Anoka County Procedural Law Waiver Application Narrative Section A: Background Implementation of the Help America Vote Act of The Help America

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6 Anoka County Procedural Law Waiver Application Narrative Section A: Background Implementation of the Help America Vote Act of The Help America Vote Act In 2002 the federal government passed the Help America Vote Act (HAVA). For all Federal elections occurring after January 1, 2006, HAVA mandates that the voting method in each polling place must include a voting system that is accessible for individuals with disabilities in a manner that provides the same opportunity for access and participation, including privacy and independence, as for other voters. The Help America Vote Act, Title III, Section 301(a)(3), reads as follows: Accessibility for Individuals with Disabilities The voting system shall (A) be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters; (B) satisfy the requirements of subparagraph (A) through the use of at least 1 direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place 2. Anoka County s existing voting system must be upgraded to comply with HAVA Anoka County s current voting system is an optical scan system manufactured by the Diebold company. It was most recently updated in The system includes both hardware and software purchased from Diebold. The hardware component is the Accuvote-OS, which is similar to the hard-drive of a computer. The software component is called GEMS. Both components are critical to the process of programming voting systems. Programming a voting system involves a two-step process. First, the ballot must be created and formatted as required by Minnesota law. We format the ballot using the GEMS software. Next, the GEMS software is used to create memory devices (called memory cards) to insert into the Accuvote. This allows the optical scan ballot to be tabulated within the polling place. In our experience, the optical scan system has provided several benefits, including the ability to operate independently from our vendor 1, providing a paper record for recount purposes, and the overall efficient operation of the polling place and election administration. However, our current optical scan system cannot meet the requirements of HAVA. 3. Minnesota Laws are Revised to Comply with HAVA When the Minnesota legislature met in early 2005, several uncertainties were encountered. There was scant information available concerning the types of voting systems which would be 1 Operating independently from a voting equipment vendor is important for two reasons it allows us to produce our ballots under the short time frame between the Primary election results and when absentee ballots must be ready for the General election; it also allows us to have exclusive control over the security of our voting systems.

7 available for purchase in In addition, a newly created Federal agency, the Elections Assistance Commission, would prescribe new federal voting system standards. Although faced with these uncertainties, the Minnesota Legislature endeavored to ensure our state s compliance with HAVA. a. Voting Systems Available for Use in 2006 as Contemplated by Minnesota Legislature Session Laws of 2005, Chapter 162 contemplated two voting systems: the ES&S Automark (see Attachment #1) and the Diebold OSX (see Attachment #2.) The ES&S Automark provided a solution for those counties currently utilizing ES&S voting equipment. However, four major metropolitan counties (Ramsey, Anoka, Dakota, and Washington) do not currently use ES&S voting equipment, and have optical scan systems manufactured by Diebold. In February of 2005, our Diebold representative informed us that the company was developing a new piece of equipment called the OSX. The OSX was an all in one solution 2. The OSX included both the accessible functions required under HAVA and the optical scan portion. The accessible functions of the OSX are very similar to the ES&S Automark, with one primary difference. The ES&S Automark marks an optical scan ballot and the Diebold OSX creates a paper ballot record. In the Spring of 2005, it became critical to gain the legislature s support to use the paper ballot record expected to be created by the OSX. Chapter 162 of Minnesota Laws of 2005 amended several statutes related to voting equipment to include language laying out the requirements for allowable assistive voting devices. Some of the components added in order to comply with HAVA are the following: Minn. Stat , subd. 1a - Definition of Assistive voting technology; Minn. Stat , subd. 1b - Definition of an Audio Ballot Reader; Minn. Stat , subd. 2 - Definition of Automatic Tabulating Equipment; Minn. Stat , subd. 3 - Definition of a Ballot; Minn. Stat , subd. 7a - Definition of an Electronic Ballot Display; Minn. Stat , subd. 7b - Definition of an Electronic Ballot Marker; Minn. Stat , subd. 7 - Requirements of an Electronic Voting System. Based upon these amendments, it was clear the legislature approved of the new OSX system expected to be manufactured by Diebold, as long as it met the requirements of HAVA. b. The New Voting Equipment Standards 2 Diebold also warned us that it was possible that they would not be able to meet the 2006 deadline. Many factors contributed to the time-frame in which they were developing this system including their ability to meet other state s requirements to comply with HAVA, meeting the new voting system standards, and meeting the more rigorous and aggressive Federal certification requirements. 2

