January 2000 Meeting Minutes

Indiana Election Commission

Minutes

January 27, 2000

MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission {"IEC"), S. Anthony Long, Pat Terrell and Marilyn Moores.

MEMBERS ABSENT: None.

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.

ALSO ATTENDING: Wendy Davis, Administrator, Marion County Election Board, Rob McGinnis, ES&S representative, Keith McGinnis, ES&S representative, Pat Whalen, ES&S representative, Jack Black, ES&S representative, Herb Deutch, ES&S representative, Steve Shamo, MicroVote representative, and Paul Van Camp, Fidlar & Chambers representative.

1. CALL TO ORDER

The chair called the January 27, 2000 meeting of the IEC to order in Training Room 5, Indiana Government Center South, 302 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.

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 DECEMBER 8, 1999 MINUTES

The chair noted that each Commission member had previously received a draft of the proposed Commission minutes for the December 8, 1999 meeting. There being no corrections, Mr. Long moved that the December 8, 1999 minutes be approved as submitted. Mr. Cruea 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, Mr. Terrell and Ms. Moores), and no member voting "nay", the motion was adopted.

3. REPORT BY CO-DIRECTORS

The Co-Directors addressed the Commission on the operation of the Election Division. The Co-Directors introduced the two members who were sitting on the Commission by proxy, Marilyn Moores and Pat Terrell. The Co-Directors also introduced the new Co-General Counsel for the Election Division, Dale Simmons. The Co-Directors reported that there was nothing in the operation of the Election Division requiring the Commissions attention at this time and that the Commission could proceed with the items on the agenda.

4. VOTING SYSTEMS

The chair stated that the Commission would take the voting systems item on the agenda.

A. GBS ACCU-TOUCH DRE

The chair recognized Mr. Valentine who stated that the voting systems vendor Governmental Business Systems ("GBS") had pending voting system applications before the Commission. He stated that the GBS application was for the ACCU-TOUCH DRE voting system. He stated that both the hardware and software of the voting system had been tested and approved by the proper Independent Testing Authorities. In addition, Mr. Valentine indicated that as part of the Commission's certification process, the vendor has submitted the "Indiana Election Commission Voting Equipment Certification Supplemental System Requirements" documentation ("supplemental documentation"). Copies of these documents are incorporated by reference in these minutes. Mr. Valentine reported that the staff had reviewed the results of the tests performed by the Independent Testing Authorities and the supplemental documentation and issued a report recommending approval of the ACCU-TOUCH DRE voting system at this time. A copy of that report is incorporated by reference in these minutes. Mr. Long moved that the ACCU-TOUCH DRE voting system be approved for certification. Mr. Cruea 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, Mr. Terrell and Ms. Moores), and no member voting "nay", the motion was adopted.

B. FIDLAR & CHAMBERS CO. EV 2000

The chair recognized Mr. Valentine who stated that the voting systems vendor Fidlar & Chambers Co. ("Fidlar") had a pending voting system application for the EV 2000 voting system before the Commission. He stated that both the hardware and software of the voting system had been tested and approved by the proper Independent Testing Authorities. In addition, he indicated that Fidlar had submitted the appropriate supplemental documentation. Mr. Valentine stated that, based upon staff's review of these materials, staff has issued a report recommending certification of the EV 2000 voting system. Copies of report of the Independent Testing Authorities, supplemental documentation and staff report are incorporated by reference in these minutes. Mr. Long moved that the EV 2000 voting system be approved for certification. Mr. Cruea 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, Mr. Terrell and Ms. Moores), and no member voting "nay", the motion was adopted.

3. ES&S MODEL 550 OPTICAL SCAN BALLOT CARD TABULATOR

The chair recognized Mr. Valentine who stated that voting systems vendor Election Systems & Software ("ES&S") had submitted an application for the Model 550 Optical Scan Ballot Card Tabulator ("Model 550") which staff has reviewed. Mr. Valentine stated that ES&S has not yet submitted the results of the Independent Testing Authority for the Model 550 voting system to the Election Division and that ES&S has not yet submitted the necessary supplemental documentation for this voting system. Therefore, Mr. Valentine suggested that the Commission address ES&S's request for certification for this voting system at a later meeting allowing for the submission and review of the required information.

