June 17, 2003

The Honorable Mary Kiffmeyer
Secretary of State
180 State Office Building
100 Dr. Martin Luther King Jr Blvd
Saint Paul MN 55155-1206

Dear Secretary Kiffmeyer:

I am writing to comment on the Minnesota Preliminary State Plan developed
pursuant to the Help America Vote Act of 2002, Pub. L. No. 107-252.

The Help America Vote Act ("HAVA") presents a historic opportunity
to reform and improve elections around the country and in Minnesota.
It is vital that the State make the most of this opportunity by using
federal funds to their greatest effect. To that end, FairVote Minnesota
urges that the Preliminary State Plan be revised in several ways in order
to:

1) bring the State Plan into compliance with HAVA;
2) provide accountability for the use of the funds;
3) address the needs of local election officials, stakeholders (including
individuals with disabilities), and other citizens; and
4) assure that electronic voting equipment acquired with HAVA funds protects
the security of our elections and has the flexibility to be used with
a variety of voting methods, as local needs dictate.

FairVote Minnesota is a nonpartisan, nonprofit organization educating
the public about the effect our voting system has on the quality of our
democracy and about alternative voting systems that may enhance public
life. Since 1997, FairVote has sponsored the regional conference "Empowering
the Voter"; published the groundbreaking study "No-Contest
Elections"’ and established the legal basis for home-rule cities
adopting alternative voting methods in the article "Municipal Voting
System Reform," which the Minnesota State Bar Association published
in its magazine Bench & Bar in October 2002. FairVote has testified at
the Legislature and before local governments statewide. The board includes
Republicans, DFLers, Independence and Green Party members, and members
without party affiliation. For more information, please see FairVote’s
website at www.FairVoteMN.org. FairVote Minnesota is the only organization
working solely on voting systems issues.

1) Bring the State Plan into compliance with HAVA

A. The Plan should clearly and completely cover each of the items
it is required to address.

The Preliminary Plan does not satisfy HAVA’s requirements. For
example, the Plan’s Section 1 addresses HAVA §254(a)(1), referencing
Title III. However, it does not directly address issues such as over-voting
(§301(a)(1)), audit capacity (§301(a)(2)), or alternative-language
accessibility (§301(a)(4)). Other areas are addressed unclearly
or incompletely. The numbering system in Section 1 of the Plan should
also track HAVA Title III.

B. The Plan should distinguish between requirements payments being
used for Title III’s requirements, and those being used for
other activities.

HAVA requires State Plans to describe activities in these two categories
separately, as well as to distinguish them for budgetary purposes. The
Preliminary Plan does not comply. For example, are enhancements to the
Minnesota Election Reporting System a requirement of Title III, or are
they another activity? Acquiring precinct-based optical scan equipment
falls outside Title III’s requirements. In the budget, the amount
for DRE (direct recording electronic) voting equipment in each polling
place addresses Title III’s requirements. That proposed use must
be stated separately from the costs of acquiring optical scanners.

This is not to say the above-mentioned activities are inappropriate,
since they are not inconsistent with the requirements of Title III and
would improve administration of federal elections. However, HAVA requires
that they be distinguished from uses to meet the requirements of Title
III, both in the description in Section 1 and in the budget in Section
6.

After establishing a budget for meeting Title III requirements, the
portion of the State’s share of the federal funds meet Title III
requirements can be calculated, a requirement under HAVA §254 that
the Preliminary Plan does not meet.

C. The Plan must fulfill the HAVA § 254 requirements for State
Plans and not merely recite them.

HAVA §254(a)(2) requires that a State Plan describe

How the State will distribute and monitor the distribution of the
requirements payment to units of local government or other entities
in the State for carrying out the activities described in [§254(a)(1)],
including a description of-

(A) the criteria to be used to determine the eligibility of such
units or entities for receiving the payment; and

(B) the methods to be used by the State to monitor the performance
of the units or entities to whom the payment is distributed

The Preliminary Plan quotes the law, but does not actually establish
eligibility criteria or performance monitoring methods.

D. The Plan should establish in Sections 6 and 7 that proposed
uses for requirements payments are for new activities, either to
comply with HAVA Title III or for other purposes, and not for ongoing,
already-budgeted activities.

The Preliminary Plan describes in general terms activities such as voter-registration
system development and the Election Training Program, which are largely
in place. The Plan needs to show that a new activity is being proposed
and, as discussed in comment (B) above, to differentiate whether the
activity is meeting Title III’s requirements or is for another purpose.

E. The Plan should clarify the budget available for activities other
than Title III’s requirements.

The Preliminary Plan appears to reference HAVA §§ 251(b)(2)(B) & 252(c)(1),
which say the amount expended for other activities cannot exceed the
applicable minimum payment amount, or 1/2 of 1 percent of the total amount
appropriated for requirements payments for the year. According to the
Preliminary Plan, the total amount appropriated for requirements payments
in Fiscal Year 2003 is $830 million. The minimum payment amount for FY
2003 is therefore $4.15 million of the State’s $14.2 million share
of the appropriation plus the $712,000 State match. The requirements
payments that may be used for other activities is therefore up to 27.8
percent of the total. This amount is available for other activities even
before all Title III requirements have been met. The Preliminary Plan
correctly asserts that all the requirements payments shall be available
for other uses after all Title III requirements have been met.

