Factions bump heads on vote rules

By Ernest Luning

Colorado Secretary of State Bernie Buescher got an earful Tuesday when election officials and voting reform advocates sat down to hash out proposed changes to rules governing the state’s certification of voting equipment.

What’s your view on proposed rules for certification of voting machines?

The Colorado Department of State’s Elections Division wants to hear from the public about draft rules governing
the acquisition and testing of voting systems.

• Read the draft rules and comments from county officials, voting integrity advocates and vendors here.

• Submit comments to the attention of the Elections Division, Colorado Department of State, 1700 Broadway, Denver, 80290, or send e-mail to elections@sos.state.co.us.

In an unusual setting in advance of the formal rule-making process, a group including Buescher’s staff, county clerks and representatives of voting reform groups and Common Cause met to discuss comments submitted last week on Rule 45, which sets standards for testing voting equipment. State law requires the Department of State to test equipment for accessibility, accuracy and security before counties can purchase and use it in elections.

“I have never seen a process like this,” said Common Cause executive director Jenny Flanagan. “This has been really bold, and I really appreciate the opportunity to open up this process publicly before a formal process is undergone.”

Department of State spokesman Rich Coolidge told The Colorado Statesman that he believed the informality of the process would allow “a little more collaboration and some give-and-take discussing the draft rules.”

Everyone agreed that discussion itself was a step in the right direction — allowing a more detailed and
wide-ranging consideration of options before the formal rule-making process starts.

Nevertheless, there was strong disagreement over the scope of proposed changes.

“The rule is supposed to be addressing the voting system, and it focuses on counting the ballots,” declared election reform advocate Al Kolwicz, who proposed chucking the draft entirely and starting from scratch. “There’s more to an election than counting the ballots.”

Kolwicz and fellow Colorado Voter Group board member Harvie Branscomb were frequently at odds with election officials during the discussion, reiterating their contention that the draft rule doesn’t allow sufficient public involvement and that it addresses only pieces of the voting puzzle when the entire system needs attention.

“There are other sections of the rules that need work,” Buescher said at the conclusion of the discussion, “but you eat an elephant one bite at a time, and the most pressing thing right now is to get Rule 45 into better shape.”

Last month, Buescher hired Florida-based election system consultants Freeman, Craft, McGregor Group to prepare a draft revision of Rule 45 to comply with legislation passed earlier this year. Changes include letting the Department of State rely on testing and certification performed by other states using the same equipment Colorado uses, streamlining some tests and allowing voting machine vendors and county election officials to participate in some stages of the tests.

House Bill 1335, sponsored by Rep. Nancy Todd and Sen. Suzanne Williams, both Aurora Democrats, and Rep. Carole Murray, a Castle Rock Republican and former Douglas County clerk, lets counties continue using voting systems already in place but sets a goal of moving Colorado elections to all-paper ballots by 2014. The law also sets new standards and procedures for certifying voting equipment.

The bill was one of several signed into law by Gov. Bill Ritter, resulting from recommendations made by the Colorado Election Reform Commission, headed by former Sen. Ken Gordon, D-Denver. Late last year, the Legislature established the commission to address mounting concerns over problems that have plagued the state since 2006, when a Denver District Court judge ruled that then-Secretary of State Gigi Dennis had failed to properly certify the security and accuracy of electronic voting systems.

Following that lawsuit, then-Secretary of State Mike Coffman ran into more controversy when he decertified and then recertified voting equipment, angering both county clerks and election reform advocates.

“Our goal here is to solve some of the problems we identified in 2007,” said Stephanie Cegielski, a legal specialist who handles voting system certification at the Department of State.

In crafting the revised rule, Buescher’s office will have to weigh demands for public oversight against a variety of other demands: the need of voting machine vendors to keep proprietary information secret, the need to assure voters systems are secure, the need to control the potentially massive cost to perform those tests, and the need to set a standard for how closely tests should adhere to actual election conditions.

“We recognize the difficulty in balancing the technology of the systems, the real-world application of them and the regulations,” said Jefferson County Clerk and Recorder Pam Anderson.

Once state elections officials have sorted through comments and prepared a final draft of the rewritten rule — likely not until the end of November — the formal rule-making process can start, Coolidge said.

“We want to make sure what we’re producing here is a really useful voting system and that we manage to catch the problems with the voting systems that are causing the most angst for voting officials,” Branscomb
summarized after the group considered dozens of comments to the 52-page rule.

“Nothing about elections should be hidden behind closed doors, including the certification process,” Branscomb, told The Statesman. “The secretary needs to test for things that might be wrong with election systems before county clerks need to use them. The secretary of state’s test is never going to be as good as a live test.”

The final tests should be performed during an actual election, Branscomb suggested, even if that means delaying certification of new equipment yet another year.

Two voting equipment manufacturers have submitted election systems for certification and are awaiting adoption of the new rule. Premier Election Solutions and Election Systems & Software — which is in the process of acquiring Premier — want the state to consider election management databases, optical scanners and ballot-marking devices, in the hope counties currently using their systems can upgrade. After the new rule has been adopted — roughly a five-week process once the formal rule-making begins — the state has 120 days to certify the equipment.

“Bernie Buescher still has the trust and enthusiasm of the reform people here on the outside,” Kolwicz said after the meeting, but he lamented that his proposal for a wholesale revamp of the rules seemed to fall on deaf ears.

“The emphasis is on the parts that are really missing, and the secretary of state’s people don’t want to hear about parts that are missing,” Kolwicz told The Statesman.

“We know there are failures in the voting system,” Flanagan told The Statesman after Tuesday’s meeting. “They’re not perfect. They’re far from it. We’ve got to be as transparent as possible because we know there are weaknesses in the system. We need to identify those weaknesses so we can at least have confidence that we’re doing everything we can to ensure the integrity of elections.”

“We have a lot of work to do,” said Deputy Secretary of State Greg Hobbs, who noted that the Department of State plans to sort through Tuesday’s written and oral comments to incorporate suggestions into the draft.

“In the meantime,” Hobbs said, “until we issue a notice, and even after that, people can still submit comments and suggestions.”