More Secretary of State requirements, and more questions

Hart InterCivic’s eSlateCalifornia Secretary of State Debra Bowen issued new regulations governing the use our electronic voting machines – Hart InterCivic’s eSlates – and they’re generating some questions here and throughout the state.

August saw a major overhaul to rules governing the use of our eSlates in order to enhance public confidence in the integrity of their vote. Thirty six new requirements – the result of a Top to Bottom Review– and were plenty to undertake, and we’ve been working hard to ensure they’re all implemented come the Presidential Primary on Feb. 5.

But revisions to those requirements for using our eSlate system were released last Thursday, raising a few eyebrows in the trenches. We’re particularly befuddled and concerned by one new addition:

The vendor’s plan must require jurisdictions that use more than one eSlate per precinct to permanently assign each precinct a set of of JBC and eSlate devices, identified by serial number, for use in all elections, taking into account equipment replacement needs and precinct consolidations.

In plain English, this means that each of our 2,100 eSlates and associated pieces of equipment – like the JBCs, or Judge’s Booth Controllers, which poll workers use to operate the eSlates – will each have to forever be assigned to a specific polling place on Election Day. In total we have more than 4,700 pieces of electronic voting equipment. Currently, we move machines and associated equipment – particularly the printers on the eSlates – around among our county’s 460 precincts, depending on election need.

If a machine has a problem at a polling place, a general pool of spare equipment that can be deployed anywhere it’s needed would no longer suffice. That’s how we handled technical issues in the Nov. 6 Consolidated Municipal, School and Special District Election. The county would have to have enough spare machines on hand to permanently assign each precinct its own. And that probably means buying a whole mess of new machines.

“It locks all the equipment down to specific precincts,” said Elections Manager David Tom. “The flexibility of machines and moving them around election to election disappears – now, you’re tying your hands.”

Andrew Wright, who heads up the technical side of elections, understands that this regulation is modeled after a standard often used in computer hardware security. But as a practical matter, he said, Hart’s eSlate system was purchased partly because of its interchangeable pieces.

“They’re basically taking the design of the system and breaking it,” Wright said about the new requirement.” If you were to lay out all the pros and cons of such a regulation, he added, “the interoperability of the system would override the threat of some introduction of a trojan, for example, in the eSlates.”

We also bring to your attention San Diego County, which has taken issue with Bowen’s new post-election manual tally requirements issued at the end of October. In a nine page letter dated Dec. 7, they question the validity of these new requirements, points certainly worth considering. 

Beyond the standard one percent manual recount required in the 28-day Official Canvass period after each election, counties are now required to conduct 10 percent manual recounts for races with a margin of victory of less than one half of one percent. The letter questions whether determining races eligible for such recounts is really feasible, given that vote totals are always changing during the canvass.

“Vote margins between contestants always change during the course of the 28-day canvass period. In fact, it would be a rare thing for the precise margin in any race to remain constant between the Semifinal and Official Canvass,” the letter states.

Indeed, vote tallies change from when they’re first released on Election Night and in the days following as provisional and Vote by Mail ballots are still being counted. Remember San Bruno’s failed Measure F? The last of the results released on Election Night showed a one-vote difference between the yeses and the nos, which would certainly make it eligible for a 10 percent recount. But additional Vote by Mail and provisional votes counted in the days following brought the final spread to 97 votes, which brings the margin comfortably outside one-half-of-one-percent.

“Under your directive, counties will be required to conduct a distracting, labor intensive and expensive manual tally in the middle of the critical 28-day canvass period essentially auditing races that mayor may not meet your .5% threshold when the final count is complete,” San Diego’s County Counsel writes to Bowen.

San Diego also questions whether Bowen overstepped her bounds in coming up with these requirements in the first place. They allege that her requirements are illegal “underground regulations” because proper development and adoption procedures were not followed, and that they’re outside the scope of her office’s authority.

It’s a lot to digest, so we’ve posted the letter in its entirety.

San Diego makes a good and interesting case which, in the end, may have to be sorted out by a judge.

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3 responses to “More Secretary of State requirements, and more questions

  1. Since we filed this post, it is worth mentioning that San Diego County has formally sued California Secretary of State Debra Bowen. While some of the grievances in the suit are related to the specifics of the touch-screen electronic voting machines used in San Diego County, the suit also includes the alleged illegality of the mandated 10 percent manual recount for close races. The latter affects every county in the state, including ours. You can read about the suit, which was filed Monday, in the San Diego Union Tribune.

  2. Another update for those following the case. On Jan. 22, Judge Patricia Cowett in San Diego County Superior Court denied San Diego County’s request for a declaratory judgement in the case. The legalese gets a little confusing, but in a declaratory judgement the court states its opinion and the rights of each party without actually requiring anybody to do anything.

    Long story short, she sent the case packing to either an appeal, summary judgement or trial. According to her three-page ruling, she finds that the ten percent manual recount mandate is within the scope of the Secretary of State’s authority, is not subject to additional processes for approval under the Administrative Procedures Act and “not arbitrary and capricious.”

    “The court finds it was reasonable and necessary, to ensure the validity of the vote and to ensure the systems are free from fraud or manipulation, for the SOS to impose the 10% Manual Tally,” the ruling states.

    A setback for San Diego County, as well as San Bernadino, Kern and Riverside counties, which had joined in the suit. You can read more about the ruling in the North County Times.

  3. A final update:

    Shortly after having their petition for summary judgement denied in San Diego County Superior Court on Jan. 22, San Diego County filed an appeal seeking “immediate relief” to preclude Secretary of State Debra Bowen from enforcing the mandates in the Feb. 5 Presidential Primary.

    Their appeal was summarily denied by a three-judge panel of the California Appellate Court on Jan. 29, putting San Diego County back at square one.

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