Hearing by The New York State Board of Elections

December 20, 2005


Testimony of Rick Schwab







Part 1.


Thank you for holding this hearing so that the public can provide suggestions for improvement of the draft regulations for Voting Systems Standards.


I believe that we must take every opportunity safeguard our bipartisan administration of elections by public employees. Two alternative ways to do this are:


Let vendor technicians serve in an advisory capacity only, and not perform tasks on behalf of bipartisan elections staff, or


Let all tasks performed by vendor technicians involving direct or indirect contact with voting or vote-tabulating systems be observed, fully understood, and logged by bipartisan elections staff.


Our challenge is that bipartisan elections staff must be fully trained before they can function independently with their new equipment, or observe, fully understand, and log the actions of vendor technicians.


I urge you to strengthen the regulations in this area, to require submission of all training materials and manuals that may be needed to fully train elections staff to run elections independently without the continuing assistance of vendor technicians, or to observe, fully understand, and log the actions of vendor technicians.


I urge you to thoroughly examine and test such training materials for elections staff. Only in this way can we ensure that vendors are prepared to fully train elections staff, and that their materials are adequate.


Other speakers today have called for a large public test of equipment, both to make sure that it works and to demonstrate to the doubtful public that it works. The need to test training materials and the capacity of vendors to train bipartisan elections staff can tie into the public testing of equipment.


Select a county to provide its staff to be trained. After such training, the large public test can be conducted solely and independently by the newly-trained county staff. This would test their training as well as the voting system under real-world conditions.


Training materials for poll workers, and voters must also be tested. Only in this way can we help our state avoid the many problems that other states have experienced in recent elections – problems that have been consistently blamed on poorly-trained poll workers and voters.


In the large public test of equipment, test voters and test poll workers can be trained by the vendor with the materials provided by the vendor.


Before you shake your head about how burdensome and time-consuming such testing would be, consider that New York state is about to spend hundreds of millions of dollars in order to switch to all new technology for the conduct of our elections. The testing we do before certification of new equipment should be commensurate with our investment and the importance of elections. So far, the requirements and procedures set forth in the draft regulations are inappropriately minimal, less than what a conscientious buyer would do when purchasing a new house.


Part 2.


The use of vendor technicians opens vast opportunities for technical-insider tampering. This risk has long been an argument in favor of PBOS because simpler technology keeps elections more manageable by bipartisan elections staff, voters, and poll workers. One vendor technician may be able to taint an entire election, especially if communication capability is present in electronic voting or vote tabulating equipment.


The Sherole Eaton-Triad controversy in Hocking County, Ohio, is an example of the problems that can occur when elections staff is untrained and dependent on vendor technicians.



New York state’s Election Reform and Modernization law contains weak, self-contradictory provisions [bold emphasis added]:


52    S 7-204. Contracts for purchase of voting machines OR SYSTEMS.  1. All

53  contracts for purchase of voting machines OR SYSTEMS of  types  approved

54  by the state board of elections {after September first, nineteen hundred

55  eighty-six}  shall include, but not be limited to, requirements that the

56  vendors provide assistance in training board of elections  personnel  in


    S. 5877                             7                            A. 8969


 1  the  operation  of such machines OR SYSTEMS and any ancillary equipment,

 2  assistance in the conduct of all elections conducted  during  the  first

 3  year  in  which  each  such  machine OR SYSTEM is used and at least five

 4  years  of  service for all such machines OR SYSTEMS and ancillary equip-

 5  ment.


Training in the operation of such machines or systems is essential, but assistance and service performed by vendors opens the door to problems:


1. In the absence of thorough training, these provisions will tie county boards to their vendors and create opportunities for price gouging. New York’s new election law did not require open source software, which would have enabled bipartisan elections staff to become fully knowledgeable about their own equipment and achieve independence in using it, and would have enabled competitive companies to learn the equipment and bid on service contracts.


2. These provisions allow county Boards of Elections to abdicate their responsibility to ensure bipartisan handling and control of voting and vote-tabulating equipment. It allows county Boards to delegate the entire management and servicing of the equipment to vendor technicians who would have no effective or meaningful supervision or oversight by elections staff.


3. The first-year vendor assistance provision means that vendor training can be inadequate, and that elections staff need not become independent and competent in the operation of their own equipment or in the conduct of elections with it.


4. The lack of a requirement that vendors provide training in the servicing of their equipment, in combination with the five-year service provision, means that elections staff will not become independent and competent in the servicing of their own equipment. Privatized service of equipment would not be under effective or meaningful bipartisan oversight, and outside technicians would have effectively unsupervised access to and control of voting systems.


The Election Reform and Modernization law continues:


 6    2. All such contracts shall also require the vendor  to  guarantee  in

 7  writing  to  keep such machines AND SYSTEMS in good working order for at

 8  least five years without additional cost and to  perform  satisfactorily

 9  its  training  and  service obligations under the contract and to give a

10  sufficient bond conditioned to that effect.


It seems reasonable for vendors to warrantee "good working order" of their equipment for five years, but this is our voting equipment, not a new TV. Outside technicians should not have access to voting and vote-tabulating systems unless they are meaningfully, closely supervised by bipartisan elections staff and/or multipartisan observers.


Training in the servicing of the equipment must be required in the regulations, since it was omitted from the law.


The only measure of training effectiveness is that the trained personnel can perform their tasks independently. But if the vendor performs the tasks, then elections personnel



As a side matter, I want to emphasize a point made by another speaker. If the regulations for certification do not define all terms, then litigation will be required to define them. What is “good working order”. and what does it mean to "perform satisfactorily its ... service obligations?" If a voting machine fails during an election, is this evidence that it was not in good working order and that its service was not performed satisfactorily? If it fails during two elections? Three? The section of the regulations on rescission of certification is the opportunity for the State Board to complete the work of the legislature and provide a non-exclusive list of malfunctions of equipment which mean that equipment is not in “good working order.”


We must view the requirement for good working order and satisfactory service in the light of what has already happened in other states with electronic voting systems. http://www.votersunite.org/info/messupsbyvendor.asp is a list of documented failures that is more than 120 pages long.


Many Boards of Elections have responded to failures of their electronic equipment by (a) trying to conceal them, (b) blaming voters and poll workers, (c) defending or excusing vendors and equipment. Voters and candidates have been forced to accept election outcomes in spite of grave irregularities resulting from malfunctions of computers.


For these reasons the independent competence of the bipartisan staff of our county Boards of Elections in the servicing of their own equipment is of utmost importance.


The regulations for certification of voting systems must define all terms and test the capacity of boards of elections to conduct elections with the new equipment we may buy BEFORE these systems are certified, purchased, and used. Only in this way can the State Board comply with its responsibility to protect of our future election integrity and the legitimacy of our representative government.


Thank you.