D. ES&S MODEL 100 PRECINCT TABULATOR FOR OPTICAL SCAN BALLOTS AND THE PBC 2100 PRECINCT TABULATOR FOR OPTICAL SCAN BALLOTS

The chair recognized Mr. Valentine who stated that the voting systems vendor ES&S had submitted applications and supplemental documentation for the Model 100 Precinct Tabulator for Optical Scan Ballots ("Model 100") and the PBC 2100 Precinct Tabulator for Optical Scan Ballots ("PBC 2100"). Mr. Valentine informed the Commission that ES&S representatives were present to demonstrate these systems. Keith McGinnis introduced himself as ES&S's regional vice president of sales. Mr. McGinnis demonstrated the Model 100 to the Commission and responded to questions from the Commission about the operation of Model 100 voting system.

Keith McGinnis introduced Pat Whalen as the representative of ES&S that would demonstrate the PBC 2100 voting system. Mr. Whalen demonstrated the PBC 2100 voting system and responded to questions from the Commission about the operation of the voting system.

The chair asked Ms. Robertson if the supplemental documentation had been submitted on these voting systems. Ms. Robertson stated that they had received the supplemental documentation on these voting systems yesterday but staff had not had an opportunity to review the documentation and make a recommendation.

Ms. Robertson advised the Commission that ES&S had a software change to a system that has already been certified by the Commission and that a representative of ES&S was present to update the Commission on the software change. The chair then invited a representative of ES&S to address the software change. Mr. McGinnis indicated that ES&S's Aero Version 353 voting system had been previously approved by the Commission and that some software enhancements had been made to the voting system by ES&S. Mr. McGinnis requested that the software, with the enhancements, be approved without the requirement of submission of the software, with enhancements, to testing by the Independent Testing Authorities. He contended that it would be unduly burdensome to require ES&S to submit each minor software enhancement to a previously approved voting system to the Independent Testing Authorities for approval.

Mr. Deutch then addressed the Commission on the Aero Version 353. He indicated that the software enhancements are used in the accumulation of voting data, not in the tabulation of data. He stated that the software has undergone functional enhancement as well as enhancements to improve its ability to handle different equipment, including the PBC 2100. He indicated that the source code for this software remains the same but that the enhancements have added features and increased the ability of the software program to handle larger scale jurisdictions.

Mr. Valentine then addressed the Commission. He indicated that staff needed to review the material described by the ES&S representatives on the enhancements to the software. Mr. Valentine stated that counsel for the Commission needed to review the information and applicable Indiana statutes before staff would be in a position to make recommendations regarding the Commissions' authority to approve software changes to voting systems.that have been previously approved by the Commission without first submitting the software changes to the Independent Testing Authority for approval.

5. APPROVAL OF ELECTION AND REGISTRATION FORMS

The chair recognized Ms. Robertson who indicated that Marion County seeks approval of election forms that vary from the Commissions currently approved election forms to address issues in Marion County. She explained that the proposed absentee ballot application form had been adapted from the current election form to separate absentee ballots that would be submitted via mail from those that would be voted in the clerk's office or by travelling board. She stated that Marion County's proposed absentee ballot application form also put the applicable deadlines on the form. Ms. Robertson recommended that the Commission approve the form.

Ms. Roberston then explained that Marion County had also developed a variation of the current CAN 2 and CAN 37 forms. She explained that the proposed forms are like the currently approved election forms except that Marion County has developed a pink form for republicans and a green form for democrats and that these form have carbons inserted so that they can be filled out in triplicate.

Wendy Davis then addressed the Commission and requested that the Commission approve the Marion County's proposed absentee ballot application and its CAN 2 and CAN 37 forms. Ms. Robertson recommended that the Commission approve the proposed forms and indicated that she had prepared Order 2000-01 for the approval of these forms.

There being no further discussion, Mr. Long moved, seconded by Mr. Cruea, that Order 2000-01 be approved by the Commission as presented. The chair then called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. Moores and Mr. Terrell), and no member voting "nay", the motion was adopted.

6. LEGISLATIVE UPDATE

The chair recognized Ms. Robertson who advised the Commission that a miscellaneous election bill that contains some general clean-up and some voting system changes, changes that were requested by the counties and the voting system vendors, had passed the House at this point and is moving to the Senate. Ms. Robertson described another bill that had passed the Senate which clarifies that an oath of office may be taken and filed after the certification of the winner but before office is assumed on January 1^st. Ms. Robertson explained that the only other legislation of interest to the Commission were some clean-up bills that came out of the census data advisory committee to clarify some changes that were made last year by the General Assembly but did not get carried out all the way through the Indiana Code. These clean-up bills have passed the House and are moving over to the Senate.

