Indiana Election Commission
SEPTEMBER 28, 2000
MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission ("IEC"), S. Anthony Long, Marilyn Moores as proxy for Joseph M. Perkins, Jr., and Butch Morgan.
MEMBERS ABSENT: Joseph M. Perkins, Jr.
STAFF ATTENDING: Candy Marendt, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"), Spencer Valentine, Co-Director, Election Division, Kristi Robertson, Co-General Counsel IEC and Election Division, Dale Simmons, Co-General Counsel IEC and Election Division, and Michelle Thompson, Co-Director, Campaign Finance, Election Division.
ALSO ATTENDING: Brad Klopfenstein, executive director of the Libertarian Party, Paul Wilson, candidate, Richard A. Crawford, candidate, Steve Shamo, representative of MicroVote and Steve Corey, representative of Global Election Systems.
1. CALL TO ORDER
Chairman Dudley Cruea called the September 28, 2000 meeting of the IEC to order in Room 128, Indiana State House, 200 West Washington Street, Indianapolis, Indiana. He noted that proper notice of the meeting had been given, as required by state law, and that all Commission members were present except Vice Chairman S. Anthony Long. The Chair advised that, according to information supplied to him, Mr. Long was on his way and would be joining the proceedings soon. The Chair indicated that Marilyn Moores was appearing as proxy for Commission member Joseph M. Perkins, Jr. The Chair then indicated that the Commission members present would proceed with the business on the agenda that could be performed in Mr. Long's absence.
Copies of the meeting notice and agenda are incorporated by reference in these minutes. (Copies of all documents incorporated by reference are available for public inspection and copying at the Election Division office.)
2. APPROVAL OF THE AUGUST 24, 2000 MINUTES
The Chair noted that each Commission member had previously received a draft of the proposed Commission minutes for the August 24, 2000 meeting. There being no corrections, the Chair moved that the August 24, 2000 minutes be approved as submitted. Mr. Morgan seconded the motion. There being no further discussion, the Chair called the question and declared that with three members voting "aye" (Mr. Cruea, Mr. Morgan and Ms. Moores), and no member voting "nay", the motion was adopted.
3. REPORT BY CO-DIRECTORS
The Chair recognized Ms. Marendt who addressed the Commission on the continuing operations of the Election Division. Ms. Marendt stated that the Election Division had almost completed the administration of the duplicate voter registration elimination program with the clerks making their final resubmissions. She reported that there had been a huge increase in requests for voter registration applications and a huge increase in completed voter registration applications being received by the Election Division. She also reported a significant increase in the volume of calls the Election Division is receiving.
The Chair recognized Spencer Valentine who stated that ballot certifications went out after last meeting. Mr. Valentine stated that staff was engaged in assisting circuit court clerks with ballot preparation. Mr. Valentine also indicated that circuit court clerks who ordered paper ballots from the Election Division have received paper ballots prepared by the Election Division. He stated that eleven counties ordered these paper ballots as back up ballots for their county. Mr. Valentine stated that upcoming deadlines include the October 10 deadline for voter registration and the October 20 deadline for pre-election campaign finance reports.
4. LITIGATION UPDATE
The Chair recognized Mr. Simmons who stated that the three outstanding cases pending against the Commission that were reported to the Commission at the last meeting remain pending. He stated the Leaf versus Able case, the disclaimer case, was still pending in federal court before Judge McKinney on motions for summary judgment. He stated that these motions have been pending since February.
He explained that another case that he has been reporting to the Commission is the Majors versus Indiana Election Commission. He stated that this case involves challenges to campaign finance fines imposed against Libertarian candidates. He explained that the Libertarian's claim in that lawsuit is that since they did not raise money for their campaigns, they did not have to file campaign finance reports. He stated that there is a pending dispositive motion in this case as well.