2) Provide accountability for the use of the funds

A. Bringing the State Plan into compliance with HAVA as proposed
above is key to providing accountability for the use of the funds.

The Plan must assure that the funds are used as intended by the law.
The Preliminary Plan does not provide the necessary accountability. The
Plan must describe how the State will distribute, and monitor the distribution
of, requirements payments.

B. The Plan must detail the process for adopting performance goals
and measures.

The Preliminary Plan does little more than recite HAVA’s requirement
to articulate how the State will adopt performance goals and measures
to determine its success and the success of units of local government
in carrying out the plan.

The Plan should include reporting on the success in carrying out the
Plan as part of the evaluation process. Reports published in print and
on the web should be required of all entities, including the State, to
which the payment is distributed. In addition to monitoring, this will
make the results of the work available to the general public.

C. The Plan must hold the State accountable for its performance.

The Preliminary Plan gives considerable latitude to the Secretary of
State. How the funds will be spent is vague and open-ended. Authority
for distributing and monitoring requirements payments is delegated to
the Secretary of State and deferred to a later time, as are adoption
of voting systems guidelines and processes, performance goals and measures,
and budget details The Preliminary Plan does not provide for monitoring
the Secretary’s own performance.

The Secretary is given the authority to revise the State Plan on her
own (Section 2.1, last sentence). The Preliminary Plan authorizes the
Secretary to make "non-material" changes ("non-material" being
undefined) without going through the adoption process required by HAVA.
If the Plan was adopted with vague and open-ended proposals, any change
made after its approval could be considered non-material.

D. The Plan should clarify that any and all proceedings under the
administrative complaint procedures will produce a permanent record
that will be available for use under alternative dispute resolution
procedures.

The Preliminary Plan says that a complainant will be provided an opportunity
for "an informal hearing." (Section 9.3.4.b.) But HAVA §402(a)(2)
requires that a hearing be "on the record" and that this record "shall
be made available for use under the alternative dispute resolution procedures."

3) Address the needs of local election officials, stakeholders (including
individuals with disabilities), and other citizens.

At the State Plan Committee meetings, it became apparent that the Preliminary
Plan did not include the needs and views of various committee members
and the interests they represented. FairVote Minnesota urges that the
Plan incorporate the contributions from committee members, especially
those members for whose participation HAVA explicitly provided.

Dorothy McClung, Ramsey County Director of Property Records & Revenue,
asked for clarification in the Plan as to whether the current voter registration
system (known as Voter and Election Management System, or VEMS) complies
with HAVA Title III requirements and, if not, what specifically needs
to be done to meet those requirements. If the system does meet Title
III’s requirements, then provide detail about what uses of requirements
payments are proposed, for what reason, at what cost, and evaluated by
what performance goals and measures. Other committee members offered
proposals as well.

For each of the following proposals, the Plan should include 1)an intention
to use requirements payments for the purpose described, 2)a statement
that persons and organizations qualified to perform the required tasks
are eligible recipients of requirements payments, 3)a budget line item,
and 4)a statement that the performance goals and measures will assess
the success of the effort:

1. Local governments will be able to access requirements payments for
   local needs. (proposed by Patrick O’Connor, Hennepin County Auditor)
2. A survey of polling places will be conducted to determine whether
   they meet accessibility requirements and detail what needs to be done
   to bring them into compliance. (proposed by Pamela Hoopes, Legal Director,
   Minnesota Disability Law Center)
3. Specify New Americans as one of the priority audiences for educating
   the public about elections and how to cast an effective vote. (proposed
   by Bruce Corrie, professor, Concordia University, Saint Paul)
4. Recruit college students to serve as election judges. (proposed by
   Zachary Coelius, executive director, Votes for Students, University
   of Minnesota, Minneapolis)

4) Assure that electronic voting equipment acquired with HAVA funds
protects the security of our elections and has the flexibility to be
used with a variety of voting methods, as local needs dictate.

1. The Plan should require that all new electronic voting equipment
   produce a record of each ballot for security and auditing purposes.

This is a requirement of HAVA §301(a)(2). With its focus on DRE
technology to provide accessibility for individuals with disabilities,
section 301(a) calls for a paper record. However, since Minnesota will
continue to use optical scanners as the backbone of the voting system,
further consideration of the record is necessary. Regarding audit capacity,
the FEC’s Voting System Standards say,

Election audit trails provide the supporting documentation for verifying
the correctness of reported election results. They present a concrete,
indestructible archival record of all system activity related to the
vote tally, and are essential for public confidence in the accuracy of
the tally, for recounts, and for evidence in the event of criminal or
civil litigation. (VSS §2.2.5.1)

Recent elections have reminded us that no record is indestructible.
This ideal can only be realized by a redundant record of each ballot,
which should be in the alternate format from the original ballot. Where
the original ballot is in an electronic format (as with DRE machines),
the record should be paper. Where the original ballot is paper (as with
optical scanners), the record should be electronic.

