER: My testimony to my

10 state legislature was actually to allow or to have

11 the legislation have language in it to provide for

12 that possibility, but they didn't see that that was

13 something they could agree to at that point in

14 time, and I think frankly because there isn't

15 really anything identifiable out there yet.

16 MR. MARTINEZ: Um-hmm.

17 MR. TERWILLIGER: But I think we need to

18 work towards that.

19 MR. MARTINEZ: Right.

20 MR. TERWILLIGER: Because I think that

21 may be a better, more effective way to demonstrate

22 the accuracy of electronic voting, than the voter

23 verified paper audit trail.

24 MR. MARTINEZ: Yeah. Mr. Grough, any

25 thoughts? I know that -- I can't recall, but I

1 think Illinois is also one of the states that's

2 required a paper trail for the use of any

3 electronic voting systems?

4 MR. GROUGH: Yes, and I follow on a

5 second that it's not the official --

6 MR. MARTINEZ: Okay.

7 MR. GROUGH: -- you know, it's only used

8 for recount.

9 MR. MARTINEZ: Right, and you're going to

10 have optical scan there in Chicago, but you're also

11 going to have a mixture of optical scan and DRE

12 systems?

13 MR. GROUGH: Yes, we are.

14 MR. MARTINEZ: Yeah, so you'll have to

15 have a paper trail for the DRE systems?

16 MR. GROUGH: We do have -- yes, we do.

17 MR. MARTINEZ: Okay. And then, the

18 issue, Mr. Grough, with regard to wireless

19 communication. We were actually, at our last

20 hearing, in Pasadena I think; I'm losing track of

21 where I've been recently, but I think we were in

22 Pasadena recently, and we took testimony of a very

23 esteemed panel of folks who gave us various

24 perspectives on the use of wireless communication

25 for election and the process of administering an

1 election. One of the requirements, I don't have it

2 in front of me, but says that use of wireless

3 communication ought to be encrypted if you're going

4 to use it for the purposes to transmitted ballot

5 information, or whatever. And I assume that that

6 is something that is called for in the use of

7 wireless communication, as well?

8 MR. GROUGH: Yes, it is. And

9 Commissioner, I was invited to speak, but I could

10 not make it because we were in negotiations on the

11 contract. So I had to miss that, but wireless

12 technology has come so far. And with encryption and

13 with the type of equipment that we have, I'm not

14 worried about it. Plus, everybody forgets, it is

15 strictly unofficial -- what the results you get

16 from the wireless is strictly unofficial. We go

17 back and do testing on it. We have to then

18 manually read everything into the system, so I mean

19 -- and then we do a canvas. So I mean wireless --

20 people get very concerned when they say, oh, you're

21 transmitting election totals over the air waves.

22 Well, yes, we are but they're unofficial.

23 MR. MARTINEZ: Got it. I appreciate

24 that. Mr. Ragsdale, you mentioned election

25 management standards, and I wonder -- that is, I

1 think a topic that we've been talking about since

2 the first days of our Commission, and obviously now

3 that we are in a position where this fiscal year we

4 are fully funded by Congress, we are making some, I

5 think, some increasingly proactive steps to try to

6 develop some election management standards. But I

7 know that you want to move aggressively on that

8 front, and what's the priority when it comes to

9 that type of a standard to be developed? I mean

10 what are you looking for at the local level for us

11 to be able to offer, be a best practices or be at

12 some sort of voluntary standards in that area?

13 MR. RAGSDALE: Well, quite -- when you

14 first put out the best practices on your website --

15 MR. MARTINEZ: Um-hmm.

16 MR. RAGSDALE: -- we went to it for

17 better ways to do our business --

18 MR. MARTINEZ: Right.

19 MR. RAGSDALE: -- essentially. I think

20 the priority now is ways to accomplish what is

21 legally required, or to say shortly required of us.

22 The testing requirements, the accessibility

23 requirements, we need to know -- in the VVSG goes

24 into quite an in- depth in security it measures.

25 MR. MARTINEZ: Um-hmm.

1 MR. RAGSDALE: One thing that pops to

2 mind is management of the actual physical

3 environment, the election equipment and tabulation

4 server and what have you. That's something that a

5 lot of jurisdictions don't have experience with.

6 MR. MARTINEZ: Right.

7 MR. RAGSDALE: And that's something that

8 should be kept isolated in a separate room, with

9 key card entry. What do you do? Who has access to

10 keys in those rooms? Those kind of things that are

11 really new challenges to a lot of jurisdictions.

12 MR. MARTINEZ: Right.

13 MR. RAGSDALE: So things that I would say

14 if I could put it succinctly, what we need now as a

15 priority and best practices is how to solve what is

16 required of us --

17 MR. MARTINEZ: Sure.

18 MR. RAGSDALE: -- and made easy.

19 MR. MARTINEZ: Right, okay. That's very

20 helpful. I want to go back, if I could, and for my

21 last question, Mr. Terwilliger. We talked this

22 morning, and I'm not sure if you were here in the

23 morning session during our meeting about the

24 National Software Reference Library. And as a

25 county that uses DRE systems already, I'm just

1 wondering if you're familiar with the idea of a

2 repository of the software that's used by the

3 vendors and their systems and whether that could be

4 of use to you as a local election administrator?

5 MR. TERWILLIGER: Yes, I am familiar with

6 it and I think it would be useful because much of

7 the objection, if you will that we hear from

8 communities that have concerns about the electronic

9 voting system is not knowing or not believing that

10 there is a standard or that we are using the same

11 version that was certified. And I think it would

12 be helpful to all elections officials and all the

13 vendors, frankly, to have that place where that

14 could be stored.

15 MR. MARTINEZ: Great. I'm the -- that's

16 the end of my questions, but I do want to say since

17 I normally address you as Bob, I'm sorry if I

18 butchered your last name during our discussion.

19 MR. TERWILLIGER: Well, you did fine.

20 MR. MARTINEZ: Thank you, Madame Chair.

21 CHAIR HILLMAN: Okay, Mr. Vice-Chairman?

22 MR. DEGREGORIO: Thank you, Madame Chair.

23 Mr. Terwilliger, as Commissioner Martinez

24 indicated, last December he and I had the great

25 opportunity to observe the recount that was going

1 on in Washington State, and we had the honor of

2 coming to your county and watching that process.

3 And of course, you went through and your staff went

4 through a very meticulous process to count those

5 ballots, to account for each one of them. And in

6 doing so, you went through several recounts of the

7 vote. You had the election night and you had --

8 there were several recounts. In that process, did

9 you learn anything that you can tell us that would

10 help in establishing these voting system

11 guidelines? Did you learn anything about the

12 accuracy of your system that, you know, by doing

13 it, by hand counting, we really learned that these

14 results are accurate. And is there anything that

15 we can learn from that, perhaps we can include or

16 include perhaps in management practices that we may

17 come out with, in your experience of the recount of

18 Washington State?

19 MR. TERWILLIGER: Well, I think it's

20 interesting -- first of all, it's my understanding

21 that not all states even have recount statutes to

22 the degree that the State of Washington does. From

23 our unique experience, a change was made in our

24 state statute in the legislature that just ended

25 its session. So now on a statewide race, if the

1 closeness of the race is within 1,000, and less

2 than one quarter a percent, we're going to go right

3 to a hand recount. And that is to eliminate the

4 perception that occurred in our state, because our

5 first state under our prior law was that we did a

6 machine recount. We recounted all the ballots

7 again with the same tabulation machines, and then,

8 it still was close enough that, as we all know, the

9 Democratic Party applied for a hand recount and the

10 results changed. I don't think there was anything

11 untort about that. It's just that it doesn't feel

12 good and it doesn't look good, and it doesn't

13 perceive well to the public. So, in terms of the

14 machinery and the tabulation accuracy, I think it's

15 clearly accurate and does give us clear indication

16 of who won and who lost when your differences are

17 greater than the differences that we were talking

18 about in our state. But when they get to be within

19 that level, I don't think that there's any machine

20 that's accurate enough to represent that. And the

21 public, at large, I believe, has a much better

22 feeling about who won and who lost, at the end of

23 the day, when the ballots are actually looked at by

24 individual teams, you know, where they were in our

25 state. So I think the legislation is a good piece

1 of legislation because now, in that statewide

2 environment, which maybe we'll never experience

3 again, we're not going to have that intermediate

4 machine recount. We're going to go right to a hand

5 recount and that will be it.