8 After the adjournment of the Minnesota legislature, several items weighed in the next steps of purchasing new voting equipment. First an opinion letter from the Department of Justice 3 began to circulate stating that each state s compliance with HAVA voting equipment should be ready for use by January 1, Although no new voting equipment standards had been released by the other Federal body, the Elections Assistance Commission, states began to scramble to find how they would comply with that new January 1, 2006 deadline. In fact, the new voting equipment standards were not released until after January 1, Minnesota, as a result of the impending deadline, issued its RFP in September 2005 for voting equipment purchases 4. At that time, the Diebold counties concluded that the Diebold OSX would not be ready in time for either the newly issued State contract or the January 1, 2006 deadline. 4. Anoka, Ramsey, Dakota, and Washington counties determine Automark will not work with the existing optical scan voting system. Realizing that Automark was likely to be the only voting system to be selected for both the State Contract and for State Certification, we decided to look at all of our options. We examined some of the following in order to comply with HAVA: Using the ES&S Automark with our existing Accuvote precinct counters; Repurchasing all new voting equipment made by ES&S; Other various HAVA compliant voting devices; Other voting systems made by our current vendor, Diebold the TSX. a. Use of the ES&S Automark with the Diebold optical scan Accuvote In reviewing this option, a major problem was encountered with using the ES&S Automark combined with the Diebold Accuvote: the programming aspect was incompatible. The ES&S ballot utilizes a different version of software than our GEMS software, which means that a ballot cannot be taken from the ES&S Automark and placed into the Diebold optical scan Accuvote for tabulation. The Secretary of State s office suggested that we try to program a Diebold ballot for use with the ES&S Automark. However, programming one system for another raised some serious concerns whether that scenario met Federal guidelines. Mixing software and hardware from two different vendors clearly does not meet Federal standards, and therefore, violates our State law. In addition, the expected time frame to produce ballots is 1 week and 3 days between the primary election and General election. Double programming is not feasible to complete within the limited timeframe. Based upon the evaluation that double programming may not meet Federal standards, will result in increased errors on ballots, and possibly an increase in errors of tabulation, this solution is not viable. 3 HAVA prescribes that the Department of Justice has the enforcement authority against States, but the Elections Assistance Commission also has specific duties related to how HAVA is administered. The relationship between the two Federal agencies remains unclear today. 4 The Secretary of State traditionally has secured voting system contracts in order to avoid 87 counties negotiating 87 different contracts. 3

9 The second option we have reviewed is to bypass the programming of both system and program one set of ballots for the ES&S Automark and another set for our Diebold Accuvotes. While this is considered optional, this option still requires double programming, large increase of staff costs, significant increase of ballot print costs, and also increased likelihood of errors on ballots. b. Purchase all new voting equipment made by ES&S This option is considered a worst-case scenario. Anoka County would purchase all new precinct counters made by ES&S in order to avoid double programming. However, there are several concerns with this option. First, it would result in 100% of all votes tabulated in Minnesota being tabulated by one vendor s equipment. This is not only a security concern, but it unnecessarily creates a monopoly. Competition in this market for voting equipment would be lost, and pricing and customer service would both be less favorable to Minnesota counties. The other major concern is the overwhelming cost of purchasing equipment that we simply do not need or want. The total cost to replace our entire system would be approximately $1.7 million for capital costs alone. This does not include costs related to training, maintenance, storage, and transportation to and from the polling places. It would be a tragedy for Anoka County taxpayers to assume this financial burden, when a better solution exists. c. Other various HAVA compliant voting devices Anoka county also explored other various options that simply were determined either not to be Federally certified or not really in compliance with HAVA. For a more complete listing of options explored, please see Section D of this narrative. d. Other voting systems made by our current vendor, Diebold the TSX After reviewing all the above options, it became clear that the best possible option for 2006 and 2007 was to utilize Diebold s existing equipment, the TSX (see attachment #3). The TSX is basically a hybrid of the ES&S Automark s accessible components and the voter verifiable paper paper ballot record (see attachment #4) expected to come from the OSX. The TSX has been Federally certified for use. It would allow Anoka County to continue using our Diebold Accuvote, comply with HAVA, meet Minnesota s tradition of paper ballots, and continue to use the GEMS software for programming both systems. All of the new Chapter 162 laws were reviewed to determine whether this system met the statutory requirements. Out of all the laws enacted in 2005 related to voting equipment, the TSX met almost all of them, except for one small technical and procedural portion. 4. Request for Procedural Waiver In order to achieve the goals of meeting the requirements of HAVA and doing so in a fiscally responsible manner, Anoka County is requesting time-limited exemptions from the enforcement of the procedural requirements of Minn. Stat (b) and , subd. 1, as provided for by Minnesota Statutes This will allow use of the TSX without certification by the 4

10 Minnesota Secretary of State for a limited time period. These requests are discussed in more detail under Section B Proposal of this waiver request. 5

11 Section B Proposal Requested by Anoka County 1. Introduction Anoka County s proposal to waive the requirements in Minn. Stat (b) and Minn. Stat , subd. 1 meets the standards of Minn. Stat for the authorization of a procedural waiver. Minn. Stat. 6.80, subd.3(b) states the following: The state auditor shall determine whether a law from which an exemption for enforcement is sought is a procedural law, specifying how a local government unit is to achieve an outcome, rather than a substantive law prescribing the outcome or otherwise establishing policy (emphasis added.) In making the determination, the state auditor shall consider whether the law specifies such requirements as: Who must deliver a service; Where the service must be delivered; To whom and in what form reports regarding the service must be made; and How long or how often the service must be made available to a given recipient. Based upon the language set forth in Minn. Stat. 6.80, subd. 3, the requests for exemptions from Minn. Stat (b) and Minn. Stat , subd. 1 are clearly procedural. 2. The waiver request is procedural because it pertains only to how Anoka County will achieve an outcome, namely compliance with HAVA voting standards. The waiver request applies to only one subdivision out of several statutes enacted to comply with HAVA. The Diebold TSX meets all of the other statutory requirements, except for two paragraphs of (b). The ultimate outcome of meeting the standards of HAVA will be met by exempting Anoka County from the requirements of Minn. Stat (b)(2) and (3). Minn. Stat (b) states: (b) An electronic voting system purchased on or after June 4, 2005, may not be employed unless it: 1) accepts and tabulates, in the polling place or at a counting center, a marked optical scan ballot; 2) creates a marked optical scan ballot that can be tabulated in the polling place or at a counting center by automatic tabulating equipment certified for use in this state; or 6

