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MEETING STATE OF CALIFORNIA SECRETARY OF STATE VOTING SYSTEMS AND PROCEDURES PANEL SECRETARY OF STATE 1500 11TH STREET AUDITORIUM SACRAMENTO, CALIFORNIA TUESDAY, SEPTEMBER 14, 2004 10:06 A.M. Reported by: Michael Mac Iver Shorthand Reporter PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 2 APPEARANCES PANEL MEMBERS Mr. Mark Kyle, Chairperson Mr. Marc Carrel Mr. John Mott-Smith Ms. Caren Daniels-Meade Mr. David Jefferson Mr. Lee Kercher STAFF Mr. Michael Wagaman Mr. Stephen Stuart PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 3 INDEX Page 3. Hart InterCivic eSlate Voting System 4 Kim Alexander 19 1. Diebold Election Systems, Inc, AccuVote-OS, VCProgrammer 21 Maureen Smith 38 Brad Clark 39 2. Diebold Election Systems VCProgrammer 42 Kim Alexander 62 Lucille Moyer 63 4. Sequoia Voting Systems AVC Edge DRE, WinEDS Software 78 Lucille Moyer 93 Maureen Smith 96 5. Other Business 99 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 4 1 PROCEEDINGS 2 CHAIRPERSON KYLE: I'm going to call the meeting 3 to order. 4 Good morning, my name is Mark Kyle, I'm the Chair 5 of the Voting Systems and Procedures Panel. 6 I want to welcome the public, election officials, 7 and vendor representatives here this morning. 8 I want to particularly welcome the new Riverside 9 County Registrar of Voters, Margaret Dunmore, she's in the 10 audience. Welcome. You have big shoes to fill and I'm glad 11 you're stepping up to the plate and we look forward to 12 working with you. 13 Two of our Panel members are absent today, Tony 14 Miller, who I begrudgingly allowed a vacation day to so they 15 wouldn't have a family dispute, and Deborah Jones who is out 16 due to illness, I believe. 17 Caren Daniels-Meade will be joining us 18 momentarily. 19 But we have a few items on the agenda, so I want 20 to get going. And according to staff, Hart InterCivic has 21 requested that they go first due to time constraints with 22 their flights, and my understanding is that the other vendor 23 representatives have not objected to that. So if that is 24 the case, I'm seeing no heads shaking to the contrary. 25 Mr. Wagaman, would you please begin with what was PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 5 1 Item Number 3. 2 MR. WAGAMAN: Thank you, Mr. Chair. 3 CHAIRPERSON KYLE: Can you direct us to the 4 correct tab, since we have 28 tabs or so in there. 5 MR. WAGAMAN: You're on Tab Number 9, sir. 6 CHAIRPERSON KYLE: Thank you. 7 MR. WAGAMAN: Tab Number 9 is the staff report for 8 this application. This is an upgrade from their currently 9 certified system 3.2 to their new version which will be 10 system 3.4. The system numbers consist of several 11 subcomponents. First is BOSS 3.5.4. This is an upgrade 12 from their current version of BOSS, which is 3.4.0. BOSS is 13 used before the election to create the ballot definition. 14 The modifications consist of several fairly minor anomaly 15 fixes and also improvements to the audio function and some 16 other minor changes. 17 The second component is Ballot Now, Version 2.3. 18 That is actually the same. The modifications on that are 19 from Version 2.2.6. It consists of two anomaly fixes. 20 Ballot Now is used to produce the paper ballots, it's not 21 used to tally paper ballots, it's just used in the front end 22 on the paper ballot system. 23 SERVO 2.0.1.0 is the currently certified version. 24 SERVO is used to back up data from the JBCs and the eSlates 25 and to reset them for new elections. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 6 1 Rally 1.2.0 again has not be modified. It's a 2 package used to collect data from the memory boxes, the 3 mobile memory boxes, which are then transferred to Tally, 4 which is Tally Version 3.2.0. Again, it's not modified from 5 the currently certified version. Tally is actually what is 6 used to tabulate results. 7 Component Number 6 is the JBC Version 2.3.8, which 8 is a modification from the currently certified Version 9 2.0.13. The JBC is used to activate the DREs in the 10 precincts to create the voter access cards, or the voter 11 access numbers or access codes. The system does not use 12 cards. 13 The modifications are to add additional 14 functionalities, two of those are of note. The first is 15 support of a bar code reader, rather than what is done now, 16 which is the poll worker would hand figure out which ballot 17 to create for a voter. There will be a bar code printed 18 next to the voter's name in the roster, that will be scanned 19 using the bar code, and would automatically tell the unit 20 what ballot style is appropriate for that voter and then 21 bring that ballot style up and create the appropriate access 22 code. 23 The second is a change that excludes provisional 24 ballots from the tally tape produced by the JBC. Obviously, 25 this is not as relevant as provisional ballots are not PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 7 1 allowed to be used in this upcoming election, and actually 2 cannot be used by the system under California law 3 regardless, which I will get to further. 4 Item 7 is the eSlate, which is the actual DRE 5 itself. It's a modification from Version 2.0.13 to Version 6 2.3.8. The modification is some added functionalities and 7 anomaly corrections. The major added functionality is 8 support for contests that graph onto one or more pages. 9 The final components, 8 and 9, are two pieces of 10 COTS hardware, they're COTS scanners used with a paper-based 11 system. Those are the two pieces of hardware currently used 12 in the County of Orange. The way this system works, unlike 13 some of the other optical scan systems you've seen in the 14 past, is it only captures the ballot image, it does not 15 tabulate at all off the scanner. It captures that ballot 16 image, that ballot image is then used later to do the actual 17 tabulation and counting. 18 Moving on to the testing results. This system 19 does have a NASED number issued, N-1-04-12-12-005. That is 20 to the 1990 standards. For state testing, two issues of 21 note. One, the two scanners that are used in Orange County 22 were not included as part of the state testing, the reason 23 being these are fairly large pieces of equipment. So one of 24 the recommendations you will see later is that prior to the 25 system actually being used, we would go down and do that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 8 1 testing. It's not of particular concern to either the staff 2 or the state's technical consultant because again these are 3 Hart COTS pieces of hardware that are not used to tabulate 4 the actual votes. 5 In addition, during state testing it was 6 identified that the vendor had developed several other 7 additional programs that were used to develop additional 8 functionalities. If you have questions about that, I can go 9 into them. Because these are not COTS pieces of software, 10 one of the recommendations you will again see in the staff 11 report is that any of these additional programs not be 12 installed on the same computer that is running the certified 13 software. None of these components are required in order to 14 meet the California requirements for certification, they 15 just provide additional functionalities beyond that. 16 A review of relevant state and federal regulations 17 was completed, a couple of points of note. The vendor has 18 updated their procedures to add additional security 19 measures. It's chapter nine in both the Ballot Now and the 20 eSlate procedures. All those changes are going to be issues 21 again familiar to the Panel from the last couple of 22 certifications. The system does not include a voter- 23 verified paper audit trail, so, therefore, under the April 24 30th directive, would only be able to be used in the county 25 that currently uses is, Orange, and would have to be PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 9 1 modified by July 1 of 2006. 2 One thing of note. On the Voting Rights Act of 3 1965, there was one minor change where Tagalog has been 4 renamed as Filipino in the code. It still is the same 5 language, it's still supported as required. 6 On the casting of provisional fail safe ballots, 7 there is obviously a requirement in California that they not 8 be cast on a DRE. Even if that was not in place, the system 9 actually would not be allowed to use the electronic 10 provisional ballots, the reason being because it does not 11 support the partial county as required to be only counted in 12 the races where the person was eligible. It's not capable 13 of doing that. It's also not capable of putting up that 14 ballot image prior to acceptance or rejection of that 15 provisional ballot. Therefore, all provisional ballots 16 under the system would have to be cast using the Ballot Now, 17 a paper-based system, and that's what's reflected in their 18 use procedures. 19 An additional consideration, as noted before, it 20 does not include the voter-verified paper audit trail and it 21 would be subject to all of the additional security 22 requirements from the April 30th directive from the 23 Secretary. 24 Public comment. We didn't have any timely 25 comments received prior to the binders being distributed to PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 10 1 the Panel. We did receive some late comments with have been 2 distributed to the Panel this morning. 3 Moving on to the recommendations from staff. 4 Staff recommends the certification of Hart InterCivic's 5 eSlate system Version 3.4 consisting of BOSS Version 3.4.0, 6 Ballot Now Version 2.3, SERVO Version 2.0.10, Rally Version 7 1.2.0, Tally Version 3.2.0, eSlate 3000 Version 2.3.8, JBC 8 1000 Version 2.3.8, along with the Kodak i830 and Fujitsu 9 4099 with the following conditions: 10 One, staff shall successfully test the two 11 scanners in conjunction with System 3.4 by October 5th of 12 2004. That date was selected because that's the next 13 hearing date for this Panel, so as to allow us to report 14 back by that date. 15 Two, that none of these additional software 16 packages developed by Hart shall be installed on the same 17 system, on the same computer running any of the certified 18 components. 19 Three through five are language developed 20 previously under a previous application, they all relate to 21 compliance with the April 30th directive. 22 Item Number 6 is the standard language we've now 23 been applying to each vendor allowing for modification of 24 the procedures to improve the accuracy, security or 25 reliability of a system. There was a desire to see that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 11 1 included at the last meeting, so I put it in here. There is 2 some additional standard language we include relating to 3 compliance with the Voting Rights Act, those kinds of 4 things, which I have not included, but would also be 5 recommendations. 6 That concludes the staff report. The vendor is 7 present if you have any questions for them or if you have 8 any questions for staff. 9 CHAIRPERSON KYLE: Thank you, Mr. Wagaman. 10 Any questions from the Panel? 11 Well, let me start to the far left, Mr. Mott- 12 Smith. 13 PANEL MEMBER MOTT-SMITH: I'm interested in 14 Condition Number Four. The voting system shall only be used 15 in the County of Orange? 16 MR. WAGAMAN: Correct. That is the only county 17 that is currently using the Hart system, and under the 18 Secretary's directive, the DREs cannot be added to an 19 additional county that is not currently using it unless it 20 includes a voter-verified paper audit trail which this 21 system does not. So, therefore, the certification would be 22 limited to that one county. 23 CHAIRPERSON KYLE: Mr. Jefferson. 24 PANEL MEMBER JEFFERSON: Just for my edification, 25 the version number for eSlate goes from 2.0.13 to 2.3.8. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 12 1 That actually appears to be several substantial changes in 2 the software, in other words, a big jump; is that correct? 3 MR. WAGAMAN: Part of the reason for that is there 4 is a system that was not applied for certification here, 5 System 3.3, so there was two jumps in changes. The firmware 6 is where there biggest changes occurred, in particular to 7 support that bar code functionality which was in response to 8 some of the issues seen in the March election. 9 PANEL MEMBER JEFFERSON: And you're talking about 10 eSlate firmware? 11 MR. WAGAMAN: Unlike some of the other systems, 12 the eSlate and the JBC are much more closely linked to the 13 -- the activator and the DRE are much more closely linked, 14 they are actually daisy chained together under this 15 particular system. So that's why you notice the firmware 16 version numbers are the same because they work in tandem. 17 PANEL MEMBER JEFFERSON: Okay. So I guess where 18 my question was coming from, is we're only a few weeks 19 before the election and we're asked to certify what appears 20 to be a fairly large change in the firmware? 21 MR. WAGAMAN: I would defer to the vendor to talk 22 about all the specifics in the code, but the changes are 23 actually fairly minor, even -- 24 PANEL MEMBER JEFFERSON: They are? 25 MR. WAGAMAN: -- though there's a significant jump PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 13 1 in the version number. 2 PANEL MEMBER JEFFERSON: Okay. 3 CHAIRPERSON KYLE: Thank you, Michael. 4 Do you want to direct that and ask the vendor 5 about any clarification on that? 6 Can I ask the vendor's representative to come 7 forward please and address this issue for a minute. 8 PANEL MEMBER JEFFERSON: And if you could be a 9 little more specific about what the various changes are 10 between 2.0.13 and 2.3.8? I just wasn't sure I have the 11 whole sense of what they were? 12 CHAIRPERSON KYLE: If you can start out by stating 13 your name and spelling it for the record, please. 14 MR. FLOM: Okay. My name is Scott Flom, F-l-o-m. 15 I'm the Vice-President of Operations for Hart InterCivic. 16 As far as the firmware versions go, the changes to 17 this were as Mr. Wagaman said pretty minor. They dealt 18 with, one, the bar code interface, two, adding some kind of 19 new messages. If there's any delay due to traffic on the 20 network between the devices, the voter is presented with a 21 message now that says please wait while your ballot is being 22 loaded or while your vote is being cast. Prior to that, 23 they were not given any information. 24 Other than that, there really haven't been any 25 major changes to the system. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 14 1 PANEL MEMBER JEFFERSON: Do you have a version 2 history document, not with you today, but I mean I assume 3 you do? 4 MR. FLOM: Uh-huh. 5 PANEL MEMBER JEFFERSON: I mean I guess in the 6 future I would like to request that we see some version so 7 we know the whole sequence of version numbers and the 8 changes that come up. For now this is fine. 9 MR. FLOM: Okay. We can provide that to the 10 state. 11 PANEL MEMBER JEFFERSON: And then, Mr. Chairman, I 12 had one other question not related to this. 13 CHAIRPERSON KYLE: Go ahead. 14 PANEL MEMBER JEFFERSON: That was, this being a 15 DRE system, at our last hearing, we recommended 16 certification for one election only, and my question was 17 does the same reasoning apply to this system, should we be 18 consistent on this point? 19 CHAIRPERSON KYLE: Very logical of you, Mr. 20 Jefferson, good question. Before we go back to that 21 question, because I was actually wondering the same thing, I 22 want to see if there were any questions of the staff or 23 vendor. 24 Ms. Daniels-Meade. 25 PANEL MEMBER DANIELS-MEADE: Mr. Chairman, I was PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 15 1 just wondering since it's not specifically spelled out in 2 the recommendation, in the conditions for recommendation, if 3 we also should require that provisional ballots, just to 4 make it official, that provisional ballots will be cast on 5 paper ballots only? 6 MR. WAGAMAN: If you want me to include that, that 7 will be fine. It's, as I said, already in the procedures, 8 but I can include it there as well. 9 PANEL MEMBER DANIELS-MEADE: I think it may be 10 important to just point it out. 11 CHAIRPERSON KYLE: Let me also, just for process 12 sake, formally move that these additional public comments be 13 moved in the record and copies provided. 14 PANEL MEMBER DANIELS-MEADE: So moved. 15 PANEL MEMBER CARREL: Second. 16 CHAIRPERSON KYLE: Thank you. 17 Any opposition? 