Coalition for Good Governance

7035 Marching Duck Drive E504

Charlotte, NC 28210
704 552 1618
Marilyn@USCGG.org

June 17, 2018

Re: June 13, 2018 Commission Meeting Concerns

Dear Commissioners:

Thank you again for your service to Georgia’s voters in addressing the pressing need for
verifiable elections. Secretary of State Kemp and his staff deserve significant credit for
making the process an accessible one for the public and for appointing a diverse group of
knowledgeable professionals.

I am attaching my public comment notes from the June 13 meeting (Exhibit A), and I
acknowledge the generous efforts by Chairman Fleming to assure that all members of the
public desiring to do so had the opportunity to speak. My comments asked the
Commissioners to promptly explore the fundamental issues of uniformity and
centralization of the voting system management. Such critical issues should not be
decided by default, as it appears may be the case. I also noted that I would be submitting
a factual rebuttal to some of the important positions taken by the Secretary ’s staff.
Though far from a comprehensive reference to the misinformation delivered, this letter
attempts to offer some initial and important points of rebuttal. I do not intend to be
harsh in this letter, but there are reasons to have grave concerns about the quality of the
information being communicated to the Commission. This letter addresses only the most
significant misinformation you were given and covers only five issues:

1. DREs (Direct Recording Electronic voting machines) are not mandated by

Georgia law. Optical scanning of paper ballots is authorized in statute.
2. Georgia’s DREs violate federal law (HAVA—Help America Vote Act).
3. Georgia’s currently owned system scanners are capable of tabulating all ballots.
4. Optical scanning of paper ballots is the current, most recommended, and most
widely used election technology in the United States.
5. Georgia’s cybersecurity risk is alarmingly high.

The need to rebut the presentations of the SOS staff now in the record is a dangerous
warning sign that the Commission must restructure its process to protect the integrity of
its work over the next several months. This type of written rebuttal cannot be
accomplished in a 2-minute public comment at the close of every meeting. Nevertheless,

June 17, 2018 Page 1 of 7

the Commission and the voters it represents cannot afford the risk of misguided
decision-making that will surely result from the extensive material misinformation.

Issue 1: DREs are not mandated by statute.

The SOS staff represented to you that legislation is required to permit the use of optical
scanners and paper ballots. The staff inaccurately claimed that current statutes mandate
DREs. This is simply not the case. The DREs are the current primary voting method
selected at the discretion of the Secretary of State and subsequently improperly
mandated by the State Election Board. Georgia votes on insecure DREs because of the
improper decision of only five individual officials, not a mandate of the legislature.

The only mandate for DREs is the State Board of Election Rule 183-1-12-.01. This
administrative rule can be immediately repealed by an emergency action of a majority of
the 5-member State Election Board. Additionally, Secretary of State Kemp has the
statutory authority to unilaterally decertify the DRE system. (§21-2-379.2(c)) Obviously,
given that the Secretary of State can unilaterally decertify the system, DRE use is not
mandatory.

See Exhibit B for statutory references and details in support of the fact that the DREs are
not required by statute.

The fallacious claim that new legislation is required for paper ballots should not be used
as an obstacle to immediately implementing a paper ballot/optical scanning system.

Issue 2: Georgia’s DRE machines violate federal law (HAVA).

Chris Harvey told the Commission that Georgia’s DREs comply with HAVA because the
“ballot images” --sample here-- https://www.scribd.com/document/381890580/Gems-
Ballot-Image-Report-Aip-6 ) are “paper records” that meet HAVA’s voting system
requirement for a paper record for a manual recount. This preposterous claim must be
exposed. The State’s position is simply frivilous.

Note the requirements in Exhibits C through C-2 making it clear that (1) the HAVA-
required record is to be a paper record (not a paper print-out of a downstream electronic
record) and (2) the system must have a “chain of evidence connecting back to the
original transaction” (from the voter). The ballot images produced by Georgia’s system
do not qualify as such records. The ballot images are generated as human-readable text
reports from the GEMS (Global Election Management System) database via software
programs in the GEMS server. The software interprets electronic data in the database,
which was uploaded from the DRE memory cards following considerable handling and
processing after the voter’s electronic vote was recorded.

June 17, 2018 Page 2 of 7

Despite the “ballot image” terminology, ballot images are not photographic images.
“Ballot images” are also referred to as “cast vote records.”

The Fulton County Elections Department has repeatedly stated that (1) the ballot images
cannot be exported from the DRE machines themselves, and (2) the only source of the
report is the GEMS database. It is our understanding that the electronic ballot images
present in the internal memory and on the memory card are encrypted and are certainly
not an independent auditable paper record created by the system, much less a voter-
verified record. At best, a ballot image is a report of software-interpreted encrypted
electronic data processed by the DRE as well as by the GEMS server—not a direct and
auditable paper record of the voter’s transaction. An argument to the contrary cannot be
made with a straight face. Yet it was.