12 3) securely transmits a ballot electronically to automatic tabulating equipment in the polling place while creating an individual, discrete, permanent paper record of each vote on the ballot. a. The TSX meets the statutory requirements of Minn. Stat (b)(3) and therefore, the request is for the Office of the State Auditor to waive the requirement under Minn. Stat , requiring State Certification prior to the use of voting equipment. Using the TSX in its full capacity, the TSX does meet the requirements under Minn. Stat (b)(3) because ballots from the Diebold Accuvote-OS may be securely transferred to the Diebold TSX for ultimate tabulation. Minn. Stat (b)(3) states that an electronic voting system may be not employed unless it securely transmits a ballot electronically to automatic tabulating equipment in the polling place while creating an individual, discrete, permanent paper record of each vote on the ballot. Items defined include ballot and automatic tabulating equipment. Minn. Stat , subd. 3 defines ballot as including paper ballots, ballot cards, the paper ballot marked by an electronic marking device, and an electronic record of each vote cast by a voter at an election and securely transmitted electronically to automatic tabulating equipment in the polling place (emphasis added). Minn. Stat , subd. 2 defines Automatic tabulating equipment. "Automatic tabulating equipment" includes machines, resident firmware, and programmable memory units necessary to automatically examine and count votes designated on a ballot. There are two voting systems that Anoka County proposes to use in each polling place. One voting system is the existing Accuvote-OS (optical scan) and the other is the Diebold TSX (HAVA-assisted voting system). Both utilize the same software, GEMS. The Accuvote uses an older version of the memory device than the TSX. The TSX utilizes a memory device, called the PCMICIA card, most commonly found in many digital cameras and other types of newer technology. These memory devices found in both systems meet the definition of a ballot required under Minn. Stat , subd. 3, because both memory devices hold an electronic record of each vote cast. Both systems also meet the definition of automatic tabulating equipment because the machines include resident firmware and programmable memory units (i.e. the PCMICIA card for the TSX and the memory card for the Accuvotes) that are designed to automatically examine and count votes designated on a ballot. Both voting systems also work together to include the tabulation of all votes. In particular, the memory device from the Accuvote, which contains the electronic record of each vote cast, can be securely transmitted electronically to the TSX, as the automatic tabulating equipment. For a more complete diagram of this transfer, please refer to attachment 5. 7

13 Under this scenario, the request from Anoka County to the Office of the State Auditor would be under number 3 of this Section, requesting that the State Certification Statute be waived. If State Certification is waived, the county election officials may immediately purchase and begin preparation for the implementation of this equipment. b. Alternatively, if the State Auditor does not agree with the legal interpretation under the first request, then the counties request an exemption from the statutory language that votes be tabulated electronically so a hand duplication process may be utilized for ultimate tabulation. While Anoka County asserts the Diebold Accuvote and TSX voting system solution meets the requirements of Minn. Stat (b)(3), in the event of disagreement by the State Auditor, a second alternative is requested. If the word electronically is waived from Minn. Stat (b)(3), then Anoka County proposes a slightly different method for tabulation of votes cast on the TSX. At the close of the polling place, votes cast on the paper record of the TSX could be removed from storage area of the TSX. Two election judges of different political parties would employ a process commonly used under state law to duplicate ballots. The ballots from the paper ballot record of the TSX would be duplicated onto an optical scan ballot and then ultimately fed through the Diebold Accuvote for tabulation. To ensure privacy of each voter who uses the TSX we suggest that other voters be permitted to use the TSX and also recommend that election judges also use the TSX to cast their vote and to create a larger pool of votes cast. If the Office of the State Auditor prefers not to issue a procedural waiver for use of the Diebold TSX, Anoka County alternatively requests, at a minimum, that this statute be waived for use of the ES&S Automark with the Diebold Accuvotes. Under this scenario, the same commonly used duplication process would be employed as outlined above for the proposal of the TSX and Diebold Accuvotes. By duplicating ballots made for the ES&S Automark onto a Diebold Accuvote ballot, it avoids the mandate imposed upon the Minnesota Secretary of State s office to purchase new precinct counters. Replacing our entire voting system would cost, at a minimum, for the capital purchase $1.7 million and include increased maintenance fees, higher staff costs, higher transportation costs and storage costs, and increased training for county, municipal, and polling place officials. 3. Request to waive state certification for use of the TSX is merely procedural because State Certification is mandatory if the system meets the requirements under law. Typically, whenever a voting system is certified, it is certified first on the Federal level and then on the State level. Minnesota requires Federal certification and compliance with Federal standards as written in Minn. Stat , subd. 6 and subd. 7. Subdivisions 6 and 7 read as follows: Subd. 6. Required certification. In addition to the requirements in subdivision 1, a voting system must be certified by an independent testing authority approved by the 8