18 The ayes have it. 19 So they're part of the record since they came in 20 after. And I'm assuming staff counsel that these came in, 21 these are all relevant to this agenda item? 22 STAFF COUNSEL STUART: I just saw them at the same 23 time you guys did. 24 MR. WAGAMAN: They are relevant to items before 25 the Panel today, not this particular item, but one or more PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 16 1 of the items today. 2 CHAIRPERSON KYLE: All right. We'll move them in 3 to the record anyways. 4 Now, let's go back to your question, Mr. 5 Jefferson. Do you have any thoughts on it? 6 PANEL MEMBER JEFFERSON: Well, as you know, we 7 were a divided panel last time about whether or not to say 8 strictly one election only or to certify for four or five 9 months and not bother the Secretary of State with a specific 10 ruling should any special election that we don't anticipate 11 come up. My main concern is that we just be consistent, 12 whichever of those decisions we come out with is okay, but I 13 think we should treat all DRE systems alike with respect to 14 our intent to rethink certification issues. 15 MR. WAGAMAN: To provide two points, one point of 16 clarification and one point of information. The system last 17 week in which the Panel recommended that additional item was 18 not a DRE system, it was an optical scan system. 19 PANEL MEMBER JEFFERSON: Excuse me. 20 MR. WAGAMAN: Two, the reason it was not included 21 in the staff report is there was a request from the Chair at 22 the last meeting that staff investigate local elections and 23 the timing of local elections in those particular 24 jurisdictions, and I want to provide that information to the 25 Panel before it made a recommendation relating to that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 17 1 particular item. 2 What staff did discover is that, as Mr. Mott-Smith 3 pointed out at the last meeting, a lot of local 4 jurisdictions do not know when they will have their 5 elections coming up, they are anticipating elections early 6 in 2005. In fact, to provide some information on the 7 problem in nailing this down, Sacramento County at the last 8 meeting said that they did not anticipate elections until 9 later in 2005, came back to staff and informed us that they, 10 in fact, anticipate an election in December of 2004 for one 11 small local election. So as early as December of this year, 12 we will anticipate local elections coming, and that would 13 then under that particular language require additional 14 action by the Secretary of State's office, if the system was 15 to be used in that election. 16 CHAIRPERSON KYLE: Assuming that the Secretary 17 adopts the recommendations of the Panel. 18 MR. WAGAMAN: Right. 19 CHAIRPERSON KYLE: And part of the work was to try 20 to ascertain the factual basis and what might go forward in 21 terms of information for the Secretary so he could make a 22 more informed decision as to whether to adopt that 23 recommendation or modify it or reject it outright. 24 PANEL MEMBER CARREL: Mr. Chair, to comment on 25 this issue, I think it was the most split issue we've dealt PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 18 1 with in two years here, which was this issue with a 4-3 vote 2 last week. So I don't know why we even need to do it for a 3 DRE system which explicitly in certification expires and 4 needs to come back to us for review sometime next year 5 because it needs to incorporate a voter-verified paper trail 6 before either June 2006, given the Secretary's directive, or 7 January 2006, if the Governor signs new legislation which is 8 on his desk which would impose it to be January of 2006. So 9 I think if we're planning on doing a review of systems next 10 year, and I think it's wise to do that, I think we can still 11 do a review of systems knowing full well that this may be 12 used in one county next year. 13 And to add to the discussion about where and when 14 there might be elections next year, there's also been 15 pundits suggesting that the Governor may himself call 16 another statewide election on a measure regarding 17 reorganization of state government. So I think everything's 18 totally up in the air. I don't know that it's necessary as 19 a condition of this certification. 20 CHAIRPERSON KYLE: Other discussion? 21 PANEL MEMBER MOTT-SMITH: I'm in support of Mr. 22 Carrel's statement. Basically, I think we can accomplish 23 the review without confusing the situation in 2005. 24 CHAIRPERSON KYLE: In terms of consistency, Mr. 25 Jefferson, I guess that I would agree that we have adequate PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 19 1 conditions on this one. What we should really do is revisit 2 last week's with more information to provide to the 3 Secretary so that he can either adopt wholesale or modify 4 that particular recommendation so it more accurately 5 comports with maybe something along these lines. 6 Then I'll open it to any public comment on this 7 particular submission having to do with Hart InterCivic 8 eSlate. 9 Kim Alexander. 10 MR. WAGAMAN: And are we going to have any 11 limitations on time this morning? 12 CHAIRPERSON KYLE: Yes, we are. Three minutes. 13 MS. ALEXANDER: Good morning. Kim Alexander and 14 the California Voter Foundation. 15 I have a question about the Hart procedures. I'm 16 just looking over the procedures for the eSlate electronic 17 voting system, and on page 20 is the procedures for closing 18 the polls. And Item 4.6.5 says "the polls close screen on 19 the JBC includes the capability for printing the tally 20 report, follow the instructions in the eSlate manual. 21 I'm wondering if these procedures actually require 22 that there's a printing of the tally report at the close of 23 polls or if it's something that will remain optional. This 24 printing of vote totals from voting machines is something 25 that is included in the Secretary of State's April 30th PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 20 1 decertification orders and the certification requirements, 2 and some of the electronic voting machines in the state have 3 the capability to print a summary report at the close of 4 polls of all the votes cast on each machine, and the ones in 5 Riverside don't. So I would like to see some clarity on 6 whether in Orange County on the eSlate systems there will be 7 or there won't be a printing of the total votes at the close 8 of polls that would be posted outside the polling place, as 9 is required under the Secretary of State's new security 10 directives. That's all, thank you. 11 CHAIRPERSON KYLE: Any one on the Panel want to 12 address that issue? Any Panel member? Caren? 13 PANEL MEMBER DANIELS-MEADE: I would just agree 14 with that, that we should insert the same type of language 15 that we did on past procedures, that requirement they print 16 to report. 17 MR. WAGAMAN: Staff has already been into that, if 18 it's an oversight, then it will be an oversight on staff's 19 part if it's not included. It's something we are looking 20 for in all the procedures. 21 PANEL MEMBER CARREL: Do we know what's in the 22 election manual now? 23 MR. WAGAMAN: That's what I'm right now looking 24 for. 25 CHAIRPERSON KYLE: Do we have anyone either from PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 21 1 the vendor or the county that could address that issue? 2 MR. FLOM: Again, my name is Scott Flom with Hart 3 InterCivic. 4 And in the primary election in Orange County it 5 was a requirement of the poll workers to print the close 6 poll report at the end of the day and post those. And 7 unless the county has other direction from the Secretary of 8 State's office, we'll continue that practice. 9 CHAIRPERSON KYLE: Thank you very much. 10 Let's just make it an explicit part of the 11 condition. 12 MR. WAGAMAN: Is the Panel's desire that 13 procedures are added as a condition of certification? 14 PANEL MEMBER CARREL: Added to the procedures, 15 please. 16 CHAIRPERSON KYLE: Consistent with earlier similar 17 directives in the April 30th and May 14th, meaning it has to 18 be done. 19 Any further comments? 20 Then I will entertain a motion -- 21 PANEL MEMBER CARREL: Moved. 22 CHAIRPERSON KYLE: -- to adopt. 23 PANEL MEMBER MOTT-SMITH: Second. 24 CHAIRPERSON KYLE: The recommendations to the 25 staff with the modifications suggested by the Panel and duly PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 22 1 noted by staff. 2 All those in favor? 3 (Ayes.) 4 CHAIRPERSON KYLE: And opposed? 5 Any abstaining? 6 The ayes have it. 7 Let's go to Agenda Item Number 1, please. 8 MR. WAGAMAN: I just want to make sure we have a 9 vendor representative, which we do. 10 With the acceptance of the Panel members, I would 11 actually address Items 1 and 2 together, they're both 12 applications from Diebold. 13 CHAIRPERSON KYLE: That's fine. 14 MR. WAGAMAN: I will go through the staff reports 15 for each individually, but that allows me to deal with those 16 items at the same time. 17 Item Number 1, which is Tab Number 1 in the staff 18 report, is a modification to the Diebold AccuVote optical 19 scan system. A Panel Member brought up this issue before, 20 this is a different version of firmware that is designed 21 specifically for central count purposes. The version number 22 is 2.0.12. Unlike the previously certified versions from a 23 couple weeks ago, 1.94w and 1.96.4, instead of the results 24 being stored to a removable memory card, the results are 25 transmitted from the optical scan directly to GEMS via PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 23 1 direct connection. 2 In addition, one other operational difference is 3 the printer built into the AccuVote-OS does not print the 4 zero tape and the tally tape and the summary tape at the 5 end, the reason being no results are stored on that unit, so 6 therefore it's not capable of doing that. Instead those 7 zero tapes and those summary tapes are produced directly 8 from GEMS itself. 9 The affected item on the application is the 10 Accufeed. The Accufeed is a piece of hardware, it has no 11 firmware associated with it. What it is is it's a piece of 12 equipment that sits on top of the AccuVote-OS and runs the 13 ballots through so the ballots can be run through at a 14 higher rate of speed. It can store around 200 ballots at a 15 time. So it's not a particularly high speed scanner, but it 16 is a higher speed scanner than the manual process that would 17 otherwise be used. 18 It's worthy of note that the Accufeed was not 19 tested with the other two firmware version numbers, so 20 therefore, if the Panel takes the staff recommendation, the 21 Accufeed could only be certified with the firmware Version 22 2.0.12. 23 Item 3 is the GEMS 1.18.19 that has come before 24 the Panel several times before. Federal testing. We have 25 received letters from the ITAs that federal testing has been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 24 1 completed, however, we have not received the final reports 2 and a NASED number has not been issued. When we get to the 3 staff report, you will see a recommendation that both of 4 those be received prior to final certification and with the 5 time sensitive date as was requested from the Panel at the 6 last meeting. 7 State testing was successfully completed here in 8 Sacramento in early September. Review of compliance with 9 state and federal laws was completed. Most of these are the 10 exact same thing, so I want to cover it under the previous 11 certification procedures, the same as the procedures 12 previously reviewed by the Panel, the same security 13 measures. There was one section added relevant to the 14 operation of a central count OS. That was section 1.3.8 in 15 the procedures, that's the only modification from the 16 previously certified version of the procedures, proof that 17 those documents have been received. 18 Additional considerations. The vendor's intent, 19 if this is not certified, is to only use the 1.94w and the 20 1.96.4. There were other versions of the central count 21 firmware in the field, as identified during the RNG audit. 22 Those versions we have not been able to verify certification 23 of, therefore, again we're going to recommend as has been 24 done in the past that if this version is certified, that any 25 of those versions be replaced with the now certified version PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 25 1 at vendor expense. 2 Public comment. Again, there were late comments 3 received which were distributed to the Panel under the 4 previous item. 5 Recommendations from staff are that Diebold 6 Election Systems Inc's GEMS 1.18.19, AccuVote-OS 2.0.12, and 7 Accufeed be certified with the following conditions: That 8 the final ITA reports be received by September 27th, 2004. 9 That date was selected based on conversations between staff 10 and also the independent consultant and also the vendor with 11 the ITAs. It was also based on the amount of time provided 12 to the previous vendor to complete that process. 13 Two, that the vendor must obtain and submit a copy 14 of federal qualification for all systems and components, 15 again, by September 27th. 16 Three, Uncertified equipment will be currently 17 certified with what would now be certified equipment by the 18 November election. 19 And Item 4 is again that standard language as 20 relevant to modifications to the procedures to encourage the 21 security and reliability and accuracy of the system, again 22 with all of the other standard boilerplate language that we 23 had in the past. 24 That completes the Item 1 staff report. 25 The Item 2 staff report would be Tab Number 5 in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 26 1 your binders. 2 This is an additional software package that will 3 go along with the AccuVote-TS system. The program is called 4 VCProgrammer, Version Number 4.1.11. It would be used with 5 all the same components previously certified with the TS, 6 the GEMS 1.18.19, the AccuVote-TS 4.3.15D and the Key Card 7 1.0.1. 8 VCProgrammer is used to facilitate early voting. 9 As the Panel may note from the previous meeting, the card 10 activators currently certified are only able to hold eight 11 ballot styles, which is obviously not enough for an early 12 voting situation where you need all the ballot styles in the 13 jurisdiction. What VCProgrammer does is it installs on a 14 COTS piece of hardware and basically any PC, it is then 15 loaded with a file that's created by GEMS that contains all 16 the various ballot styles available up to the election. It 17 can then be used in one of two modes, an automatic or a 18 manual mode. 19 Under the automatic mode, the system is used in 20 conjunction with the county's voter registration system, so 21 a poll worker would select the voter from the voter 22 registration system and the system will then automatically 23 create that voter access card without any other steps 24 required by the person using the system. 25 Under manual mode, it did not need to be used with PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 27 1 the voter registration system. Instead, the poll worker 2 would figure out what precinct and what ballot style is 3 relevant and manually select that, and then that card would 4 be created. 5 VCProgrammer has not been previously certified in 6 California, it was applied for previously but was not 7 certified. 8 GEMS again is the same version used before, the 9 difference in its interaction is before VCProgrammer created 10 that text file that is used by VCProgrammer to create the 11 various ballot styles. 12 The AccuVote-TS, the interaction is the same and 13 it takes the card that's been created by in this case 14 VCProgrammer and is used to activate the system. And the 15 Key Card Tool, again, creates the ability to use a dynamic 16 user to find passcodes and encryption and can be used in the 17 same way with VCProgrammer as it is with the stylus to have 18 that functionality. 19 Again, on the item of federal testing, we have 20 received the letters, we have not received the reports or 21 the NASED number. So, again, you'll have the same 22 recommendation with that same date of September 27th for 23 them to complete that process, with the qualification on 24 both systems will be to the 1990 standards. 25 State testing, again, was completed by the state PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 28 1 and the state's technical consultant. Two security issues 2 were raised that are relevant to the way the system works. 