Further, Fulton County has made it clear that election officials do not even use the
electronic ballot images; the county claims not to maintain them in their normal course
of business.1 Georgia counties do not use the ballot images for recounts, nor would they
be generally meaningful. Significantly, however, HAVA requires that a “manually
auditable paper record for use in a recount” be created by the system. The ballot images
referenced in the Commission meeting are simply not such a paper record. They are
merely a report printout of an interpretation of an encrypted electronic record, several
steps downstream from the original voter transaction. They cannot be reasonably
considered an appropriate independent source document for audit purposes.

Additionally, it should be noted that these ballot images, exported from GEMS only upon
(expensive) special request, have been subjected to a high risk of alteration in numerous
steps prior to being stored in, and exported from the GEMS database. For example, in
Fulton County, these records are electronically transmitted over insecure transmission
lines (see Issue 5) on election night to the GEMS server, from which they are later
deleted and replaced as the memory card data is uploaded from the physical memory
card. Such a reckless process destroys any hope of a secure audit trail.

1Under Georgia’s Open Records Act, I requested the Fulton County ballot images from the April
20, 2017, GA06 Special Election. I received the following response: “Therefore, responding to
your request would amount to the creation of a report, summary, or compilation not currently in
existence. The Georgia Open Records Act does not require such an undertaking. See O.C.G.A. sec.
50-18-71(j). By way of further response, the manual compilation of the data you are seeking would
take approximately 1000 hours to reproduce at a rate of $26 per hour. Even if this task could be
undertaken, due to manpower constraints, these records could not be available until at least
August of this year.” Similarly, earlier this month, I requested ballot images from only the Ponce
de Leon Library early voting location. The response was, “With respect to this request, I will
assert that the records you are seeking amount to a compilation of records not currently in
existence and not required to be produced pursuant to O.C.G.A. 50-18-71(j), thus, the ‘nothing
responsive’ response. That said, the department may be able to comply with your request. The
estimated cost to due [sic] so, however, is $3,033.82.”

June 17, 2018 Page 3 of 7

The claims by Mr. Harvey strain credulity and are inappropriate testimony to the
Commission as it considers the essential issue of compliance with federal law.

Issue 3. Currently owned Accu-Vote optical scanners can handle adequate ballot volume.

In response to the recommendation that currently owned scanners be used as a stopgap

measure to avoid DRE use, Chris Harvey stated to the Commission that the currently
owned paper ballot scanners are incapable of processing the large volume of ballots in a
general election. He said that, instead, the scanners are dedicated to handling only the
10% of ballots received as absentee and provisional ballots. The claim was made that the
machines would be “smoking” if they were used for such volumes. Approximately 2.6
million ballots were cast in Georgia’s November 2014 midterm election. Assuming that 3
million ballots are cast in November 2018 and that Georgia has 1,000 optical scanners,
an average of only 3,000 ballots would be required to be scanned by each scanner. These
scanners operate at approximately 30 ballots/minute, or 1,800 per hour. Even
accounting for slower operation, only 2 to 3 hours of utilization per scanner would be
needed.

I have personally fed hundreds of ballots per hour into an Accu-Vote OS of the exact type
used by Georgia. No problems were experienced. I have observed thousands of ballots
scanned on literally the same equipment in use in Georgia that was donated to Georgia
from Adams County, Colorado. I personally observed elections in which Adams County
scanned ballots for their 265,000 voters in a central count facility on the exact
equipment that Georgia now owns. No scanner breakdown problems were noted in days
of observation. I observed ballot scanning on this equipment in El Paso County,
Colorado, which has 450,000 voters. No scanning problems were observed related to
high volumes of ballots.

The SOS staff stated to the Commission that the ballots must be sorted by precinct before
scanning. This is untrue. I have both used and observed the Accu-Vote scanners properly
operating and programmed to accept all county ballot styles in each scanner.

Unfortunately, it appears that the SOS staff is using misinformation to dissuade the
Commission from exploring a near-term stopgap solution2 of using currently owned
Accu-Vote scanners to count hand-marked paper ballots in upcoming elections.
Please note the op-ed published in USA Today promoting the stop-gap solution, co-
authored by Georgia Tech Professor Richard DeMillo.3

2
https://www.scribd.com/document/381361110/SAFE-Commission-6-8-18-CGG-Memo

3
https://www.usatoday.com/story/opinion/2018/03/15/russian-election-hacking-what-we-can-
do-now-protect-democracy-buell-demillo-hoke-column/393565002/

June 17, 2018 Page 4 of 7

Issue 4. Paper ballots are not for “old-style” elections.

Using hand-marked paper ballots counted by optical scanners and audited with manual
counts is the most accepted, most highly recommended method of voting and is
supported by virtually all voting system technology experts.