He advised that the third case, a newer case, is the case brought against the Commission by the Marion County Committee of the Democratic Party challenging the date for filling ballot vacancies. This involved a deadline for filling vacancies that was moved up to June 1 for legislative offices. He explained that the plaintiff challenged the statute as discriminatory because the Libertarians have longer under the election statutes to fill candidate vacancies. He stated that the statute was challenged under the equal protection clause and the First Amendment. He stated that this case was initially heard in Judge Hamilton's court, United States District Court for the Southern District of Indiana, on a motion for preliminary injunction. He stated that this motion was denied by the court on August 3rd and that the court's decision on preliminary injunction has already been provided to the Commission. He stated that after this ruling the case was still technically pending on plaintiff's request for a declaratory judgment and a permanent injunction. He stated that, at this point, all defendants in the case, including the Commission and the Marion County Election Board, have filed a motion to dismiss on September 18. He stated that time will be allowed for responses to this motion to be filed before the court would rule. He advised that he would keep the Commission apprised of any new developments in the case.
5. OTHER BUSINESS
The Chair recognized Kristi Robertson who stated that, included on the last page of their packets, there is a list of the certified write-in candidates for the November 7, 2000 election. She stated that this list has been certified to the counties pending any candidate challenge issues that may arise.
The Chair asked if there was any other item on the agenda that could be brought before the Commission at this time. The Chair then recognized Dale Simmons who stated that at the last meeting the Chair had requested staff to look at providing either a survey, or updating a form, to provide the counties the opportunity to report any problem or malfunction that they experienced with their voting system. He stated that the current form CEB-9, the county election report, is a form that the counties use to identify their voting system in each election. He stated that there are two alternate modifications that could be made to this form to accommodate the reporting desired by the Commission. He stated that one alternative would be to insert a follow-up question after the question about the type of voting system used to the effect: "Describe any malfunction you experienced with your voting system during the election." He explained that there is another alternative. He explained that the CEB 9 now has an item 10 that requests: "Any sheets provided by the Election Division containing requests for additional information." He explained that, in sum, the Commission could include an additional question as part of the form or a survey could be attached to the form that included a question about voting systems problems along with any other survey questions the Election Division may have. He stated that he did not know if the Election Division had any other survey questions to submit at this point. He commented further that making the question a part of the form would probably be the solution that would increase the chance that the question would be noticed and answered by the clerks.
Mr. Simmons then tendered to the Commission a CEB-9 with a proposed question about malfunctions with voting systems included. (Said document is incorporated by reference into these minutes) He asked the Commission to review the language of the questions and solicited comments from them as to how to improve the question. He stated that, depending upon the Commission's decision with respect to the language, a revised document could be made ready for formal approval at the Commission's next meeting. He further stated that the CEB-9's will be distributed to the clerks and are part of the standard reporting package used by clerks to submit election results to the Election Division.
The Chair recognized Ms. Marendt who stated that she would add the words "or error" after the word "malfunction." She stated that she thought that might make the question clearer.
The Chair indicated that he felt that there needed to be something else in the question in addition to malfunction. The Chair stated that the clerks might not report some legitimate problems that the Commission was interested in if the clerks did not consider the particular problem a malfunction.
The Chair recognized Ms. Moores who stated that the Commission might not want to use the word "error" because this may discourage clerks from reporting problems where the final result was nonetheless correct. She suggested that the more general word "problem" be added to the question. Specifically, she suggested that the question seek information about a "malfunction or other problem." Mr. Simmons commented that he thought that this addition would be general enough to encourage the clerks to report any kind of problem they experienced.
The Chair asked if there was any other business.
The Chair recognized Kristi Robertson who stated that the last two pages of the information contained under the campaign finance tab of the Commission's packet consisted of a complaint received by the Election Division requesting the Commission to look at a group that may have triggered the statutory provision requiring the group to file campaign finance reports as a political action committee. She stated that there may be some disclaimer issues raised by the Complaint as well, some of which may be governed by Indiana law and some of which may be governed by the Federal Communications Commission. She stated that radio, television and the Internet are media governed by federal law on the disclaimer language. She added that Indiana law would govern any print media disclaimer issues. She stated that such complaints are usually followed up with phone calls and requests for additional information. She stated that, at the pleasure of the Commission, this matter could be investigated at the staff level and a report could be made to the Commission in the future so that the Commission could determine whether a hearing on the issue before the Commission would be appropriate. She stated that the complaint letter was received just yesterday.
