News

FairVote Minnesota's comments to the state HAVA plan

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 developedpursuant to the Help America Vote Act of 2002, Pub. L. No. 107-252.

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

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 (includingindividuals with disabilities), and other citizens; and
4) assure that electronic voting equipment acquired with HAVA funds protectsthe security of our elections and has the flexibility to be used witha variety of voting methods, as local needs dictate.

FairVote Minnesota is a nonpartisan, nonprofit organization educatingthe public about the effect our voting system has on the quality of ourdemocracy and about alternative voting systems that may enhance publiclife. Since 1997, FairVote has sponsored the regional conference "Empoweringthe Voter"; published the groundbreaking study "No-ContestElections" and established the legal basis for home-rule citiesadopting alternative voting methods in the article "Municipal VotingSystem Reform," which the Minnesota State Bar Association publishedin its magazine Bench & Bar in October 2002. FairVote has testified atthe Legislature and before local governments statewide. The board includesRepublicans, DFLers, Independence and Green Party members, and memberswithout party affiliation. For more information, please see FairVote'swebsite at www.FairVoteMN.org. FairVote Minnesota is the only organizationworking 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. Forexample, the Plan's Section 1 addresses HAVA 254(a)(1), referencingTitle III. However, it does not directly address issues such as over-voting(301(a)(1)), audit capacity (301(a)(2)), or alternative-languageaccessibility (301(a)(4)). Other areas are addressed unclearlyor incompletely. The numbering system in Section 1 of the Plan shouldalso 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 categoriesseparately, as well as to distinguish them for budgetary purposes. ThePreliminary Plan does not comply. For example, are enhancements to theMinnesota Election Reporting System a requirement of Title III, or arethey another activity? Acquiring precinct-based optical scan equipmentfalls outside Title III's requirements. In the budget, the amountfor DRE (direct recording electronic) voting equipment in each pollingplace addresses Title III's requirements. That proposed use mustbe 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 andwould improve administration of federal elections. However, HAVA requiresthat they be distinguished from uses to meet the requirements of TitleIII, both in the description in Section 1 and in the budget in Section6.

After establishing a budget for meeting Title III requirements, theportion of the States share of the federal funds meet Title IIIrequirements can be calculated, a requirement under HAVA 254 thatthe 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 establisheligibility 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-registrationsystem development and the Election Training Program, which are largelyin place. The Plan needs to show that a new activity is being proposedand, as discussed in comment (B) above, to differentiate whether theactivity is meeting Title III's requirements or is for another purpose.

E. The Plan should clarify the budget available for activities otherthan 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 theapplicable minimum payment amount, or 1/2 of 1 percent of the total amountappropriated for requirements payments for the year. According to thePreliminary Plan, the total amount appropriated for requirements paymentsin Fiscal Year 2003 is $830 million. The minimum payment amount for FY2003 is therefore $4.15 million of the State's $14.2 million shareof the appropriation plus the $712,000 State match. The requirementspayments that may be used for other activities is therefore up to 27.8percent of the total. This amount is available for other activities evenbefore all Title III requirements have been met. The Preliminary Plancorrectly asserts that all the requirements payments shall be availablefor 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. ThePlan must describe how the State will distribute, and monitor the distributionof, 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 requirementto articulate how the State will adopt performance goals and measuresto determine its success and the success of units of local governmentin carrying out the plan.

The Plan should include reporting on the success in carrying out thePlan as part of the evaluation process. Reports published in print andon the web should be required of all entities, including the State, towhich the payment is distributed. In addition to monitoring, this willmake 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 ofState. How the funds will be spent is vague and open-ended. Authorityfor distributing and monitoring requirements payments is delegated tothe Secretary of State and deferred to a later time, as are adoptionof voting systems guidelines and processes, performance goals and measures,and budget details The Preliminary Plan does not provide for monitoringthe Secretary's own performance.

The Secretary is given the authority to revise the State Plan on herown (Section 2.1, last sentence). The Preliminary Plan authorizes theSecretary to make "non-material" changes ("non-material" beingundefined) without going through the adoption process required by HAVA.If the Plan was adopted with vague and open-ended proposals, any changemade 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 opportunityfor "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 "shallbe made available for use under the alternative dispute resolution procedures."