14 secretary of state and conform to current standards for voting equipment issued by the Federal Election Commission or its successor, the Election Assistance Commission. Subd. 7. Election assistance commission standards. If the federal Election Assistance Commission has not established by January 1, 2006, standards for an electronic ballot marker or other voting system component that is required to enable a voting system to meet the requirements of subdivision 5, the secretary of state may certify the voting system on an experimental basis pending the completion of federal standards, notwithstanding subdivision 6. Within two years after the Election Assistance Commission issues standards for a voting system component used in a voting system authorized under this subdivision, the secretary of state must review or reexamine the voting system to determine whether the system conforms to federal standards. Minn. Stat , subd. 1 dictates the guidelines for State certification. Subdivision 1 reads: A vendor of an electronic voting system may apply to the secretary of state to examine the system and to report as to its compliance with the requirements of law and as to its accuracy, durability, efficiency, and capacity to register the will of voters. The secretary of state or a designee shall examine the system submitted and file a report on it in the Office of the Secretary of State. Examination is not required of every individual machine or counting device, but only of each type of electronic voting system before its adoption, use, or purchase and before its continued use after significant changes have been made in an approved system. The examination must include the ballot programming; electronic ballot marking, including all assistive technologies intended to be used with the system; vote counting; and vote accumulation functions of each voting system. If the report of the secretary of state or the secretary's designee concludes that the kind of system examined complies with the requirements of sections to and can be used safely, the system shall be deemed approved by the secretary of state, and may be adopted and purchased for use at elections in this state. A voting system not approved by the secretary of state may not be used at an election in this state. The secretary of state may adopt permanent rules consistent with sections to relating to the examination and use of electronic voting systems. (emphasis added). If the TSX is authorized for use as a tabulator under proposal 2 in this narrative, then it must have state certification. However, State certification is required to ensure that the voting system may meet all the elements of the state laws and procedures (i.e. that it prevents cross-over voting in a primary election and it prevents over-voting a race.) If the voting system complies with the all requirements of the election statutes, the Secretary of State has no discretion to deny certification. To further illustrate this point, it should also be noted that the state certification process employed is a simple one and does not require an evaluation of the security of the 9

15 technical components. 5 State certification is employed merely to ensure that the system can meet our voting requirements under our state law. Finally, it should also be clear that the TSX utilizes the same software as our currently State Certified system, the Diebold Accuvote. As a result, the software is currently already State certified and therefore, it has been examined and deemed to meet the requirements under State law. Alternatively, if the TSX is not permitted to be used as a tabulator as requested in proposal #2, then the TSX is a ballot marking device and not an electronic voting system that is required to be certified under Minn. Stat The definition of an electronic voting system is in Minn. Stat , subd. 8, which reads: Electronic voting system means a system in which the voter records votes by means of marking or transmitting a ballot, so that the votes may be counted by an automatic tabulating equipment in the polling place where the ballot is cast or at a counting center. If we used the TSX as a ballot marking device, then it does not meet the definition of an electronic voting system. Instead, there would be two intervening election judges who would duplicate the votes onto an optical scan ballot for ultimate tabulation. As a result, the TSX would be a ballot marking device and the electronic voting system is our Diebold Accuvote-OS. Under this usage, no certification would be needed in order to use the TSX. 4. Improved Service Outcome There are three primary areas where this waiver can improve the service outcome. First of all, if this waiver request is granted, it will improve the privacy and independence of voting for people with disabilities. While the ES&S Automark is a step forward, it has one critical problem it requires individuals to handle and carry a ballot usually sized 11 x 18. The voter is then required to place that ballot into the precinct counter which may not be near the Automark. For individuals with mobility problems, this may be an impossible task and will require assistance by an election judge. Alternatively, the TSX solves this problem by storing the information at the same location in which the voter casts their votes. The step to take a ballot from the Automark to the precinct counter is eliminated, therefore, creating more independence and privacy for the voters. Second, there will be an improved operating efficiency and higher accuracy level for county election officials. If the counties are required to utilize two different voting systems made by two different vendors, it will require double the amount of programming, working with two vendors for customer service, increased storage and maintenance costs, increased staff, 5 To illustrate this point, please refer to the State certification report on the ES&S Automark. In the case of the ES&S Automark certification, the Secretary of State s office allowed the vendor to program and lay out the ballots for the Automark and then simply placed 50 ballots inside the Automark and voted 50 ballots. See Attachment #6 for a copy of the certification report. 10