3 Because this program is designed to be installed on a PC, it 4 does raise certain security concerns because the PC could be 5 out in the field outside of the physical security of the 6 county's office, and because it may or may not be used in 7 interaction with the voter registration system. 8 Because the system is going to be used in 9 different ways in each county, the security method that is 10 recommended by staff, that as the Secretary has required in 11 the past, that the counties using the systems submit a 12 security plan for how they are going to use it, because 13 security issues that may apply to one county may not apply 14 to a different county depending on how they are using this 15 particular program. 16 The other issue identified is that this text file 17 that's generated by GEMS can be potentially modified. It's 18 not protected in any way. That will not affect the 19 tabulation. It would affect, if it was modified, it could 20 create an error where somebody's card is activated -- the 21 poll worker activates the card as a Democratic ballot, when 22 in fact it's a Republican ballot, the TS would still say 23 it's a Republican ballot. It would not do anything other 24 than create that confusion potentially there. But, again, 25 because of that issue, the recommendation is that the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 29 1 counties submit security procedures for how to prevent those 2 kind of problems. 3 Review of compliance with state and federal laws 4 was completed. Again, the firmware version or the 5 procedures are the same as those that have come before the 6 Panel before. There was a modification to recognize all the 7 various ways that cards can be activated and making the 8 differentiation between the operation, for example, of 9 stylus and the operation of VCProgrammer. That was section 10 number 3.2 in those procedures. Other than that, they are 11 the same procedure with the same additional security you'll 12 find that the Panel seen before. 13 Documents have been received for this application. 14 Again, because this system does involve touchscreen DRE that 15 does not include the voter-verified paper audit trail, there 16 will be a timing out on it and it will also be limited to 17 those counties that currently use that TS system, it's the 18 same language from the previous certification on the TS. 19 Public comment. Again, there was some late 20 comments received, that's been distributed to the Panel. 21 Therefore, the staff recommendation is that Diebold's 22 VCProgrammer 4.1.11, GEMS 1.18.19, AccuVote-TS 4.3.15D, and 23 the Key Card Tool Version 1.0.1 should be certified with the 24 following conditions: 25 Submission of the ITA reports again by September PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 30 1 27th. That the federal qualification with NASED number be 2 received by September 27th. Three, this isn't a new one, 3 but any jurisdiction intending to use the VCProgrammer in 4 the election must submit a security to and receive approval 5 of that plan from the Secretary of State's office for that 6 election. The security plan shall specifically include 7 information on the physical and technical security of the 8 computers running VCProgrammer, how the jurisdiction will 9 prevent tampering with the files associated with 10 VCProgrammer, and how the county will prevent the creation 11 and use of unauthorized voter access cards using 12 VCProgrammer. 13 Items 4 through 6 are the additional requirements 14 from the April 30th directive from the Secretary. The 15 counties it would be limited to are obviously different from 16 the previous one. It would be Alameda, Plumas and the 17 County of Los Angeles for early voting only. 18 And Item 7 is again that boilerplate language 19 relating to modification of procedures to enhance the 20 security, accuracy, reliability of the system. 21 That concludes the staff report. We do have a 22 representative of the vendor present, if there are questions 23 for them as well. 24 CHAIRPERSON KYLE: I'm going to open up discussion 25 on the first application having to do with AccuVote-OS PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 31 1 2.0.12. 2 Any questions or comments from the far left? 3 Working my way this way. 4 Mr. Carrel. 5 PANEL MEMBER CARREL: There was a comment in Mr. 6 Freeman's report that says some records are retained in 7 memory and the security of the system for counties is a 8 requirement of tamper-proof seals and/or locks to be used 9 prior to and during by counties during operation for denial 10 of service types of attack. I'm just wondering if that is - 11 - and I can't find it, because I don't know where to look, 12 in the procedures? 13 MR. WAGAMAN: Can you say what you're looking at 14 so I can check into that? 15 PANEL MEMBER CARREL: Page 3 of 4 on Tab 2. The 16 third paragraph says no records. He recommends getting 17 approved seals and locks. 18 MR. WAGAMAN: There is a requirement in the 19 procedures for approved seals and locks that was already 20 part of the previous language. 21 PANEL MEMBER CARREL: Okay, thanks. 22 CHAIRPERSON KYLE: I have a couple. Then for the 23 submission, what are the affected counties? 24 MR. WAGAMAN: The vendor would be better qualified 25 to answer that because some of the counties that currently PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 32 1 use central count optical scan may not be using this 2 version, they may be using the previous version, the 1.94W 3 or the 1.96.4. 4 CHAIRPERSON KYLE: Okay. So do we have any idea 5 where this may or may not be installed? 6 MR. WAGAMAN: I have that information, I do not 7 believe I have it with me. I have to send somebody up to go 8 get that for me. 9 CHAIRPERSON KYLE: Okay. 10 Can I have a vendor representative step forward, 11 because I also have another question that has to do with 12 this. 13 So if you would identify yourself for the record, 14 please? 15 MR. SINGLETON: For the record, I'm Marvin 16 Singleton, S-i-n-g-l-e-t-o-n. 17 Mr. Chairman, I believe the majority of the 18 counties do use central count for their processing of 19 absentee and election ballots, the absentee processing of 20 ballots. 21 CHAIRPERSON KYLE: Okay. 22 MR. SINGLETON: I don't have a specific number, I 23 would say a majority. I do not think Los Angeles is because 24 of their Ink-A-Vote system, but I would say a majority of 25 the counties do use it. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 33 1 CHAIRPERSON KYLE: Okay. 2 MR. WAGAMAN: We're having somebody retrieve that 3 information right now. 4 CHAIRPERSON KYLE: Okay. 5 MR. WAGAMAN: So if you want to proceed with 6 public comment and the other comments from the Panel 7 members, we'll have that before you reach your final 8 deliberations. 9 CHAIRPERSON KYLE: Okay. In one of your 10 comments -- would you stay there, Mr. Singleton. 11 One of your comments earlier, Mr. Wagaman, had to 12 do with if we didn't get certification, if we didn't get the 13 ITA report and the NASED number, that it would default in 14 part to 1.94W and 1.96.4? 15 MR. WAGAMAN: Correct. They can still count their 16 ballots using those other version numbers, it just would not 17 be as efficient a process. So they could use that other 18 firmware version. 19 CHAIRPERSON KYLE: So are 1.94W and 1.96.4, are 20 those the current installations? 21 MR. SINGLETON: Yes. 22 CHAIRPERSON KYLE: Right now? 23 MR. SINGLETON: As Mr. Wagaman said, if this 24 version does not meet the various criteria, all that would 25 be required is to pre-sort the ballots by precincts and they PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 34 1 would use the 1.96.4 or the 1.94W to count the ballots in 2 that jurisdiction. 3 CHAIRPERSON KYLE: My concern is granting 4 conditional certification today, maybe in an effort to be 5 efficient, install the new version and not get the 6 certification in a timely fashion. And then have to go 7 through some of the rigamarole we went through in March of 8 this year where we had to uninstall and default back to 9 1.94W. 10 MR. SINGLETON: We have previously announced to 11 all the California customers to plan not to use it. So it's 12 much easier to continue that thinking, and if we were to 13 receive the state condition, it would be just replacing the 14 memory chip sets in the optical scan machines that are at 15 the counties. 16 CHAIRPERSON KYLE: So leave the 1.94W, the 1.96.4 17 and wait until the date certain with the ITA report and the 18 NASED number. And then does that allow enough time for 19 timely installation? 20 MR. SINGLETON: Yes, sir. All you're doing is 21 basically changing the memory chip sets and the machines are 22 already at the election office centrally located. The 23 central count is not used in a field environment at a 24 precinct, so these would be a limited number of machines. 25 Some counties use two machines, some counties might use ten, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 35 1 so it's a matter of changing the chip sets out. 2 MR. WAGAMAN: Yes. As the vendor was saying, this 3 is a central count system, so you're having to park your 4 equipment in with the precinct count equipment. 5 CHAIRPERSON KYLE: I just don't want to put the 6 counties through the grief and then the expense in terms of 7 the staff time of installing and reinstalling or 8 uninstalling if we don't have it. And in the 9 recommendation, Mr. Wagaman, what was the date that the 10 recommendation is for? 11 MR. WAGAMAN: It was the September 27th date. 12 That was based again on conversations with the federal 13 process about where they are in that status, both from us, 14 from the vendor and from Mr. Freeman. It's also an 15 equivalent amount of time that you provided ES&S when this 16 issue arose on the 9th. 17 CHAIRPERSON KYLE: Okay. Can I hear from any of 18 the counties? 19 Thank you, Mr. Singleton. 20 Can I hear from any of the counties if they 21 believe the 27th isn't an adequate time? 22 MS. HENCH: Debbie Hench, San Joaquin County 23 Registrar of Voters. 24 It's questionable. Some of the counties, we start 25 October 4th issuing absentees. We can't start counting them PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 36 1 until seven days before the election. And what this process 2 does is saves time, especially for the large counties that 3 have -- you know, we're going to have around 70,000 4 absentees, Alameda may have 200,000 absentees. If you have 5 to hand sort those, that's when you start getting the delay. 6 You know, central count is a real help in that process 7 because you just feed them through, the computer is sorting, 8 not us. 9 So if you wait until the 27th, we really don't 10 know what the impact is. We know we have until that seven 11 days before, but you want to test it. You don't want to 12 say, okay, I hope we got it today, we can run them today. 13 We don't want to do that because we have to do our logic and 14 accuracy tests on that just like everything else. 15 CHAIRPERSON KYLE: Okay. Thank you, that's 16 helpful. 17 MR. WAGAMAN: And obviously if we receive the 18 federal reports tomorrow, if the Panel were to take that 19 action, then we receive those reports tomorrow. 20 PANEL MEMBER JEFFERSON: What do we know about the 21 likelihood of that? 22 CHAIRPERSON KYLE: What do we know about the 23 likelihood of that was the question? 24 MR. WAGAMAN: The likelihood is everyone is of the 25 belief that we will have them by the 27th, we may have them PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 37 1 sooner than that, but obviously one of the effects that has 2 happened is of us putting time certainty is now all the 3 vendors are pushing the ITAs to complete their reports in a 4 timely fashion. So it's going to be an issue of what order 5 they take things, so which order they come through, the 6 final NASED numbers being issued, I don't know. 7 CHAIRPERSON KYLE: Ms. Daniels-Meade, did you have 8 any questions or comments? 9 PANEL MEMBER DANIELS-MEADE: No. The only concern 10 I had to do with the technical expert's recommendation with 11 respect to tamperproof seals and Marc brought that up and we 12 were assured that that procedure is sound. 13 CHAIRPERSON KYLE: Okay. We'll take public 14 comment on this particular point. 15 Kim, you're going to pass? Thank you. 16 Maureen Smith, did you want to comment on this one 17 or speak in general? 18 MS. SMITH: In general about the two items, just a 19 big question, it's not a comment. 20 CHAIRPERSON KYLE: Okay. And identify yourself 21 for the record. 22 MS. SMITH: My name is Maureen Smith from Peace 23 and Freedom Party and Santa Cruz County. 24 My question is the same as one of the questions I 25 asked at the last meeting, does this system allow for back PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 38 1 door entry and, you know, are you taking that into 2 consideration in whether or not you're going to approve it? 3 And to finally ask one other question, I won't 4 have to ask it later, I still have to ask one question at 5 the very end, but that is it is my understanding that all 6 systems will be looked at and not just DRE systems after the 7 election? It was my understanding from a decision at the 8 last meeting, and I want to be accurate in my understanding. 9 Thank you. 10 CHAIRPERSON KYLE: Thank you. 11 Any Panel reaction, comment. 12 PANEL MEMBER JEFFERSON: With regard to your 13 question about the back door, this system does use GEMS 14 1.18.19 and all of the same issues that have been discussed 15 before still apply to this one, if that answers your 16 question. 17 MS. SMITH: It does. 18 CHAIRPERSON KYLE: Mr. Clark, I assume you want to 19 speak on this point? 20 MR. CLARK: My name is Brad Clark, I'm the 21 Registrar of Voters in Alameda County. 22 And as a user of the optical scan central count, 23 if it's available, I have a question of the Panel who's 24 talking about security seals on the system. I don't know 25 where to put it, we don't have a memory card, so we can't PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 39 1 seal that. We don't print out tapes, so we can't -- we can 2 seal the printer compartment, but we don't print anything. 3 So I would just kind of like to know where you want me to 4 put this seal, because I don't see the usefulness of it when 5 we're using these machines in our computer room, which is an 6 alarmed, locked room with only our staff in it. And I don't 7 see what there is to seal, unless I'm missing something. I 8 understand in the polling place why we want to seal, you 9 know, where the compartments are, but in our central count 10 environment I don't see because there's no memory card. 11 MR. WAGAMAN: The specific issue that Mr. Freeman 12 is referring to is on the back of the unit there are several 13 ports that are available. The county is using the system, 14 those ports may or may not be accessible. If the Accufeed, 15 for example, is on top of the unit, those ports are not 16 accessible, so you would not be able to have those same 17 tampering issues relevant. If the Accufeed is not on top of 18 it, then those ports in the back would be potentially 19 accessible, which is where under the current procedures come 20 in play that a log of any time those ports are accessible 21 would need to be kept, and that's what's under the existing 22 language in the procedures. 23 MR. CLARK: Yes. And we use the Accufeed. 24 MR. WAGAMAN: So at that point it will just be an 25 issue of whenever those ports were accessible, like the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 40 1 Accufeed was removed for some reason, a log would need to be 2 kept with those under procedures. 3 PANEL MEMBER CARREL: Mr. Clark, when you test the 4 machine prior to the election, do you test it with the 5 Accufeed on and do you keep the Accufeed on until the 6 election? 7 MR. CLARK: Yes. 8 PANEL MEMBER CARREL: So you're not removing it 9 and then you seal it up and then reattach it? 10 MR. CLARK: We do remove the Accufeed if they 11 malfunction. If the Accufeeds jam or something and they 12 have to be serviced, they are taken off. 13 PANEL MEMBER CARREL: But once you test it, you 14 keep the Accufeed attached if it is working properly? 15 MR. CLARK: Right. 16 PANEL MEMBER CARREL: So then there would be no 17 need to seal up the ports? 18 MR. CLARK: Right. 19 PANEL MEMBER CARREL: Because they're being used? 20 MR. CLARK: Correct. 21 Thank you. 22 CHAIRPERSON KYLE: Thank you. 23 Any other comments? 24 MR. WAGAMAN: Well, I have that additional 25 information for the Panel members as well. