Katherine B. Wolpe
Reasons and Procedures for Rescission of Certification
Thank you for the opportunity to speak before you today.
I will comment on Section 6209.8 Rescission of Certification. This section is very short and is copied here in my testimony [bold emphasis added].
A. If at any time subsequent to the State Board's approval of a voting system, the State
Board determines that the voting system fails to fulfill the criteria prescribed by statute and
these rules, the Board shall notify any users and vendors of that particular voting system
that the State Board's approval or certification of that system for future sale of that system
in New York State is to be withdrawn.
B. Such notice shall be in writing and shall specify the reasons why the approval or
certification of the system is being rescinded. Such notice shall also specify the date on
which the rescission is to become effective.
C. Any vendor or user of such voting system may request in writing that the State Board
reconsider its decision to rescind approval or certification of the voting system.
D. Upon receipt of such request to reconsider, the State Board shall hold a hearing for the
purpose of reconsidering the decision to rescind the approval or certification. Any
interested party shall be given the opportunity to submit testimony or documentation in
support of or in opposition to the Board's decision to rescind approval or certification.
E. The State Board may affirm or reverse its decision.
Section 6209.8 needs to list specifics: non-subjective criteria for rescission, realistic procedures and timeframes for voters, poll workers, candidates, political parties, and County Boards to notify the State Board of problems with equipment and for the State Board to respond, who are “any users” and “interested parties,” and requirements for who will pay for re-examinations.
Rescission has occurred in other states due to malfunctions – including complete failure -- during elections and tests. New York must prepare realistically to deal with the possibility of computerized voting system malfunction, and the need to rescind approval of systems in order to protect the integrity of our elections.
15 3. If at any time after any machine OR SYSTEM has been approved pursu-
16 ant to the provisions of subdivision one or two of this section, the
17 state board of elections has any reason to believe that such machine OR
18 SYSTEM does not meet all the requirements for voting machines OR SYSTEMS
19 set forth in this article, it shall forthwith cause such machine OR
20 SYSTEM to be examined again in the manner prescribed by subdivision one
21 of this section. If the opinions in the report of such examinations do
22 not state that such machine OR SYSTEM can safely and properly be used by
23 voters at elections under the conditions prescribed by this article, the
24 state board of elections shall forthwith rescind its approval of such
25 machine OR SYSTEM. After the date on which the approval of any machine
26 OR SYSTEM is rescinded, no machines OR SYSTEMS of such type may be
27 purchased for use in this state. The state board of elections shall
28 examine all machines OR SYSTEMS of such type which were previously
29 purchased, to determine if they may continue to be used in elections in
30 this state.
--criteria for rescission
--how many days is "forthwith"
--procedures for voters, poll workers, candidates, parties, and County Boards to notify the
State Board of malfunctions
--who will pay for re-examination of the system in question
--who will pay for examination of all machines or systems of such type
--time frames for the State Board to examine all machines or systems of such type
So neither the law nor the draft regulations provides enough information to be useful. Here are my suggestions.
1. The regulations must clarify ERMA's subjective "any reason to believe" and “safely and properly” standards with a non-exclusive list of concrete examples of malfunctions that will trigger examination and that will trigger rescission of approval.
After an election in which some 40% of systems failed, one election official proclaimed that nothing could make him lose faith in his county's computerized voting systems. A voter or poll worker might have reason to believe upon the first system failure, upon seeing a vote switched by the computer to a different candidate on the screen, upon finding that not all races are displayed, etc. A worker counting the votes on the voter-verifiable audit record might have reason to believe when the electronic count does not match the paper count.
Below is a suggested starting point for a list. These visible malfunctions should prompt poll workers to take a machine out of service, the County Board to notify the State Board, and the State Board to rescind certification of a machine.
a. A voter sees his or her vote switched to a different candidate on the screen.
b. A voter touches a touchscreen or pushbutton for a candidate, but the vote does not register.
c. The screen when it first appears contains votes already registered that the voter did not enter.
d. One or more candidates or questions are missing from the ballot displayed.
e. The wrong ballot is displayed on the screen.
f. The final summary screen does not accurately contain the voting choices made by the voter.
g. The voter cannot change a vote displayed on the screen.
h. The voter-verifiable printout does not contain the choices that the voter entered.
i. The number of votes recorded by the machine is greater than the number of voters who used it.
j. The printer or accessibility attachments do not work.
k. The machine fails to boot up at the beginning of the election day.
l. The number of blank votes (also called undervotes) is higher than one-half percent.
m. At the end of the election day the votes cannot be extracted from the machine or memory
n. At the end of the election day the memory cartridges are all blank.
In other jurisdictions these malfunctions have been attributed to the truck hitting a bump in the road on the way to the poll site and making the computer screen lose its calibration, or wrong ballot programming, or a voter or poll worker made a mistake. But these excuses indicate that the equipment cannot safely and properly be used. There will always be a bump in the road. If the equipment cannot be relied upon to work under real-world conditions, it should not be used.
2. The regulations must specify procedures by which voters, poll workers, candidates, political parties, and County Boards may submit reports of malfunctions.
3. The regulations must specify procedures and time frames for acknowledging receipt of reports of malfunctions and for examining a machine for which reports have been received. Otherwise it is unlikely that State Board will examine any machine or rescind its approval regardless of the severity of reported malfunction because they will have no procedures or timeframe requirements for examining the machine.
4. The regulations must specify procedures and time frames for examining all machines of a type for which approval has been rescinded. Otherwise it is unlikely that State Board will rescind any machine approval regardless of the severity of malfunction because they will have no procedure or capability of examining, for example, a thousand machines.
5. The regulations must specify that “any users” “interested parties” to be notified of rescission include voters, poll workers, candidates, all state-recognized political parties, County Boards, and the general public. The draft regulations say that if the State Board rescinds approval of a system, “the Board shall notify any users and vendors” but the term “any users” has not been defined.
6. The State Board must solicit reports of malfunctions from voters and poll workers who have used each type of system. These users would have the most direct experience and first-hand details of problems if any have occurred.
7. The State Board must maintain a record of all reports of malfunctions received from voters, poll workers, and all other users and interested parties. Such reports and the response to and resolution of each report must be either posted on the State Board’s web site or available on paper copies to the public within a week upon written request.
8. The regulations must ban further use of systems after approval is rescinded. The State Board has an obligation to protect the integrity of elections, and simply banning future sales does not achieve this.
After rescission, if the State Board receives a request to reconsider rescission, the draft regulations specify that interested parties should be able to submit testimony or documentation.
9. The term “interested parties” must be defined, and the regulations must require publication of notice of such hearing at least two weeks in advance; reasons for rescission; date, time and place of hearing; and notification by mail to all persons who have requested notification of such State Board activities.
10. Concrete specific criteria for decisions to affirm or reverse decisions to rescind approval must be specified in the regulations. Unless specific criteria are published in advance, decisions of the State Board will be considered ad hoc and will raise suspicions of influence and arbitrariness.
Full evaluation of Election Reform and Modernization Act: http://www.wheresthepaper.org/ERMA_45Comments.htm
Full evaluation of Draft Voting Systems Standards: http://www.wheresthepaper.org/RegsNov4Comment.htm