A Rock, A Hard Place, and Interim Certification

The state of Wisconsin elections are between a rock and a hard place. Because much of the administration of an election relies on unstable, poorly tested, and unreliable equipment, on February 17, 2009 many election jurisdictions had some tough choices. If your jurisdiction uses an Automark ballot marker as your accessibility device, you were told by ES&S on January 21, 2009 that your ES&S equipment is no longer covered by the maintenance agreement with ES&S. If your jurisdiction uses Premier(aka Diebold) equipment, then you were told that you have to upgrade your SSL certificate before the February 17, 2009 election or you would not be able to upload election results via modem or from a TSx touch screen DRE.

The squeeze from the vendors on the local municipalities and the Government Accountability Board (GAB) is clear: accede to our demands or we will make your election life difficult.

Wisconsin has its own, state-level accessibility requirement. So, even though February 17, 2009 was not a federal election, the local municipalities are required under state law to have working Automarks and TSx touch screen DRE, unless an exemption is granted by the GAB or its staff.

In an extra-legal attempt to help the municipalities navigate between Scylla and Charybdis, the Staff on their own authority granted "interim approval" to the updated systems from ES&S and Premier. To better understand this situation I filed an open records request with the GAB on these "interim approvals" and what was being approved.

The results are here and here, and they raise several serious issues.

1. Two voting systems have been granted "interim approval".
2. There is no public documentation of what changes were approved for the Automarks. The engineering change order (ECO) granted interim approval is a trade secret. So again, when it comes to election administration the truth is a trade secret. The GAB staff claims the ECO is a de minimus change. Maybe it is. There is no way though for the public to confirm or deny that assessment. The approved changes are a trade secret.
3. the ES&S ECO was presented to the staff of the GAB in July 22, 2008.
4. The threating January 21, 2009 letter from ES&S to municipal and county clerks was not limited to Automarks. The ES&S letter cited here was obtained from Taylor County Wisconsin, which has no Automarks. Taylor county has iVotronics, m100's and m150's from ES&S, but no AutoMarks. The GAB claims the July 22, 2008 engineering change order (ECO) is limited from ES&S is limited to Automarks. Perhaps what Attorney Falk meant was the interim approval of the ES&S ECO was limited to Automarks. But since the ECO is a trade secret, there is is no way to tell what the scope of the ES&S ECO actually is.
5. The response from the GAB on January 22, 2009 indicates that they believe the withdrawl of services by ES&S to be a possible breach of the maintenace agreement. Here is the relavent quote from the GAB January 22, 2009 letter:

   The G.A.B. encourgages election officials to contact their attorney regarding contract responsibilities and obligations. From our review, it appears that only a second routine maintenance vist in a 12 month period is subject to teh 90% per unit maintenance fee and only emergency remedial maintenance services are subject to the 150% per unit maintenance fee. Your costs and rights will depend on the language of your contract with ES&S and the frequency of maintenance services.

The vendor control of election administration is a big problem, but what did the GAB and the clerks expect? When you lie down with dogs, you get up with fleas. This is how voting equipment vendors have behaved for three decades. As troubling as this control and near extortion by the vendors is, I find the "interim approval" more troubling. It is Class I felony to use unapproved voting equipment in an election, and the staff of the Government Accountability Board has no legal authority to grant or deny approval of voting equipment. There has been ample time to bring the ES&S ECO before the GAB and get approval the legal way. There have been five GAB meetings since the ECO request was presented to the GAB staff; August, October, November, and December, of 2008 and again on January 15, 2009.

During the January 15, 2009 meeting of the Government Accountability Board, the Board approved delegating some of its authority to Kevin Kennedy and Shane Falk. It is item L on page 58 of the meeting agenda. Approving voting equipment was not on the agenda. Nor did the GAB vote to delegate such authority.

In fact the Wisconsin legislature has expressly limited the powers the Government Accountability Board CAN delegate to its staff. Specifically, WI States 5.05(1)(e) reads [emphasis and reformatting mine]:

Delegate to its legal counsel the authority to

• intervene in a civil action or proceeding under sub.(9),
• issue an order under s. 5.06,
  
• exempt a polling place from accessibility requirements under s. 5.25(4)(a),
• exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m),
• approve an electronic data recording system for maintaining poll lists under s. 6.79, or
• authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e),

subject to such limitations as the board deems appropriate.

The approval, interim or otherwise, is not a power the GAB can delegate even if it voted to do so. Interim approval is without legal foundation. I have three times asked the staff counsel of the Governmental Accountability Board, Shane Falk, to provide me with the legal citations which he believes allow for the staff to provide "interim approval" to voting equipment. He has refused to provide an answer even after having had more than a week to provide it.

In summary, to help relieve the pressure voting equipment vendors were putting on municipal and county clerks, the staff of the GAB decided the best choice was to break the law, exceed its authority, and grant "interim approval" to the offending equipment. On option which was within the law to do (if the Board had delegated such authority to the Staff) was to exempt polling locations from the state requirements to provide Automarks if those Automarks were broken. Admittedly, a poor option, but it has the virtue of being legal.

But, given the corner that the vendors back them and clerks into, what was the staff supposed to do but break the law?