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 41 1 CHAIRPERSON KYLE: Relevant to this point? 2 MR. WAGAMAN: Relevant to the counties using the 3 central count. 4 CHAIRPERSON KYLE: Okay, please tell us. 5 MR. WAGAMAN: During the RNG audit, the following 6 counties were identified that used a version of the central 7 count. It would Alameda, Fresno, Humboldt, Kern, Marin, 8 Placer, San Joaquin, San Luis Obispo, Santa Barbara, Tulare, 9 San Diego, and Solano. Obviously Solano is no longer using 10 this particular system. So that would be a total of 11 11 counties. And again, as the vendor indicated, most of those 12 counties it sounds like would have a desire to use this 13 system again, whether all of them will would be on county 14 discretion. 15 CHAIRPERSON KYLE: Thank you. 16 I'm going to entertain a motion to adopt this one 17 before we move on to the other one. To adopt the staff 18 recommendation with the conditions as they currently stand. 19 PANEL MEMBER DANIELS-MEADE: So moved. 20 PANEL MEMBER CARREL: Second. 21 CHAIRPERSON KYLE: This is just for Item Number 1 22 on the agenda for the Diebold collection system in AccuVote- 23 OS 2.0.12. 24 All those in favor? 25 (Ayes.) PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 42 1 CHAIRPERSON KYLE: Opposed? Abstentions? 2 The ayes have it. 3 Let's move to discussion on questions regarding 4 Agenda Item Number 2 on VCProgrammer. 5 Panel Members, any comments or questions? I'll 6 start from my right this time. 7 PANEL MEMBER DANIELS-MEADE: Oh, sure. Get me to 8 the right tab first. 9 MR. WAGAMAN: Tab Number 5. 10 CHAIRPERSON KYLE: I have a couple questions 11 regarding training. 12 You mentioned that procedures are similar to the 13 other ones, however, this is a situation where it seems to 14 have been a training issue in March where we had problems. 15 And I'm wondering if since it's a different system than what 16 was used in March? 17 MR. WAGAMAN: Well, when I said the same 18 procedures, I was referring to the procedures when the Panel 19 adopted the procedures for the TS, which was a month and a 20 half ago. So it's those same procedures with the addition 21 of language about the functionality of the VCProgrammer. 22 And the VCProgrammer has now been certified for use in the 23 state. 24 CHAIRPERSON KYLE: Right. So I have a certain 25 question for the vendor, and if any of the client counties PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 43 1 want to come, I would welcome their two cents. 2 How much training is clearly and explicitly 3 articulated in the procedures so that we don't have 4 something like machines unplugged for several days and the 5 batteries inadvertently drained down? 6 MR. SINGLETON: The VCProgrammer has it's own user 7 manual that has been distributed. If you're asking for 8 specific hours, you'll have to ask that. But this is only 9 used in the TS counties, so it would be Alameda, Plumas, and 10 Los Angeles. So the training of the TS system in itself 11 would include training on the VCProgrammer. It is not a 12 battery operated device, it is powered by the host system. 13 So it plugs into a PC or a server or a laptop where used. 14 CHAIRPERSON KYLE: Okay. 15 MR. SINGLETON: So that's not any type of -- 16 CHAIRPERSON KYLE: That's not an issue? 17 MR. SINGLETON: No, sir. 18 CHAIRPERSON KYLE: Okay. Are there any other 19 issues that might come up given just some of our past 20 experience and before we go forward and possibly give the 21 stamp of approval on something like this. I just want to 22 make sure that those kinds of issues have been thought 23 through and addressed. 24 MR. SINGLETON: I understand. To our knowledge, 25 there are no system failure, single point of failures. If PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 44 1 the counties use them in the automatic mode as indicated by 2 the staff, it is tied directly to the voter database, or 3 voter registration database of that county. Otherwise, 4 there are no other components to it. It encodes a card at 5 the early voting location and that is it. 6 CHAIRPERSON KYLE: Okay. Mr. Clark, I see you 7 want to comment. 8 If you could stick around, Mr. Singleton, because 9 I have a couple other questions along these lines. 10 MR. CLARK: Again, Brad Clark, I'm the Registrar 11 of Voters from Alameda County. 12 The way VCProgrammer works, it only works at our 13 early voting sites, so it's only our own staff using it, the 14 poll workers don't use this. And it's hooked into our 15 regular database, it's loaded onto PCs that the staff 16 members at the front counter would use. They put in a 17 voter's name and find that voter in the database, and then 18 the system automatically assigns the correct ballot type and 19 precinct to it to burn the card. 20 Without VCProgrammer, you have to use a 21 touchscreen device which has all the precincts in the county 22 on it and the staff person has to look up the voter, find 23 the precinct, and scroll through the thousands of precincts 24 in the county and find the right one to burn the card, where 25 VCProgrammer finds it for them and automatically burns the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 45 1 card for them. 2 And, again, it's internal staff using it, it's not 3 poll workers using it, so the training is really fairly 4 simple, it's pretty much like issuing a paper absentee 5 ballot, pretty much the same process. 6 CHAIRPERSON KYLE: And how many early voting sites 7 do you have, Mr. Clark? 8 MR. CLARK: For this election, we're only going to 9 have one, just our own office. 10 CHAIRPERSON KYLE: Right. 11 MR. CLARK: In the past we have had five. But we 12 have always done them in city clerk's offices so that we've 13 always trained city staff. We've never had them out at 14 shopping centers or places like that, we've always done them 15 in government buildings. So we've always had public 16 employees who were doing this, either City Clerk staff or 17 Registrar of Voters staff. 18 CHAIRPERSON KYLE: Thank you for that 19 clarification. 20 MR. WAGAMAN: And on that same point, since we 21 don't see county registrars from the other counties present, 22 I believe all the counties from our discussions were 23 planning on using staff, not volunteers, to be using the 24 equipment. Plumas County is again planning on using it just 25 at that central location. Los Angeles, I believe, is PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 46 1 considering using it out at remote locations as well. 2 CHAIRPERSON KYLE: That's great. 3 Another question. In the last example, the last 4 submission, there was a default that if the ITA report and 5 the NASED number was not forthcoming by the 27th, it would 6 revert back to the 1.94W and 1.96.4. What happens here if 7 we don't, since we likewise don't have an ITA and a NASED 8 number? 9 MR. WAGAMAN: I can provide the information on 10 what we would require, what the vendors' response will be 11 after the -- 12 CHAIRPERSON KYLE: Okay. I'd like to hear yours 13 and I'd like to hear yours. 14 MR. WAGAMAN: For our purposes, VCProgrammer would 15 not be certified for use, so it could not be used. So the 16 county would then either not be able to support its early 17 voting program and would not use that or it would have to 18 use a different functionality to support it such as what was 19 described by Mr. Clark about using the ability of the units. 20 Though I believe most counties would probably -- I would 21 have to default to the vendor as to what those counties 22 alternate plans for early voting would be. 23 MR. SINGLETON: The situation described by Mr. 24 Clark is the fallback if the ITA doesn't have the letter. 25 You take a TS system that would have been in use in the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 47 1 early voting, take it off line, and make it the activator. 2 So the staff person would be looking at a paper poll book, 3 so that when someone walked in be able to look it up in the 4 precinct and then scroll through on the menu bar of the 5 screen of the TS. Then they would type in that code, insert 6 the voter coder card and it would kick back out with that 7 ballot style that they would give to the voter. So there is 8 a backup. 9 CHAIRPERSON KYLE: Mr. Clark, when does your 10 county plan on beginning early voting? 11 MR. CLARK: Well, since we're doing early voting 12 only in our office, we wanted to start on October 4th and 13 absentee voting on that day. 14 CHAIRPERSON KYLE: Okay. So September 27th would 15 conceivably be a deadline that would work for you? 16 MR. CLARK: It should, because this would only 17 apply to about five computers and all in the central office. 18 So this is one of the reasons we did not do outstation early 19 voting this time was because we knew it might be late when 20 we got the certification for VCProgrammer. 21 CHAIRPERSON KYLE: If you could stick around, I'm 22 told that there are a couple other questions that might be 23 directed to you and -- 24 PANEL MEMBER MOTT-SMITH: I'm just going to follow 25 up that Los Angeles County couldn't be here today, but they PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 48 1 did call last night and this morning and they expressed two 2 things. One is that they do need to know sooner rather than 3 later, and the message was they needed to know today about 4 the VCProgrammer. 5 But they also indicated that the security 6 considerations in the staff report were fine with them and 7 that they would amend the security report that they are 8 submitting this Friday to incorporate all of the staff's 9 recommendations. 10 CHAIRPERSON KYLE: Thank you. 11 Caren? 12 PANEL MEMBER DANIELS-MEADE: No, I don't have 13 questions. 14 CHAIRPERSON KYLE: I have one more before I turn 15 to the left. 16 In the staff recommendation, Mr. Wagaman, you 17 suggested Condition Number 3 that security plans be 18 submitted on the physical and technical security of the 19 computers running VCProgrammer, which I think is an 20 outstanding idea. However, it lacks a date specific as to 21 when we should get those plans so we can review them and 22 give them back. 23 MR. WAGAMAN: That's correct. That was probably 24 an omission on the part of staff. The staff recommendation 25 would be that either prior to use which would be whenever PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 49 1 they use their early voting or it would be linked to that 2 September 27th date just to keep everything consistent. 3 CHAIRPERSON KYLE: Mr. Clark, can you just comment 4 on that whether that is something that's -- how that would 5 impact you and your county? 6 MR. CLARK: We could comply with that. 7 CHAIRPERSON KYLE: Okay. If we tied it all to the 8 27th? 9 MR. CLARK: That shouldn't be a problem. 10 PANEL MEMBER MOTT-SMITH: Could I ask Brad a 11 question on behalf of Los Angeles, so I understand it. 12 MR. CLARK: Do I get a raise and a larger staff? 13 (Laughter.) 14 PANEL MEMBER MOTT-SMITH: Chris' comment this 15 morning was that they really needed a decision right away. 16 You said you're doing it just in your office, Plumas is 17 doing it just in their office. LA is doing it out into the 18 communities. Can you explain to me why there would be a 19 difference in their urgency versus your urgency? 20 MR. CLARK: I'm not exactly sure how they link 21 their early voting sites to their database. When we want to 22 do this with a city clerk's office, we have to get lines 23 into the city clerk's office so they can link and do these 24 transactions, and Los Angeles may be having to do that for 25 one thing. Or if they are doing laptop computers, they're PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 50 1 probably having to load those laptops with their database. 2 And I don't know how many sites they have. We had like four 3 sites outside the office where I think they had many more 4 sites than that. I think they have fifty or something like 5 that. So I just assume that it's a bigger job. 6 CHAIRPERSON KYLE: Mr. Singleton. 7 MR. SINGLETON: I believe that when we were doing 8 the testing, we made query of Los Angeles and the number was 9 closer to 20. They expressed using the laptop and they were 10 going to consider using the network in automatic mode. And 11 I think that would be their time delay of when you set up 12 the network infrastructure in various locations, it may or 13 may not be within your normal confines. There is a period 14 you have to get out and establish a link and do your testing 15 from a network perspective. 16 CHAIRPERSON KYLE: Mr. Mott-Smith, I think given 17 the fact that there's not a NASED number or an ITA, I, for 18 one, would have severe trepidations about telling Los 19 Angeles anything other than it might be conditionally 20 certified depending on the outcome of this, despite 21 potential operational hurdles. 22 PANEL MEMBER CARREL: I would concur with your 23 trepidations. Being an LA resident, I voted for early 24 voting in March. They do use a laptop and that brings my 25 concern, because they also don't use staff at all sites. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 51 1 They do have volunteers at some sites, so training does 2 become an issue. I don't know though if they have staff 3 just working laptops and that's an issue I think we can -- I 4 would have liked someone from LA to clarify, I don't know if 5 there is anyone here that can give that answer. 6 My concern is those laptops and placing the 7 VCProgrammer on those laptops and the security of those 8 laptops so that they're not used for something else after 9 testing, the assurance of virus protection to make sure that 10 it's clear of viruses before VCProgrammer is installed. And 11 I don't know what the requirements are for that? 12 MR. WAGAMAN: Well, there are some specific things 13 that are required in the procedures that are general issues. 14 Specific to each individual county, as I said the operation 15 is different. In that particular situation where a county 16 was using it outside of the office on a laptop, the things 17 we would be looking at are who are the people who have 18 access to that. There are ways you can use the Key Card 19 Tool so you can make it such that the cards activate it by 20 the VCProgrammer for early voting would not be able to be 21 used on election day. So the concerns about them just 22 creating card block would be mitigated, things along those 23 lines. Like you said in the procedures as I recall it makes 24 reference to the same security should be built around any 25 computer using VCProgrammer, any computer running GEMS, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 52 1 which would include, as you said, the virus protection and 2 those kind of issues. But again, it's going to be relevant 3 to how counties use it and where we need to build up the 4 wall around the VCProgrammer. 5 PANEL MEMBER CARREL: And you have the condition 6 of a security plan from each county be submitted before they 7 install VCProgrammer, correct? 8 MR. WAGAMAN: Correct. And I believe the Chair 9 has expressed an interest in modifying that to the 27th? 10 PANEL MEMBER CARREL: Yes. I would have to concur 11 with that. And it's not just the technical security 12 regarding virus protection of the software, it's also 13 physical security of the laptops so that there's access 14 limited, not only for password protection, but physical, you 15 know, where they're stored after they're tested and 16 installed and between each early voting day. 17 My concern is less that they are going to pull up 18 a Democratic ballot when they are intended to have a 19 Republican ballot, but that when they pull up a ballot a 20 race would be left off or that they will allow a key card to 21 be used multiple times. And that I think is of bigger 22 concern than the wrong ballot, because I think someone 23 obviously will notice the difference there. They may not if 24 a judges' race is left off or what have you. 25 I do recognize that there is a backup to use the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 53 1 TS machines and that there are TS machines at none of the 2 early voting sites in Los Angeles. So there is a means to 3 program these cards clearly, the VCProgrammer's the 4 preferred method since they can program them very quickly 5 and in large numbers, but it seems like a small aspect of 6 the whole system. But the PCM device which sought to do the 7 same thing was the critical failure point in San Diego. And 8 part of it was -- and although this is early voting, it's 9 not going to be as critical now, I'm just wondering out of 10 curiosity, and I don't know if this is something the vendor 11 can answer or you can answer, but is the software that's in 12 VCProgrammer the same software from the PCM device? 