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State of New Jersey Commission of Investigation

ELECTRONIC VOTING

Protecting the Integrity of the Vote

in New Jersey

December 2007

w. Cary Edwards

Chair

Joseph R. MarinieHo, Jr. Kathy Flicker

Patrick E. Hobbs

Commisswners

State of New Jersey

COMMISSION OF INVESTIGATION

28 WEST STATE STREET PO Box 045

TRENTON, NEW JERSEY 08625-0045 TEL (609) 292?6767 FAX (609) 633-7366

December 2007

Alan A. Rockoff

Executive Director

Governor Jon Corzine The President and Members of the Senate The Speaker and Members of the General Assembly

The State Commission of Investigation, pursuant to NJ.S.A. 52:9M, herewith fonnally submits a report and recommendations stemming from an investigation of matters involving the integrity of electronic voting machines in New Jersey.

Respectfully,

A / f/'~~;:;,i,;.~

(PsePh R. Mari~.

Commissioner

Patrick E. Hobbs

Commissioner

New Jersey Is .'tn Equal Opportunity Employer - Printed on Recycled Ilnd Recyclable Paper

Introduction

The Commission undertook an investigation into the procurement of electronic voting machines in New Jersey based upon allegations suggesting manipulation and malfeasance in the vendor-selection process. During the course of the inquiry, additional questions arose with regard to whether there has been a sufficient level of uniformity and oversight in the actual purchases of the machines and whether they have been adequately certified to meet basic operational and performance standards.

Given the technological revolution that has occurred in recent years in the process by which citizens exercise one of their most fundamental rights and responsibilities, it is crucial that the integrity of the voting system be ensured and that any systemic flaws, abuses and/or weaknesses be rooted out and remedied. Indeed, the reliability of the entire nation's voting system came under scrutiny following the 2000 presidential election when nearly two million ballots were disqualified after it was discovered that manual, punch-card voting systems malfunctioned on a broad scale, primarily in the State of Florida. In the aftermath of that controversy, electronic voting machines became the norm, and new state and federal laws and regulations were adopted as part of a nationwide effort to bolster the integrity of the technology involved in the electoral process.

In New Jersey, paper ballots and manually-operated voting machines have been replaced entirely by electronic systems in each of the State's 21 counties. The transition to this new era of "high-tech" voting, however, has been neither smooth nor orderly. For example, apart from the lingering procurement and certification issues set forth and examined in this document, election officials and the courts are still wrestling with unresolved questions related to the adequacy of the actual hardware associated with electronic voting machines.1

While no specific improprieties were discovered during the course of this investigation, the Commission identified several critical areas in which the procurement and performance of voting machines are considerably vulnerable to abuse. Through this summary report, the Commission presents findings of fact, as well as a number of suggested recommendations for statutory and regulatory reforms relevant to the limited scope of the investigation.

1 A state court recently declined to enforce a January 1, 2008 deadline previously established under a state law requiring that all electronic voting machines be retro-fitted with printers to provide paper copies of completed ballots as a means of verifying electronically-recorded vote data. (Assemblyman Reed Gusciora, et al. v. James E. McGreevey,Governor of the State of New Jersey et als., MER-L-2691-04.) Two bills pending in the Legislature, A-4585 and S-2949, would extend the retro-fitting deadline until June 3, 2008.

Background

Two separate sets of statutory guidelines govern elections in New Jersey. Title 19, a state law, sets forth rules and guidelines for the conduct of primary and general elections at the state, county and local levels of government.

The second set of statutory guidelines, meanwhile, establishes standards and legal requirements that must be met in order for the State to participate in primary and general elections involving federal offices. In the aftermath of the 2000 presidential election controversy, the federal Help America Vote Act of 2002 (HAVA) was enacted to establish minimum election administration standards for the states and to eliminate punch-card voting systems.2 Among other things, HAVA required electronic voting machines to meet six basic performance standards, including a minimum error rate, allowing voters to review the accuracy of a vote before a ballot is cast, ensuring that disabled persons can vote independently, making multi-lingual voting ballots available and providing an audit function to facilitate a more efficient and reliable process in the event a recount is required.3 Along with these voting-machine performance standards, HAVA also required states to address ancillary processes associated with the successful conduct of elections, including upgraded voter registration activities. States were required to adopt official plans to establish and maintain compliance with HAVA, which, in turn, provided for the distribution of federal funds to assist with that process.

New Jersey's share of federal HAVA funding included $16.8 million to upgrade existing equipment and to purchase new electronic voting machines consistent with the HAVA guidelines.4 Initially, the Office of the Attorney General of New Jersey, which oversees the State Division of Elections, undertook the process of selecting a vendor with which the State could contract for the purchase of HAVA-compliant voting machines. In July 2004, the State solicited vendor proposals via a "Request for Quotations" and subsequently evaluated the products of four voting-machine manufacturers. Early in 2005, however, the State abruptly abandoned this plan amid confusion surrounding a federal review involving the nature and future direction of various mechanical voting systems. According to a letter dated January 23, 2005 from the Attorney General's office to voting machine vendors:

. . . The [Evaluation] Committee, on behalf of the Attorney General, has decided not to recommend the award of a state contract for a HAVA compliant voting system at this time. This decision was made in consideration of the ongoing national debate concerning electronic voting systems and in recognition that the Federal Election Assistance Commission is currently reviewing the matter. In light of the uncertainty surrounding the direction that voting systems will take and the requirements that such systems will have to meet, the State has

2 HAVA, Pub. L. No. 107-252, 116 Stat. 1666 (2002), codified at 42 U.S.C. 15301 to 15545. 3 Section 301 of Title III of HAVA requires that voting machines meet requirements by January 1, 2006. 4 In total, New Jersey received $84.9 million through HAVA in 2005. This included $68 million for creating statewide computerized voter registration lists, addressing provisional voters and providing voter information.