However, during the discussion, the SOS staff and some members of the Commission
disparaged paper ballots as a step backward or an archaic methodology, apparently
attempting to conflate hand-marked ballots with hand-counted ballots. These
disingenuous assertions are a reflection of bias and/or misinformation.

• The overwhelming majority of academic computer scientists who are expert in the
voting systems field agree that paper ballots are the most secure and preferable
method of voting.4
• This message has been adopted by Congress and Department of Homeland Security5
and virtually every nonprofit organization working in the election integrity area.

In addition, it is important to understand that the “hybrid system” (touchscreens +

barcoded ballots) that was promoted in the Commission meeting and that was the basis
for failed SB403 does not use “verifiable” paper ballots. Such systems that rely on
electronic capture of a non-human-readable barcode are simply a more complex, but still
unverifiable, electronic voting systems.

The SOS staff claimed that paper ballots are marked with pencils, making the paper
ballots “hackable.” Pencils and graphite have not been used to mark ballots in decades.
Permanent ink markers are generally used.

Issue 5. Recklessly misstated cybersecurity risks inherent in the current system.

The presentation to the Commission communicated considerable false information

about the security of Georgia’s voting system. The current security of the system must be
more candidly evaluated and communicated to the Commission to assist you in
objectively assessing the capabilities, needs, remediation, timing, and implementation
strategy for a new system. Rather than our organization attempting to provide detailed
rebuttal to the numerous inaccurate details communicated, I urge the Commission to
independently develop a process for obtaining a more realistic assessment of the security
infrastructure and readiness of the SOS staff to undertake the selection and installation
of a new voting system. The staff’s failure to candidly brief the Commission constitutes a

4
https://www.electiondefense.org/election-integrity-expert-letter/.
5
https://www.usatoday.com/story/news/politics/2018/03/21/election-security-only-21-150-
state-election-officials-have-security-clearances-needed-learn-cyber-t/445466002/.

June 17, 2018 Page 5 of 7

serious early-warning sign of lack of preparedness for new system selection and
conversion and systems integration.

Chris Harvey repeatedly claimed that the components of the system are not connected to
the internet, which is true only in the dangerous most hyper-literal sense. The
components may lack a live real-time connection to the internet, yet they touch the
internet in multiple ways in an election’s preparation, conduct, and tabulation steps and
are therefore exposed to risk from both outsiders and insiders.

It was also reported to the Commission that the GEMS database is “not networked” and
is therefore not subject to internet-based attacks. Again, this simply not true, for the
same reasons that the components exchange electronic information. These are but two of
many examples of the misinformation you received.

SOS staff’s lack of understanding and/or candor regarding the most basic of electronic
security issues must also be evaluated as the Commission considers its approach to the
project and a realistic time line for recruiting and training a staff for implementation and
management of a new system.

It should be noted that senior staff members currently in charge of voting system
management were also senior staff of the Center for Election Systems (KSU) who
knowingly and repeatedly permitted the voting system servers to be open on the internet
for months to anyone with an internet connection. These managers acknowledged that
the system was compromised but did nothing to secure the system and mitigate the risk
to the voting infrastructure across the state.

During the run up to the November 2016 presidential election, this same senior staff was
informed of the lack of security protection of the voting system servers yet took no
action. After CES (now SOS) staff acknowledged to each other in emails

• the “system compromise,”

• the 40+ “chronic vulnerabilities,” and
• the “exploitable” nature of the system, noting it was wide open to “anonymous”
unauthorized users,

they did not remedy the known vulnerabilities, as was discovered six months later when
the same security researchers contacted officials the second time to again warn of severe
continued system compromises.

For purposes of assessing timing, strategic needs, and capabilities for voting system
conversion, the Commission must develop a realistic method of reliable fact gathering
from sources independent of those who managed the KSU/CES system as the agent of
the Secretary of State. For further details, I recommend that the Commission interview
Georgia Tech IT management regarding its security assessment of the KSU/CES security
environment conducted by Georgia Tech.

June 17, 2018 Page 6 of 7

Any plan for a voting system conversion must begin with a security capabilities
assessment and a plan for developing a staff organization capable of the system security
evaluation and conversion. It seems clear that significant and material changes are
required before a system conversion can be successfully undertaken.

Summary

These descriptions of misinformation communicated by SOS staff at the June 13 meeting

are merely examples from that meeting. This letter is far from a comprehensive report of
the concerning statements delivered to the Commission by the staff. The meeting
transcript will expose other material misrepresentations. This less-than-candid showing at
the first meeting repeats a long-running pattern of misinformation bordering on deceit
from some members of the Secretary of State’s staff. The Commission should consider
creating an oversight function to gain assurance that future information from SOS staff
will be factual so that the Commission may rely on information in its deliberations.

Given that the Commission must work at a strategic level, obtaining its information
through others who present to the Commission, it is clear that a process must be promptly
developed to ensure that the Commission has a flow of credible, verifiable information on
which to base its deliberations. A failure to create a method to obtain accurate factual
input will risk failure of the Commission and its all-important work.