The Chair indicated that this course of action sounded reasonable to him.
6. CANDIDATE CHALLENGES
The Chair then indicated that Vice-Chairman S. Anthony Long had arrived and announced that the Commission would now hear the candidate challenge identified on the agenda.
The Chair recognized Ms. Robertson who stated that one candidate challenge had been filed with the Commission and that the challenge has been assigned cause number 2000-157. She stated that a copy of the challenge was contained under the candidate challenge tab of the Commission packets. She explained that this challenge was filed by a registered voter of Morgan County named Debbie Johnson and against Willey Thompson who is running as a candidate in State Senate District 37. She stated that the Commission packets also contain a copy of the Notice of Hearing the Election Division sent to both Ms. Johnson and Mr. Thompson notifying them of today's hearing before the Commission.
The Chair requested that the oath be administered to all persons who were present to testify in either the candidate challenge case or any campaign finance case pending before the Commission. Ms. Robertson administered the oath to those in attendance who identified themselves as parties present to testify.
The Chair recognized Brad Klopfenstein who identified himself as the executive director of the Indiana Libertarian Party. He indicated that he would be representing Mr. Thompson in this hearing. He stated that Mr. Thompson is a resident in Martinsville Indiana. He stated that Mr. Thompson registered to vote at the Libertarian Party's booth at the Marion County fair. He explained that, based upon this registration, he believed at the time that Mr. Thompson would be eligible to vote in Morgan County and be eligible to run as a candidate for the Indiana Senator in Indiana Senate District 37. He explained, however, that the person who was entrusted with the voter registration applications collected at the Marion County fair did not realize that the applications had to be submitted to the Morgan County Voter Registration Office prior to the deadline for voter's registration. He stated that the Mr. Thompson's voter's registration application was not turned in until about 3 weeks ago. He stated that this was not an error on the part of the state, but on their part.
Mr. Klopfenstein stated that he had spoken with Mr. Thompson and Mr. Thompson is excited about being a candidate. He added that if Mr. Thompson were removed from the ballot then the result would be a one-way race for the seat in Senate District 37 since there is no democratic challenger in that district.
The Chair stated that he did not think this was correct. Mr. Klopfenstein stated that he was sorry if he had inadvertently mischaracterized the situation.
Mr. Klopfenstein stated that they found the mistake and that they were prepared to gladly accept the ruling of the Commission and live by it. He stated that he would also like to add that the challenger, Debbie Johnson, should not be added to the "enemies of the state" list.
The Chair recognized Mr. Morgan who asked Mr. Klopfenstein whether Mr. Thompson had signed his voter's registration application at the fair in time for him to become a candidate assuming it had been turned in right after he signed it. Mr. Klopfenstein replied "yes" that the application was signed in July. Mr. Morgan asked whether Mr. Thompson had a receipt to that effect. Mr. Klopfenstein replied "no", but stated that the date that he signed it is indicated on the voter's registration application card.
The Chair stated that he had called Vickie Kivett, the circuit court clerk in Morgan County, this morning and asked her whether Mr. Thompson was a registered voter and Ms. Kivett indicated that Mr. Thompson was not registered until yesterday.
The Chair recognized Mr. Morgan who asked Mr. Klopfenstein whether Mr. Thompson was registered with the application he filled out at the fair. Mr. Klopfenstein indicated that he was registered with the application filled out at the fair along with about 100 other applicants. He stated that Mr. Thompson did fill it out in July, but unfortunately the registration did not get turned in until about 2 weeks ago.
The Chair requested counsel to discuss the statute about when a candidate has to be registered to be a qualified candidate.
The Chair recognized Kristi Robertson who stated that there are two statutes that apply regarding the qualifications of candidates who run for state senate. She stated that the general provision, 3-8-1-13, states that you must reside in the state at least 2 years, and in the senate district at least 1 year, prior to the election. She explained further that 3-8-1-1 states that you must be registered to vote in the election district you seek to represent not later than the deadline for filing a declaration, petition, or certificate of nomination. She stated that Mr. Thompson was nominated and, therefore, would become a candidate by the filing of a certificate of nomination. She explained that the certificate of nomination was due August 1 and, therefore, to qualify, a candidate must register in his election district before that date.