16 municipal clerk, and election judge training. Finally, the cost of the ES&S Automark would include the purchase of new software at close to $100,000, the hardware purchase at approximately $6, each, and increased ballot costs. The purchase of the TSX requires the purchase of the hardware at approximately $4,000 for each precinct and the option to trade in the TSX if a better product arrives. No additional software costs are expected to be incurred because the TSX utilizes the same software as our current system. Finally, if this waiver is granted, it will improve the process for election judges on election day in the polling place. Election Judges serve for very little pay and work usually two days, everyother year. In addition, Anoka County has had a very difficult time recruiting new election judges in light of increased changes and mandates. Not only is it difficult to recruit new election judges, it is also difficult to train election judges on new equipment prior to a large election. Extra training is required and there have been several other recent mandates that affect training as well. 5. Alternatives for Meeting the Law requested waived Several alternatives have been researched as outlined above. There are two possible alternatives, one includes the use of the ES&S Automark with our Diebold Accuvote. The second alternative is to completely replace our entire voting system and purchase both the ES&S Automark and the ES&S precinct counter, the M100. Under the first alternative, if we were required to use the ES&S Automark with our existing Diebold Accuvotes, we would be required to purchase new software at the cost of close to $100,000, we would have double programming under a very short time-period and incur the expense of an additional employee, incur significant ballot printing costs, and acquire equipment that may last a few years at best. 6 Secondly, Anoka County could replace our entire voting system by replacing our existing precinct counters to purchase ES&S precinct counters and then buy the ES&S Automark. There are two primary concerns one the cost of replacing our entire system reaches close to $1.7 million, just for the capital purchase. In addition, we expect that our maintenance, storage, and training costs to triple to what we currently pay. In fact, if we were to purchase the maintenance costs under ES&S, our maintenance alone would be ten times higher than what we currently pay. Our second primary concern is that the entire system would be under the control of one vendor creating a voting equipment monopoly in Minnesota. Competition would be eliminated and we would see our costs continue to increase as a result. 6 The Minnesota Secretary of State s office has more documentation on this item, but we understand that ES&S has a limited time-frame (approximately 2 years) to sell and market the ES&S Automark. The concern is that if ES&S loses their right to sell and market the Automark does that extend to their ability to maintain and service the Automark. 11

17 Section C Barriers to Achieve the Outcome There are a number of barriers that currently exist. The counties interested in finding a solution have looked at a variety of options and believe this is the best alternative. 1. Secretary of State Certification. The Secretary of State has told the counties that it will not certify the TSX because it does not meet the requirements of Minn. Stat (b) as noted above. 2. Secretary of State Experimental Certification. The counties have requested the Secretary of State consider experimental certification of the TSX under the authority of Minn. Stat as an interim solution for the four counties most affected. This has not been granted. 3. Timing. A decision on purchasing will most likely need to be made prior to the time a legislative change could be adopted. For example, counties will need to purchase the equipment as soon as possible to ensure that the vendors are able to manufacture and produce the equipment prior to the September Primary. 4. Only option available. The one option available does not provide a seamless solution for disabled voters and is a very costly solution for these counties. The need to ultimately have a compatible system in each polling place could lead to an expenditure of over $3 million in just these four counties. This could be reduced or eliminated with the approval of an alternative. 5. Election Integrity. The need for extensive manual programming could lead to significant election-day problems in these counties. We wish to avoid this scenario. A. Potential Negative Impact The granting of this waiver would not cause any significant negative impact on state government, other local units of government, businesses, or citizens. In fact, the waiver will have positive impacts on the voters we serve and all taxpayers. The equipment proposed in this application provides a seamless voting experience for disabled voters. It provides all of the voting features of the system approved by the state, without the necessity to handle a paper ballot. The handling of the paper ballot in the Automark system may be difficult for blind voters or those voters without the use of their hands or arms. The waiver will allow a very good disability solution. The waiver will also allow a second election equipment vendor to do business in Minnesota. Minnesota election administrators and all voters will benefit from the better service and lower costs that competition can foster. The waiver of the state law requirements included in this application would not result in any violations of federal law, specifically any violations of the Help America Vote Act of

18 Section D Alternatives considered to achieve the desired outcome Since the passage of the Federal HAVA act in 2002, counties have been working on this issue of disability access and voting equipment. We have identified and researched as many alternatives as possible. We have found that some alternatives do not provide the level of service we expect and those have not been considered. Alternatives considered have included: 1. Use of the certified Automark with our current vote counters. While we will utilize this option if no relief is granted, this option is fraught with difficulties. First, the manual programming necessary in this configuration is, if not impossible, impractical. Not surprisingly, the vendor of our current equipment is not allowing us to use files created in their software to program a competitor s ballot. Additionally, under any scenario using this equipment together would be a temporary solution, leading to additional purchases of equipment. As mentioned earlier, the financial implications could top $3 million for all the counties affected. 2. Use of the Vote-Pad. The counties also considered use of a non-electronic voting device to fulfill our disability requirements. It is felt this solution would not provide adequate service to disabled voters and would also be an administrative burden. We also received feedback from members of the disability community that this alternative was not sufficient. 3. Other Disability machines. Other equipment being approved in other states to meet their HAVA disability requirements face the same state requirement problems faced by the Diebold TSX. 4. Do nothing scenario. There has been some discussion of the ability for a county to not comply with the HAVA equipment requirements for 2006 elections and wait for a better solution in future years. This option was dismissed because of the potential legal issues and our desire to implement the HAVA requirements as directed by the federal government. 5. Submission of TS(x) to Secretary s Office. The Diebold Company submitted the TS(x) to the Secretary of State s Office in 2005 with a request for State Certification. This certification request was denied. The counties have met with officials from the Secretary s Office a number of times since then, but have been given no indication that the Secretary s Office is willing to work with the affected counties to find a solution that includes the TSX. 13