6 MR. DEGREGORIO: Did you find --

7 MR. TERWILLIGER: That was a learning

8 experience.

9 MR. DEGREGORIO: Was it accurate in your

10 county?

11 MR. TERWILLIGER: Yes, um-hmm.

12 MR. DEGREGORIO: I realized in some

13 counties there were some votes added because votes

14 were found.

15 MR. TERWILLIGER: Right.

16 MR. DEGREGORIO: And that's a different

17 story than --

18 MR. TERWILLIGER: Exactly.

19 MR. DEGREGORIO: -- from then --

20 MR. TERWILLIGER: Right. And when you

21 can look at the optical scan ballot, which is a

22 vast majority of the ballots in the State of

23 Washington because of how many of folks vote by

24 mail, because we have that liberal provision, you

25 see all kinds of indications on the ballot. We're

1 clearly as a state that one would characterize as a

2 voter intense state, and we have clear rules and

3 regulations about how to decide whether that ballot

4 should be transferred, duplicated to another

5 ballot, in a way to represent that voter intent.

6 Those are the issues that you can clarify when

7 you're doing a hand recount that aren't going to be

8 picked up in a machine recount, but when the

9 difference is five, six, seven, ten, 50,000 votes,

10 that's accurate enough to determine clearly who won

11 and who lost. When the difference is 134 votes, I

12 think you need to be looking at the ballots.

13 MR. DEGREGORIO: Okay, thank you. Mr.

14 Grough --

15 MR. GROUGH: Yes.

16 MR. DEGREGORIO: -- certainly I'm

17 familiar with your shop there in Chicago. I'm 20

18 years familiar with Chicago, in fact. And you had

19 punch cards for years?

20 MR. GROUGH: Yes, we have.

21 MR. DEGREGORIO: And you took the

22 leadership -- a leadership role after the 2000

23 election to invest millions of dollars to give

24 voters of the City of Chicago second chance voting

25 with punch cards, which most jurisdictions that had

1 punch cards did not do that. But you did that. And

2 I certainly was there last November to witness your

3 last use of punch cards and how that worked, and it

4 did work well. But now you have, you know, you

5 just described this new system that you're going to

6 with DRE, optical scan, and Commissioner Martinez

7 talked about the wireless aspect of the guidelines

8 --

9 MR. GROUGH: Um-hmm.

10 MR. DEGREGORIO: -- and how it will be

11 applied. Now, do you see any difference with these

12 guidelines applying to unofficial results that will

13 be transmitted from your polling places to your

14 office on election night, as opposed to any

15 official results that may be transmitted from some

16 point from the polling place to your offices?

17 MR. GROUGH: Well, just to let me say

18 that we've done many recounts in the City of

19 Chicago, as you know, and we have never had a

20 difference in what we've done unofficially,

21 wirelessly, and we've done a hand recount. So I

22 said, there hasn't been any changes on that. The

23 public, believe it or not, is the one that, in the

24 City of Chicago, asked for this wireless

25 transmission. They want to know as soon as

1 possible who won or who lost. The news media, in

2 fact, the reason why we went to wireless where we

3 had a remote transmission site was hit by lightning

4 and the phone lines were out, and the news media

5 accused us of holding back election results in a

6 certain area of the City of Chicago. That's why --

7 that's basically why we went with the wireless

8 transmission. We wanted to have the public feel as

9 confident as possible that their election results

10 or their election is being counted fairly.

11 MR. DEGREGORIO: Many jurisdictions

12 across the country are changing over from paper

13 machines and punch cards. You're not the last

14 jurisdiction standing; I guarantee you, there's

15 several counties in my own State of Missouri that

16 are not where you are in this process. But you

17 mentioned that you negotiated with your vendors,

18 your vendor, when buying your equipment, that

19 they're going to meet the EAC guidelines. Is that

20 correct?

21 MR. GROUGH: Yes, yes.

22 MR. DEGREGORIO: Was that difficult to

23 do? Did you get any push back from that? Or were

24 they ready to put that as part of the package in

25 selling this product to you?

1 MR. GROUGH: Well, I don't want to speak

2 for the vendor, but this contract -- it took two

3 months to negotiate, so there were a lot of items

4 that were in question. But I think the vendor

5 understands that it's to their advantage to meet

6 these guidelines when you're selling the equipment.

7 What's better than to say that you meet all the

8 requirements that are out there. So, for a vendor

9 not to fight to have those standards met I think

10 doesn't make any sense at all.

11 MR. DEGREGORIO: You know, I knew I hear

12 from a nervousness in jurisdictions around the

13 country who are purchasing equipment the worry that

14 they have in buying something today that a year

15 from now may not meet the EAC Voluntary Voting

16 System Guidelines that's adopted by their state. So

17 I think what you have done is helped them. And I

18 think that other jurisdictions, perhaps, will look

19 to you and the way that you did this as they

20 purchase equipment. I hope that perhaps you can

21 share your contract. I know that it's a public

22 record with them, so they can at least see what the

23 City of Chicago got from this effort. Mr.

24 Ragsdale, you indicated that you had a system in

25 place for a few years, is that correct? Is it an

1 optical scan system?

2 MR. RAGSDALE: Yes, Mr. Degregorio, we've

3 had a unique situation in Broomfield. We became a

4 county in November 2001 --

5 MR. DEGREGORIO: Oh.

6 MR. RAGSDALE: -- so our system isn't

7 older than that, three years. We have an optical

8 scan system that we use in our polling places, and

9 DREs in our early voting where we have multiple

10 voting styles.

11 MR. DEGREGORIO: Now, we're going to

12 adopt these Voluntary Voting System Guidelines in

13 the fall, probably in October. I assume that the

14 State of Colorado will take a look at them and

15 determine if they want to adopt these guidelines as

16 their guidelines. Do you have a contract with your

17 vendor? How do you see your jurisdiction meeting

18 these guidelines if the State of Colorado indeed

19 adopts them as their own?

20 MR. RAGSDALE: That's an excellent

21 question, and a question that I imagine that every

22 local election official around the country is

23 asking themselves. We are obviously under the

24 mandate from HAVA that January 2006 to have

25 accessible voting equipment in every polling place.

1 We need to have that equipment, at minimum,

2 matching the 2002 FEC certification. Colorado is

3 going to adopt the Guidelines set forth by the EAC.

4 It does leave us with a bit of a conundrum if we

5 cannot get a negotiation with our vendors; we may

6 very well be buying equipment that is, in practical

7 terms, obsolete as soon as these guidelines are

8 adopted. Now, I know you have the 24 months until

9 they're implemented, but that's still in essence,

10 that's a very short life span for any kind of

11 computer based system. It's an issue. It is very

12 much. Now, the Secretary of State in Colorado is

13 taking a proactive effort in that in trying to do a

14 contract statewide that any of the counties can

15 then join under that umbrella contract, which will

16 help us, hopefully, but the negotiation there is

17 that the vendor will come back and retrofit, at a

18 minimum, that equipment to meet the EAC Guidelines.

19 MR. DEGREGORIO: You mentioned earlier in

20 your discussion with other Commissioners the

21 management best practices, the need for that as

22 part of these Voluntary Voting System Guidelines,

23 and we are moving in that direction. We hope to

24 actually do an RFP and get moving on establishing a

25 process where we're going to put together some good

1 management practices and hire some people to do

2 that, over a period of time. But, when would be

3 the opportune time, and I ask all three of you, to

4 have these management practices, best practices,

5 from the EAC. We're going to adopt these

6 guidelines; they're not going to take effect though

7 for a couple of years, although we do know that

8 jurisdictions will -- may move up their own

9 deadlines for these Guidelines, and vendors will

10 try to meet them certainly before the deadline that

11 we put forth when we adopt these guidelines. But

12 you have elections next year, and I'd like to know

13 from all of you, when is the opportune time from

14 you to be receiving from us some of these

15 management best practices for these new guidelines.