Mr. Long asked for further clarification.
Ms. Robertson stated that basically, a person seeking to become a candidate has to be registered to vote in the relevant election district by the deadline for filing whatever document is required to make that person a candidate, whether it is a declaration of candidacy, for a major party candidate, a petition, for a minor party or independent candidate, or a certificate of nomination, for a convention candidate or a candidate filling a ballot vacancy.
Mr. Long then asked if it was Ms. Robertson's legal opinion that a person would not be qualified if he did not become registered before this filing deadline. Ms. Robertson responded that it was her legal opinion that a person who did not become registered before the deadline would not be a qualified candidate. Mr. Long asked Mr. Simmons if he concurred in this legal opinion and Mr. Simmons responded "yes."
The Chair asked if the Commission had any other questions.
The Chair recognized Ms. Moores who stated that the Republican Party ran a booth at the same fair. She explained that due to the potential liability of running afoul of the Voting Rights Act or other law if you take someone's registration and do not turn it in, she has always counseled the people working those booths to either turn the registration applications in the night they receive them or, if they cannot do so, return the application to the voter to mail, or otherwise deliver, the application directly to the voter registration office to avoid this precise problem.
The Chair asked for any other questions or comments. There being none, the Chair closed the hearing on case number 2000-157.
The Chair then moved that the challenge to candidate Willey Thompson be sustained and that this candidate not be placed on the ballot for the reason that he was not a registered voter in Indiana Senate District 37 by the deadline for filing his certificate of nomination. Ms. Moores seconded the motion. There being no further discussion, the Chair called the question and declared that with four members voting aye (Mr. Cruea, Mr. Long, Ms. Moores and Mr. Morgan) and no member voting nay, the motion was adopted.
The Chair then requested counsel to proceed with the approval of Final Orders 2000-156 through 2000-161.
The Chair recognized Kristi Robertson who stated that these final orders reflect the Commission's vote on the candidate challenge hearings conducted at the last meeting. She stated that, at the Commission's pleasure, these final orders may be approved en masse.
Vice-Chair Long moved that Final Orders 2000-156 through 2000-161 be approved as submitted. Mr. Morgan seconded the motion. There being no further discussion, the Chair called the question and declared that with four members voting aye (Mr. Cruea, Mr. Long, Ms. Moores and Mr. Morgan) and no member voting nay, the motion was adopted.
7. CAMPAIGN FINANCE
The Chair announced that the Commission would proceed to the next item on the agenda, campaign finance.
The Chair asked if those present for campaign finance had all taken an oath. Mr. Paul Wilson indicated that he did not since he thought that the oath was for the candidate challenge hearing. The Chair requested Ms. Robertson to administer the oath to Mr. Wilson and she did.
The Chair recognized Mr. Simmons who stated that it might be helpful to provide the Commission some background on these cases before the Commission considered testimony. He stated that all of the candidates before the Commission at this meeting on campaign finance enforcement issues are all Reform Party candidates. He stated that these types of candidates are petition candidates under Indiana law and their campaign finance deadlines are triggered by the date that that their petition must be filed, which is August 1. He stated that a statement of organization for these candidates must be filed 7 days later which August 8; that their campaign finance reporting period starts when they become a candidate and ends on August 15; and that their campaign finance report must be filed within 7 days after that which is August 22. He stated that at the time the campaign finance reports were due, these Reform Party candidates were being challenged for failure to have a sufficient number of signatures on their petitions. He stated challenges were filed between August 15 and August 18, which was the deadline for filing challenges. He stated that he knew that he notified Mr. Wilson on August 15 by e-mail of the challenge. He stated that, as a result, at the time the campaign finance reports were due the Reform Party candidates knew they did not have enough signatures and they knew they were being challenged as candidates for not having enough signatures.
The Chair indicated that, in his opinion, since the Commission sustained the challenges and removed these candidates from the ballot then they should not be fined for failing to file campaign finance reports.