I urge you to consider taking the unusual step of appointing an independent attorney or
experienced auditor to help review staff materials for accuracy before they are presented
to the Commission. The same oversight is likely to be needed as vendors present to the
Commission as well.

I apologize if my words seem harsh. I have refrained from sharing dozens more
examples to support my perspective that the Commission is not receiving candid and
accurate information and must take immediate steps to protect the important process of
the work you are about to undertake.

I am happy to discuss this letter with any of you. Please feel free to contact me.

Sincerely,

Marilyn Marks
Executive Director

June 17, 2018 Page 7 of 7

Exhibit A
6.13.18 SAFE Commission Meeting –M.Marks public comment

Name-- Marilyn Marks. Charlotte, NC. Executive Director of Coalition for Good
Governance—non-profit, non-partisan organization focused on election quality,
transparency and voter privacy.

Thank you for your dedication to protect the most fundamental of our rights.
Have four foundational issues we would ask that you place on your near-term agenda.

1. Whether state should continue to have a uniform one size fits all system,
concentrating all business with one vendor and one model, –putting all eggs in
one basket.

2. Whether state should continue to have centralized programming and system

management---further taking all the eggs in the one basket and combining them
into them into one big egg.

Combination of these two unusual practices is a high-risk proposition---most states

reject both, and see such a strategy as creating a vulnerable, exploitable single point of
failure.

Urge you to bring in other states’ officials to understand why they reject this Georgia-
type concentration of risk.

3. Realistic time frame for where we are today to implementation of a new system.
Current estimates are too optimistic. Urge you to bring in other states’ officials
who have adopted new systems to hear their real-world experience. Likely hear
is that from where we are today to a full implementation is likely a 3+ year
project.

4. There is a near term low risk, low cost paper ballot solution that can be
immediately implemented to provide secure, verifiable elections and a
conservative transition plan to phase in a new system. You have a memo from
me with the specifics of the opportunity--- and the currently owned scanners to
count the votes. The counties have the equipment, know how, software licenses,
and legal authority to implement such a system immediately.

Much misinformation in meeting today. Will supply rebuttal.

Thank you so very much for your consideration of these recommendations.
Exhibit B

Statutory Authority

The Secretary stated in his Brief Supporting the State’s Motion to Dismiss in the
Curling v. Kemp case (17cv2989 No. Dist. Of GA) that he has the “discretionary
authority to choose voting equipment for counties.” (Doc. 83-1 at 20, 21). Indeed, the
Secretary and the State Board have selected, and the State has provided, both DRE
voting machines and paper ballot optical scanners for every county in Georgia.

Paper ballots have been an authorized form of voting under Georgia law
continuously for over 240 years. (Article IX Georgia Constitution of 1777). Paperless
mechanical lever voting machines were first permitted in approximately 1930 and
optical scanners were authorized for the counting of paper ballots by 1981. (See
O.C.G.A. §§ 21-2-280). DRE machines were first permitted in 2002. Ga. L. 2002, p.
598; Ga. L. 2003, p. 517. None of these laws authorizing mechanical or electronic voting
systems, however, required their use or supplanted the authority to use hand-counted or
electronically counted paper ballots.1

O.C.G.A. § 21-2-379.3 permitted Georgia’s first use of DRE voting systems in

2002 and required that the Secretary of State provide DRE equipment to all counties,
after funds were appropriated by the General Assembly. The law, however, does not
mandate their use. In fact, the State provided both DREs and optical scanning
equipment for paper ballots. Further, counties retain the statutory authority to use
optical scanning equipment to scan and count paper ballots, and absentee mail-in and
provisional ballots.

In addition, under O.C.G.A. § 21-2-379.2, the Secretary has the authority to

revoke his approval of a DRE voting system if he re-examines the system and
determines that it “can no longer be safely or accurately used by electors at primaries or
elections . . . because of any problem concerning its ability to accurately record or
tabulate votes.” An examination of the evidence and undisputed academic research
would require such a finding and a wholesale revocation of Georgia’s DREs. However,
given the underlying statutory authority to use paper ballots (either hand-counted or
counted by optical scan equipment), and the absence of any state law requiring use of
DREs, the replacement of the DREs in lieu of paper ballots (whether counted by hand or
optical scanner) does not require the Secretary to invoke O.C.G.A. § 21-2-379.2.

It is true that on April 17, 2005, the State Election Board promulgated Rule 183-
1-12-.01 which requires the use of DREs for in-person voting for county, state and
federal elections. In doing so, the State Election Board clearly exceeded its authority
under Georgia law, which does not require DREs to be used and explicitly allows the use
of paper ballots. The General Assembly has charged the State Election Board to
promulgate rules to ensure the “legality and purity in all primaries and elections.”