16 We'll start here.

17 MR. TERWILLIGER: Well, obviously, I

18 think the sooner the better. But I also think that

19 these best practices guidelines probably have more

20 direct impact and more immediate benefit than the

21 Voluntary Voting Systems Guidelines do. In other

22 words, there's a lot more need and a lot more

23 immediacy that can be accomplished by a

24 jurisdictions needing and having available to them

25 best practices in the various areas that you heard

1 us talk to today, just about security, about

2 audibility, about management of the hardware and

3 software that you now currently have. These

4 guidelines aren't going to mean a whole lot if

5 those best practices aren't in place now. So, in

6 terms of a priority, I almost think it's almost

7 more important to have as many of those out quicker

8 and take time to make sure that these are done

9 correctly and meet the concerns that are being

10 raised. Because there's, in my opinion, where the

11 need is. I see it in my own State, as I say

12 because of the size of the jurisdictional

13 differences, to have a resource that the smaller

14 counties can just go to and say, oh, this is what

15 we need to do; this is how we should do it. I

16 think it would be extremely beneficial sooner

17 rather than later.

18 MR. GROUGH: I'm in agreement with that,

19 and especially for the smaller counties in

20 Illinois. You have to understand there's some

21 counties that don't even have their own computers;

22 they share the AllState computer next door to

23 operate their vote counting equipment. So, I'm

24 just saying as soon as we can get the best

25 practices out there so everybody will be on that

1 even level playing field.

2 MR. RAGSDALE: I would absolutely act

3 with that. I think that the comments by Mr. Grough

4 about negotiating the contract with this vendor and

5 getting them to assure compliance with the EAC

6 guidelines. I think -- I look at the weight of

7 Chicago as a client in negotiations, it's probably

8 a little more leverage than Broomfield brings to

9 bear with my 28 polling places, but I feel your

10 pain. It's something I'm sure I could use mightily

11 from the larger jurisdictions, and I think the

12 sooner we can get those out there, the better for

13 all.

14 MR. DEGREGORIO: Thank you, gentleman.

15 CHAIR HILLMAN: Okay, thank you. The

16 State of Washington is moving towards moving by

17 mail. I know we're here talking about the Voting

18 Systems Guidelines, and I really appreciate the

19 time that you've taken, but as the State moves

20 toward its neighbor Oregon, and voters seem to like

21 being able to vote by mail, I'm wondering what is

22 the impetus for that? What's been the motivation

23 to see an overwhelming number of people prefer to

24 do voting by mail?

25 MR. TERWILLIGER: A couple of things,

1 Commissioner Hillman. The State adopted, oh maybe

2 10 or 15 years ago, what I would refer to as sort

3 of fail- safe absentee voting. You need no reason

4 to vote; you can simply opt for that as a status.

5 Primarily following the lead of Oregon when they

6 went to all mail balloting our state legislature

7 wasn't willing to make that step, but they did

8 approve legislation to say that can be a voting

9 status. By choice, our voting public has chosen

10 that status to the point of, today, approximately

11 70 percent of our 3.3, or whatever it is, million

12 registered voters are voting that way by choice.

13 So for many of the counties there's that issue, but

14 there's also a geographical issue of large county,

15 small population, trying to locate polling places,

16 staffing the polling places, delivering the ballots

17 after the election day is over, et cetera, so the

18 voting by mail facilitates that. It also probably

19 comes as close to where we may ever be in the State

20 of Washington to one uniform voting system, if the

21 State actually takes the leap and goes all the way.

22 Right now, when you're in a large county like I am,

23 King and Pearus [phonetic] are our other two larger

24 counties, you're running a dual election system.

25 You're running a polling place election, which is

1 probably around 30 to 35 percent of our registered

2 voters, and then a vote by mail system at the same

3 time. And it does add complexity, and it adds for

4 problems in terms of security and audit trails, et

5 cetera, so that's been the impetus. Right now,

6 today, 30 of our 39 counties have opted to do that;

7 however, the nine that haven't represent the four

8 largest counties in the State. So 60 percent of

9 the registered voters are still involved in a dual

10 system. But it's hard to say where it will go when

11 the legislature convenes in 2006. But it's been a

12 convenience factor for the voters, and I think it's

13 also been a cost saving factor for some of the

14 smaller jurisdictions to not have to run two

15 systems at the same time.

16 CHAIR HILLMAN: In the counties that are

17 using principally voting by mail, what will be

18 available for -- what is available for voters who

19 prefer to vote by person?

20 MR. TERWILLIGER: They all know that they

21 have to purchase a certain number of electronic

22 voting devices in order to satisfy the

23 disabled/handicapped accessibility requirement, and

24 I would expect that anyone who wants to come and

25 actually vote in person will also be able to vote

1 on those devices as well, but of course the impetus

2 is going to have most everybody vote by mail.

3 CHAIR HILLMAN: Thank you. Mr. Grough,

4 you talked about the DREs meeting the requirements

5 of HAVA, with respect to providing access to

6 disabled voters.

7 MR. GROUGH: Yeah.

8 CHAIR HILLMAN: In July, toward the end

9 of July I believe it was, the Election Assistance

10 Commission issued an advisory, if you will. We

11 called it a gap analysis, talking about minimally

12 what systems need to have to be compliant with the

13 requirement of HAVA, effective January 1.

14 MR. GROUGH: Yes.

15 CHAIR HILLMAN: Did you find that -- was

16 that useful, helpful for you/

17 MR. GROUGH: Yes, it was. Yes, it was.

18 I think all of us here would be certain to say it

19 was useful.

20 CHAIR HILLMAN: Okay, all right.

21 MR. GROUGH: And we did use that.

22 CHAIR HILLMAN: All right. You also

23 talked about the complexity of conducting elections

24 from end to end, and most people wouldn't

25 understand that or even take the time to want to

1 understand that. And I think you're right, it's a

2 very complex enterprise, if you will, not

3 complicated, but complex. And I'm wondering, in

4 your option, how many elected officials in

5 Illinois, those that are affected by how elections

6 are conducted in Chicago, could be conversant about

7 the complexity of what it takes to run an election?

8 MR. GROUGH: You know, it's funny, I've

9 always said that the reason election laws have not

10 been changed in Illinois is because a politician

11 was elected this way and he wanted to stay elected.

12 You know, I don't think a lot of your -- in the

13 City of Chicago, let's say, your local people, your

14 average person knows more about his local elected

15 official than about his national elected official.

16 I mean you would have more people knowing about

17 your mayor, your alderman, than talking about the

18 President. In fact, somebody said it's not a

19 trickled down effect in the City of Chicago, it's a

20 trickle up effect. I mean, your alderman is

21 someone that people talk to or see more than they

22 do the President. So I'm saying, I think your

23 politicians, our local politicians understand the

24 complexity of elections. I think -- they come into

25 my office daily. I have politicians running in and

1 out of the office daily looking for different items

2 and know what we're doing, and I do appreciate

3 that. I think the public knows about it now also.

4 Like I said, after the 2000 election, everybody is

5 interested in elections in the City of Chicago, but

6 they always have been. By having a bad rap, people

7 have done more to look at our elections than

8 anybody else. On election day, not only do I have

9 community groups, but we have the FBI, and the

10 State's attorneys, and other law enforcement

11 agencies, and we appreciate that. We have nothing

12 to hide.

13 CHAIR HILLMAN: For the other two

14 panelists, what are your experiences comparing to

15 what Mr. Grough just laid out with respect to the

16 amount of information that elected officials gather

17 from your offices about the process?

18 MR. RAGSDALE: That's an excellent

19 question. I think Chicago may be unique, at least

20 from my perspective, in that people know their

21 local elected officials better than they do their

22 federal officials. I think just to witness the

23 turnout we had last November and the interest that

24 was displayed by the electorate, this year we have

25 our municipal election in November. Odd years in

1 Colorado we have coordinated elections, and

2 municipalities will add their races to that ballot,

3 so we have our mayor and city council members up in

4 this race, so really me -- my job security is more

5 important this year than it was last. But actually

6 for the elected officials and for the electorate in

7 general, they know less about what's happening, I

8 think, in the race this year than they did last

9 year. I don't think we'll ever see the -- at least

10 in an odd year election, the level of interest that

11 we had this last November. As far as the elected

12 officials knowing about the process, I think that's

13 -- I'm not sure how to answer that. A lot of our

14 local candidates who are running for our city

15 council, because our department that handles

16 elections is part of the city budget, they do have

17 an interest in it, and they do want to know that

18 their voters are having the opportunity to vote and

19 know where to go. Polling place location is always

20 very important to them, and how we communicate that

21 information to the voters. But as far as the

22 intricacies of setting up an election, and setting

23 the perimeters for it, and testing the equipment,

24 it's -- I'd have to say it's pretty low.