The Chair asked whether all four of the Post-Convention campaign finance cases involved the same circumstance as Mr. Wilson. The Chair recognized Mr. Simmons who stated that Jack Baldwin had submitted a letter to the Commission that is a part of the Commission's packet. He explained that Mr. Baldwin was also a Reform Party candidate, however, Mr. Baldwin's position is that he did not even file a statement of organization because he knew that there were insufficient signatures on the petitions even at the time that the statement of organization was due so he did not file anything since assumed he would not be a candidate. Mr. Simmons stated that the other Reform Party candidates did file a statement of organization but did not file the campaign finance report due on August 22.
The Chair recognized Mr. Wilson who stated that he is the state chairman of the Natural Law Party in Indiana. He stated that Mr. Crawford is the treasurer of the Natural Law Party of Indiana. He stated that he wanted to add that they had no information to report on the CFA-4, that is, there were no contributions or expenditures to report through August 15th, the end of the reporting period. He also stated that he was aware that they, as write-in candidates, have up-coming reports that are due and they plan on taking care of those.
The Chair closed the hearing on the campaign finance reporting cases.
The Chair moved that IEC case numbers 4631-152, 4641-153, 4643-154, 4649-155 and 4649-156, as reflected in the spreadsheet in the minutes of the Commission, be dismissed since they were removed as candidates on the ballot. Mr. Long seconded the motion. There being no further discussion, the Chair called the question and declared that with four members voting aye (Mr. Cruea, Mr. Long, Ms. Moores and Mr. Morgan) and no member voting nay, the motion was adopted.
The Chair recognized Spencer Valentine who asked whether the candidates had filed the reports required for write-in candidates. Ms. Robertson indicated that the deadlines for write-in candidates had not yet passed.
The Chair indicated to Mr. Wilson that he should take care to not miss the deadlines for write-in candidates since the Commission now knows that he is aware of the deadline.
The Chair requested Michelle Thompson, the co-director of campaign finance, to address the Motion to Reconsider. Ms. Thompson stated that this case was Taylor for House District 71, case number 4551-151. The fine imposed by the Commission was Seventy Seven Dollars and Ninety Eight Cents ($77.98). The original fine was Three Hundred Two Dollars and Ninety Eight Cents ($302.98). Ms. Thompson referred the Commission to a letter from the candidate in their packets and the Commission members reviewed the letter, a copy of which is incorporated into these minutes by reference.
The Chair asked if there was anyone present to testify in this case. There being no response, the Chair asked if the Commission had any questions of staff or if staff had any further comments. Ms. Thompson indicated that the candidate had already paid the fine.
Mr. Long commented that the candidate seemed to be saying that he wasn't sent the forms.
Mr. Morgan asked if the candidate's check cleared. Ms. Thompson indicated that it did.
Mr. Long moved that the Motion for Reconsideration be denied. Ms. Moores seconded the motion. There being no further discussion, the Chair called the question and declared that with four members voting aye (Mr. Cruea, Mr. Long, Ms. Moores and Mr. Morgan) and no member voting nay, the motion was adopted.
The Chair indicated that, prior to proceeding to voting systems, he would like to show Mr. Long the proposed changes to the CEB-9 form that added a question about malfunctions or other problems to voting systems. Mr. Long asked whether this was something that was sent to the clerks. Ms. Robertson indicated that this was a form used by the clerks in reporting election results. Mr. Long indicated he thought that the proposed modification was a good idea.
8. VOTING SYSTEMS
The Chair recognized Ms. Marendt who indicated that she had been hopeful that the conference in San Francisco would provide additional information about voting systems that would provide the Commission with more insight into the issues being discussed by the Commission. She stated that, unfortunately, what she learned at the conference was that the federal government, specifically the FEC, was not going to be able to promulgate the new voting system standards until January 2002. She stated that a speaker from the FEC indicated that there was no additional information to add to the previous FEC standards at this time. She further stated that, at this point, since next year is a year in which there will be no election, and since the issues before the Commission are more complex and difficult than what was originally anticipated, it was her opinion that the Commission should focus on doing what needs to be done to get through this election and take next year to tackle the larger issues.
The Chair asked for questions or comments.