13 MR. WAGAMAN: No. It's a different software 14 package. 15 PANEL MEMBER CARREL: Okay. 16 MR. WAGAMAN: And I can't quite speak to all the 17 differences, whether it's developed in parallel or it's a 18 completely separate development track, the developer would 19 have to answer that, but it's not the same firmware. 20 PANEL MEMBER CARREL: Okay, thank you. 21 Would the vendor like to comment? 22 MR. VIADEL: Hi, I'm Tad Viadel, I'm Director of 23 Software Development. 24 In answer to your particular question is 25 VCProgrammer the same software as is used in the PCM, the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 54 1 answer is no, it's a totally different development group. 2 VCProgrammer actually has been used in other places for 3 quite a while. 4 PANEL MEMBER JEFFERSON: Without a NASED number? 5 MR. VIADEL: In places that don't require 6 certification. 7 PANEL MEMBER JEFFERSON: Okay. 8 CHAIRPERSON KYLE: Like where? 9 MR. VIADEL: Canada. The other thing, just for 10 clarification, what's stored on the smart card is strictly 11 the ballot identifier, not a set of races, so there's no 12 ability to leave off a key race, just so you understand 13 that. 14 PANEL MEMBER CARREL: When you say Canada, isn't 15 there just one jurisdiction in Canada that uses your 16 touchscreen machines? 17 MR. VIADEL: No. There's multiple. 18 PANEL MEMBER CARREL: Okay. Thanks. 19 CHAIRPERSON KYLE: Mr. Jefferson. 20 PANEL MEMBER JEFFERSON: I guess I'm concerned 21 about what we're being asked to do today. This is a major 22 new subsystem, not a lot of experience with it in the United 23 States in jurisdictions that require certification. It's 24 never been certified in California for use, it doesn't have 25 a NASED number yet, although I do expect one. But for a PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 55 1 system that's new, a subsystem that's new, we're being asked 2 to conditionally certify, we don't even have an ITA report 3 on it. I'm uncomfortable about even conditionally 4 certifying it without an ITA report considering it's a new 5 subsystem. Not that we can't revisit it again before the 6 election, but without -- 7 MR. WAGAMAN: With one point of clarification, we 8 won't be getting a report from Wylie because it's not 9 firmware and the system integration is from CIBER so without 10 -- it's the only report we wouldn't be receiving. 11 PANEL MEMBER JEFFERSON: And so that we do have? 12 MR. WAGAMAN: We have the letter, not the report. 13 PANEL MEMBER JEFFERSON: The letter, not the 14 report, okay. 15 And then the condition on conditional 16 certification here is that the counties submit a security 17 plan which we have not seen and which in my opinion, since 18 this is a major important subsystem, really belongs in the 19 procedures and should be in the procedures for us to 20 recommend certification on, rather than as sort of an 21 afterthought. In other words, the status of this part of 22 the system, the status of the security surrounding this, is 23 important enough to me that it deserves formal procedural 24 status, not a kind of procedural afterthought to our 25 recommendation. I guess I would like to see the ITA report PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 56 1 and the security plans before I would feel comfortable 2 voting recommending conditional certification, but I'd also 3 like to hear the other Panel Members points of view on this. 4 PANEL MEMBER CARREL: I'll speak to that. I don't 5 have a problem issuing conditional certification with one of 6 the conditions being a security plan that needs to be 7 approved if we clarify that installation can't be done until 8 we approve the security plan. 9 PANEL MEMBER JEFFERSON: Well, it's all right. Is 10 it we this Panel who will approve it, because I would like 11 to see it? 12 PANEL MEMBER CARREL: I don't know what the 13 process would be. 14 MR. WAGAMAN: The current language refers to that 15 would have to be approved prior to use. It's approved by 16 the Secretary of State's office, it does not speak to which 17 panel will be reviewing that. The one problem with bringing 18 it before this panel is as Mr. Clark has indicated, some 19 jurisdictions plan on using it prior to our next scheduled 20 meeting of October 5th. 21 PANEL MEMBER CARREL: Well, we can always schedule 22 another meeting. 23 MR. WAGAMAN: That would be at the Panel's 24 discretion. 25 PANEL MEMBER JEFFERSON: Well, and there was also PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 57 1 a concern, there was some mentioning of possible use in a 2 network manner in Los Angeles County where they have many 3 outlying. And I haven't seen the architecture of this 4 networking system. That immediately raises security alarm 5 bells in my mind, and maybe there's nothing to worry about, 6 but without documents, I can't review it. And that's my 7 concern. 8 CHAIRPERSON KYLE: I would agree with that point, 9 because it's one thing to have a stand alone PC, it's 10 another thing to have a network with a server, and it opens 11 up a whole other level. 12 Let's get some other comments from either of the 13 other -- 14 MR. WAGAMAN: Well, I think you guys are 15 proceeding from -- I will ask the Panel, there are some 16 security measures in the procedures at section 3.2.31, if 17 you want to look at some of those things. It doesn't cover 18 everything, because again of the differentiations between 19 how the system would be used in each jurisdiction, page 21, 20 tab 8. 21 CHAIRPERSON KYLE: While we're looking at this, 22 let me ask, Mr. Clark, since it's early voting and you're 23 using at the one site only, presumably taking one of the 24 TS's out of circulation, quote, unquote, to be used in the 25 early voting would have minimus impacts since they're going PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 58 1 to be sitting around anyways until election day; is that 2 correct, setting aside the ease of use or the pros and cons 3 of -- 4 MR. CLARK: Yes, we would have a TS available to 5 use to do that to do the cards. I think that the 6 possibility of error by the staff person in giving the wrong 7 ballot out is significantly higher if you used the TS 8 machine and you're having to find a thousand different 9 precincts, rather than having the computer select it. 10 CHAIRPERSON KYLE: Thank you. 11 PANEL MEMBER CARREL: I'm looking at the language 12 here and the procedures, and I'm noticing they're sort of 13 recommendations and not requirements, which -- 14 MR. WAGAMAN: Again -- oh, go ahead. 15 PANEL MEMBER CARREL: So I would recommend 16 changing some of these advisable, should, to must and 17 required. It says it's advisable to have one person 18 responsible for installing the program and loading files and 19 having access, key personnel should be consulted and most 20 likely must be used to facilitate installation and 21 operation, care should be taken to limit access to only the 22 necessary files in creation of voter access files, and 23 internet access should be disabled during this period, if 24 possible. I would recommend requiring internet access be 25 disabled during the period. The files should be promptly PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 59 1 removed at the close of early voting. I would suggest that 2 we change it to must be promptly removed and other things 3 like that. Which one? 4 CHAIRPERSON KYLE: Physical security. 5 PANEL MEMBER CARREL: Physical security, i.e, 6 being locked in a segregated room as most GEMS servers are 7 may have to be given up as these computers are also utilized 8 in the daily office environment. Most companies have 9 applied additional security to actual computers to limit 10 access and should. 11 I mean we should change that to counties must 12 apply additional security and try to define additional 13 security regarding physical security as well as technical 14 security. It does mention log sheets should be kept to 15 track users as well as reconciliation at the end of the day. 16 The end of the day to balance the numbers of cards issued 17 against the total ballots cast. I think that's critical in 18 regard to the point counted earlier regarding multiple use 19 by an individual card. And then it says physical access 20 will also be limited. So I think these begin to address our 21 concerns, but I don't think they do it as directly as they 22 should or as they must. 23 PANEL MEMBER DANIELS-MEADE: Or it would be 24 advisable. 25 CHAIRPERSON KYLE: Well, Mr. Clark, let me ask you PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 60 1 another question. Would that be a laptop used in other 2 daily office environments or would it be a dedicated laptop? 3 MR. CLARK: In Alameda County, we don't use 4 laptops. 5 CHAIRPERSON KYLE: Stand alone desktop? 6 MR. CLARK: Yes. 7 CHAIRPERSON KYLE: And would it be one that would 8 be utilized for other purposes during the day during the 9 week? 10 MR. CLARK: Yes. Generally these are loaded on 11 only the people at the front counter who are doing either 12 hand-entered absentee applications or serving the public 13 that comes in. And the supervisor and the assistant in the 14 absentee section have it loaded on their PCs. I don't have 15 it on mine. 16 PANEL MEMBER CARREL: Why don't we table this 17 until the end of the hearing and take a break before so that 18 we can move onto other issues. I know there's still concern 19 here and I hope there's more information we can gather. 20 CHAIRPERSON KYLE: Well, before we do that, let me 21 just see if there are any other Panel comments. 22 PANEL MEMBER MOTT-SMITH: Basically, I was going 23 to support Mr. Carrel's suggestion that a security plan be 24 submitted before installation and that Mr. Jefferson would 25 be part of the review of that process. It strikes me that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 61 1 this is only for early voting, two out of three counties are 2 in their headquarters environment, and I mean Mr. Clark 3 makes a compelling argument that this provides a greater 4 security against error than the prior system and that's 5 something that we should be looking at. I'd be willing to 6 go forward on that with those conditions. 7 CHAIRPERSON KYLE: Two of the counties are going 8 to have single site, however the largest county is going to 9 have multiple sites and isn't going to have stand alone 10 computers, it's going to be networked, so it's going to be 11 most problematic there. 12 PANEL MEMBER MOTT-SMITH: Again, that's where I 13 think the security plan would be part of that, and I think 14 Mr. Jefferson's participation in that would certainly 15 satisfy my concerns. 16 CHAIRPERSON KYLE: I'm going to open up to public 17 comment, then I'll entertain your idea, Mr. Carrel. 18 All right. Ms. Alexander. 19 MS. ALEXANDER: Kim Alexander, California Voter 20 Foundation. 21 I just have two comments about that. The first is 22 that if it's only applying for early voting sites, if and 23 when you do certify this, perhaps the certification could 24 specify that this only applies to early voting, that 25 VCProgrammer can only be used for early voting, if that's PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 62 1 not already one of the conditions, that you consider for the 2 conditional certification. 3 And the other point to make is that early voting, 4 while it is a nice idea and it's popular, it's not required 5 under law, it's not absolutely necessary to happen, and if 6 you see a security risk as I see it at risk going forward, 7 as I do, based on the discussion I've heard with early 8 voting sites in LA County at remote locations staffed by 9 volunteers working on networked laptops that have lots of 10 ports on them that may or may not be plugged up, that makes 11 me rather uneasy, as I think it does you too. And so I just 12 want to remind you that it's not required under law that 13 this even happen at all. Thank you. 14 CHAIRPERSON KYLE: Thank you. 15 Lucille Moyer. 16 MS. MOYER: Thank you. My name is Lucille Moyer, 17 I'm from San Jose, California. I hadn't planned to comment 18 on this, but I have a couple of questions about this. 19 One of you just brought up the idea, Mr. Jefferson 20 probably, about ending up with more votes than you have 21 voters. And when that happens, even though things are just 22 lock boxes, there's, you know, audit trails of who touched 23 what and who had what plan and all that stuff, in the end 24 when you count it and you've got more votes than you have 25 voters, what do you do? Computers can only regurgitate the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 63 1 same information, they can't recount anything. What do you 2 do? That's what I want to know. You know, how do you fix 3 it? Do you call the voters back to vote again? You know, 4 how do you recount it with no paper trail. 5 So I just want to know if you guys have a 6 contingency plan for recounting these votes that can't be 7 recounted. So it's just a question that always just keeps 8 coming up. No matter what the issue is, it always comes 9 down to the same issue. So I mean I would like to hear some 10 kind of answer about what are you going to do about it when 11 you've got more votes than you have voters. Thanks. 12 CHAIRPERSON KYLE: Thank you. 13 It seems to me that there's a desire, at least 14 among half the Panel to get more information on this. The 15 question I would pose is whether we seek that information 16 and roll this over to a later date, which would be my 17 recommendation, or somehow that you think us delaying it 18 until discussion after the next submission will bring 19 clarity. I'm not sure how that would do it, otherwise I 20 wouldn't entertain it. Do you think there's information 21 that can be gathered within an hour? 22 PANEL MEMBER CARREL: Well, we could table this or 23 set another date prior to the next meeting and have 24 discussion after we have more information. I think the 25 concern here is Los Angeles County which we don't have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 64 1 information on, there's no representative here from, and 2 from all three counties using this early voting, we don't 3 have clarification about the security procedures they're 4 going to implement. So maybe what we do is we -- I mean I 5 don't think we can do anything else other than, if we're 6 planning on approving this, is approve it conditionally with 7 security plans, and if security plans come in, they have to 8 be approved prior to the installation of the system in a 9 county. The only other option is not approving it in any 10 county. 11 CHAIRPERSON KYLE: Well, that's certainly an 12 option I'm considering. 13 Mr. Jefferson. 14 PANEL MEMBER JEFFERSON: See, I'm not sure what 15 the difference is between approving it conditionally now 16 pending the approval of a security plan later and not 17 approving it conditionally now and tabling it and 18 considering it later. And I don't want to send a signal to 19 the counties that this is all but done when I at least don't 20 feel that it is all but done. And I am comfortable, pretty 21 comfortable, with Alameda and Plumas Counties, and maybe we 22 could separate the consideration of them from Los Angeles, 23 but we have too little information about Los Angeles and I 24 think too much hinges on the details there. And even so, 25 and I am still concerned about conditional conditional PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 65 1 certification. I mean I think we should consider it when we 2 have all the relevant information. 3 PANEL MEMBER CARREL: I guess my point is that it 4 seems that as a program itself that's not what we're 5 concerned about. We're concerned about implementation by 6 the counties. And so the certification of the system as a 7 system or subsystem, it seems to be adequate to serve what 8 we're trying to achieve with regard to what the vendor is 9 supposed to promote and it meets the technical requirements 10 per our testing. What we're concerned about is 11 implementation by the counties and the procedures 12 implemented by the counties, and so I would recommend it 13 just can't be implemented in the county unless counties meet 14 certain specified requirements such as providing us a 15 security plan that's approved by us. Because we're 16 basically putting it on the counties anyway. But if we 17 don't certify it based on something that's up to the 18 counties, it seems like we are laying blame on a system that 19 is technically satisfactory according to our technical 20 advisors, even though the implementation is what's at 21 question. 