Mr. Long asked whether the General Assembly was addressing the issues raised in the advisory opinion issued by the Commission about a candidate's use of campaign funds. Ms. Robertson stated that Senate Bill 95 has passed the Senate Elections Committee. This bill would prohibit candidates from paying themselves, or their spouses, a salary, or for lost income, out of their campaign finance funds. She explained that this bill has not yet been called to the Senate floor.

7. LITIGATION UPDATE

LEAF v. Abell

The chair recognized Ms. Robertson who stated that there was no additional information to report in LEAF v. Abell, the case involving a challenge to Indiana's campaign finance disclaimer statute. She added that motions for summary judgment were filed earlier this year, but that the federal district court had yet to rule on these motions.

Majors v. IEC

Ms. Robertson indicated that this case was a petition for review of the Commission's actions imposing civil penalties against three candidates for failing to timely file campaign finance reports. She noted that a record of proceeding of the Commission's meeting had been prepared and submitted by the Election Division. She noted that a motion to dismiss had been filed on behalf of the Commission on procedural grounds, however, there has not yet been a ruling from the court on the motion.

Springer v. Alabama

Ms. Robertson remarked that this case was brought by a petitioner seeking ballot access in all fifty states. The case challenges state ballot access statutory requirements. She stated that the defendants filed a motion for summary judgment and that she expected this motion would be granted.

8. CAMPAIGN FINANCE ENFORMCEMENT

The chair recognized Ms. Robertson who stated that she had prepared campaign finance orders 2000-02 through 2000-33. These orders reflect the Commissions' actions at the last meeting regarding campaign finance penalties. Ms. Robertson stated that these orders were ready for adoption at the pleasure of the Committee.

Mr. Long moved, seconded by Mr. Cruea, that Orders 2000-02 through 2000-33 be approved by the Commission. There being no discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. Moores and Mr. Terrell), and no member voting "nay", the motion was adopted and thereafter the members of the Commission executed said orders. Said orders are incorporated into these minutes by reference.

The chair recognized Ms. Robertson who stated that she had also prepared order 1999-87 that would establish as Commission policy that the Election Division may accept statements of organization and campaign finance reports by FAX. Ms. Robertson pointed out that the order specifies that the Election Division could only receive such finance reports by FAX up to a maximum of 15 pages. Mr. Terrell asked what the Election Division would do if the FAX were timely filed but not legible. Ms. Robertson stated that they would file the report as received and treat it like any other defective filing and allow the transmitting party to supplement their filing with a legible copy of the report and consider the filing timely.

There being no further discussion, Mr. Long moved that Order 19999-87 be approved. The chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. Morres and Mr. Terrell), and no member voting "nay", the motion was adopted and thereafter the members of the Commission member executed said order. Said order is incorporated into these minutes by reference.

9. COMMISSION MEETING DATES

The chair recognized Mr. Valentine who stated that there was an order prepared setting up meeting dates for the Commission, however, the order only establishes dates for March 23, 2000 and after. Mr. Valentine stated that there was no meeting space available for earlier dates at the time the order was prepared. Mr. Valentine stated that there would need to be discussion regarding a meeting for February. The chair then recognized Ms. Robertson who stated that Order 1999-86, setting the regular meeting dates for the year 2000, was prepared for adoption by the Commission.

There being no further discussion, Mr. Long moved, seconded by Mr. Cruea, that the Commission set monthly Commission meetings on the fourth Thursday of each month in 2000 as set forth in Order 1999-86. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Terrell and Ms. Moores), and no member voting "nay", the motion was adopted and thereafter the members of the Commission executed said order. Said order is incorporated into these minutes by reference.

The Commission further discussed potential dates for their next meeting. After discussion, the Commission requested that staff attempt to find a room for the Commission to meet on March 2, 2000 at 10:00 a.m. There being no further discussion, Mr. Long moved, seconded by Mr. Cruea, that the Commission schedule its next meeting for March 2, 2000 at 10:00 a.m. The chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Terrell and Ms. Moores), and no member voting "nay", the motion was adopted.

10. OTHER BUSINESS

The chair recognized Mr. Valentine who indicated that candidate filings are under way. Mr. Valentine submitted a report to the Commission of candidate filings as of 11:21 a.m. this date. Mr. Valentine stated that an updated list of candidate filings will be available via the Election Division's web site.

11, ADJOURNMENT

The chair asked if there was any further business. There being no response, Mr. Long moved, seconded by Mr. Cruea, that the Commission adjourn. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Mr. Terrell and Ms. Moores), and no member voting "nay", the motion was adopted. The Commission then adjourned at 2:05 p.m.

Respectfully submitted,