Boulder County people, please send letter to County Commissioners

On April 6, 2006, Boulder County’s Commissioners reluctantly voted to spend $1.7 million to lease some direct record electronic (“DRE”) machines from Hart Intercivic. They are spending this money to comply with a federal law—the Help American Vote Act (HAVA)—that requires that there be voting systems for the disabled in place for elections after January 1, 2006. There was the threat that if they don’t contract with Hart for DRE machines at this time, they could be sued by the federal government.

The threat of a county or state being sued for return of HAVA funds if it doesn’t have certain numbers of accessible machines in place by this deadline has probably lessened since the April 6^th Commissioners’ hearing. On April 28^th, the Department of Justice, which had sued the State of New York for noncompliance with HAVA requirements, issued a response to New York State’s “HAVA Remedial Plan,” which said that the state could have until January 2007 to full comply with HAVA. While the matter still must be heard in court, the DOJ has gone on record to say it is mindful that rushing to fulfill requirements by 2006 might not result in orderly elections.

Boulder County citizens concerned about the problems with electronic voting are unhappy with the “choice” that the County Commissioners have made. At the very least, they want a system with a voter-verified paper audit trail (VVPAT) which can be randomly sampled during a post election audit to confirm that what machines register as votes are what voters intended. These Hart machines, which are being selected by Boulder County specifically to serve the disabled, don’t provide a VVPAT for the blind, as the auditory recording that blind voters hear only tells them what the machine has recorded, not what appears on the “voter-verified paper audit trail.” So the blind may be able to vote “unassisted,” but they don’t have equal access to an auditable machine. Nor is this machine well-designed for meaningful audits, as the VVPAT read by sighted people is printed on a roll of thermal paper, which is extremely awkward to audit or recount. Thus election officials want to avoid hand-counted audits of these records, preferring to scan bar codes of the VVPATs. This defeats the purpose of an audit, since the bar codes haven’t been verified by the voter! So, for all practical purposes, we are dealing with an unauditable machine. (Our state law assists in this charade, by defining a “manual count” as either a hand count or a scanning of bar codes!)

Another problem with having the VVPATs on a roll is that it is easier to match a vote with a voter, since the order of the voter-verified paper records can’t be varied; this compromises the secrecy of the vote; yet secrecy is guaranteed us in the Colorado Constitution. The disabled can vote “unassisted” on the Hart machines, but they can’t get a decent audit of their votes, and their votes may not be secret. The legislative emphasis at both the federal and state level on the disabled citizen’s ability to vote independently and without assistance is of questionable usefulness, and these requirements have been turned into an emotional issue. The only pertinent reason for being able to vote independently and without assistance is preservation of the secrecy of the vote—something in jeopardy with the Hart DRE machine.

The County put out a Request for Proposals for a lease, which would presumably give the County more options later on to satisfy citizens’ desires for auditability and privacy, as well as accessibility. Hart’s was the only response to the RFP, and the company proceeded to charge about as much for a year’s lease as it would have for a purchase! In light of this development, the County Commissioners changed the conditions specified in the RFP and are considering a lease-to-buy arrangement. This is unfair to the original recipients of the RFP to lease and should require a new RFP. Another problem with the lease-to-buy arrangement is that it is probably illegal to purchase machines that don’t allow the blind to verify their vote. Colorado Revised Statute 1-5-801, Acquisition of voting systems–voter-verified paper record (1), states: “On and after June 6, 2005, a political subdivision shall not acquire a voting system unless the voting system is capable of producing a voter-verified paper record of each elector’s vote.”

If we had a Secretary of State’s office that had the same goals as the concerned citizens, Boulder County might have had more choice in the purchase of accessible voting machines.

However, the SOS’s Rule 45.1 allows for more flexibility in a lease situation than the County Commissioners were led to believe. Under certain conditions, a county may lease machines for a year without a vendor being certified by the state. There are manufacturers of non-DRE voting devices, considered worthy of state certification as accessible to the disabled in jurisdictions across the country, that, because of Rule 45.1, could have been invited by the Boulder County Clerk to submit proposals to lease. They were not. At least one of these systems—non-electronic, so not requiring federal certification—could be provided to the Boulder County Elections Division in plenty of time to allow for training of officials before the August primary. Such a system would cost County taxpayers at least a million dollars less than what Hart will charge for their year’s lease. There is an accumulation of evidence that DREs cost more than non-DREs to upgrade, to maintain, and, in some cases, to store, so if we end up purchasing the Hart DREs, we will be spending more in the future for these machines, when HAVA funds will no longer offset the costs.

The Secretary of State has favored all four of the largest voting machine companies with state certification: Hart, Sequoia, Diebold, and ES&S. No smaller companies have been certified. No accessible non-DREs have been certified.

There is other evidence that the SOS’s office favors DREs over non-DREs. When it cites HAVA and state law, it leaves off the part of the law about non-DREs being eligible for consideration! In a letter entered into the record at the April 6^th Commissioners hearing, the Secretary of State’s office misinformed the County Commissioners about details of requirements in the HAVA law and Colorado statutes for January 1, 2006, encouraging the Commissioners to believe that DREs were the only option for accessible machines. It said: “Effective January 1, 2006 per HAVA Section 301, and Colorado Revised Statutes Section 1-5-705, every county shall install one DRE equipped for individuals with disabilities.” The Colorado statute actually reads, “A voting system shall include at least one direct recording electronic voting system specially equipped for individuals with disabilities or other accessible voting interface device installed at each polling place that meets the requirements of this section.” This omission was no secretarial oversight. The same misinformation appears (at least as of April 30^th) on the SOS’s website under the section on Frequently Asked Questions about HAVA. Has the SOS been unduly influenced by the large voting machine companies? Has the money that these vendors pour into election officials’ professional organizations had a compromising effect in Colorado and elsewhere?

This brings us to our final point. There is evidence that since the passage of HAVA, the disabled accessibility issue has been misused to keep smaller, often innovative voting machine vendors from gaining access to this market; this issue has also served to thwart attempts to secure VVPATs on electronic voting machines. Accessibility for the disabled and a VVPAT have been made to appear mutually exclusive when they are not; this false spin has been used to drive a wedge between the disabled community and other citizens seeking transparency and accuracy in our elections. These efforts are ongoing. Recently, at least two non-DRE companies (who were not sent the County’s RFP) have had inaccurate information spread about them in counties across the country.

If the County Commissioners sign a lease-to-buy agreement with Hart, Boulder County voters are getting much less than they deserve, for a much higher price than they should pay. We urge our County Commissioners to take whatever steps are necessary—better now than later—to assure that we have voting machines that allow all voters, disabled or not, to cast their votes in warranted confidence and secrecy, at a competitive price.

Margit Johansson

Boulder, CO