22 PANEL MEMBER JEFFERSON: But it's not even that, 23 we have no NASED certification. We don't have that either. 24 PANEL MEMBER DANIELS-MEADE: But we don't have 25 that for any of -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 66 1 PANEL MEMBER CARREL: And the clear condition is 2 we need to receive NASED certification before anyone can use 3 it anyway, apart from the security requirements, and we need 4 to receive that by September 27th. 5 CHAIRPERSON KYLE: Well, I think you have defined 6 the issue though, David, and that is do we conditionally 7 certify it with conditions later or do we table it until we 8 have more information on the 27th. And that would be a 9 federal NASED number, federal qualification, and more 10 specific security plans, and an ability for staff to work 11 with the counties in addressing some of the concerns that 12 we've raised. I don't believe it does meet the technical 13 requirements, I'm of the opinion it's still -- once we get 14 the NASED number, I would feel comfortable saying that, but 15 we don't have the NASED number. We do have a new system, 16 and it gives me pause for thought. Maybe we do bifurcate it 17 into the small counties where it's stand alone and Los 18 Angeles. 19 So I would like to suggest that we take a ten- 20 minute break. And I don't want to make it longer, because 21 we have one more agenda item and we have to be out of the 22 room today. So I think we can do it all, but I have 11:41, 23 I would like to reconvene at a quarter of, at 11:45, so that 24 gives us just six or seven minutes to run out. 25 PANEL MEMBER DANIELS-MEADE: That would be three PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 67 1 minutes. 2 CHAIRPERSON KYLE: I'm sorry -- 3 PANEL MEMBER CARREL: I have 11:38. 4 CHAIRPERSON KYLE: I'm sorry, ten minutes. 5 (Thereupon a recess was taken.) 6 CHAIRPERSON KYLE: We got some information through 7 Martin Singleton who got a hold of Los Angeles and gave the 8 information to Mike Wagaman. 9 Mike, would you mind reading that. 10 MR. WAGAMAN: The County's intent is to use -- 11 CHAIRPERSON KYLE: For Los Angeles, right? 12 MR. WAGAMAN: The County of Los Angeles' intent is 13 to use VCProgrammer at 16 locations, one would be at the 14 central Norwalk facility, the other 15 would be remote 15 locations, eleven of those would be using PCs, four would be 16 using laptops. The program would be linked through a 17 network to their voter registration database. They would be 18 using it in the automatic mode that was described during the 19 original staff report. 20 PANEL MEMBER CARREL: Does that mean that each 21 laptop and PC would have the program on there or the program 22 would come through the network? 23 MR. WAGAMAN: No. The program is loaded on that, 24 then it would be linked through the network in order to link 25 to that voter registration system in order to use it in PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 68 1 automatic mode. 2 PANEL MEMBER JEFFERSON: So when you say the 3 network, Los Angeles county is big, we're not talking about 4 a local network here, we're talking about a big virtual 5 private network? 6 MR. WAGAMAN: I don't have additional information 7 on the nature of the network. That would be one of those 8 things we would be looking at in the security plan, either 9 with or without the Panel meeting again, that's one of those 10 things that we would be specifically looking at. 11 CHAIRPERSON KYLE: So let me see if I can 12 recapitulate. Basically, we have a few concerns. One is 13 the distinction between smaller counties that are using a 14 single point and the larger county. The other is addressing 15 security plans and security procedures that are adequate to 16 using a PC or a desktop. It doesn't go to the count 17 tabulations, so we're really just talking about precinct 18 assignment. And we learned from discussions, if I 19 characterize this correctly, Mr. Clark, with Alameda that 20 the front desktop computers that are being used would be 21 with a local area network or the servers based in your 22 office and just locally. Is it with all of the county or 23 just to the elections division? 24 MR. CLARK: May I answer from here? 25 CHAIRPERSON KYLE: Sure. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 69 1 MR. CLARK: The front counter is just to our 2 server. 3 CHAIRPERSON KYLE: Can you hear him? 4 MR. CLARK: The front counter is just to our 5 elections servers. The supervisor and her assistant are on 6 the county intranet. 7 CHAIRPERSON KYLE: The county intranet system, 8 okay. 9 Okay. Slightly stymied here. I'll entertain a 10 motion. 11 PANEL MEMBER CARREL: I would turn my 12 recommendation into a motion that we conditionally certify 13 with all the conditions, including that this only be used 14 for early voting, and with an additional condition that this 15 program cannot be installed in any county until the county 16 receives approval from a security plan for how they intend 17 to use VCProgrammer. 18 PANEL MEMBER DANIELS-MEADE: Second. 19 MR. WAGAMAN: Can I ask a couple questions on the 20 motion? 21 CHAIRPERSON KYLE: Certainly. 22 MR. WAGAMAN: That would also include the change 23 of requiring a submission date on the 27th; is that correct? 24 CHAIRPERSON KYLE: Correct. 25 PANEL MEMBER CARREL: Yes. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 70 1 MR. WAGAMAN: And would that also include Mr. 2 Mott-Smith's language about approval, including that of the 3 Chair of the Technical Oversight Committee? 4 PANEL MEMBER CARREL: I don't know if that needs 5 to be part of the motion, but I think from a staff 6 consideration, using Mr. Jefferson or his review would be 7 advisable. 8 MR. WAGAMAN: Thank you. 9 CHAIRPERSON KYLE: I would also like to have 10 discussed the procedures as they were written are inadequate 11 and they need to be strengthened, so it isn't just a 12 security plan coming from the counties, but the procedures 13 that we currently have where we have shoulds and may. 14 MR. WAGAMAN: Submission from the vendor modified 15 procedures to make the requirements, the section 3.2.3.1 16 requirements as a post recommendation prior to your 17 approval? 18 CHAIRPERSON KYLE: Correct. 19 Is the maker of the motion. 20 PANEL MEMBER CARREL: I would agree to include 21 that as a condition. 22 PANEL MEMBER JEFFERSON: May I ask a question? 23 CHAIRPERSON KYLE: Sure. 24 PANEL MEMBER JEFFERSON: I would just like to know 25 what is the process we will go through to make it our final, PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 71 1 or will this be our Panel's final recommendation to the 2 Secretary of State or will we go through another step as a 3 Panel? Just a question. 4 PANEL MEMBER CARREL: If we approve this motion, 5 the only further steps would be from staff, hopefully in 6 consultation with you, reviewing the security plans, and to 7 sign off on the procedural changes. But I mean we would 8 recommend that the Secretary not concur with the 9 recommendation until the procedures are modified as well, so 10 he doesn't do a final sign off until those procedures are 11 changed. And I'm sure the vendor can make those 12 modifications to the procedures within the next several 13 days. It usually takes them three or four days to sign off. 14 CHAIRPERSON KYLE: The alternative is that we 15 could set a date of the 27th to make sure all the ducks are 16 lined up in a row. 17 MR. WAGAMAN: And I have the schedule for the 18 availability of this room, if the Panel decides to go that 19 direction so you can schedule dates. 20 CHAIRPERSON KYLE: What's the 27th look like? 21 MR. WAGAMAN: The 27th, it looks like there's a 22 meeting in the morning, I don't know if it extends all day 23 until 5:00 o'clock. So this room would be reserved on both 24 the 27th and 28th. So we would have to either look at an 25 earlier date on the 24th or the 29th. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 72 1 CHAIRPERSON KYLE: Or find an alternate venue. 2 MR. WAGAMAN: Or find an alternate venue, correct. 3 PANEL MEMBER CARREL: I would recommend Los 4 Angeles, then we would get our answers quicker. 5 PANEL MEMBER MOTT-SMITH: I would like to speak in 6 support of the motion. It seems to me that at least in my 7 mind that the legitimate security issues either have been 8 addressed or can be addressed and can be addressed through a 9 process that involves staff, David, and the approval of the 10 Chair. 11 And I think we have a significant interest in 12 trying to move this forward. Early voting is an opportunity 13 for persons with disabilities in Los Angeles County who 14 don't have access to accessible voting to be able to cast a 15 private and independent vote. It's an opportunity for 16 people with language limitations to also vote in the 17 language that they're most comfortable in. So I think it's 18 important that we move this forward and do signal that we 19 are going to try and move this forward unless we run into 20 something insurmountable with the security review. 21 PANEL MEMBER DANIELS-MEADE: I'm in favor of the 22 motion myself. 23 CHAIRPERSON KYLE: Any other discussion? 24 Mr. Kercher. 25 PANEL MEMBER KERCHER: Based upon the way that the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 73 1 devices are being used both in the small and the large 2 counties, it's not clear to me that we can receive 3 procedures that will ensure that internet access can be 4 disabled. And I will want to know that that is something 5 that can be accomplished, and I don't think we can do that 6 until we see the procedures. There's a possibility that 7 they cannot provide procedures to limit internet access as 8 recommended in the generalized procedures, and I don't feel 9 comfortable supporting the motion to certify these. 10 CHAIRPERSON KYLE: Okay. Any further discussion? 11 PANEL MEMBER CARREL: Let me clarify the motion as 12 to the procedures. 13 CHAIRPERSON KYLE: Okay. 14 PANEL MEMBER CARREL: We need to reiterate what 15 the condition is with regard to revising the procedures by 16 the vendor, or how I can propose it. 17 MR. WAGAMAN: I don't have the exact language, but 18 it would say something to the effect that prior to the 19 September 27th date, the vendor must submit modified 20 procedures regarding security of VCProgrammer, specifically 21 modifying section 3.2.3.1 to make its recommendations 22 requirements. 23 PANEL MEMBER CARREL: That's very good, thank you. 24 CHAIRPERSON KYLE: Okay. So we would be looking 25 at modifying Recommendation Number 3 to set a date specific PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 74 1 of September 27th, adding Number 8, only used for early 2 voting, Number 9, can't be installed prior to I'm going to 3 say September 27th as an outside date. 4 PANEL MEMBER CARREL: What can't be installed? 5 CHAIRPERSON KYLE: The VCProgrammer can't be 6 installed on -- 7 PANEL MEMBER CARREL: Well, we should say it can't 8 be installed until -- 9 CHAIRPERSON KYLE: Approval. 10 PANEL MEMBER CARREL: Well, the vendor has to 11 submit revised procedures by September 27th, and then it 12 can't be installed in any county until and unless security 13 procedures have been approved by the Secretary of State and 14 that can be no earlier than September 27th. 15 CHAIRPERSON KYLE: I don't want to make it 16 contingent only on -- or I would oppose the motion if it is 17 only contingent of security measures, because we're still 18 waiting for a NASED number. And let's say we get a good 19 security plan and we don't have a NASED number by the 27th. 20 PANEL MEMBER CARREL: I would concur. 21 CHAIRPERSON KYLE: So if all of the conditions are 22 met, the vendor plan, county plan, NASED number. 23 MR. WAGAMAN: Compliance with all the other 24 federal -- 25 CHAIRPERSON KYLE: All right. Then that I could PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 75 1 live with. 2 PANEL MEMBER CARREL: I concur. I didn't mean to 3 ignore the NASED number. 4 CHAIRPERSON KYLE: It's a minor detail. 5 PANEL MEMBER DANIELS-MEADE: Mr. Chair, I'm not 6 certain that we need to actually make Number 8, I believe 7 you called it, for the early voting. Because if you read 8 the condition that was already set forth in the 9 recommendation from the staff, it says the AccuVote-TS shall 10 only be used in the counties of Alameda, Plumas, and Los 11 Angeles for early voting, and only in the county using the 12 AccuVote-TS with security measures, blah, blah, blah. So 13 we've already covered it, early voting, in that. 14 MR. WAGAMAN: The language applied was actually 15 provided from the previous certification of the TS and it 16 was originally meant to say Alameda and Plumas for any 17 purpose on the TS, and early voting only in Los Angeles, but 18 you can modify the language. 19 PANEL MEMBER DANIELS-MEADE: Right. Other than 20 the fact that simply by putting a comma after Alameda and 21 taking out the and, and agreeing to have it read Alameda, 22 Plumas and Los Angeles for early voting. 23 CHAIRPERSON KYLE: Does that comport with your 24 planned use though, Mr. Clark? It does? Okay. 25 What are you going to use for regular voting, the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 76 1 TS? 2 MR. CLARK: Well, for the regular voting, we're 3 using the Stylus. 4 CHAIRPERSON KYLE: Oh, right. Okay. 5 All right. Then do you accept that as -- I think 6 you're right. 7 PANEL MEMBER CARREL: Concur. 8 CHAIRPERSON KYLE: All right. 9 PANEL MEMBER CARREL: Accepted. 10 CHAIRPERSON KYLE: Modify the language here. 11 PANEL MEMBER CARREL: As modified. 12 CHAIRPERSON KYLE: All right. 13 Then all those in favor -- any further comments, 14 I'm sorry. 15 PANEL MEMBER CARREL: We had public comment. 16 CHAIRPERSON KYLE: We have a second. 17 All those in favor say aye. 18 (Ayes.) 19 CHAIRPERSON KYLE: All those opposed? 20 (No.) 21 CHAIRPERSON KYLE: That's two no's and four ayes. 22 I want to add that I think we should have some 23 type of report back from the staff prior to or about the 24 27th so that there can be public notice on this point. 25 MR. WAGAMAN: Is the Chair's desire to have that PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 77 1 in a report on the October 5th meeting date or as a report 2 issued on the website as an adjunct to the current staff 3 report? 4 CHAIRPERSON KYLE: That will be my desire that we 5 have a -- 6 PANEL MEMBER CARREL: A status update is what 7 you're saying? 8 CHAIRPERSON KYLE: Yes, a status update. 9 PANEL MEMBER CARREL: The NASED was received and 10 new procedures and what are they and did we receive a 11 security plan? 12 CHAIRPERSON KYLE: Correct. 13 MR. WAGAMAN: So we would post the revised 14 procedures as soon as they become available and then we 15 would post an update as far as the security plans and NASED, 16 et cetera, the other requirements by the 27th. 17 Mr. Stuart points out I can actually have to the 18 28th so that I have a chance to read the reports. 19 CHAIRPERSON KYLE: We'll give you until the 28th. 20 Okay. Let's move to the new Number 4, the old 21 Number 5. 22 MR. WAGAMAN: We're going to be at Tab Number 14. 23 This is an application from Sequoia Voting Systems 24 for a modification to their currently used WinEDS, AVC Edge, 25 Optech 400C package. There are four system components. The PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 78 1 first is WinEDS, it's a modification from their currently 2 certified Version 3.0.99 to Version 3.0.134. WinEDS is the 3 election management system software package. 4 The modifications to WinEDS fall into three 5 general categories. The first category relates to the 6 interaction between WinEDS and the 400C. The 400C was 7 previously certified with the condition that it had to be 8 used in conjunction with the EMS Arrow central tabulation 9 software, the reason being there was during state testing an 10 anomaly identified where the results were not properly 11 recorded in the interaction between WinEDS and the 400C, so, 12 therefore, it was required that the 400C had to be used in 13 conjunction with that EMS Arrow. The vendor has made 14 modifications to correct that, so the 400C can now properly 15 work with the WinEDS correctly. 