September 12, 2007

Co-Executive Directors Peter Kosinski and Stanley Zalen
Commissioners and Co-Chairs Neil Kelleher and Douglas Kellner
Commissioners Evelyn Aquila and Helena Moses Donohue
New York State Board of Elections
40 Steuben Street
Albany, New York 12207

RE: Please waive the certification testing fee for 100% open-source, free software to run on COTS hardware

Dear Co-Executive Directors, Co-Chairs, and Commissioners:

I urge you to adopt a policy to waive the fee for certification testing for voting systems offered to our state for free, with 100% open source software that runs on Commercial Off The Shelf (COTS) hardware.

The State Board of Elections budget has five million dollars that the Commissioners can authorize for parts of voting system testing that are in the state interest and serve a public purpose.

Our state interest and the public will be served by enabling free open-source software to be certified:

1. Public distrust of commercial systems. The State Board should encourage development of alternatives to the products of the major commercial vendors. Around our country there is widespread public distrust of these vendors’ equipment due to their secret software, repeated election day failures, and the vendors' subsequent consistent refusal to allow the public to examine these systems to look for the cause of failures and irregularities.

2. Encourage a high-quality alternative. A fee-waiver policy would encourage development, certification, and use of free, 100% open source, publicly-available software of high quality. The secret software of systems from the major commercial vendors has repeatedly been evaluated as having very low quality by every independent research team that has examined these systems.  It is expected that, with participation and support of the Open Source community, Open Source voting applications would be of substantially better quality.  Thousands of eyes will have searched for defects and it is reasonable to expect the community to catch problems before they reach voters.

3. Vendor Irresponsibility. The New York State Board of Elections has had ample notice of the irresponsibility of major commercial vendors -- these vendors fail to meet the State of New York Comptroller's standards for vendor responsibility. It would be prudent and appropriate for the State Board to seek alternatives in order to avoid doing business with irresponsible vendors, and to establish policies to enable alternatives to be considered. Two recent examples of the irresponsibility of the major commercial vendors that lend urgency to the need for alternatives are:

·        The California Top to Bottom Review and its consequences - the new requirements that California Secretary of State Bowen has had to impose as well as legal action against one vendor.

·        The Dan Rather Report of August 14, 2007, "The Trouble with Touchscreens," and its revelations that ES&S may have knowingly shipped machines with 30-40% defective touchscreens, and that Sequoia may have intentionally manufactured defective punchcard ballots for the 2000 election in order to stimulate the market for electronic voting systems.

More information on vendor irresponsibility is available at

http://www.wheresthepaper.org/ny.html#irresponsible

4. Mission. The New York State Board of Elections can fulfill its mission by supporting Open Source voting applications. The State Board is charged with the preservation of citizen confidence in the democratic process and enhancement in voter participation in elections, and cannot comply with this mission unless it acts aggressively and imaginatively to offer alternatives to the products offered by irresponsible vendors.

5. Cost. The initial and continuing cost of systems with free, 100% open source, publicly-available software of high quality would be significantly lower than the cost of systems from the major commercial vendors. This would be true of initial cost due to the use of free software and COTS hardware. It would be true of continuing costs since there would be no licensing or use fees for the software. It is always in the public interest to conserve the public's money. Because the software would be publicly available, many companies would be able to learn such systems and competitively bid to provide services.

6. State Control versus future vendor problems. Systems with free, 100% open source, publicly-available software of high quality would be under state control, independent of any vendor's future problems, and immune from future changes of ownership or corporate failures. We have seen in the last year that Sequoia was to be sold but no buyer could be found. Diebold separated its voting machine division into "Premier Voting Solutions" due to the many lawsuits and scandals associated with its product and personnel, and their effect on corporate reputation and stock prices. The State Board's initiative in establishing a fee-waiver policy would be one step toward making available a voting system that the state could maintain without dependence on any given vendor.

In conclusion, fee waiver would allow small providers to submit their software for voting systems despite the fact that they cannot pay for the testing. This is only fair, since they are offering the software for free to our state, and the voters of New York State would benefit if such systems become available to our counties. New York State could lead our nation by opening the door to such system using free open-source software and COTS hardware.

Sincerely yours,