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decided that rather than move forward with this procurement, additional study and consideration is advisable.

The State's withdrawal, however, did not halt the procurement process. Under Title 19, New Jersey's 21 counties are authorized to purchase voting machine equipment unilaterally, and that is what occurred in this case. Utilizing the funds made available through HAVA, each county proceeded to enter into voting-machine purchase arrangements with vendors.5

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Lack of Competitive Bidding

Under New Jersey's current procurement statutes, voting machines, unlike other goods and hardware regularly acquired by the State and its various governmental units ? everything from paper clips to laptop computers ? are exempt from competitive public bidding.6 In effect, voting machines are treated for procurement purposes like professional services, and counties may purchase them at their sole discretion. Against this statutory back-drop, one manufacturer ? Sequoia Voting Systems Inc. of Oakland, California ? emerged as the market dominator in New Jersey, winning the exclusive rights to sell its electronic voting machines to 19 of 21 counties across the State. Eighteen counties opted to purchase the same Sequoia model, known as the "AVC Advantage." Two other leading vendors won business in single counties. Warren County purchased machines from Avante Inc. of Princeton Junction, New Jersey, while Sussex County bought a model from Election Systems & Software of Omaha, Nebraska.

The machines produced by each of these three manufacturers were evaluated by the State and found to be quite similar in performance and reliability. In particular, Sequoia and its predecessor companies ? Sequoia Pacific Systems Corp., Automatic Voting Machine Corp., and AVM Corp. ? were found to have a demonstrated track record of use in New Jersey dating back to the mid-1990s. Further, a number of county officials told the Commission that they preferred the AVC Advantage machine on its merits because it is a "full-face" device that presents voters with a ballot image similar in appearance and configuration to the old manual, lever-activated machines.

While the Commission found no evidence that Sequoia received preferential treatment, that county governing bodies were urged to avoid doing business with other manufacturers or that price-gouging occurred, it is concerned that, going forward, the procurement process nonetheless is vulnerable to manipulation and abuse due to the lack of competitive bidding and the absence of any central controls or oversight. Competitive bidding is a formal process designed to provide public entities with the best possible product at the most reasonable price and to accomplish those goals with the utmost

5 N.J.S.A. 19:48-3 6 N.J.S.A. 40A:11-5

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transparency. Under the statutory and regulatory structure currently in place, none of those objectives can be guaranteed and enforced.

Insufficient Certification Process

All voting machines purchased for use in State-level elections in New Jersey must be certified, which means the equipment must be physically inspected and approved to meet statutory standards established through Title 19. The State conducts such inspections via its Voting Machine Examination Committee, a three-member advisory panel established by the Office of the Attorney General. Once the committee deems a particular machine/device as state-certified, information to that effect is published and made available for use by the counties in purchasing voting equipment.7

With regard to elections in which federal offices are at stake, all voting machines used in the State must additionally meet the separate set of six standards and requirements set forth in the HAVA statute with regard to accessibility, functionality and security. As to the actual process of certifying voting machines as HAVA-compliant ? particularly with respect to vital matters such as whether the equipment meets the minimum error-rate standard ? the federal government leaves that to the states.8 Many, including New Jersey, rely upon the results of tests conducted by private laboratories but paid for by the very manufacturers who sell the machines. The U.S. Election Assistance Commission (EAC), created by HAVA as a clearinghouse on election issues, accredits such laboratories but does not do independent testing to verify results submitted by the laboratories.

Although the laboratories that conduct these tests are referred to in federal regulations as "Independent Testing Authorities," the fact that the tests are carried out at the expense of manufacturers whose products could be made more marketable by the results makes them anything but independent. Aside from the obvious appearance, if not outright reality, of a conflict of interest, this arrangement raises questions about the extent to which the public can have confidence in the ultimate integrity of the core machinery used in the electoral process.

Taking note of these concerns, some states have undertaken efforts to oversee the process and ensure independent testing, a practice which is permitted under the terms of HAVA.9 In 2006, for example, the State of New York entered into a direct contract with

7 List of state-certified voting machines is maintained by the New Jersey Division of Elections. 8 With regard to error rates, HAVA Sect. 301(5) states, "The error rate of the voting system in counting ballots (determined by taking into account only those errors which are attributable to the voting system and not attributable to an act of the voter) shall comply with the error rate standards established under section 3.2.1 of the voting systems standards issued by the Federal Election Commission which are in effect on the date of the enactment of this Act." 9 HAVA Section 231 (a) (2) states: "At the option of a state, a state may provide for the testing, certification or recertification of its voting system hardware and software by the laboratories accredited by the [Election Assistance] Commission under this section."

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