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HAVA
complaint against HART eSlate certification
May 25,
2006
Ms.
Dennis.
Thank you
very much for conducting yesterday’s public hearing in a way that gave
participants a fair opportunity to submit their oral testimony.
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It was
very helpful to have a time-allotted agenda. It would have been
better to have posted the agenda in advance of the meeting, so that
speakers would have had time to prepare.
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It was
very helpful to have a full 45 minutes to make our case, and especially
helpful to have an opportunity to speak last so that I could respond to
oral testimony and summarize our argument.
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Publishing
the audio record on the Internet is very helpful, and I hope that you
will publish all written materials on the Internet as soon as you
receive them.
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I also
hope that you will provide me with copies of your draft findings so that
I may participate in the final determination.
In the
future, I believe that it would further improve the hearing quality if a
way can be found to entertain two-way communication. This might be
done by the public exchange of written briefs posted on the web, and by
moderated oral debate during the hearing.
A few areas
where this would have helped to improve the record:
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Anonymous
voting - The SOS did not declare whether or not it considers the
eSlate to be anonymous. If SOS agrees that it is not anonymous, we
could have spent less time on this point. On the other hand, if
SOS believes that the eSlate is anonymous, we need to debate this
issue. At a minimum, we deserve to hear or read SOS
reasoning. This must not be a surprise disclosure that first
appears in the SOS final determination. As you know, we believe
that the constitutional protection is absolute.
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Voter-verified
voting - The SOS did not declare whether or not it considers that
blind voters can verify their votes on the paper ballot. As above,
the process would be significantly improved by two-way communication and
more complete disclosure. For example (I hope that this is a
fair paraphrasing) testimony by some of the blind speakers was: (a) they
trust the computer and don’t need to verify what is printed, and (b) a
system that is accessible is good enough – even if it is not
verifiable. A thorough discussion would have concluded, I expect,
that the law does not agree with this position.
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Inadequate
testing - A two-way exchange would have answered whether the SOS did
or did not test the eSlate for the two functions under dispute.
For example, SOS “Procedure for Certification of Voting Systems,
November 15, 2005” page 19 (45.5.2.9.3 and 45.5.2.9.9), page 36
(9.3.4.8), page 47 (9.3.7.7), and page 49 (9.3.8.6) and page 51
(9.3.8.22) require, in plain language that is not subject to ambiguous
interpretation, that these tests be conducted. Yet SOS writes on
May 19th, “you are advised that there are no such
records”.
Adequacy of testing is one of the critical
elements of this complaint. If the required tests were performed
and failed to detect the defects, then a flaw in the test procedures
requires executive attention. If the required tests were not
performed, then there is a different type of flaw that requires
executive attention. We sit here not knowing a knowable
fact. Two-way communication would likely have produced this
fact. Were the eSlate tests performed or not? If performed,
did they detect the defects or not? Were the same tests performed
on the AutoMark?
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Unfair,
preferential treatment - It appears that a bureaucrat was permitted
to make a public policy decision that has far-reaching
implications. It appears that the eSlate was “rubber-stamped” and
that the AutoMark was “targeted” for rejection. The only way to
learn what happened and why is to conduct a two-way conversation.
The hearing format used yesterday cannot get at these facts.
We believe that the decision to deny certification to AutoMark
and to award certification to eSlate was uneven and gave preferential
treatment to eSlate. The consequences of this single decision are
far-reaching. It prevented Colorado counties from
considering the AutoMark vote marking equipment. It blocked
ES&S from educating Colorado voters about the AutoMark. It
forced the Boulder County Commissioners to choose voting equipment that
they do not prefer, because the AutoMark was not an available option. It
was used by officials to silence the voices of those members of the
public who prefer accessible, paper ballot vote marking systems.
I cannot help but believe that the decision to not certify
AutoMark was prompted by a bias on the part of staff against paper
ballots. This was an executive level, public policy decision that
should have been publicly debated. It has resulted in vendors
taking unnatural actions in order to stay on the right side of the
SOS. At a minimum, this deserves an internal
inquiry.
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In my
closing remarks, I described a virtual picture of where we go from
here. I have attached a drawing of this virtual picture for your
use. I believe that the sequence is the correct sequence for your
decision-making. If I were in your position I would:
a.
Examine test results showing whether or not the eSlate meets the
requirements for anonymous and verifiable-voting. This needs to be
reduced to PASS or FAIL.
b.
If either fail:
i.
Draft a report that finds for the complaint.
ii.
Decertify the eSlate voting equipment.
iii.
Prepare a list of alternatives (where do we go from here?)
iv.
Select from the list of alternatives.
c.
If both pass, draft a report that finds against the complaint.
During the
hearing you asked me to suggest alternatives available to you in the event
that you decide to decertify the eSlate. I offered to work with you
to develop a list of alternatives. I again extend my offer to
assist.
Al
Kolwicz 5/25/2006

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