One of the main concerns coming out of the 2000 Presidential election
that provided the impetus for HAVA was the Florida recount and the possibility
or even probability that paper ballots would be altered simply by handling.
The paper ballots in Florida were punch cards, while Minnesota uses optical-scan
paper ballots. However, optical scan paper ballots are also vulnerable
to alteration or even destruction through handling. The recount of the
2002 State Senate election in District 27 was thwarted by the discovery
that a number of ballots had been burned in an election judge’s
fireplace after she misunderstood an instruction for handling the ballots.
It is clear that elections using optical-scan paper ballots would be
more secure if an electronic back up copy of each ballot were made and
stored by the system.

B. The Plan should require that all new voting equipment acquired
with requirement payments has the flexibility to support all four
ballot types used in the United States.

These four ballot types are:

1. ‘vote for one’
2. ‘vote for up to x’
3. cumulative voting
4. ranked order voting

The FEC’s Voting System Standards section on Voting Variations
says,

There are significant variations among the election laws of the 50 states
with respect to permissible ballot contents, voting options, and the
associated ballot counting logic. The TDP accompanying the system shall
specifically identify which of the following items can and cannot be
supported by the system, as well as how the system can implement the
items supported. (VSS §2.2.8.2)

The list of items the FEC requires for the TDP (Technical Data Package)
includes

• vote
  for N of M ( or ‘vote for up to x’, including ‘limited’ voting)

• cumulative
  voting

• ranked
  order voting

More than 200 localities in the United States use one of these methods
(see http://www.fairvote.org/op_eds/empowerment.htm). That number is
growing: The Illinois legislature recently passed a bill letting counties
use cumulative voting, and is also considering restoring cumulative voting
for its house of representatives (which was elected by that method for
110 years after Reconstruction). San Francisco recently switched to instant
runoff voting, a ranked order voting method.

There is growing interest in alternative voting methods in Minnesota
as well. Several municipalities are now considering alternative voting
methods. A bill for ranked-order voting in statewide and congressional
elections is now working its way through the legislature, having received
unanimous, bipartisan support in its committee of origin.

Regarding the cost of acquiring these features in voting equipment,
the only evidence from actual purchases indicates that these features
add nothing to the cost of the equipment if included in the original
acquisition (http://www.fairvote.org/administration/cvdhava.htm). The
evidence also indicates that retrofitting after the original equipment
is in place may be very costly. Acquiring the features in new equipment
is therefore a prudent use of requirements payments.

The good news is that the two election equipment vendors currently serving
Minnesota are at the forefront of providing these options. Diebold optical
scanners support the ranked ballot elections in Cambridge, Massachusetts,
and Election Systems and Software optical scanners will support the ranked
ballot elections in San Francisco. Both vendors are competing for DRE
contracts with ranked ballot compatibility at no additional cost to the
customer (see the webpage above for the source).

To preserve the State’s and its municipalities’ choices about
alternative voting methods, the electronic voting equipment must support
the available methods. For example, Hopkins unanimously passed a resolution
asking that the State Plan support ranked order voting in any new equipment.
The State Plan must accommodate those choices in new equipment acquired
with requirements payments. Otherwise it will impose significant (and
easily avoidable) costs upon already overburdened local governments.

Jurisdictions with voting equipment not in need of replacement should
be able to use requirements payments to upgrade their equipment with
electronic auditing capabilities and the flexibility for ranked and cumulative
ballots. This may be simply a matter of installing firmware already developed
by Minnesota’s election-equipment vendors for other jurisdictions.

The requirements payments should be available for research, evaluative
studies, and demonstrations of alternative voting methods. For an example
of the kind of study that could be done in Minnesota, see a 2001 project
at the University of Illinois Institute of Government and Public Affairs
entitled "Illinois Assembly on Political Representation and Alternative
Electoral Systems" (available online at http://www.igpa.uillinois.edu/publications/specPubs/default.htm#electoralSystems.)

Nongovernmental educational organizations should be among the "other
entities in the State" included in the Act for eligibility. FairVote
Minnesota has been in discussion with several other educational organizations
about developing proposals as outlined in the preceding paragraph. We
ask that the State Plan eligibility criteria be written so as to be inclusive
of nongovernmental educational organizations.

Thank you for hearing these comments. We would be pleased to answer
any questions or provide further assistance. I may be contacted directly
at (952) 938-5066 ext. 100 or tony@solgard.com. You may also contact
FairVote Minnesota Vice Chair Jim Cousins, who is heading up our work
on HAVA. He may be reached at (612) 209-1897 or jCousins@TripSplit.com.

Sincerely,

FAIRVOTE MINNESOTA

Tony Solgård, President