25 MR. TERWILLIGER: I would say that one

1 thing that will peak the interest of state

2 legislatures more than ever before is to have a

3 governor's race that was as close as ours was. They

4 now know more about elections than they ever did

5 before, but quite frankly before that they were as

6 naive about it as the average person in the public.

7 I got to my poll, I vote, the ballots are counted

8 and everything comes out just fine. Understanding

9 the intricacies and the complexities of it, there

10 were a couple of state legislators from my county

11 that actually did take the time to come in and

12 visit the office several times, and they had a

13 knowledge base that was relied upon, quite frankly

14 in the state legislature up until this point in

15 time. And still, but I mean there are more now --

16 more familiar just because of our experience. Even

17 the local county council, county executive does not

18 really take the time or has the understanding of

19 the complexity of what we do in elections.

20 CHAIR HILLMAN: I'll tell you where I'm

21 going with that question. Each of you addressed

22 how the bar has been raised, if you will, with

23 respect to the management practices and standards

24 within elections. And you addressed the financial

25 implications of that. And if Congress did not

1 appropriate any more money to the states in

2 requirements payments; it does not appear that will

3 happen. It didn't happen this year; it does not

4 appear it will happen in 2006, and we don't know

5 what the future holds. Will state and county

6 appropriators be ready to address the issue? Will

7 they be ready to understand the cost implications

8 and the need for additional funds to go to

9 jurisdictions, to be able to support the conduct of

10 elections the way that each of you had described

11 what you're working to achieve?

12 MR. GROUGH: I could, just to let you

13 know in the City of Chicago, I think the City is

14 talking about $100 and something million deficit.

15 The county is looking at about an $189 million

16 deficit. So with deficits like that, elections

17 would not be a top priority.

18 MR. TERWILLIGER: I think that's the true

19 case in our State as well. Although there was a

20 whole package of election reform legislation

21 passed; many of those have financial implications,

22 and many of the counties are going before their

23 county councils right now and asking for monetary

24 support for that. The state legislature did refund

25 what we know as our election certification and

1 training component of our Secretary of State's

2 Office as a response to our issues, which is a good

3 thing because they do provide training uniformly

4 throughout the State and do audit reviews on best

5 practices on the county level. But they've not

6 been able to do that for the last four or five

7 years because the State cut the funding, but now

8 they've put it back into place. So that was a

9 positive response by our state legislature, but

10 there's still more to do and it remains to be seen

11 how they respond to it.

12 CHAIR HILLMAN: Mr. Ragsdale?

13 MR. RAGSDALE: I would have to point out

14 our former Secretary of State created a blue ribbon

15 panel after the last election in November that was

16 -- part of the members of that panel were

17 legislators, state legislators. And I think that

18 was a great tool to educate the legislators, seeing

19 what their fellow legislators were doing, and the

20 word of mouth, and the informal communication from

21 that I think helped tremendously. I think the

22 State level, the Secretary of State, we were

23 fortunate in Colorado to have the Secretary of

24 State who worked quite closely with the legislators

25 and was able to educate them to a degree of the

1 needs of the elections world. However, in Colorado

2 we do have term limits, so that education process

3 needs to continue as new legislators come in. So I

4 don't think it's something we can certainly rest on

5 our laurels to say our state legislators are now

6 educated and we can move forward knowing and being

7 comfortable that our funding will be there. I

8 don't believe that that's the case.

9 CHAIR HILLMAN: Okay. I think about that

10 a lot because I know setting the standards for the

11 voting systems will require constant upgrading in

12 the out years, replace -- equipment replacement,

13 upgrading, and so on an so forth. And just the

14 notion of state and local jurisdictions having

15 sufficient funds so that ten years from now the

16 momentum can continue, and we don't have to see

17 ourselves revisiting all over again voting systems

18 that aren't serving the ever increasing demands. I

19 mean I think Chicago pushes the envelope with

20 respect to the number of polling places you have,

21 the number of elected offices that there are, and

22 you know, just the size of your ballot, and the

23 extent to which systems can accommodate those -- in

24 an affordable way. Okay, thank you. I think we

25 are about 2:20, the end of this panel. And it is

1 time for panel two. And thank you very much,

2 gentlemen --

3 MR. TERWILLIGER: Thank you.

4 MR. RAGSDALE: Thank you.

5 MR. GROUGH: Thank you.

6 CHAIR HILLMAN: -- for the time that

7 you've taken and the information that you have

8 shared. And we will now set up for panel two,

9 community interest groups, and that's Ms. Lillie

10 Coney, the Electronic Privacy Information Center,

11 and Mr. John Lott, Resident Scholar at the American

12 Enterprise Institute. Thank you very much. I'm

13 trying to find an EAC staff person or somebody from

14 -- the lights are a little blinding, but Carol,

15 thank you. Okay, we have with us Ms. Lillie Coney

16 and Mr. John Lott. And we do have your written

17 testimony, and we would ask that you just summarize

18 from that the highlights, the things you want us to

19 really know and remember, and take up to five or

20 seven minutes to do that and then we'd like to have

21 time for questions with you. Thank you.

22 MS. CONEY: Thank you. I'd like to thank

23 you on behalf of the Electronic Privacy Information

24 Center --

25 CHAIR HILLMAN: Can you move the

1 microphone a little closer maybe and speak up so we

2 can hear you?

3 MS. CONEY: Sorry. First, I'd like to

4 request that I'd be allowed to revise next to my

5 mark for the permanent record for this hearing?

6 CHAIR HILLMAN: Sure.

7 MS. CONEY: First, my name is Lillie

8 Coney. I'd like to thank you on behalf of the

9 Electronic Privacy Information Center and its

10 project, the National Committee for Voting

11 Integrity, for this opportunity to contribute to

12 your deliberation on the final Guidance, which will

13 be given to States on electronic voting -- on

14 voting technology and systems. The things that the

15 National Committee for Voting Integrity would like

16 to vote out are one, it's a wonderful document, one

17 that looks at accessibility issues. It goes far

18 beyond a lot of expectations initially going into

19 the process. It is a living document that will be

20 with us for quite a while, that a portion of it

21 will be a landmark, basically, the guidance that

22 should be looked to for states and localities to

23 make voting accessible for those with disabilities.

24 I think the issues of privacy and transparency and

25 auditability are issues that really need to be

1 focused on in the document, provide some guidance

2 to states in those areas. The bar for voting

3 technology and voting systems should not be set

4 artificially low. I think that the opportunity to

5 sit a floor, and encourage states and localities to

6 reach for higher areas of expectation and goals are

7 -- this is a wonderful opportunity to be able to do

8 that. As far as the general comments, while the

9 Voting Technology Guidelines has some strong

10 recommendations, there are some areas that are of

11 some concern to the electronic technology

12 community, as long -- as well as those are in

13 resident, auditability, and transparency.

14 Transparency in open government procedures that

15 allow public access to the elections administration

16 process are very important to democratic processes.

17 Guidance should make them aware that the challenges

18 to transparency posed by bar codes on voted

19 ballots, and non-disclosure agreements as a

20 condition for purchase of electronic voting -- of

21 voting technology is an impediment to transparency.

22 On the issue of audit, in the draft version of the

23 Voting System Guidelines, two little focuses placed

24 on the importance of conducting audits of election

25 results. For audits to be credible, the same

1 vendor that supplied the voting technology being

2 audited should not perform the audit. It is

3 important to know when election systems perform is

4 expected as well as when they do not. For this

5 reason, independent verifiable and transparent

6 audits of election results should be routine.