16 The second modification is that the 400C would now 17 be able to support multicard ballots, which is a desire from 18 at least one of the counties to make use of that 19 functionality. 20 The second category relates to interactions 21 between the WinEDS and the AVC Edge. One of those is that 22 it allows the audio function to follow the same rotation 23 rules as the rest of the ballots. Rather than the audio 24 just reading in alphabetical order, the audio would be 25 rotated in the same order the ballots are rotated on the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 79 1 screen. 2 In addition, there's an anomaly corrected where 3 under the previous version under certain situations, the 4 review screen would appear in english when you're voting, 5 for example, on a character based ballots, like the Chinese 6 ballot, the rest of the ballot would appear in Chinese, but 7 the last page, the review screen, would appear in english. 8 That's been corrected. 9 The third category are added or modified reports. 10 Things like an added report on provisional ballot status, 11 modifications to the Statement of Vote, and a modification 12 to turn out registration reports. 13 The second component is the AVC Edge 4.2A. It's a 14 modification from the currently certified Version 4.2. 15 There's a typo in the staff report on that. The AVC Edge is 16 a self-contained touchscreen voting device. The 17 modification is to correct for a single anomaly that was 18 identified wherein certain situations where a ballot that 19 was a vote for more than one on the review screen would wrap 20 over two columns that in some situations it would cause an 21 error where the system would basically crash and have to be 22 restarted. The vendor had not identified all the various 23 things that had to happen in order to cause that error to 24 happen, but it has been corrected under this new Version 25 4.2A. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 80 1 The third component is the card activator, Version 2 4.3.2. This is the firmware on the unit that actually 3 activates the voter access cards. It's unchanged from the 4 previously certified version. 5 The fourth component is the Optech 400C, Version 6 1.02B. This is a central count optical scan system. It's 7 an older system that predates actually the existence of 8 Sequoia. It has not been modified from the previously 9 certified version, however, some of its functionalities have 10 been changed by the WinEDS as previously discussed with it 11 being able to be used correctly with WinEDS and it now being 12 able to support the multicard ballots. 13 The federal process. We have again received the 14 letters from the ITAs, however, we have not received final 15 reports and we have not received the final qualification 16 number. So again there will be a recommendation that those 17 be put as conditions with a time specific date. The final 18 qualification will be to the 1990 standards. 19 State testing. The state test finally was 20 completed in late August in Oakland. During state testing, 21 one thing was an anomaly identified where the system 22 recording function cannot support a California primary. It 23 was not capable of reporting a split on a DTS versus 24 declared and then the aggregate. There is a capability of 25 it that was demonstrated using a program called Report PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 81 1 Viewer, however, Report Viewer was not part of the federal 2 qualification process. So the recommendation which we'll 3 get to later as to both requiring Report Viewer to go 4 through that independent review prior to being used in a 5 primary and the requirement of Report Viewer to not be 6 installed on a computer running WinEDS until that process is 7 completed, which we'll get to later. 8 A review of the state and federal laws. 9 Obviously, there is a problem as related to its compliance 10 with the California primary rules. There was also an issue 11 identified where the system does include a provisional 12 write-in, and automatic resolution of provisional ballots 13 that were cast in the wrong precinct. However, it was 14 identified that that process does not work for split 15 precincts. So for those ones, the ballot can still be hand 16 recreated, because the system does allow you to view the 17 ballot image prior to acceptance or rejection. So the 18 system can still meet provisional requirements for 19 California, however, the procedures have been modified to 20 say that that automatic function cannot be used in ballots 21 involved in a split precinct. 22 In addition, the system provides procedures 23 submitted for the revised procedures, they have been 24 modified to add the additional security requirements, again, 25 along the same lines as discussed with previous vendors. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 82 1 The system does not currently include a voter-verified paper 2 audit trail, so it will have recommendations for 3 restrictions from the April 30th directive, including that 4 it will timeout after July 1 of 2006 and that it would be 5 limited to those counties that used the system in the March 6 election as applies to the AVC Edge. 7 Again, as discussed, there was another issue 8 identified during federal testing where the resolve write-in 9 process on the system, there's an automatic resolve write-in 10 that can be done directly through the WinEDS that was 11 identified that that would create potential discrepancies 12 between the summary report and the precinct reports, 13 therefore, the federal ITAs are going to recommend that that 14 not be used. The procedure has been modified saying that 15 they cannot be used, so write-in resolution would have to be 16 done through a manual process, not through the built in 17 process in WinEDS. 18 For these couple of anomalies I've mentioned, 19 these are preexisting anomalies in the currently certified 20 versions, these are not new anomalies, they were just not 21 previously identified. 22 I've covered the issue as related to the fail safe 23 provisionals. Procedures have been reviewed, for additional 24 considerations again to acquire from April would apply. 25 Late public comments were received and distributed PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 83 1 to the Panel previously under the previous item. 2 As to the recommendations. Staff recommends 3 certification of the Sequoia Voting Systems WinEDS 3.0.134, 4 AVC Edge 4.2A, Card Activator 4.32, and Optech 400C 1.02B 5 with the following conditions, and I'll touch on each of the 6 conditions as we go through them. 7 Conditions 1 and 2 relate to the submission of ITA 8 reports and the final federal qualification, again, with a 9 specific due date of September 27th, the same date as the 10 previous applicant. 11 Items 3 and 4 relate to the function of the Report 12 Viewer program that, A, may not be installed on a computer 13 running WinEDS, as it's not gone through that federal 14 qualification process. It's not required to run a general, 15 but it is required to run a primary, which leads to Item 4, 16 which is that the source code for that be successfully 17 reviewed by independent tester designated by the Secretary 18 of State office prior to its use in a California primary, 19 prior to the use of WinEDS 3.0.134 in a California primary. 20 Item Number 5 relates to the write-in resolution 21 function in WinEDS not being used. As discussed, it would 22 have to be used through a manual process. 23 Item 6 through 8 relate to compliance with the 24 April 30th directive. The vendor has expressed some concern 25 as related to that language and agreements that have been PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 84 1 made subsequently relating to the memorandum. So I 2 understand some counties with the vendor, et cetera, 3 although I hope the vendor will elaborate on those concerns 4 after the conclusion of the staff report. 5 And Item Number 9 -- 6 CHAIRPERSON KYLE: Mr. Wagaman, I just want to 7 point out you have a verb tense that's incorrect in the 8 first sentence. 9 MR. WAGAMAN: Of which -- 10 CHAIRPERSON KYLE: Of Number 6. 11 MR. WAGAMAN: I would point out that that language 12 actually came from the esteemed Mr. Miller. 13 Item Number 9 -- 14 CHAIRPERSON KYLE: Number 7 you were on. You were 15 on Item 7. 16 MR. WAGAMAN: Item 6 through 8 all relate to that 17 compliance with the April directive, again, with that one 18 concern that the vendor has raised, which they can come back 19 on. 20 And Item Number 9 is again that standard language 21 as relates to modifications of the procedures at a later 22 date. 23 That concludes the staff report. If there are any 24 questions of staff or, as I said, the vendor would like to 25 comment on at least one of the recommendations. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 85 1 CHAIRPERSON KYLE: Any comments or questions for 2 Mr. Wagaman from the Panel. 3 Mr. Jefferson. 4 PANEL MEMBER JEFFERSON: I'm going to be 5 embarrassed, but what is the write-in resolution function? 6 MR. WAGAMAN: The write-in resolution function is 7 a person on the DRE will cast their ballot, type in the name 8 of the write-in, that is now stored as what's called an 9 unresolved write-in, which you can see what that unresolved 10 write-in was, you can look at it. And then the way it's 11 designed is they can go through and say this one is 12 accepted, this is a certified write-in, this one isn't and 13 reject it, or they can say they wrote in the name of 14 somebody already on the ballot and assign that vote to that 15 particular person on the ballot and do that process. 16 The issue is that when doing so, it will cause in 17 some situations, the summary report will be correct but the 18 precinct reports will not be. The way that is resolved 19 under this system and would be resolved under the 20 recommended certification is they can print a report that 21 has all of the unresolved write-ins and then hand count 22 those back in after the fact. So they can't use the 23 automated function of the system. 24 PANEL MEMBER DANIELS-MEADE: Well, since we're 25 asking silly questions, and I'm not sure if this is silly or PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 86 1 not, but I'm not certain, I have to admit by the time I got 2 to this last night it was getting real close to midnight 3 because it's far back in the binder, but there was concern 4 expressed on page 15 with respect to the fail safe for 5 provisional ballots and the inability to resolve those 6 except manually. Do we have something in our recommendation 7 that addresses that issue, because it's not immediately 8 jumping out at me? 9 MR. WAGAMAN: It is not, as I recall, in this 10 particular opinion. And you all have to remember I wrote 11 this a little ways ago, but it's not specifically included 12 in the recommendations for certification, it is included in 13 the procedures. If you want to add it as a condition on the 14 certification, that will be at the Panel's discretion. 15 PANEL MEMBER CARREL: I have two questions. Item 16 Number 4 or Recommendation Number 4, it talks about the 17 source code of the Report Viewer should be successfully 18 reviewed by an independent tester designated by the 19 Secretary of State's office prior to its use in a California 20 primary. I'm wondering does that preclude us requiring 21 federal testing? 22 MR. WAGAMAN: According to the Secretary of State 23 directive, that Report Viewer had to be completed by -- that 24 would have to be done by the federal process, and that's who 25 we would designate as the -- PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 87 1 PANEL MEMBER CARREL: No. But does this condition 2 mean that we're not requiring it to go through federal 3 testing and get approved by an ITA and NASED? 4 MR. WAGAMAN: That language does not require that 5 it be, and again, at the discretion of the Panel, if you 6 wanted to make that as a requirement that the Report Viewer 7 would have to be federally qualified prior to its use in a 8 California primary, that would be at the Panel's discretion. 9 PANEL MEMBER CARREL: I would so recommend that 10 that change would be made. 11 And then Number 6 and Number 7, the language is 12 similar, but you do talk about as further clarified by the 13 Secretary of State memorandum of understanding and other 14 agreements in 7 and you don't mention it in 6. I'm 15 wondering if that shouldn't be included in 6 as well? 16 MR. WAGAMAN: This language was taken directly 17 from the certification issue that under the Diebold TS 18 certification with modifications for which counties are 19 relevant. So if you would prefer to modify that 20 certification, modify that language, that's again at the 21 Panel's discretion. But that's where the language 22 originated from. 23 PANEL MEMBER CARREL: Well, I'm just suggesting 24 that the security measures contained in the directive may 25 clarify it and modified by the memorandum, and I don't know PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 88 1 if there's a different memorandum or if it's the May 14th 2 memorandum which should have been included in 6 as well. 3 MR. WAGAMAN: If that's a modification the Panel 4 takes, staff would take the option of including that in the 5 other items for other DREs that have included that exact 6 same language. 7 PANEL MEMBER JEFFERSON: So another questions 8 regarding Report Viewer. Again considering that we are 9 planning to revisit our entire certification procedures and 10 so on and due to the discussion earlier today and last 11 Thursday, since the Report Viewer is only intended for 12 primary elections. 13 MR. WAGAMAN: The Report Viewer is similar to 14 those additional utilities I described under the Hart 15 system. It can be used to report other additional reports 16 not generated by WinEDS. So the vendor may in fact use it 17 in the general election, but that's the reason the staff 18 recommendation is that you put the same requirements you put 19 on Hart which is that if it's a piece of software that's 20 programmed by the vendor that has not gone through federal 21 testing, that it does not touch the same computer that's 22 running the certified set of systems. 23 PANEL MEMBER JEFFERSON: No. What I was trying to 24 get at is that we are going to be again reconsidering all of 25 our certification standards and so on and all of these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 89 1 systems will be reconsidered, and no matter how we decide to 2 do that, it's going to be well before the next primary; am I 3 correct? And so the language here seems to suggest that the 4 certification we are recommending might last as long as the 5 next primary and I just did not want to leave that 6 impression if that's not our recommendation. 7 MR. WAGAMAN: It's my understanding the vendor's 8 intent is not to use the system, they'll have a new version 9 by then. This was presuming the action that this version is 10 preferred. In the staff recommendation, this version is 11 preferable to the currently certified version, the .99 12 version, as all the problems described herein are common 13 between the .99 and the .134. 14 PANEL MEMBER JEFFERSON: I understand that. I'm 15 just referring to the mention of the primary election, 16 that's all. I understand your point that it's preferable. 17 PANEL MEMBER CARREL: Rethinking, we may just want 18 to strike Number 3 and Number 4 because Report Viewer would 19 only be used in California primaries, and if we don't 20 mention it explicitly, it implicitly needs to go to federal 21 review, and I don't know that there's a need to mention a 22 primary in here either. Leaving 3 in saying that it can't 23 be installed, I think is necessary. 24 MR. WAGAMAN: The only recommendation from staff 25 would be that you would include language that would say the PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 90 1 WinEDS cannot be used for a California primary then. 2 PANEL MEMBER CARREL: Yes. 3 CHAIRPERSON KYLE: So that's your recommendation, 4 Marc? 5 PANEL MEMBER CARREL: That would be my 6 recommendation, yes, that WinEDS not be used for a primary 7 and that we then remove 4 and 5. We modify 4 to say that 8 and remove 5. No, I'm sorry, not 5. Let me correct this. 9 We leave in 3 and we change 4 to say that WinEDS cannot be 10 used for a primary, Win Version 3.0.134. 11 CHAIRPERSON KYLE: Other comments from the Panel? 