19 CERTIFICATION REPORT AND RECOMMENDATION November 21, 2005 ES&S AutoMARK Voter Assist Terminal: stand alone and in conjunction with the M100, M150, M550, M650, and the Optech III-P Eagle Prepared by Elections Division Office of the Secretary of State State of Minnesota 1

20 INTRODUCTION Election Systems & Software (ES&S) submitted an application on September 2, 2005 for the State of Minnesota, Office of Secretary of State, to certify the AutoMARK Voter Assist Terminal, hereinafter, AutoMARK. The application was examined by Office of Secretary of State Elections Division staff for completeness, and the AutoMARK was demonstrated and evaluated pursuant to Minnesota Statutes, section , and Minnesota Rules, parts , , , and APPLICATION REVIEW The following items were received from ES&S and reviewed in accordance with Minnesota Rule : A. A signed agreement that the vendor will pay all costs incurred by the secretary of state, the vendor, and any designees of the secretary of state in accomplishing the examination; B. Complete specifications of all hardware, firmware, and software; C. All technical manuals and documentation related to the system; D. Complete instructional materials necessary for the operation of the equipment by election jurisdictions and a description of any training available to users and purchasers; E. A list of all state election authorities that have tested and approved the system for use; F. A list of all election jurisdictions where the system has been used for elections; G. A description of any support services offered by the vendor and of all peripheral equipment that can be used in conjunction with the system; H. Recommended procedures for use of the system at Minnesota elections including procedures necessary to protect the integrity of the election; I. Specifications for materials and supplied required to be used with the system; J. Specifications for stickers for write-in votes that can be used with the system; K. Explanation of the level of technical expertise required to program or prepare the system for use at an election; and L. Certification by an independent testing authority approved by the secretary of state of conformance to standards for voting equipment issued by the Federal Election Commission. 2

21 CONCLUSION: Review of the application materials submitted for the AutoMARK Voter Assist Terminal indicates that they are complete and satisfy the requirements of Minnesota Rule SYSTEM DEMONSTRATION On September 30, 2005, and again on October 18 & 19, 2005, the Office of the Secretary of State hosted staff from ES&S for an acceptance demonstration of the AutoMARK. Test decks from the Office of the Secretary of State and ES&S were used in the demonstration. Tests simulating both a primary and general election were conducted. These test decks consisted of ballots marked by the AutoMARK machine. These ballots were then inserted into the M100, (precinct count optical scan machine), the M150 (central count optical scan machine) the M550 (central count optical scan machine), the M650 (central count optical scan machine), and the Optech III-P Eagle (precinct count optical scan machine.) On the October 18 th demonstration date, the AutoMARK could not be tested for the simulated primary with the M150 as this machine is designed to process 14 two-part primary ballots and ES&S did not send these materials prior to the demonstration. It was agreed by both parties that ES&S would return at a later date to complete the testing of the AutoMARK with the 14 ballots for the two precincts in the simulated primary. ES&S returned on November 2, 2005 and the demonstration was completed with primary ballot test decks provided by both SOS staff and ES&S. The areas of Acceptance Demonstration and Preparation of Computer Programs were assessed as required by Minnesota Rules and , respectively. In addition, the AutoMARK was assessed for compliance with Minnesota Statutes 2004, Chapter 206. STATUTORY REQUIREMENTS IN ACCORDANCE WITH MINNESOTA STATUTES 2004, CHAPTER The electronic ballot marker uses an electronic ballot display or audio ballot reader to mark a nonelectronic ballot with votes selected by a voter, or transmit a ballot electronically to automatic tabulating equipment. (MN subd 7b.) Demonstrated. The AutoMARK marks an optical scan ballot. 2. The electronic ballot marker includes assistive voting technology, which means touch-activated screen, buttons, keypad, sip-and-puff input device, keyboard, earphones, or any other device used with an electronic ballot marker that assists voters to use an audio or electronic ballot display in order to cast votes. (MN Stat subd. 1a) 3

22 Demonstrated, and the criteria was met. Three ballots were marked using the systems audio function. 3. The electronic ballot marker uses an electronic ballot display, defined as a graphic representation of a ballot on a computer monitor or screen on which a voter may make vote choices for candidates and questions for the purpose of marking a nonelectronic ballot or transmitting an electronic ballot. (MN Stat subd. 7a) Demonstrated and the criteria met. In addition, the electronic ballot display has a zoom feature, as well as a high contrast feature. 4. The electronic ballot marker utilizes an audio ballot reading, defined as an audio representation of a ballot that can be used with other assistive voting technology to permit a voter to mark votes on a nonelectronic ballot or to securely transmit a ballot electronically to automatic tabulating equipment in the polling place. (MN Stat subd. 1b) Demonstrated and the criteria met. There is an audio function allowing the voter to listen to the choices through headphones. A ballot was properly marked at the completion of the voting process. 5[A]. The electronic ballot marker must meet the requirements for electronic voting systems in accordance with MN Stat : (1) permits every voter to vote in secret; Demonstrated and the criteria met. There is an option allowing the voter to switch to a black screen [screen privacy option] when using the audio function. Upon exit of the ballot from the AutoMARK, the ballot can be inserted into a secrecy sleeve, ensuring maintenance of voter privacy. (2) permits every voter to vote for all candidates and questions for whom or upon which the voter is legally entitled to vote; Demonstrated and criteria met. (3) provides for write-in voting when authorized; Demonstrated and the criteria met. The write-in function, when chosen, spells out the name of the candidate by means of the voter touching the screen and choosing a letter. The write-in function allows for the voter to back out of the function and select another candidate, if they so choose (and vice versa). 4