1
Indeed, numerous Georgia statutes authorize, require or contemplate the use of paper
ballots today. See, e.g., O.C.G.A. § 21-2-280; §21-2-281;§21-2-366; and §21-2-4-483.
O.C.G.A. § 21-2-31. Given the overwhelming evidence that the DREs are not reliable or
secure, and cannot comply with the operational and security requirements of O.C.G.A. §
21-2-379.1 et seq.,2 the Election Board has the statutory duty to repeal Rule 183-1-12-.01
immediately, and can do so on an emergency basis. In any event, the Board’s Rule
provides no defense to the mandates of state and federal law.

In sum, the Secretary and the State Election Board have the clear statutory
authority and duty to discontinue the DRE voting systems and to order the use of hand-
marked paper ballots.

2
See Second Amended Complaint ¶¶ 110-121 for details.
 Exhibit
APPENDIXC A
EXCERPTS FROM HELP AMERICA VOTE ACT OF 2002 (HAVA) AND ELECTION ASSISTANCE COMMISSION
(EAC) ADVISORY 2005-004

TITLE III--UNIFORM AND NONDISCRIMINATORY ELECTION TECHNOLOGY AND ADMINISTRATION

REQUIREMENTS

SEC. 301. <<NOTE: 42 USC 15481.>> VOTING SYSTEMS STANDARDS.

a. Requirements.--Each voting system used in an election for Federal office shall meet the following requirements:
1. In general.--
A. Except as provided in subparagraph (B), the voting system (including any lever voting system,
optical scanning voting system, or direct recording electronic system) shall--
i. permit the voter to verify (in a private and independent manner) the votes selected by the
voter on the ballot before the ballot is cast and counted;
ii. provide the voter with the opportunity (in a private and independent manner) to change
the ballot or correct any error before the ballot is cast and counted (including the
opportunity to correct the error through the issuance of a replacement ballot if the voter
was otherwise unable to change the ballot or correct any error); and
iii. if the voter selects votes for more than one candidate for a single office--
I. notify the voter that the voter has selected more than one candidate for a single
office on the ballot;
II. notify the voter before the ballot is cast and counted of the effect of casting
multiple votes for the office; and
III. provide the voter with the opportunity to correct the ballot before the ballot is cast
and counted.
B. A State or jurisdiction that uses a paper ballot voting system, a punch card voting system, or a
central count voting system (including mail-in absentee ballots and mail-in ballots), may meet the
requirements of subparagraph (A)(iii) by--
i. establishing a voter education program specific to that voting system that notifies
each voter of the effect of casting multiple votes for an office; and
ii. providing the voter with instructions on how to correct the ballot before it is cast and
counted (including instructions on how to correct the error through the issuance of a
replacement ballot if the voter was otherwise unable to change the ballot or correct any
error).
C. The voting system shall ensure that any notification required under this paragraph preserves the
privacy of the voter and the confidentiality of the ballot.
2. Audit capacity.--
A. In general.--The voting system shall produce a record with an audit capacity for such system.
B. Manual audit capacity.--
See EAC advisory . The voting system shall produce a permanent paper record with a manual audit capacity
on audit capacity at for such system.
Exhibits 2 and 3. i. The voting system shall provide the voter with an opportunity to change the ballot or
correct any error before the permanent paper record is produced.
ii. The paper record produced under subparagraph (A) shall be available as an official
record for any recount conducted with respect to any election in which the system is
used.
3. Accessibility for individuals with disabilities.--The voting system shall--
A. be accessible for individuals with disabilities, including nonvisual accessibility for the blind and
visually impaired, in a manner that provides the same opportunity for access and participation
(including privacy and independence) as for other voters;
B. satisfy the requirement of subparagraph (A) through the use of at least one direct recording
electronic voting system or other voting system equipped for individuals with disabilities at each
polling place; and
C. if purchased with funds made available under title II on or after January 1, 2007, meet the voting
system standards for disability access (as outlined in this paragraph).
4. Alternative language accessibility.--The voting system shall provide alternative language accessibility
pursuant to the requirements of section 203 of the Voting Rights Act of 1965 (42 U.S.C. 1973aa-1a).
 5. Error rates.--The error rate of the voting system in counting ballots (determined by taking into account
only those errors which are attributable to the voting system and not attributable to an act of the voter)
shall comply with the error rate standards established under section 3.2.1 of the voting systems standards
issued by the Federal Election Commission which are in effect on the date of the enactment of this Act.
6. Uniform definition of what constitutes a vote.--Each State shall adopt uniform and nondiscriminatory
standards that define what constitutes a vote and what will be counted as a vote for each category of
voting system used in the State.
b. Voting System Defined.--In this section, the term ``voting system'' means--
1. the total combination of mechanical, electromechanical, or electronic equipment (including the software,
firmware, and documentation required to program, control, and support the equipment) that is used--
A. to define ballots;
B. to cast and count votes;
C. to report or display election results; and
D. to maintain and produce any audit trail information; and
2. the practices and associated documentation used--
A. to identify system components and versions of such components;
B. to test the system during its development and maintenance;
C. to maintain records of system errors and defects;
D. to determine specific system changes to be made to a system after the initial qualification of the
system; and
E. to make available any materials to the voter (such as notices, instructions, forms, or paper
ballots).
c. Construction.--
1. In general.--Nothing in this section shall be construed to prohibit a State or jurisdiction which used a
particular type of voting system in the elections for Federal office held in November 2000 from using the
same type of system after the effective date of this section, so long as the system meets or is modified to
meet the requirements of this section.
2. Protection of paper ballot voting systems.--For purposes of subsection (a)(1)(A)(i), the term ``verify'' may
not be defined in a manner that makes it impossible for a paper ballot voting system to meet the
requirements of such subsection or to be modified to meet such requirements.
d. Effective Date.--Each State and jurisdiction shall be required to comply with the requirements of this section on
and after January 1, 2006.
 Exhibit C-1