7 Audits should include a representative hand count

8 of ballots or ballot images, documentation of the

9 change of custody about voting technology, and the

10 chain of custody on all unmarked or marked ballots.

11 States are well within their prerogative to

12 determine how audit information will be used, but

13 they should be strongly encouraged to incorporate

14 audits into their election procedure, and to make

15 the results of those audits public. As far as

16 privacy is concerned, one the aspects of privacy

17 that needs to be address are absentee voting or

18 early voting. The privacy of those voters are just

19 as important as the privacy of voters that vote on

20 election day. Some states have taken up some

21 interesting avenues to try to address privacy and

22 absentee voting. They use double envelopes, where

23 the exterior of the envelope that's being sent out

24 or the one that's being returned doesn't reflect

25 party affiliation or any more information necessary

1 than to return that envelope -- make sure it gets

2 to its destination. And as soon as practical, the

3 exterior envelopes need to be removed from that

4 ballot so it can be properly counted as part of the

5 election process. Security issues that we have some

6 concerns about, security is a matter of trade-offs.

7 It's basically -- it's a formula of what are you

8 going to get for what you're willing to pay. And

9 the EAC is in a position to make decisions

10 regarding trade-offs to establishing a practice,

11 reliable, secure, accessible, transparent, and

12 accurate, and auditable elections. If the results

13 of the Commissions' actions are that it can be said

14 that our domestic elections are more secure,

15 reliable, accessible, transparent, accurate, and

16 auditable, then you've done your job. The voter is

17 the only person who should know they cast a

18 particular vote. They should not be able to prove

19 their vote on a particular ballot to any person.

20 They should be no mark or any identification --

21 identified feature on that ballot that would

22 attract back to that voter. There's a particular

23 voting technology that was deployed in the last

24 year's election that records all votes on a

25 continuous spool of paper -- a roll of paper. That

1 system is definitely a problem when it comes down

2 to making sure that these principles are able to be

3 followed. And your recommendation in the guideline

4 would disallow a system of that type, and that is a

5 very strong position to take regarding

6 accessibility and verifiability. Tele-communication

7 requirements would like to make sure that strong

8 recommendations that are made to states that there

9 are villages associated with telecommunication

10 systems that, in particular, the internet has

11 insecurities that are very difficult to address.

12 Last year, the Pentagon canceled its Serve

13 [phonetic] project because of a report that was

14 very critical and pointed out many of these

15 vulnerabilities. There is a study that is directed

16 under HAVA that would look at telecommunication

17 systems, including the Internet that would be very

18 beneficial in giving direction to states, as well

19 as be an information resource for the Commission,

20 to help provide direction in that regard. States

21 should be encouraged to review the benefits of

22 using such systems, assess the risks that are

23 associated with such systems, have contingency

24 plans in place in the event of some kind of

25 complication that may not be foreseeable at this

1 point in time, but maybe reasonable in the review

2 of these systems and looking at their potential

3 risk of vulnerabilities. There's also an issue

4 with electrostatic disruption. The standards,

5 based on the analysis of members of the National

6 Committee for Voting Integrity, only look at

7 humidity below 25 percent. Many states in this

8 area -- in many states in this nation, in many

9 localities in many states, that's not a realistic

10 view of what the average humidity, that states

11 should be encouraged to look at where technology

12 will deployed, and the factors, the conditions, in

13 which those machines will be used to set the

14 standard for what will be allowable or acceptable

15 in this regard. Voting system security, and also

16 looking at infrared technology, I strongly

17 recommend not allowing that technology to become

18 standard in the construction of voting machines,

19 that states be directed to do a detailed analysis

20 of the need for that technology along with

21 technical consideration of what the potential risks

22 are. Looking at the technology, it's very

23 commonplace, we see it everywhere, but that also

24 means the standards are very common. The

25 information on the spectrum range on where the

1 technology operates is also very well known. It's

2 conceivable that it would pose a security risk if

3 someone intentionally tried to use that technology

4 in a way that would undermine an election. The

5 best approach is not to use it. If states find

6 that it is something they absolutely must have,

7 that they have -- it would be good to be able to

8 physically remove the technology from the machines

9 before they're deployed for elections, and at the

10 minimum, as your recommendation suggests, an opaque

11 material be used to cover access to that port. But

12 states should be definitely directed regarding the

13 seriousness of failed system of that nature, if

14 it's deployed and used in an election. The other

15 issue looking at is the -- what follows six months

16 from now. How does direct -- NIST will assist in

17 compiling a list of laboratories that will be

18 suitable for testing voting systems. The EAC's

19 role will be to select those -- to federally

20 approve those laboratories that we use. In the

21 draft guidance, it appeared that there may be --

22 the existing system may continue with the EAC

23 taking the role of NASED in that process. I'm not

24 sure -- maybe -- just because maybe I'm misreading

25 that, but I just wanted to point that out and hope

1 -- and reiterate and encourage you to look at any

2 process that -- they was showing the current system

3 for testing and certifying voting equipment in this

4 country. It's not only broken but it's virtually

5 non-existent. We strongly support this view of the

6 current process and would encourage you to develop

7 a stronger process as possible within the capacity

8 of the resources that Congress provides to you.

9 Voting systems intended for sources of recording,

10 storing, reproducing accurate lists of qualified

11 voters of ballots for the use in public elections

12 should have well defined critical requirements.

13 Those critical requirements are only those aspects

14 of this -- of both of those type of systems that if

15 they fail would mean that an otherwise qualified

16 person attempting to register to vote would not be

17 able to, or a qualified voter attempting to vote

18 would not be able to vote or have that vote counted

19 as cast or retained as cast. There is -- okay, the

20 last point is voter verified paper audit trail. At

21 the end it basically says that it's option. And it

22 also include -- the [inaudible] voter verified

23 paper audit trail is not mandatory. There are 24

24 states today that have passed laws in this regard,

25 and 13 with proposed legislation. All of the

1 recommendations from -- that you will be making are

2 voluntary in nature. States should be encouraged

3 to, whenever possible and when it's accessible,

4 that voter verified paper audit -- voter verified

5 paper audit trails are not -- should not be

6 prohibited, but should be encouraged, and

7 encouraged in a way that will allow any voter to be

8 able to independently cast a ballot as well as

9 verify the ballot that is left, and the audit trail

10 instrument that's left with it, if it's intended to

11 be the ballot or only for audit purposes. States

12 should have routine processes for doing an audit of

13 the results of each election that they conduct.

14 Those audits can be the decision of the state or at

15 the discretion of the state of how they want to use

16 that audit information, but I think that it's very

17 important for that audit information for

18 transparency purposes to also be available to the

19 public. It may also provide a valuable resource to

20 the library of information that the Commission will

21 be putting together to better understand what

22 happens in elections before, during, and after the

23 process. In closing, I would like to thank the

24 Commission for all of the work on these Standards,

25 to encourage them to include in the standards and

1 direct to states that these are minimum standards,

2 that they should be encouraged to aggressively seek

3 out ways to retire levels of standards if their

4 states have the resources and the opportunities

5 present themselves to do so. Voluntary guidance to

6 states can lead to better elections in this nation.

7 The attention that's been brought to bear because

8 of very close elections speak to the health about

9 democracy, that people in this nation do take an

10 ownership in their elections that they conduct in

11 their state, and local, and national level. And

12 they should be encouraged to participate in that

13 process by making it as open and accessible as

14 possible, through transparency and audit capacity.