23 (4) automatically rejects, except as provided in section with respect to write-in votes, all votes for an office or question when the number of votes cast on it exceeds the number which the voter is entitled to cast; The AutoMARK does not allow for over-votes. Therefore, this section is not applicable. (5) permits a voter at a primary election to select secretly the party for which the voter wishes to vote; Demonstrated. (6) automatically rejects, all votes cast in a primary election by a voter when the voter votes for candidates of more than one party; and The AutoMARK does not allow for cross-over votes. A cross-over vote is precluded because the system only allows the voter to choose from one party. (7) provides every voter an opportunity to verify votes electronically and to change votes or correct any error before the voter's ballot is cast and counted, produces a permanent paper record of the ballot cast by the voter, and preserves the paper record as an official record available for use in any recount. Demonstrated and the criteria met. 5[B]. An electronic voting system may not be employed unless it: (1) creates a marked optical scan ballot that can be tabulated in the precinct or at a counting center by automatic tabulating equipment certified for use in this state; or Demonstrated and the criterion met. Test decks marked by the AutoMARK were subsequently inserted into the M100, M150, M550, M650 and the Optech III-P Eagle. All votes were correctly tabulated. (2) securely transmits a ballot electronically to automatic tabulating equipment in the precinct or at a counting center while creating an individual, discrete, permanent paper record of all the votes on the ballot. This criterion is not applicable, as the ballot is not transmitted electronically. The AutoMARK serves solely as a ballot marker". When the optical scan ballot is created, it is physically taken to a tabulating machine. 5

24 ACCEPTANCE DEMONSTRATION REQUIREMENTS AND CRITERIA FOR PREPARATION OF COMPUTER PROGRAMS 6. Storage requirements. (M.R ) Demonstrated. System is equipped with a transfer case. The system has the capability to be charged while in the case. Some additional features of the transfer case include: wheels; padding (contains shock/thermal protection); pullhandle; the ability to be locked; and the transfer case is stackable. 7. Speed of operation under conditions that simulate the scope and length of actual election ballots. (M.R ) Speed was adequate. Ballots were tested in multiple test decks. Speed was sufficient to handle what might be expected in an actual election. The entire voting process, per ballot took approximately minutes. If marking quickly, the AutoMARK can have trouble keeping up. This was not a significant issue. In regards to the Touch-Activated Screen, it appeared that on several occasions, the system was slow to respond to the voter s touch upon selection of intended choice. 8. All features that can be programmed. (M.R ) Demonstrated. System uses a fully programmable Compact Flash card to store the system s election data. 9. All design specifications. (M.R ) Demonstrated in context of above and use of test decks. 10. Maximum numbers of precincts, offices and issues, and candidates per office which can be handled. (M.R ) Demonstrated. System has the capability of handling a large capacity. Staff from ES&S stated that the system is capable of programming a large number of precincts at one time. Further, system has the capability of handling all of the precincts in Hennepin County. 11. Simulation of vote marking involving a configuration of the largest number of voters, precincts, offices, and candidates with which the system is expected to be used, which vote marking includes ballots showing undervotes and stray marks. 6

25 Simulation also includes ballots in many different combinations, and demonstrates rotation sequences and the ability to mark votes cast on the partisan, nonpartisan, and proposal sections of the ballot independently. (M.R ) Demonstrated using test decks brought by staff. In addition, the system was satisfactorily tested for voter induced problems such as extra marks and margin marks. System alerts the voter to an undervote, giving the voter the opportunity to remedy or let the undervote intent stand. 12. Accuracy of vote marking and procedures or process for testing accuracy. (M.R ) Demonstration accurately reflected the results expected from the test decks. The system provides the voter with a summary of selections prior to producing the ballot. 13. Provisions for maintaining the security and integrity of elections. (M.R ) Demonstrated. Program card is locked into place and a numbered seal is then placed on for security. 14. The computer program must reflect the rotation sequence of the candidates names as they appear on the ballots in the various precincts. (M.R ) Demonstrated using test deck provided by Secretary of State staff. 15. The electronic ballot display and audio ballot readers must conform to the candidate order on the optical scan ballot used in the precinct. (MN Stat Subd. 4) Demonstrated using test deck provided by Secretary of State staff. 16. The computer program must reflect the offices and questions to be voted on in the order that they appear on the ballots in the various precincts. (M.R ) Demonstrated using test deck provided by Secretary of State staff. 17. Electronic ballot displays and audio ballot readers must follow the order of offices and questions on the optical scan or paper ballot used in the same precinct, or the sample ballot posted for that precinct. ( MS subd 6.) Demonstrated using test deck provided by Secretary of State staff. 7