Mr. Long asked whether the Election Division had an inventory of the voting systems in use throughout the state, including the current version of any system in use. Ms. Marendt indicated that the Election Division did collect that information from the counties. Mr. Valentine stated that he was not sure how up to date information was. Ms. Marendt indicated that it is current as of the May primary because it is a question on the CEB-9.
Mr. Long stated he has collected information that the Election Division has provided but he would like to know more information about the voting systems the counties are currently using, when the systems were approved for use, the standards used for approval, and the persons or entities who approved each such system. Ms. Marendt stated that she had hoped to pull that information together but much of the information is in archives and she has been unable to pull the information together yet.
Mr. Long indicated that he was reluctant to make a decision until he knew the practical impact to the counties of a Commission decision regarding certification of voting systems and voting systems upgrades. Mr. Long further indicated that he felt uncomfortable voting to approve something that he does not understand unless someone has reviewed it independently. He asked whether there was some middle ground the Commission could take, that is, a position where they would neither approve nor disapprove of system upgrades and entrust the matter to the counties and the vendors to resolve. He stated that the problem is that the vendor may have a product improvement but the Commission does not have the expertise, or the resources to hire expertise, to certify these improvements.
Mr. Morgan suggested that a hold harmless clause could be utilized. Mr. Long indicated that some warning like "use at your own risk" could be utilized.
Ms. Marendt responded by saying that it was important to remember that these are not new systems, but rather existing systems with proposed "enhancements" of the reporting software. She stated that these are not modifications to the tabulation portion of the voting systems. She stated that she shared the Commission's concerns, however, the voting systems in place are being used regardless of whether they were grandfathered in or not. She stated that there are vendors present today who could probably give the Commission an accurate picture of the types of voting systems being used by the counties. She also stated that the vendors could also advise the Commission on the effect of non-approval of the proposed enhancements on the upcoming election. She stated that she knew that Mr. Steve Corey and Mr. Steve Shamo were present today.
The Chair asked the vendors about whether they wished to address the Commission on the issue.
The Chair recognized Mr. Shamo who stated that the voting systems in place would operate satisfactorily without the proposed enhancements. He described the proposed enhancements as more a "matter of convenience." He stated that the primary counties affected would be Allen County and Lake County in terms of the absentee function. He explained that this function is a lock out function so that election officials know that an absentee ballot being scanned at a particular point in time goes directly into the proper precinct because they can recognize the ballot prior to it being scanned. He stated that this was a good fall back function in a recount situation because you can be sure that the ballot was assigned to the right precinct the first time. He stated that the problem is that when they compiled version 7.4 and 7.5, it falls back to the dilemma faced by the Commission, that if you take any of those issues out, then you're talking about a different version, because it hasn't been compiled collectively with the other versions of the system it may affect. He explained that if we line-item any of those out of the software at this point, then the two months of testing that they have done with the product is not credible, you would want another couple of months to test it. He stated that he would not feel comfortable at this point in taking any of the items out that didn't need to be in the software in these latest version updates. He stated that he would be more comfortable running what they currently have. He stated that there were a couple of safeguards that they could implement to deal with the Allen County problem because that is a print out that they can check and recognize it immediately. He stated that they will not make any changes in the software next year and that they will be in the same position a year from now.
Mr. Long asked for clarification of the specific request before the Commission.
Ms. Marendt indicated that the requests were re-copied and placed under the voting system tab in Commission's packets. The Commission reviewed the requests.
Mr. Long asked for clarification about the choices the Commission had besides approving or disapproving the pending requests.
Mr. Valentine stated that the issue comes down to whether the requests affect the tabulation function.
Mr. Simmons stated that the basic issue is whether the changes are significant enough to send back to the ITA. He explained that the Commission could approve the changes without sending them back to the ITA.
Mr. Long stated that he was concerned by the provisions of Indiana Code 3-11-7.5-5 (c) which states that the Election Division, or a person designated by the Commission to act on behalf of the Election Division, shall review the improvement or change to the voting system and report the results of the review to the Commission and that the Commission shall determine within a reasonable period of time whether the improvement or change impairs the accuracy, efficiency, capacity or ability to meet the requirements of the article.
Ms. Marendt stated that this was the statute that gives her pause also.