U.S. ELECTION ASSISTANCE COMMISSION

1225 New York Ave. NW – Suite 1100
Washington, DC 20005

Requirements for HAVA compliance

July 20, 2005

EAC Advisory 2005-004: How to determine if a voting system is compliant

with Section 301(a) – a gap analysis between 2002
Voting System Standards and the requirements of
Section 301(a)

The United States Election Assistance Commission (EAC) has received a

number of inquiries from several states as to whether one or more particular voting
systems comply with Section 301(a) of the Help America Vote Act of 2002 (HAVA).
In addition, in one of its recent public meetings, EAC was asked to conduct an
analysis to identify the gaps between the 2002 Voting System Standards adopted by
the Federal Election Commission (FEC) and the requirements for voting systems
under Section 301(a) of HAVA. EAC is not required by HAVA to preclear or
approve voting systems purchased by states and local election jurisdictions.
Furthermore, EAC does not believe that it was the intention of Congress or HAVA
for EAC to assume this role. However, it is evident that states and local election
jurisdictions as well as testing laboratories are in need of information that will help
in determining whether a voting system meets the threshold requirements of
Section 301(a). Thus, EAC offers the following analysis of Section 301(a) in light of
the 2002 Voting System Standards.

Title III of HAVA, entitled “Uniform and Nondiscriminatory Election

Technology and Administration Requirements,” imposes certain requirements upon
states and local jurisdictions conducting federal elections. Section 301(a) sets forth
the standards that voting systems must meet after January 1, 2006. Those
requirements include functions and features that, among other things: (1) allow the
voter to review his or her selections privately and independently prior to casting a
ballot; (2) allow the voter to change his or her selections privately and
independently prior to casting a ballot; (3) notify the voter when he or she has made Georgia's
more selections in a single race than are permitted (overvote); (4) provide for the DREs provide
no paper
production of a permanent paper record suitable to be used in a manual recount; (5) records of
provide voters with disabilities, including visual disabilities, the same opportunity votes to be
for access and participation (including privacy and independence) as for other recounted.

voters; (6) provide accessibility in minority languages for voters with limited
English proficiency as required by the Voting Rights Act of 1965; and (7) provide for

1
an error rate in operating the voting system that is no greater than the error rate
set forth in Section 3.2.1 of the 2002 Voting System Standards adopted by the
Federal Election Commission (FEC).

Although the 2002 Voting System Standards set forth measurable standards
that predict compliance with some of the Section 301(a) requirements, those
standards do not provide sufficient and adequate guidance as to what is required to
meet the accessibility requirements of Section 301(a)(3); do not prescribe testable
measures for language accessibility required by Section 301(a)(4) of HAVA; and do
not prescribe standards that adequately explain the requirements for overvote
notification required by Section 301(a)(1) of HAVA. As such, EAC issues the
following policy statement to identify the gaps between the 2002 Voting System
Standards and the requirements set forth under Section 301(a) of HAVA and to
explain what is needed to meet the requirements of Section 301(a) above and
beyond the testing requirements established in the 2002 Voting System Standards.

Section 301(a)(1):

The requirements of Section 301(a)(1) of HAVA are met if the voting system
(1) conforms and complies with Section 2.4.3.3 of the 2002 Voting System Standards
and (2) notifies the voter through a visual and/or audio message prior to casting the
ballot when the voter makes more selections than are legally allowed in a single
race or contest (overvote):

(a) that an overvote has occurred and

(b) the effect of overvoting.

Following that notification, the voting system must allow the voter to change his or
her selection(s), if so desired. Voting systems that preclude and prohibit overvoting
meet this requirement. Notwithstanding the above, certain paper ballot voting
systems may meet the overvote requirements of Section 301(a)(1)(A)(iii) of HAVA by
meeting the requirements set forth in Section 301(a)(1)(B).