26 18. The computer program must mark valid votes cast by a voter for candidates for an office. (M.R ) Demonstrated using test deck provided by Secretary of State staff. No mismarkings were observed. 19. The computer program must mark valid votes cast by a voter for or against any question. (M.R ) Demonstrated using test deck provided by Secretary of State staff. No mismarkings were observed. 20. The computer program must ignore stray marks on a ballot; these marks must have no effect on any portion of the ballot. (M.R ) Demonstrated using test deck provided by Secretary of State staff. In order for the ballot to be affected by a stray mark, those stray marks must be on the timing channel or on the code channel. Those ballots which contained stray marks on the aforementioned channels were considered spoiled by the system, and returned. 21. For the purpose of programming, the partisan, nonpartisan, and proposal sections of the ballot are independent ballots; no action of a voter on one section of the ballot may affect the voter s action on another section of the ballot. (M.R ) The AutoMARK does not allow for cross-over votes. Therefore, this section is not applicable. 22. In partisan primary elections, the computer program must mark the votes as intended by a voter for candidates in one political party only and reject all of the partisan section of the ballot if votes are cast for candidates of more than one political party, but mark valid votes in the nonpartisan section of the ballot. (M.R ) The AutoMARK does not allow for cross-over votes. Therefore, this section is not applicable. 23. In partisan primary elections the computer program must check for the situation of a voter casting votes for candidates of more than one political party prior to checking for overvote conditions. (M.R ) The AutoMARK does not allow for cross-over votes or for overvotes. Therefore, this section is not applicable. 8

27 24. If the marking equipment can examine and alert the voter before marking it, the computer program must check for and reject without marking any ballot with an overvote or, at a partisan primary, with votes cast for candidates of more than one party. When a voter marking error is identified, an error message must indicate the type of defect and may indicate the specific office or question where the defective condition was found. The error message must be conveyed by the means (i.e. audio or visual) by which the ballot information is presented. (M.R ) Demonstrated and the criteria met. All errors are alerted to on the system, and error messages conveyed to the voter. 25. An action indicating a write-in is a vote for the purpose of determining if an overvote condition exists. Except where an overvote condition for the office exists, the computer program must mark that a write-in has been indicated. (M.R ) Test deck results indicated this criterion was met. SUPPLEMENTAL INFORMATION REQUEST On Monday, October 10, 2005, a supplemental request for information was sent to ES&S, by Mike McCarthy, Elections Division Supervisor. The basis of the letter was to inquire into whether the AutoMARK contains any components that communicate by wireless means rather than by wire connection. On Thursday, October 13, 2005, ES&S sent a response to Mike McCarthy, stating that The ES&S AutoMARK is only a ballot marking device and does not incorporate any wireless communications. Below is the actual text of the questions posed to ES&S, and their subsequent response: 2.a. Does the AutoMARK contain any components that communicate by wireless means rather than by wire connection? ES&S Response: The ES&S AutoMARK is only a ballot marking device and does not incorporate any wireless communications. 2.b. If the answer to 2.a is "yes" please describe these components and their purpose. ES&S Response: N/A 9

28 2.c. If the answer to 2.a. is "yes" please describe why these components do not provide any risk of being a means by which any data or programming or other thing would enter or exit the voting system before, during or after voting, other than the legitimate preparation of the machine for use, its use, or the reporting of results. ES&S Response: N/A CONCLUSION: Demonstration and assessment of the AutoMARK Voter Assist Terminal, alone and in conjunction with the M100, M150, M550, M650, and the Optech III-P Eagle, indicates satisfaction of the requirements of Minnesota Rules and , as well as that of the requirements of Minnesota Statutes 2004, Chapter 206. REMAINING STEPS TO CERTIFICATION Following a successful review of the vendor s application for certification and successful demonstration of the system, Minnesota Rules , subpart 1, requires the vendor to complete the following before the certification may be issued: A. Pay all state costs of the examination; B. Certify that the vendor and any agent acting on behalf of the vendor will offer the system for use or sale only according to Minnesota Rules, chapters 8220 and 8230 and Minnesota Statutes, section , and any stipulations of the certification; C. Certify that the vendor will immediately notify the secretary of state of any modifications to the system and will not offer for sale or provide for use in Minnesota any modified system if the secretary of state advises the vendor that, in the opinion of the secretary, the modifications constitute a significant change requiring that the system be reexamined; D. Deposit with an escrow agent a copy of all programs, documentation, and source codes; and E. Deposit with the secretary of state a bond in the amount specified in Minnesota Statutes, section , subdivision 4, conditioned on the vendor offering the system for sale in the manner required by chapters 8220 and 8230 and any conditions under which the system is certified for use in Minnesota. The bond is required until the adoption, use, or purchase of the system or program is discontinued in Minnesota. 10

29 STAFF RECOMMENDATION Staff recommends that the Secretary of State certify ES&S AutoMARK Voter Assist Terminal as a stand alone machine, and for use in conjunction with the M100, M150, M550, M650, and Optech III-P Eagle, for use in the state of Minnesota once the provisions of Minnesota Rules , subpart 1 are satisfied. Staff further recommends that as a condition of certification, ES&S will agree to employ methods and procedures to safeguard system software and firmware from access by unauthorized parties during all phases of election preparation, including preparation of election program and delivery to local government of the program and related materials. 11

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