Mr. Long asked for clarification of the person reviewing the voting system changes. He stated that he believed that no one has done so. Ms. Marendt stated that she believed that this was correct.
Mr. Simmons stated that he believed that the way that this has been handled is that the co-directors have fulfilled the function in making such a recommendation to the Commission.
Mr. Long asked for an indication of the number of county voting systems affected by the Commission's action to approve of disapprove the current requests. Mr. Shamo stated that this just involves his company's accu-tab software, which is used in the punch card voting systems. Mr. Shamo stated that if the Commission does not approve the request then the voting systems would be used in their current form. He stated that the proposed enhancements were merely designed to prevent operator error. He stated that one of the enhancements merely allowed the software to print to another printer.
Mr. Long asked about the number of counties using the accu-tab software. Mr. Shamo stated he believed 7 or 8 counties used the accu-tab software for punch card systems.
Steve Corey stated that part of the problem that came up with existing systems with ES&S was tying additional equipment to existing software. He stated that from his side of the aisle he doesn't see how a person could add a piece of additional equipment to existing software without affecting vote tabulation. He stated that it is impossible because what you are sending in to the equipment is a particular matrix of information into your vote tabulation module. He explained that if it is a punch card system, you have a certain amount of columns and it has to decide the location of the data to place it properly. He stated that if the same software suddenly has an optical scan device attached to it, the matrix is changes so when the information comes in, at some point it has to be converted to be accepted by this vote tally manager. He said that while you have not theoretically affected your vote tally manager, you have attached something on the front end that will convert the votes as they come into the module so that it can be recognized by the vote tabulation module. He stated that he did not think even the federal certification would address this issue. He stated that he thought those standards would simply look at the vote tabulation module to see if the information came into the system in the same manner.
Mr. Long asked if the co-directors have submitted a report to the Commission on the proposed changes. Ms. Marendt stated that they have not. Mr. Valentine stated that he had previously submitted a memo with his name only on it. He stated that, at that time, Ms. Marendt did not feel secure signing off on that memo.
The Chair asked Mr. Valentine if his memo stated that the proposed changes did not impair the accuracy, efficiency, capacity or ability to meet the requirements of the statute. Mr. Valentine stated that he did submit that for the ES&S changes. He stated that the ES&S changes were approved. He stated that he believed that he did prepare another memo but he was unsure about which voting system or systems that was for.
The Chair stated that the Commission would take a short recess during which time the memo being discussed would be retrieved from the Election Division.
After a short recess, the Chair stated that the Commission meeting was reconvened.
Mr. Valentine stated that he did originally submit a memo on ES&S's aero 3.53 software upgrade and that the Commission approved this upgrade. He stated that the second part of the memo was whether the additional requests for approval should be passed on to the ITA's, therefore, he really made no recommendation for the additional requests before the Commission.
Ms. Robertson stated that GBS and MicroVote submitted their written requests about changes after the meeting on ES&S. She stated that the information in the Commission's packet for this meeting had been previously submitted and was part of a March meeting, however, there was no recommendation from the co-directors. She stated at the time the ES&S changes were approved, GBS and MicroVote had not submitted anything in writing so that their submissions were received after the ES&S approval.
The Chair then stated that it was his understanding that no one reviewed or reported to the Commission regarding the proposed improvements or changes to the GBS and MicroVote voting systems. Ms. Robertson stated that this was correct.
Mr. Long stated that he thought the issue came down to waiting until the FEC updated its standards. He stated that until then the Commission should defer any software issues that the Election Division cannot in confidence make a recommendation on to the Independent Testing Authorities.
The Chair asked counsel whether they agreed with Mr. Long's assessment. Ms. Robertson responded that she would have to defer to the co-directors. She stated that the co-directors could make written or oral recommendations, or take the position that they would not make any recommendation. She stated that she has not reviewed the material and would have to defer to the co-directors.
Mr. Valentine stated that if the co-directors put a proposal before the Commission when they were not technologically savvy enough..
(At this point in the proceedings the tape recorder stopped and there is no written or recorded version of any of the further proceedings of the Commission on this date. After further proceedings, the meeting was adjourned.)