Section 301(a)(2):

The requirements of Section 301(a)(2) of HAVA are met if the voting system
conforms and complies with Sections 2.2.5.2.1 and 2.5.3.1 of the 2002 Voting System
Standards.

Section 301(a)(3):

Section 301(a)(3) of HAVA requires that by January 1, 2006, at least one

voting system in each polling place be accessible to persons with disabilities such
that the voting system allows an individual with a disability the same access and

2
opportunity to vote privately and independently as is afforded a non-disabled voter.
Compliance with Section 301(a)(3) requires that the voting system is accessible to
persons with disabilities as defined by the Americans with Disabilities Act,
including physical, visual, and cognitive disabilities, such that the disabled
individual can privately and independently receive instruction, make selections,
and cast a ballot. However, accessibility involves more than the technical features
of the voting system. The accessible voting system also must be used in a manner
that is consistent with providing access for disabled voters (e.g., the accessible
voting system must be set up for use in a space that is accessible to a disabled voter
who uses a wheelchair).

Conformance with Section 301(a)(3) is a complex matter, which must take

into account the disability of the voter, the advancement of technology and its
availability, and the efforts of the elections officials to make the voting process
accessible to disabled voters in a private and independent manner. The following
are some factors that must be considered in determining accessibility in
conformance with Section 301(a)(3) of HAVA:

(1) Section 2.2.7 of the 2002 Voting System Standards;

(2) Section 2.4.3.1 (a) of the 2002 Voting System Standards;
(3) Section 3.4.9 (a-e) of the 2002 Voting System Standards;
(4) The voting system must afford a disabled voter the ability to perform the
same functions (e.g., receiving and reading the ballot, making selections,
reviewing selections, changing selections, and casting the final ballot) as
are afforded to a non-disabled voter. These functions may be provided to
the disabled voter through features of the voting system that are different
than those used by non-disabled voters. The disabled voter need not and
in many cases cannot have an identical voting experience as a non-
disabled voter (e.g., a voter with a visual disability is afforded the same
access to reading the ballot as a sighted voter when the ballot is read to
the visually disabled voter using an audio component of the voting
system).
(5) Accessibility of the voting system to the voter includes accessibility to all
equipment needed to cast and count ballots. Many jurisdictions use a
paper ballot voting system that requires the voter to submit his or her
own ballot after casting for purposes of ballot counting. Where such
voting systems are in use, such jurisdictions must to the extent reasonably
and technologically possible afford a disabled voter the same ability to
submit his or her own ballot, in a private and independent manner, as is
afforded a non-disabled voter. In this example, visually disabled voters
must be allowed to submit the ballot independently, as the disability is
one that is capable of being accommodated, and technology and practice
provide a means that can be used to allow the visually disabled voter to

3
 submit a ballot with the same degree of privacy and independence
afforded to a sighted voter (e.g., a privacy sleeve).
(6) There may be certain disabled voters whose disabilities prevent them
from voting independently (i.e., without assistance from a person of their
choosing or a poll worker). While HAVA requires voting systems to allow
independence and privacy, it does not preclude a disabled voter from
requesting and obtaining the assistance of another person as provided in
Section 208 of the Voting Rights Act of 1965.
(7) Section 301(a)(3)(B) contemplates that an accessible voting system can
include a direct recording electronic (DRE) voting system or other voting
system equipped for individuals with disabilities. This advisory should
not be read to preclude the innovation and use of accessible voting
systems other than DREs for purposes of meeting this requirement.

Section 301(a)(4):

The minority language requirements of Section 301(a)(4) are met if the voting
system complies with the minority language requirements of the Voting Rights Act
of 1965 (contained in Section 203 as well as Section 4(f)(4)) and the implementing
regulations found at 28 C.F.R. Part 55 and 67 F.R. 48871 (July 26, 2002). The
voting system must provide all information, excluding the names of the candidates,
that would otherwise be provided by the voting system in English (whether written
or oral) in the language(s) that the voting jurisdiction is required to provide
materials pursuant to the Voting Rights Act of 1965 and its regulations as
referenced above.

Section 301(a)(5):

The requirements of Section 301(a)(5) are met if the voting system error rate
does not exceed that established in Section 3.2.1 of the 2002 Voting System
Standards.

Gracia Hillman, Chair Paul DeGregorio, Vice Chairman

Ray Martinez III , Commissioner

4
 Exhibit C-2

U.S. Election Assistance Commission

1225 New York Ave. - Suite 1100
Washington, DC 20005

While addressing lever machines, EAC

defines the paper record/audit capacity
September 8, 2005
need.