15 Thank you.

16 CHAIR HILLMAN: Thank you very much. Mr.

17 Lott?

18 MR. LOTT: Yes. Thank you Chairman

19 Hillman, and thank you Commissioners for inviting

20 me to attend today. I think the Commission has

21 done a good job in balancing peoples' fears that

22 voting systems contain errors, with the benefits of

23 not trying to have a one size fit all for all the

24 states. The Guidelines generally seem to be, in a

25 large part, a clearinghouse of what's kind of the

1 best received information or knowledge on a lot of

2 the issues, regarding everything from security to

3 all the other issues that are covered here. I

4 think the Guidelines should also be commended for

5 not explicitly -- for explicitly recognizing that

6 perfection is costly. And while election machinery

7 tends to work fairly well, we could spend the

8 entire countries wealth and still not ensure

9 absolute, 100 percent guarantee that they'll be no

10 mechanical breakdowns, and things will work as

11 promised. There's a range of other issues. I like

12 the flexibility here across, not only, different

13 types of machines but where the votes can be

14 counted. And, you know, explicit recognitions of

15 things, such as there's no single best way to

16 design software. There's - motivations for reform

17 here are pretty obvious. People are concerned

18 about the integrity and accuracy of the decision

19 election system. We have a Harris Poll that just

20 came out. It shows that about 14 percent of voters

21 are somewhat confident about the electoral, 16 --

22 six percent are not at all confident. It varies by

23 party, about 11 percent of Democrats and only about

24 one percent of Republicans. It's hard to know how

25 much of that is driven by political concerns versus

1 actual concerns that people have. You know,

2 accusations of fraud are probably inevitable in a

3 democratic system, and given what's at stake, I

4 guess it's -- if I worry, if anything, that people

5 are going to claim that problems exist even when

6 nothing do exist. Fortunately, I think many of the

7 perceived concerns are relatively easy to prove,

8 conspiracy theories that developed about computer

9 voting machines after the 2004 election in Ohio. I

10 think with the Edison, Media Research Project, and

11 others have been fairly easily dealt with. But I

12 think the Commission, even though it's kind of

13 outside its main bailey wig [phonetic], so to

14 speak, indirectly addresses these type of

15 conspiracy type stories, as well as allays people's

16 fears generally about how the election system

17 works, simply by issuing the Guidelines. We hear

18 discussions about paper trails, such as just what

19 was being brought up. I think the very effect of

20 the guidelines go through and explicitly talk about

21 that there are different ways that you can go and

22 achieve the same type of ends that you can achieve

23 with paper trails. It helps overcome a lot of the

24 debates that have been publically made in the media

25 where it seems like there is something unique or

1 magical about paper trails that aren't be

2 accomplished through other types of technology. And

3 one can go and talk abut that more. One thing I do

4 think is very important is the voluntary nature of

5 the Guidelines. And I think there are very strong

6 reasons for encouraging the voluntary nature.

7 First, not all the jurisdictions are the name.

8 Paper ballots, for example, seem to work very well

9 and relatively rural areas, though obviously they'd

10 probably be a disaster if they were used in urban

11 areas, we have some elections where you have a huge

12 number of items on the ballot, where others where

13 there's relatively few. My own research that I've

14 talked about before in front of the Commission

15 indicates that some types of methods of voting tend

16 to work very well for some races, and other types

17 of voting, other types of machines may work better

18 for other races, even down the ballot in the same

19 election. So there are a lot of trade offs that

20 exist there. The second point to make is that

21 there is a value to experimenting. You would never

22 learn or never be able to improve things without

23 experiments. And you ran -- run into practical

24 problems in real world settings, that would not be

25 encountered in laboratory settings. Even diversity

1 within states is important, not just across states.

