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Clogging the Feedback Loop: Voting Systems Regulation Dysfunction

by Andrew Price // Published June 23, 2009
When asked about electronic voting systems (both touchscreens and optical scan machines), most people immediately recall one of several notorious Election Day disasters caused by egregious voting system malfunctions. While people are often quick to blame manufacturers for these frustrating snafus, they may be unaware of the more complex issues going on behind the voting systems regulation scene. The dysfunctional nature of voting system regulation also hinges on the lack of uniformity between state requirements and an inadequate certification process. Although the Election Assistance Commission (EAC) oversees the federal testing and certification process, individual states may adopt these federal standards or choose to create their own. While ten states require their electronic voting systems to be federally certified by EAC standards, twenty-five states have legislated regulations of their own that subscribe to or supplement select portions of the federal testing standards, and twenty states have no federal requirements whatsoever. Given how easy it is to flout the federal standards, it's a wonder they're known as "standards" at all.

If the myriad state requirements aren't enough to muddle the situation, the inherent problems in the current federal certification process merely add frustration to the existing chaos. One of the primary problems with the process is that although the EAC accredits Independent Testing Authorities (ITAs) to evaluate manufacturers' products, the EAC does not have the legal authority to collect testing money from the manufacturers. Instead, the manufacturers select the testing facility of their choice and pay that ITA directly. The conflict of interest is clear in this situation, in which the success of the manufacturer's product depends on the strength of the ITA's testing evaluation.

It gets worse. Adding further complications, there are currently only four EACaccredited ITAs and, as a result, the testing backlog creates a more time consuming and costly certification process for manufacturers (and ultimately taxpayers). The EAC must do something to remedy this situation, but as a historically under-funded agency, they do not have the means to run testing of their own to verify the results of the ITAs. Instead, the EAC uses a Quality Monitoring Program to hold manufacturers accountable for their adherence to the Voluntary Voting System Guidelines (VVSG). Unfortunately, the EAC's inadequate budget has diminished the vigilance of the program, as well as the EAC's enforcement ability.

Yet another issue of controversy is what many people believe to be a general lack of transparency. The EAC publishes all test plans and reports, but their formal feedback loop is severely limited. Although they include a process by which election officials may report anomalies within specific voting systems, this process excludes valuable insight from voters, technical experts, and the vendors themselves. Additionally, vendors used by states who do not require EAC certification may enter into contractual agreements that prevent the release of testing records, reports, and source code review – all of which is an integral part of auditing machines and public transparency.

The next iteration of the VVSG, a revision of the 2005 guidelines, has a chance to address all of these concerns. The system by which vendors select and directly pay ITAs must be done away with or, at the very least, the EAC should have authority to get around potential conflicts of interest. To maximize transparency EAC's feedback loop must be expanded beyond election officials, and state contracts should not allow important auditing data to be considered "privileged information" for the manufacturer's eyes only. If these problems continue to go unaddressed, voting systems certification and regulation will continue to suffer from the same limitations that have been hindering the process since federal legislation was first introduced through the Help America Vote Act (HAVA) in 2002. As a country that champions the importance of every vote, it is integral that we reform voting systems regulation in a way that better maintains voter confidence and overall election integrity.