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

At the State Plan Committee meetings, it became apparent that the PreliminaryPlan did not include the needs and views of various committee membersand the interests they represented. FairVote Minnesota urges that thePlan incorporate the contributions from committee members, especiallythose 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 registrationsystem (known as Voter and Election Management System, or VEMS) complieswith HAVA Title III requirements and, if not, what specifically needsto be done to meet those requirements. If the system does meet TitleIII's requirements, then provide detail about what uses of requirementspayments are proposed, for what reason, at what cost, and evaluated bywhat performance goals and measures. Other committee members offeredproposals as well.

For each of the following proposals, the Plan should include 1)an intentionto use requirements payments for the purpose described, 2)a statementthat persons and organizations qualified to perform the required tasksare eligible recipients of requirements payments, 3)a budget line item,and 4)a statement that the performance goals and measures will assessthe 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 fundsprotects the security of our elections and has the flexibility to beused 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 DREtechnology to provide accessibility for individuals with disabilities,section 301(a) calls for a paper record. However, since Minnesota willcontinue 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 verifyingthe correctness of reported election results. They present a concrete,indestructible archival record of all system activity related to thevote tally, and are essential for public confidence in the accuracy ofthe tally, for recounts, and for evidence in the event of criminal orcivil 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. Wherethe original ballot is in an electronic format (as with DRE machines),the record should be paper. Where the original ballot is paper (as withoptical scanners), the record should be electronic.

One of the main concerns coming out of the 2000 Presidential electionthat provided the impetus for HAVA was the Florida recount and the possibilityor even probability that paper ballots would be altered simply by handling.The paper ballots in Florida were punch cards, while Minnesota uses optical-scanpaper ballots. However, optical scan paper ballots are also vulnerableto alteration or even destruction through handling. The recount of the2002 State Senate election in District 27 was thwarted by the discoverythat a number of ballots had been burned in an election judge'sfireplace after she misunderstood an instruction for handling the ballots.It is clear that elections using optical-scan paper ballots would bemore secure if an electronic back up copy of each ballot were made andstored 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 Variationssays,

There are significant variations among the election laws of the 50 stateswith respect to permissible ballot contents, voting options, and theassociated ballot counting logic. The TDP accompanying the system shallspecifically identify which of the following items can and cannot besupported by the system, as well as how the system can implement theitems 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 isgrowing: The Illinois legislature recently passed a bill letting countiesuse cumulative voting, and is also considering restoring cumulative votingfor its house of representatives (which was elected by that method for110 years after Reconstruction). San Francisco recently switched to instantrunoff voting, a ranked order voting method.

There is growing interest in alternative voting methods in Minnesotaas well. Several municipalities are now considering alternative votingmethods. A bill for ranked-order voting in statewide and congressionalelections is now working its way through the legislature, having receivedunanimous, 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 featuresadd nothing to the cost of the equipment if included in the originalacquisition (http://www.fairvote.org/administration/cvdhava.htm). Theevidence also indicates that retrofitting after the original equipmentis in place may be very costly. Acquiring the features in new equipmentis therefore a prudent use of requirements payments.

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

To preserve the State's and its municipalities' choices aboutalternative voting methods, the electronic voting equipment must supportthe available methods. For example, Hopkins unanimously passed a resolutionasking that the State Plan support ranked order voting in any new equipment.The State Plan must accommodate those choices in new equipment acquiredwith requirements payments. Otherwise it will impose significant (andeasily avoidable) costs upon already overburdened local governments.

Jurisdictions with voting equipment not in need of replacement shouldbe able to use requirements payments to upgrade their equipment withelectronic auditing capabilities and the flexibility for ranked and cumulativeballots. This may be simply a matter of installing firmware already developedby Minnesota's election-equipment vendors for other jurisdictions.

The requirements payments should be available for research, evaluativestudies, and demonstrations of alternative voting methods. For an exampleof the kind of study that could be done in Minnesota, see a 2001 projectat the University of Illinois Institute of Government and Public Affairsentitled "Illinois Assembly on Political Representation and AlternativeElectoral Systems" (available online at http://www.igpa.uillinois.edu/publications/specPubs/default.htm#electora....)

Nongovernmental educational organizations should be among the "otherentities in the State" included in the Act for eligibility. FairVoteMinnesota has been in discussion with several other educational organizationsabout developing proposals as outlined in the preceding paragraph. Weask that the State Plan eligibility criteria be written so as to be inclusiveof nongovernmental educational organizations.

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

Sincerely,

FAIRVOTE MINNESOTA

Tony Solgard, President

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