12 PANEL MEMBER JEFFERSON: Just so I understand, 13 Marc, I'm just trying again to be consistent with our 14 previous usage and whatever we say regarding whether this is 15 a certification for one election only or for a time period, 16 however we resolved that issue for Hart and for ES&S, if we 17 revisit the ES&S decisions last Thursday. I just want to 18 make this consistent. But mentioning the primary seems not 19 consistent, mentioning it at all seems not consistent for 20 WinEDS or for Report Viewer, that's what I was trying to get 21 at. Am I misunderstanding? 22 MR. WAGAMAN: I would actually provide two points 23 of clarification. One, this is a unique situation. None of 24 the applications that previously came before the Panel was 25 capable of running a general but not a primary, which is why PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 91 1 that additional language would be desired. On a staff 2 level, we would still recommend leaving in the language on 3 3, that would be a parallel to the language that you 4 required for the Hart system that again these additional 5 utilities that have not gone through federal testing not be 6 installed on the same computer that is running the certified 7 qualified software. 8 PANEL MEMBER JEFFERSON: Which means what? 9 MR. WAGAMAN: Report Viewer, is that it provides a 10 very similar function to one of those utilities that was 11 described under the Hart report. 12 PANEL MEMBER MOTT-SMITH: It may be worthwhile to 13 be more precise about the term California primary election 14 because I assume you mean a state direct primary, not a 15 vacancy election nor necessarily if there's a local 16 election? 17 MR. WAGAMAN: Correct. The election it can't run 18 and support is one that requires that split between DTS and 19 declared. 20 PANEL MEMBER MOTT-SMITH: So maybe just say a 21 state direct primary. 22 CHAIRPERSON KYLE: Anything else, John? 23 Lee? 24 Caren? 25 All right. Then does the vendor? You don't have PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 92 1 to. 2 MR. BISHNARDO: Thank you. I'm Pat Bishnardo with 3 Sequoia Voting Systems. 4 I think we're comfortable with the recommendation 5 that the clarification as I understand it that Mr. Carrel 6 mentioned about the condition on making sure that the 7 requirements of the directive from the state included both 8 agreements from the state, the county, and the agreements 9 the state has with vendors. I think as long as all that is 10 incorporated, then that was the only concern I had. 11 Everything else would be fine in our opinion. 12 Thank you. 13 CHAIRPERSON KYLE: Any questions or comments? 14 Okay. I believe there are public comments? 15 No, you will pass? Because you're the only one 16 written down. 17 Come forward, Ms. Moyer. 18 You have the floor. 19 MS. MOYER: Lucille Moyer, San Jose, California. 20 I just want to make a comment reading through the 21 compliance with state and federal laws and regulations for 22 Sequoia and also for Diebold. As it turns out, on the 23 WinEDS, it's the administrative review and analysis. Page 5 24 is missing from this report. This gentleman only gave us 25 and made one copy of it for us that has it included, but I PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 93 1 think everybody else's package, page 5 is missing. 2 But the section that I'm referring to, this seems 3 to be pretty -- 4 CHAIRPERSON KYLE: Before you go on. 5 Is that true and can we make a page 5? 6 AUDIENCE MEMBER: There's 20 full copies up at the 7 back. 8 MS. MOYER: Okay, sorry. It's missing. 9 CHAIRPERSON KYLE: Tab Number 5. For those of you 10 who want a complete set, there's Tab Number 5 up at the 11 table. 12 MS. MOYER: Yes. Thanks for doing that. 13 But what I noticed, it looks like this is 14 information that is just standard for each of these things. 15 But in section, it's Item Number 4, section 103A.4, the 16 system shall be auditable for the purposes of an election 17 recount and contest procedure. The answer for Diebold says 18 the system meets this requirement and the response for 19 Sequoia is a little bit longer. But that's not what my 20 concern is. 21 My concern is that in both cases they may be 22 auditable for who handled what, when, and where, but they 23 are not suitable for a recount because you can't recount 24 them. Bringing up my same subject, you cannot recount the 25 votes accurately, because there are no votes to recount. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 94 1 It's all electronic and it's just going to regurgitate the 2 same identical information. If there is any kind of a close 3 call between candidates, when it's recounted you're going to 4 get the exact same information, it's not going to be 5 recountable because there's no paper ballot. So I just want 6 to go on record once again as stating we need to go back to 7 paper ballots. 8 And the other question that I have is that the 9 Panel didn't respond, Mr. Jefferson did privately when we 10 talked, about what are you going to do when you find out 11 there's a big problem at election time. Mr. Wagaman said to 12 me it's up to the counties to certify the vote in their 13 counties to resolve any issues if big discrepancies are 14 quite obvious. You know, I think another lady in the 15 audience mentioned that in a hispanic community most 16 oftentimes you would expect a higher percentage of the vote 17 to go to the hispanic candidate, and in some elections, that 18 didn't happen, and those were glaring probably warning 19 signals or red flags to take a look at the vote. 20 But what I still want to know and I'm hoping I'm 21 going to get some kind of answer today, in general, is what 22 are you going to do, what's the procedure, you know? The 23 Panel here is doing its best to resolve all the issues, but 24 you're handing out your decisions to the counties and 25 approving what are we going to do, approve and certify these PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 95 1 machines. But then to have the counties be responsible for 2 figuring this out when the voters are flipping out in their 3 counties, it seems to me unfair. 4 I'd like to know what the Panel or the state has 5 decided to do in the case that it's clearly been that a vote 6 has clearly been fraud or error or whatever. And I would 7 like some comment from the Panel today about what the 8 responsibilities is here for fixing it. Thank you. 9 CHAIRPERSON KYLE: You're welcome. 10 Just for point of information, we'll take your 11 question under submission. You're welcome to stick around 12 and talk with the Panel or staff afterwards, but it's not 13 our role to answer every question that comes up, though we 14 try to address a lot of them that are relevant and on point 15 to the agenda items. 16 MS. MOYER: Well, is there any kind of -- 17 CHAIRPERSON KYLE: So after the meeting, if you 18 want to come up and talk, then you can do it. Otherwise we 19 can engage in e-mail responses. And there is an answer to 20 your question, at least in part. Whether you will find it 21 satisfactory, I don't know, but there's an answer. 22 And Ms. Smith. 23 MS. SMITH: Less than half a minute. 24 Maureen Smith. 25 I just want to go on record that Peace and Freedom PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 96 1 Party opposes any and all systems that have any ability for 2 breach of security, and that would include this one with the 3 backdoor. 4 Thank you. 5 CHAIRPERSON KYLE: Thank you. 6 Any questions or comments from the Panel? 7 PANEL MEMBER CARREL: Is there a motion? 8 CHAIRPERSON KYLE: No, there's not a motion. I 9 would entertain a motion in any direction from anyone. 10 PANEL MEMBER CARREL: I would so move using the 11 conditions expressed earlier by staff. 12 PANEL MEMBER DANIELS-MEADE: Second. 13 MR. WAGAMAN: As a point of clarification, would 14 that include or not include striking Item Number 3. 15 CHAIRPERSON KYLE: Because it was first 16 recommended that it would, then your recommendation that it 17 would not. 18 MR. WAGAMAN: And I'm not a member of the Panel. 19 PANEL MEMBER CARREL: I would prefer to keep Item 20 Number 3. I think the question was how to address the term 21 primary that was Item Number 4 was the resolution on that. 22 MR. WAGAMAN: State direct primary election is the 23 language I heard from Mr. Mott-Smith. 24 CHAIRPERSON KYLE: So can we go through those 25 conditions again? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 97 1 MR. WAGAMAN: One, the vendor must submit the 2 final ITA reports by September 27th, 2004. Two, that they 3 must contain a federal qualification by the same date. 4 Three, that the Report Viewer should not be installed on the 5 same computer running WinEDS. Four, that WinEDS shall not 6 be used in a California state direct primary election. 7 CHAIRPERSON KYLE: So modified from its current? 8 MR. WAGAMAN: Correct. Four will be modified. 9 Five would be as written, the write-in resolution function 10 should not be used. 11 Six would be modified that after the period it 12 would add as further clarified by the Secretary of State's 13 memorandum dated May 14th, 2004, and any other agreement 14 between the vendor and the Secretary of State. 15 CHAIRPERSON KYLE: Correct. And also make it 16 contained rather than contain. 17 MR. WAGAMAN: Item Number 7 would read as 18 originally, with the modification from the Chair. 19 Item Number 8 would again read as written. 20 And Item Number 9 would read as written. 21 CHAIRPERSON KYLE: Were there any others? 22 PANEL MEMBER DANIELS-MEADE: We're not going to 23 address the issue of testing it all then in our 24 recommendation? Testing WinEDS. Report Viewer, I'm sorry. 25 PANEL MEMBER CARREL: No, it's been removed. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 98 1 MR. WAGAMAN: We've removed that, right. That's 2 correct. 3 PANEL MEMBER CARREL: Which would instead imply 4 that we would need to have a certification so we don't want 5 to confuse that issue. 6 PANEL MEMBER DANIELS-MEADE: I understand that. I 7 just want to make sure we're not addressing it in that. 8 CHAIRPERSON KYLE: Any discussion on the motion? 9 All those in favor? 10 (Ayes.) 11 CHAIRPERSON KYLE: Those opposed? 12 Any abstentions? 13 The ayes have it. 14 Going to the last agenda item, other business. We 15 have reports. 16 MR. WAGAMAN: A couple of reports back. I'll go 17 back to my notes. 18 We have a letter we received today from Brian 19 Hancock of the federal process. The ES&S federal NASED 20 number should be issued by Friday. So we have received 21 that. Friday of this week is the 17th. 22 CHAIRPERSON KYLE: On which items? 23 MR. WAGAMAN: On all of the items contained in 24 that, it would be the Unity, Model 550, Model 650. There 25 would be other components contained within that federal PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 99 1 qualification that were not contained in the state 2 certification. 3 We're going to report back on local stuff in 4 general, I will put together a more detailed report for the 5 Secretary for consideration on that issue. 6 And I forgot to bring the other thing. 7 CHAIRPERSON KYLE: Thank you. Any other report? 8 PANEL MEMBER JEFFERSON: Just a question about the 9 report. 10 CHAIRPERSON KYLE: Okay. 11 Mr. Jefferson. 12 PANEL MEMBER JEFFERSON: As it stands, if we do 13 not get that certification for the ES&S systems that we 14 conditionally certified last week by Friday, does that mean 15 that they will not be used? In other words, is this a hard 16 deadline this time? 17 MR. WAGAMAN: Well, the hard deadline is what's 18 contained in the certification which was the 21st, which is 19 the following Tuesday, I believe. 20 PANEL MEMBER JEFFERSON: Okay. 21 MR. WAGAMAN: But I'm reporting back that we 22 expect it by Friday. 23 PANEL MEMBER JEFFERSON: Thank you. 24 MR. WAGAMAN: And that's from the ITA itself, it's 25 not a notification from the vendor. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 100 1 PANEL MEMBER CARREL: And on the reports, the 2 staff reports that you forgot today, can you distribute them 3 as part of our binder materials for the next meeting and 4 then report on them. 5 MR. WAGAMAN: That was the intent was to include 6 it as a tab in the binder and I didn't realize it didn't 7 make its way in there and therefore I don't have it with me. 8 PANEL MEMBER CARREL: Thank you. 9 MR. WAGAMAN: It was intended to be a tab 20. 10 PANEL MEMBER CARREL: Thank you. 11 CHAIRPERSON KYLE: Okay. There was one person 12 wishing to comment on other business. 13 Ms. Smith, was there anything you wanted to say? 14 MS. SMITH: Yes, thank you. 15 Maureen Smith, again, the last time today, at 16 least. 17 I'm still on the issue of the paper ballots. I 18 met with Jess Durazo and his assistant in Santa Clara 19 County, and it appears to me that they are trying their best 20 to have some kind of paper, up to the point of even allowing 21 people to use their sample ballots, which sounds very good 22 to me. This is what I was told, that they were approved by 23 the Board of Supervisors for additional paper ballots, not 24 counting absentee ballots, 25 percent of the expected 25 turnout at the polls, regular paper ballots. Then they had PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 101 1 another line of defense, if you want to call it that, of 2 having provisional ballots to be used for those who want 3 paper ballots. And the final thing was allowing people to 4 use their sample ballots as their voting ballot. 5 So I actually was pleased by that. I hope it's 6 the same plan he turned in. 7 What I wanted to know, if the other Sequoia 8 counties are doing a similar thing or if this is even 9 something that you know. It's part of your whole process, I 10 don't think I'm out of order in asking this in any way, 11 because Kevin Shelley said that, you know, everybody will be 12 entitled to a paper ballot at the polls. That's my first 13 question. 14 The second one is related to, again, but only this 15 time to the money. I did write to Governor Schwarzenegger, 16 I did not get an answer, but I heard yesterday that some of 17 the HAVA monies had been released, and I was wondering if 18 you knew about it and if it included that money that would 19 allow you to do the advertising for a person's right to a 20 paper ballot? 21 CHAIRPERSON KYLE: Mr. Carrel, do you want to 22 speak to that? 23 PANEL MEMBER CARREL: On that issue, 24 unfortunately, the funds that were released by the 25 administration and the Department of Finance did not include PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 102 1 voter education funds, except those funds used by counties 2 for voter education, specifically or exclusively requested 3 by them for that purpose. We don't have control over what 4 -- we're not coordinating what each county is doing 5 individually, our statewide program for voter education was 6 not approved so we can't spend money on that at the state 7 level. 8 MS. SMITH: Thank you. 9 CHAIRPERSON KYLE: That's not the most current 10 information though. We have yet to receive a response from 11 our most recent request for funding. So your letter has not 12 been sent, we await a response. We may find something out 13 today. 14 PANEL MEMBER CARREL: Yes. Just to clarify, the 15 first set of money did not included that, although we did 16 ask again, and that leaves us back where we are. 17 CHAIRPERSON KYLE: Thank you for your help. 18 And as to the first question, I can't remember, 19 but if you come up afterwards, I'm sure I can answer it. 20 I'm going to entertain a motion to adjourn. 21 PANEL MEMBER DANIELS-MEADE: So moved. 22 PANEL MEMBER CARREL: Seconded. 23 CHAIRPERSON KYLE: All those in favor? 24 (Ayes.) 25 CHAIRPERSON KYLE: Opposed? PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 103 1 Then the meeting is adjourned. 2 Thank you very much all for attending. 3 (Thereupon the meeting of the Voting 4 Systems and Procedures Panel was 5 concluded at 12:46 p.m. on September 14, 6 2004.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345 104 CERTIFICATE OF SHORTHAND REPORTER I, MICHAEL J. MAC IVER, a Shorthand Reporter, do hereby certify that I am a disinterested person herein; that I reported the foregoing Voting Systems Panel proceedings in shorthand writing; that I thereafter caused my shorthand writing to be transcribed into typewriting. I further certify that I am not of counsel or attorney for any of the parties to said Voting Systems Panel proceedings, or in any way interested in the outcome of said Voting Systems Panel proceedings. IN WITNESS WHEREOF, I have hereunto set my hand this 3rd day of October 2004. PETERS SHORTHAND REPORTING CORPORATION (916) 362-2345