---

May 25, 2006

 

Ms. Dennis.

 

Thank you very much for conducting yesterday’s public hearing in a way that gave participants a fair opportunity to submit their oral testimony. 

 

• It was very helpful to have a time-allotted agenda.  It would have been better to have posted the agenda in advance of the meeting, so that speakers would have had time to prepare. 

• It was very helpful to have a full 45 minutes to make our case, and especially helpful to have an opportunity to speak last so that I could respond to oral testimony and summarize our argument. 

• Publishing the audio record on the Internet is very helpful, and I hope that you will publish all written materials on the Internet as soon as you receive them. 

• I also hope that you will provide me with copies of your draft findings so that I may participate in the final determination.

 

In the future, I believe that it would further improve the hearing quality if a way can be found to entertain two-way communication.  This might be done by the public exchange of written briefs posted on the web, and by moderated oral debate during the hearing.

 

A few areas where this would have helped to improve the record:

 

1. Anonymous voting - The SOS did not declare whether or not it considers the eSlate to be anonymous.  If SOS agrees that it is not anonymous, we could have spent less time on this point.  On the other hand, if SOS believes that the eSlate is anonymous, we need to debate this issue.  At a minimum, we deserve to hear or read SOS reasoning.  This must not be a surprise disclosure that first appears in the SOS final determination.  As you know, we believe that the constitutional protection is absolute.

 

2. Voter-verified voting - The SOS did not declare whether or not it considers that blind voters can verify their votes on the paper ballot.  As above, the process would be significantly improved by two-way communication and more complete disclosure.   For example (I hope that this is a fair paraphrasing) testimony by some of the blind speakers was: (a) they trust the computer and don’t need to verify what is printed, and (b) a system that is accessible is good enough – even if it is not verifiable.  A thorough discussion would have concluded, I expect, that the law does not agree with this position.

 

3. Inadequate testing - A two-way exchange would have answered whether the SOS did or did not test the eSlate for the two functions under dispute.  For example, SOS “Procedure for Certification of Voting Systems, November 15, 2005” page 19 (45.5.2.9.3 and 45.5.2.9.9), page 36 (9.3.4.8), page 47 (9.3.7.7), and page 49 (9.3.8.6) and page 51 (9.3.8.22) require, in plain language that is not subject to ambiguous interpretation, that these tests be conducted.  Yet SOS writes on May 19^th, “you are advised that there are no such records”. 
   
   Adequacy of testing is one of the critical elements of this complaint.  If the required tests were performed and failed to detect the defects, then a flaw in the test procedures requires executive attention.  If the required tests were not performed, then there is a different type of flaw that requires executive attention.  We sit here not knowing a knowable fact.  Two-way communication would likely have produced this fact.  Were the eSlate tests performed or not?  If performed, did they detect the defects or not?  Were the same tests performed on the AutoMark?

 

4. Unfair, preferential treatment - It appears that a bureaucrat was permitted to make a public policy decision that has far-reaching implications.  It appears that the eSlate was “rubber-stamped” and that the AutoMark was “targeted” for rejection.  The only way to learn what happened and why is to conduct a two-way conversation.  The hearing format used yesterday cannot get at these facts. 
   
   We believe that the decision to deny certification to AutoMark and to award certification to eSlate was uneven and gave preferential treatment to eSlate.  The consequences of this single decision are far-reaching.  It prevented Colorado counties from considering the AutoMark vote marking equipment.  It blocked ES&S from educating Colorado voters about the AutoMark.  It forced the Boulder County Commissioners to choose voting equipment that they do not prefer, because the AutoMark was not an available option. It was used by officials to silence the voices of those members of the public who prefer accessible, paper ballot vote marking systems.
   
   I cannot help but believe that the decision to not certify AutoMark was prompted by a bias on the part of staff against paper ballots.  This was an executive level, public policy decision that should have been publicly debated.  It has resulted in vendors taking unnatural actions in order to stay on the right side of the SOS.  At a minimum, this deserves an internal inquiry.   

 

5. In my closing remarks, I described a virtual picture of where we go from here.  I have attached a drawing of this virtual picture for your use.  I believe that the sequence is the correct sequence for your decision-making.  If I were in your position I would:

 

a.       Examine test results showing whether or not the eSlate meets the requirements for anonymous and verifiable-voting.  This needs to be reduced to PASS or FAIL.

 

b.      If either fail:

 

                                                               i.      Draft a report that finds for the complaint.

                                                             ii.      Decertify the eSlate voting equipment.

                                                            iii.      Prepare a list of alternatives (where do we go from here?)

                                                           iv.      Select from the list of alternatives.

 

c.       If both pass, draft a report that finds against the complaint.

 

During the hearing you asked me to suggest alternatives available to you in the event that you decide to decertify the eSlate.  I offered to work with you to develop a list of alternatives.  I again extend my offer to assist.

 

Al Kolwicz  5/25/2006