2 It makes it much easier to test the cost and

3 benefits of different types of voting machines. In

4 fact, it's really only possible to do certain

5 tests. If you have variations within states who

6 you can control for the same people, running for

7 the same offices, across different types of

8 machines that are being used. Third thing to bring

9 up is that allowing diversity and experiments, I

10 think, raises the probability that mistakes will

11 occur. But at the same time, diversity also lowers

12 the cost of any given mistake that occurs. With

13 many different machines and setups being used in a

14 state, it is likely that a state in one county will

15 be sufficiently important, and then it will effect

16 -- affect the results in the entire state. It is

17 even rarer that the mistake will affect the result

18 in the key state and it could swing the

19 presidential election. Let me just give you some

20 numbers just to kind of illustrate this. Just take

21 a very simple example. Let's say we had 20

22 jurisdictions and all 20 were using some different

23 type or method of voting, whether it be -- whether

24 it's central count, or local count, or different

25 types of machines, or just the organization of the

1 ballot. And let's assume, just make up some simple

2 numbers here to illustrate this, that there's a

3 five percent chance that any one of those types of

4 voting methods will experience a problem. And

5 let's also assume that there's a five percent

6 chance that the results in any one of those

7 jurisdictions would be small enough that the

8 differences between the winners and losers would be

9 small enough that the type of election machine

10 problem could affect the outcome. Well, the

11 probability that you're going to have a problem in

12 any given year is essentially one. You know,

13 you're going to have -- there's a five percent

14 chance, and you have 20 counties, and it's very

15 likely in an year you'll have a problem. But the

16 probability that you're going to have a problem and

17 it's likely to affect the outcome of the election

18 is extremely small. It's five percent times five

19 percent. It's going to be .025 percent, a very

20 small number there. Now, you can imagine if

21 instead you were to have some type of national

22 guidelines that everybody had to follow, if there's

23 still a five percent chance that they'll have a

24 problem, that means that one in every 20 years

25 you'll going to have a problem. It's a lot less

1 frequently than if you have each one of the

2 jurisdictions all have their own method of doing

3 it. Because you'll have some problem, but it will

4 be located in one of those 20 jurisdictions. The

5 difference is that whenever that problem comes up

6 once every 20 years it's going to be a disaster

7 because it's going to affect all the jurisdictions

8 there. And it's very likely going to affect one of

9 the jurisdictions where it would've close enough

10 that it's going to affect the outcome of the

11 election. So once every 20 years you're going to

12 have a result that's going to create a big problem,

13 whereas if you look at the first case where

14 everybody is doing their own thing, so to speak,

15 it's really only one every 400 years. You know,

16 it's five percent times five percent. Now, there's

17 one thing to take into account here and that is, we

18 made these percentages up, how can we change them

19 to get some idea, because it's possible by using

20 the best information you'll lower the probability

21 that you'll have a bad event when everybody is

22 using the same system from five percent down to one

23 percent. That would be a huge change if you could

24 reduce the probability of a problem occurring by

25 five fold. But it would still more likely that

1 you'd have a disaster occurring, you know, if it's

2 one percent, that's one out of every 100 elections

3 there, versus this other cases where you allow

4 diversity where disaster would be occurring one out

5 of every 400 elections. And so you could still

6 have a big massive improvement in how well you're

7 able to run elections when you do things centrally

8 and yet still have a much higher probability that

9 you're going to end up having an election that's

10 contested when you actually have a problem, then

11 you would under a unified system, let's say. The

12 fourth point that I'd like to bring up is setting

13 rigid guidelines is very difficult and it's also

14 very costly. There's lots of references in the text

15 to having best practices. It's one thing to go --

16 or saying that machines are going to be setup so

17 voters can easily identify something. You know,

18 it's one thing to go and mention those things, a

19 thing to explicitly set them up and make them

20 extremely well defined, and that's very difficult,

21 and I'll mention something later on about that. The

22 proposed guidelines are advisory, and that is

23 emphasized at different points in the draft. My

24 only concern is that rules that frequently start

25 off as advisory end up becoming the required

1 standard. And on way that this could occur is

2 through legal challenges; for example, it's

3 possible that judges at some point are going to go

4 and use the guidelines as a yard stick for which

5 they're going to go and judge the behaviors of

6 individual jurisdictions. And what you may want to

7 try to think about doing, I think in order to try

8 to solve this problem, if you're concerned about it

9 also, is by having some discussion in there about

10 why it's voluntary. You know, not an explicit

11 listing out of all the reasons why it's voluntary,

12 but at least some type of benefits that can exist

13 from having a voluntary system, so that if a court

14 were to go and rely on this as some type of

15 guideline in the future that it's going to look at

16 deviations from there as being the basis of making

17 a ruling. It would then have to explicitly take

18 into account that you would have -- have not only

19 said that these were voluntary, but also at the

20 time -- same time offer arguments for why you

21 believe it's good to have a voluntary system. One

22 thing that I noticed when I was reading through is

23 that some of the rules seem arbitrary, at least to

24 me. And there could've been explanations that I

25 missed to some extent. For example, you know, one

1 of the cases on page 3.24, the guidelines states

2 that machines must have a 99 percent, at least,

3 up-time. You know, there's no explanation for why

4 the standard or where it comes from. One percent

5 of a twelve hour period of time essentially means

6 seven minutes. Now, I don't know, seven minutes

7 seems like a relatively short period of time for

8 me. You know, it could be ten minutes or fourteen

9 minutes. It seems like there should be some type of

10 recognition there, at least if you've done

11 empirical work it would be interesting to try to

12 see some type of trade off of the cost and benefits

13 of choosing different amounts of time. If you have

14 something open for 11 hours, you're talking about

15 an error of only six minutes of length. And there

16 might be some unintended consequences from these

17 types of rules. For example, you want the vendors

18 to go and come up with a list of procedures and

19 what have you to try to ensure this one percent

20 error rate. Well, one thing that could happen, for

21 example, is that what might have happened is a

22 precinct would put all of its machines on the

23 floor, in some sense, to be used, but if you have

24 these types of rules, you may want to keep one off

25 the floor, you know, just so you can quickly

1 replace it and try to keep the downtime to a

2 minimum at that point. It seems like if I have 12

3 machines and I were to have them running I could

4 have voting occur more quickly during the day and

5 just simply remove one from the floor and move down

6 to 11, than rather have 11 up during the entire day

7 and keeping 1 as something that would be saved in

8 reserve. But it seems like the way the guidelines

9 are written up, in terms of the language, you'd

10 always want to keep one in reserve rather than put

11 all your machines on the floor that you have there

12 at the time. There are just little things like

13 that, that when you're reading through it -- again,

14 I could be misreading what the intent is. But the

15 security issues I think are generally well done.

16 Indeed, a lot of it is following what has been

17 current practice within the industry. One safeguard

18 that I think is there, but it might be useful just

19 to make explicit, is that if you have problems in

20 terms of things being transmitted over public

21 telecommunications networks, you have a backup

22 that's there in any of these DREs or other types of

23 machines, and that is you have CDs or other things

24 that you can go back and double check whatever

25 information was transmitted publicly there, in

1 order to double check -- to recount things. So

2 you're not -- even if some type of fraud were to

3 occur in terms of the telecommunications, the

4 original data is still there and still able to be

5 checked. I appreciate the time that you all have

6 and I appreciate you all inviting me coming to talk

7 to you. Thank you.

8 CHAIR HILLMAN: Thank you very much.

9 Commissioners, unfortunately, we don't have much

10 time here. We've got about five minutes per

11 Commissioner for Q&A with the panelist. And,

12 Commissioner Martinez?

13 MR. MARTINEZ: Thank you, Madame Chair.

14 I'll just ask a couple of quick questions. Thank

15 you both for your testimony and for you time and

16 efforts to get here and provide the testimony. Ms.

17 Coney, in your written testimony I do want to help

18 clarify for me some of the statements that you

19 made. On page ten of your submitted written

20 testimony --

21 MS. CONEY: Okay.

22 MR. MARTINEZ: -- you talked about the

23 certification process.

24 MS. CONEY: Right.

25 MR. MARTINEZ: And the differences in

1 languages from the initial recommendations that

2 were submitted to by the TGDC to the EAC, and then

3 some language where we amplified what we see as our

4 role in the certification process.

5 MS. CONEY: Right.

6 MR. MARTINEZ: And I'm trying to figure

7 out from your group's perspective, are you reading

8 section 231 different from how we're reading it. In

9 other words, it seems to me from your comments that

10 perhaps you don't feel we are the entity that

11 should be certifying, decertifying, and

12 recertifying? Go ahead.

13 MS. CONEY: Okay, let me be clear. It

14 doesn't matter what we think. It's the authorizing

15 committee and the people who wrote the -- HAVA, and

16 passed it. Those are the peoples whose opinions

17 about what the intent of the legislation are most

18 important. What I -- we were reading this for is

19 are we sticking with the current certification

20 process where we have the ITA's, and then NASED in

21 the process, or are we going to keep that same

22 process but take NASED out and the EAC is going to

23 be in that process? Now I know the law -- HAVA

24 says six months after you finally get through with

25 this you start on next phase of an auditor's task,

1 which is NIST will compile a list of laboratories

2 that they feel will be suitable for certification

3 of voting technology. That list will come to you.

4 You will look at that list. You can add to that

5 list or you can determine whatever list that you're

6 going to have as those labs that will be certifying

7 voting technology within the United States. When I

8 read this -- when we looked over it and we went

9 back and forth on it, it sounded like the ITA's,

10 the de facto labs that will be used, and whatever

11 that curtain list, labs and others that are on that

12 list, and that the EAC would replaced NASED's role

13 in doing this. That's the thing that I wanted --

14 you know, we looked at it and said, okay, it's an

15 opportunity to clarify that before the guidance

16 gets out. If this is your intent, okay, if it's

17 not, then there's an opportunity to revisit that.

18 MR. MARTINEZ: And I appreciate that,

19 yeah, and I think that's what we're looking for in

20 the testimony and the comments is for all of us to

21 all get on the same page.

22 MS. CONEY: Yeah, yeah.

23 MR. MARTINEZ: And I think that's what

24 we're trying to do.

25 MS. CONEY: Yeah.

1 MR. MARTINEZ: And so, yeah, and the

2 reason I bring it up is I've never had a discussion

3 with anybody who says, you know, it's the job of

4 the EAC to accredit labs, and then the labs go off

5 and do the certification without any governing

6 entity, or without any umbrella entity, and NASED

7 serves that role right now.

8 MS. CONEY: Right, you've --

9 MR. MARTINEZ: But the way we read

10 Section 231 --

11 MS. CONEY: Yeah.

12 MR. MARTINEZ: -- Congress intends for us

13 --

14 MS. CONEY: Yes.

15 MR. MARTINEZ: -- to take over --

16 MS. CONEY: Yes, absolutely.

17 MR. MARTINEZ: -- that certification

18 process. So it sounds like we're in agreement about

19 that.

20 MS. CONEY: Absolutely, we're in an

21 agreement on that. What we're looking at the

22 current process with the ITA's is it's not working.

23 And the assessment is that it is not only broken

24 but it is virtually non- existent.

25 MR. MARTINEZ: I understand.

1 MS. CONEY: That process -- those labs

2 have - - that component of that process got to be

3 revisited, and to the extent that the resources

4 would allow you to find the best labs to look at

5 voting technology. That would be a great

6 improvement over the current process.

7 MR. MARTINEZ: Got you, and I appreciate

8 that clarification. The other issue I wanted to

9 explore with you just very quickly is the issue of

10 verification --

11 MS. CONEY: Okay.

12 MR. MARTINEZ: -- under the security,

13 proposed security section.

14 MS. CONEY: Um-hmm.

15 MR. MARTINEZ: And is it your position,

16 your organization's position that verification must

17 occur through a VVPAT mechanism, or are you also,

18 as we had some testimony previously from a local

19 election administrator who's saying, look, there's

20 other ways to verify; we may not have that

21 technology fully matured enough that we can write

22 requirements or guidelines for it. But are you

23 wedded to VVPAT or wedded to the idea generally of

24 simply that DRE systems ought to have some method

25 of verification?

1 MS. CONEY: The one thing that EPIC has a

2 resources is some of the vast technologist

3 available, especially people that have worked in

4 this field. When you look at the issue of how do

5 you make sure that this particular thing happened

6 at this particular point in time, the only reason

7 paper is mentioned, and the only reason paper has

8 been around for over 5,000 plus years is it has a

9 unique quality. If you bend it, if you make a mark

10 on it, you can't hide that, it can't be undone.

11 That's the security feature that all technologists

12 who are very concerned about, not just voting

13 technology and being able to verify whatever took

14 place is in fact what took place, but a lot of

15 other areas as well. There are other applications

16 -- other technologies that are out there,

17 cryptographic schemes that are out there, write

18 once medium technology that's out there, but it

19 hasn't been put into voting technology. That's

20 going to take time, because once someone comes up

21 with a method that they say this is absolutely the

22 sure fire method to do this, the technology

23 community will pick it a part and it will either

24 prove itself to be actually that or it will fail.

25 And in the meantime, we're in an evolutionary

1 process where we're trying to find out how do we

2 get from point A to point B right now, the best

3 medium for doing all of those things that we've

4 talked about is this. Everything else might

5 present itself to actually do that, but in fact can

6 you prove it? That's how come we talk about audit

7 capacity, even with paperless systems you have a

8 ballot image, you're going to have to do a random

9 -- a representative sample recount of those images

10 to compare with what the DRE actually said it did,

11 in order to have some kind of way to evaluate how

12 good it is at actually doing that.