EAC Advisory 2005-005: Lever Voting Machines and HA VA Section 301(a)

The U.S. Election Assistance Commission (EAC) has recently received numerous inquiries
regarding whether lever voting machines meet the requirements of Section 301(a) of the Help
America Vote Act (HAVA) (42 U.S.C. §15481). After careful review of HA VA Section 30l(a),
the EAC concludes that lever voting systems have significant barriers which make compliance
with Section 301(a) difficult and unlikely. 1

HAVA does not specifically outlaw the use oflever machines, per se. However, the statute
does require that the voting system meet the standards found in HAVA Section 30l(a). 2 This
section, titled Voting Systems Standards, sets minimum statutory requirements all voting systems
must meet if they are to be used in an election for Federal office. In applying these requirements
to lever voting machines, the EAC has identified a number of areas which create compliance
problems for these voting systems. These areas of non-compliance would have to be addressed
and remedied before a lever system could be lawfully used in an election for Federal office on or
after January 1, 2006. EAC's concerns are fourfold.

Audit Capacity. Section 301(a) requires that all voting systems used in an election for Federal
office "produce a permanent paper record with a manual audit capacity ... " (HAVA Section
301(a)(2)(B)(i)). This paper record must be available for use as an official record in recount
proceedings. (HAVA Section 301(a)(2)(B)(iii)). While most lever machines in use today do not
have the capability to produce a paper record, a few systems have the facility to create a limited
record. Such systems can record the total number of votes cast on a given machine by imprinting
the raised numbers on the counters at the close of an election.

Clearly, those lever voting systems that are not capable of producing a paper record are not As well, DRE
in compliance with HAVA Section 301 (a)(2)(B). Similarly, it is the position of the EAC that machines do
not provide
those machines which produce a limited paper record (documenting only vote totals) also do not
anything other
meet these requirements. HA VA makes it clear that the reason it requires a paper record trail is to than vote totals.

1
The EAC is the Federal agency charged with the administration of HA VA. HAVA requires the Commission to draft
guidance to assist states in their implementation of Section 301(a). Although EAC's administrative interpretations do
not have the force of law associated with legislative rules, the Supreme Court has long held that the interpretations of
agencies charged with the administration of a statute are to be given deferential treatment by Courts when faced with
issues of statutory construction. York v. Secretary of Treasury. 774 F. 2d 417, 419 - 420 (10th Cir. 1985) (citing
Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 153 - 154 (1963)); See also Christian v. Harris
County, 529 U.S. 576 (2000); Edelman v. Lynchburg College, 122 S. Ct. 1145 (2002).
2
A State's acceptance or repudiation of Federal Funds to replace lever machines under HA VA Section 102 in no way
affects its obligation to meet minimum voting system requirements under RAVA Section 301(a).
ensure all voting systems create a permanent, manually auditable record for use in a recount.
(HAVA Section 30l(a)(2)(B)(i) and (iii)). Given these facts, to meet HAVA's Audit Capacity
requirement, systems must create a paper record that can serve as an audit trail. In other words,
the document must be a "chain of evidence connecting . . summary results to original
transactions." 3 A document is not an appropriate audit tool when it is, itself, a summary that
cannot show the original actions that make up its whole.

Error Rate. Section 30l(a) requires that all voting systems have a test error rate that complies
with error rate requirements "established under Section 3 .2.1 of the voting systems standards
issued by the Federal Election Commission, which are in effect on the date of the enactment of
[HAVA]." (HAVA Section 30l(a)(5)). That standard (in testing) is a maximum of one error for
every 500,000 ballot positions. 4 Thus, in order to comply with HAVA Section 301 (a), a voting
system must have a tested error rate that falls below the one per 500,000 standard. The EAC is
unaware of any lever voting system that has a documented, tested error rate. A lever voting
system cannot meet the requirements of Section 30l(a)(5) without a documented, tested error rate
that meets the one per 500,000 standard.

Alternative Language Accessibility. Section 30l(a) requires voting systems provide alternative
language accessibility pursuant to the requirements of the Voting Rights Act of 1965 (42 U.S.C. §
1973aa-la). While lever voting systems are capable of providing ballots in more than one
language, the number of languages such systems may present is limited. Election officials must
ensure that the number of languages a particular lever voting system can accommodate meets the
number of alternative languages required in a given jurisdiction by the Voting Rights Act.

Accessibility for Individuals with Disabilities. Section 30l(a) requires that, at a minimum,
election officials provide at least one voting system equipped for individuals with disabilities at
each polling place. Such systems must provide disabled individuals the same opportunity for
access (including privacy and independence) as other voters. {HAVA Section 301(a)(3)). The
EAC is unaware of any lever voting system that is presently capable of meeting the disability
standards in Section 30l(a)(3). No system may be used exclusively at a polling place unless it
complies with Section 30l(a)(3).

(\~~,,_It~
o l: a Hillman
Chair

f-rJt~
Ray Martinez III
i!l,J~
Jt,7,L
Donetta Davidson
Commissioner Commissioner

3
"Audit trail" as defined in Black's Law Dictionary 131 (6th ed. 1990).
4
Voluntary Voting System Standards, Volume I: Performance Standards, Federal Election Commission (April 2002),
Section 3 .2.1.