13 MR. MARTINEZ: Okay, I appreciate that.

14 I think my times is just about up. Mr. Lott, would

15 you agree that the role of the EAC is to set

16 benchmarks for performance and reliability, and

17 that we ought to allow states the latitude and the

18 discretion to be able to meet those benchmarks

19 based upon the decisions that they make at the

20 state and local level?

21 MR. LOTT: Yes, I believe the EAC can

22 perform a very important role of being a

23 clearinghouse for the best information that's

24 there, and helping to use that to set those type of

25 standards. And I agree with the second part of

1 your statement too.

2 MR. MARTINEZ: Yeah, no, and I wanted to

3 just express my agreement with the spirit of your

4 testimony, quite frankly, that the discretion is

5 within state and local governments and how we're

6 going to administer our elections, and yet there is

7 a service that can be provided I think by an entity

8 like the EAC, and I think you've captured that

9 pretty well in your comments. The other thing I

10 also want to say is that Congress clearly said that

11 these are voluntary guidelines, so I also

12 appreciate your suggestion that perhaps we ought to

13 make that clear in case it doesn't look so clear in

14 the process of litigation. I think that's

15 something that we perhaps ought to consider. My

16 time is up otherwise I'd explore some other

17 questions with you. Thank you, Madame Chair.

18 CHAIR HILLMAN: Okay, Mr. Vice-Chairman?

19 MR. DEGREGORIO: Thank you, Madame Chair.

20 Ms. Coney, I'm glad that you brought up the

21 humidity issue. I was in Ohio on August 2 for a

22 special election there for Congress, and of the

23 seven counties one of the counties was using

24 optical scan equipment for the very first time;

25 they had switched over from punch card --

1 MS. CONEY: Um-hmm.

2 MR. DEGREGORIO: -- but the vendor of the

3 folks who sold them the equipment didn't explain to

4 them that when you have high humidity, you have to

5 calibrate it differently to take those ballots in.

6 And so, the result was the final returns from that

7 county didn't come in to close to midnight --

8 MS. CONEY: Oh, yeah.

9 MR. DEGREGORIO: -- because of the

10 machines. And I'm glad that you brought this to our

11 attention because I do think it's something that we

12 ought to take a look at before we finalize these

13 guidelines and to make sure that these are tested

14 under real life conditions. And I know that many

15 counties -- many states have elections in August,

16 Missouri used to have them, and I know that punch

17 cards used to swell and we used to have problems

18 with it. You mentioned the DRE paper trail.

19 MS. CONEY: Um-hmm.

20 MR. DEGREGORIO: And you have a problem

21 with the paper roll issue.

22 MS. CONEY: Yeah.

23 MR. DEGREGORIO: And I recognize that the

24 State of Nevada that mandated the voter verified

25 paper audit trail uses equipment that has such

1 paper rolls in them. Would you have a problem if a

2 polling place had more than one of these devices

3 within the polling place, and therefore voters

4 would be directed to either one of those machines

5 randomly so therefore you couldn't keep track on a

6 voter roll because they'd be going from one to the

7 other, and the roll then -- we have two different

8 rolls and two different machines, would that be

9 acceptable?

10 MS. CONEY: That's the kind of question I

11 would definitely pose to the Committee itself, the

12 National Committee for Voting Integrity. I'd

13 suspect that you would need a statistician and poll

14 place procedures to try to figure out how to keep

15 the ballots secret, which might make still the

16 application of that so much more expensive to do

17 that it'd just be cheaper to figure out how to

18 separate each vote at ballot and randomize them, so

19 that if it's a need for a recount you can do that

20 without having to worry about compromising voter

21 privacy. In the testimony it gives you a lot of

22 legal precedence for how important voter privacy

23 has been throughout the history of our nation, not

24 just on federal -- in federal elections, but also

25 local elections and state elections. It is

1 paramount, and anything that threatens that should

2 definitely be discouraged. And as additional aid

3 to the Commission, there are other things that --

4 regarding ballot marking procedures and things of

5 that issue that we can provide you some guidance

6 on, and I'll leave this with you.

7 MR. DEGREGORIO: I appreciate that.

8 Thank you. Mr. Lott, you mentioned the Harris Poll

9 that indicated that six percent of people who voted

10 in November of 2004 did not have confidence, no

11 confidence at all in the voting system. That

12 translates into seven million people. What can be

13 done at the federal level and at the local level to

14 help instill confidence in votes and in these seven

15 million people who don't have confidence at all.

16 What can we do? We can local election officials do

17 to instill confidence?

18 MR. LOTT: Well, my guess -- I mean

19 obviously they are real concerns that people have.

20 But I fear that a sizeable portion of that six

21 percent are based upon kind of conspiracy theories

22 and other things that just simply aren't born out,

23 whether it be the constant discussions about some

24 DRE's being used to throw the election in Ohio, or

25 nationwide, or whether it be claims about how you

1 can only trust the results if you have a paper

2 trail there. And I think the federal government

3 can do things, in particular, your Commission,

4 simply by educating people that there's nothing

5 unique about one particular type of paper trail,

6 you know, for keeping track of the records. Or

7 it's providing some type of standards, hopefully,

8 that people will believe. I mean, I think they do

9 a pretty good job anyway, but it still -- that

10 doesn't take anything away from the fact that

11 having some type of National Certification

12 Commission wouldn't help. And my only concern is

13 that the push to have national certification on

14 some of these things may eliminate some of the

15 experimentation that we would normally get, and

16 some of the learning that we would get about

17 different types of voting machines over time. And

18 to the extent that this push towards the national

19 standard isn't really based on real events; it's

20 just based on incorrect perceptions that people

21 have. I think that would be too bad if we lost

22 that type of experimentation.

23 MR. DEGREGORIO: Thank you. Thank you,

24 Madame Chair.

25 CHAIR HILLMAN: Commissioner Davidson?

100

1 MS. DAVIDSON: I have one question that

2 I'd like, really for both of you to answer, because

3 you took two different kinds of perspectives on

4 your presentation. On -- but, obviously these are

5 voluntary standards, and we can't do anything to

6 change that. But do you see that the best practices

7 that the EAC will be putting out will help improve

8 even those states that don't accept our standards.

9 Do you feel that they would do that, and I'll start

10 with you, Ms. Coney?

11 MS. CONEY: I think that the interest in

12 improving elections and responsiveness to public

13 concerns regarding the elections are evident by the

14 amount of legislative activity that's taking place

15 across the nation, not just in states where they've

16 had very close elections, like Washington State, or

17 states like Nevada that have been very proactive

18 and trying to work on the cutting edge of

19 addressing those concerns. I don't think that is

20 going to change anytime soon. I think the

21 standards will give a benchmark for states and

22 those who are interested in how to improve

23 elections, how to make sure they're as good as they

24 possibly can be, a starting point. But they should

25 be encouraged to go beyond that because a lot of

101

1 the ideas for how to make improvements will come

2 from the local and state governments. And they'll

3 kind of go up to the federal level and be adopted,

4 which is typically the process that we've seen in a

5 lot of policy areas, and it's beneficial to be able

6 to do that. I think it will have an impact, but

7 making sure states understand they should look

8 beyond, not just at the issues of what they can do,

9 but what can they do securely? And being able to

10 justify those situations where they decide to

11 pursue avenues that may pose some kind of risk just

12 to find the cost, the benefit, the tradeoff for

13 making those kind of decisions.

14 MS. DAVIDSON: Mr. Lott?

15 MR. LOTT: Well, I think the guidelines

16 will hopefully encourage discussion. My concern is

17 that they will be more than just voluntary, just as

18 somebody who has been involved in litigation, I

19 have seen the types of rules that judges adopt over

20 time and what they rely on, and again I mentioned

21 this before, I think it would be beneficial if

22 someplace in the guidelines you explained why

23 Congress or why you think it was important to have

24 a voluntary system. There must be some arguments

25 that you have in your mind about what you would be