Legislature(2003 - 2004)
03/18/2004 08:03 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 459-PAPER TRAIL FOR ELECTRONIC VOTING MACHINE Number 1199 CHAIR WEYHRAUCH announced that the next order of business was HOUSE BILL NO. 459, "An Act requiring an auditable paper trail for electronic voting machines; and providing for an effective date." Number 1180 REPRESENTATIVE LES GARA, Alaska State Legislature, as sponsor of HB 459, stated that the one cross check that the United States has had for 200 years is that, after somebody votes, there is a paper record of how that person voted. He said that machines are now being used - the State of Alaska having recently purchased 55 of them - that leave no paper record of votes. He called it a radical departure from anything the state has ever done. He emphasized the importance of having a paper record. Representative Gara reported that in Alaska, many elections have been close. REPRESENTATIVE GARA offered an example of an election where a candidate lost by 16 percent of the vote and someone asked for a recount, but the Division of Elections said no. The reason the recount couldn't be made was because there was no available paper trail. At that point, he explained, the only way to tell whether the vote was accurate would be to check the computer code that was used to calculate and tally the vote. However, across the country, when people ask to look at the computer code, they are being told by the computer companies that the code is a trade secret. The outcome is that the [true] result [of the election] is never known. REPRESENTATIVE GARA stated that these [voting] machines are needed for people with certain handicaps. He said HB 459 will require that when Alaska starts using the machines, those machines must produce a paper trail. He noted that in California, that requirement is going to go into effect in 2005. He said the Division of Elections in Alaska reports that the technology to make the new machines produce a paper trail will be available by "the 2006 election." Number 1048 CHAIR WEYHRAUCH opened public testimony. Number 1000 WILLIAM COLE, M.D., testifying on behalf of himself, opined that a reliable voting system is essential to a democratic process. Furthermore, confidence in the system is also essential. He noted that many have cited that electronic systems have been easily hacked into and outcomes have been changed. Dr. Cole related an article in The New York Times, dated January 31, 2004, which reported that the State of Maryland contracted with a computer security firm to check out a [voting] system, and "they" easily were able to hack into the machine, change votes, and "take over the process." Number 0952 DR. COLE stated that obviously this issue is nonpartisan. Notwithstanding that, he said it didn't aide his confidence in the system when he heard that the manufacturer named Diebold [Election Systems ("Diebold")] said that the Maryland security study validates the Diebold election systems equipment for the north's primary. He added that it also didn't help that the head of the company has been "quoted to be able to deliver Ohio to the current sitting President in the next election." DR. COLE stated he would support the basic aspects of [HB 459], that any system must have a physically verifiable paper trail - verifiable by the voter at the time of the vote and later at a recount. He stated his belief that a public process, "such as this," should have access to the proprietary software involved in the machines proposed by the private companies. He said he thinks a generous recount requirement "is involved." He remarked that it does no good to have a paper trail if it prohibits having a count to a mere 1 percent difference. Dr. Cole also stated his belief that this issue is so important that it must go into effect immediately as opposed to some date in the future. Number 0869 DR. COLE concluded that he has been proud of the system that Alaska has had [to date], and he said he feels that helping handicapped [voters] would certainly not be insurmountable with the present system. Number 0851 CHAIR WEYHRAUCH asked Dr. Cole if he has any knowledge in regard to the current accessibility to voting available to handicapped individuals. DR. COLE answered he doesn't. He added, "It's yet to be shown to me how you could use the electronic system without assistance." Number 0821 MARILYN RUSSELL, testifying on behalf of herself, stated that her goal is to see that Alaska's voting system is competent and reliable, as well as admired and respected, and that it maintain that reputation. She said when many Americans think of Alaska, they think of a beautiful, unique frontier with indigenous people - [a place where people are] independent and think outside the box. Ms. Russell encouraged setting up the voting machines from the beginning to be accurate and dependable. She stated that there should be no chance of possible wrong-doing: no software glitch, no system hacker, no possible fraud, and not even the least bit of doubt in a voter's mind that his/her vote might be skewed. MS. RUSSELL said she has done some homework and found that even though systems have been checked out by many independent people, the ultimate results of the votes have been dubious. She said, "If there were ever a problem, I cringe to think of the amount of time, effort, anguish, and money that would be needed to fix the problem, let alone the credibility that would cause havoc. We want to have a paper trail for these machines. Our state is on the way up; let's not mar its progress." Number 0722 REPRESENTATIVE HOLM thanked Ms. Russell for her testimony. Number 0702 SANDRA ZIRNHELD, testifying on behalf of herself, stated that while there are many assurances from manufacturers that their software works, she would cite five examples out of many recent malfunctions. She continued as follows: [In] Broward County, Florida, this January, in a single race election, there was only one thing to mark on the ballot. A hundred and thirty four ballots registered no vote. The winner won by only 12 votes and, although Florida law requires a recount, a recount was not possible because there was no paper trail. [In] Fairfax County, Virginia, November 2003, a republican school board member lost her at-large seat in a tight race. Voter complaints about suspicious behavior of machines led to the testing of some machines, which showed that one suspect machine subtracted a vote from this candidate in about one of every hundred tries. [In] Miami, Dade County, Florida, November 2002, several precincts - each with hundreds of voters registered - tallied no votes cast. [In] Boone County, Indiana, November 2003, in a district with only 19,000 eligible voters, of which only 5,352 voted, the tally came up with 140,000 votes. [In] Muscogee County, [Georgia], November 4, 2003, citizens who voted no on a referendum issue saw the machine register yes. Officials ended up having to take this machine out of service. MS. ZIRNHELD stated that this is egregious, and she said she wants to make certain that nothing like this happens in Alaska. She encouraged the committee to look at a June 2003 report by computer security researchers from Johns Hopkins and Rice Universities, that showed that the software on the Diebold machine lacked even the most basic of computer security [capabilities]. She indicated that undergraduates in a computer security class would have failed if they had written that code. She called it, "blatantly inept." She revealed that it scares her that machines are so easily prone to fraud and manipulation. Number 0506 MS. ZIRNHELD stated that this issue is not and should not be a partisan one. She stated that it is about the fundamental principal which underlies democracy; it's about ensuring the fact that individuals elect the people who serve in governing positions. Those officials are put there by the will of the people, not by random number generators. She indicated her support of the bill, and opined that it should be strengthened with a provision which requires a mandatory spot check on precincts. MS. ZIRNHELD, in addition to her forgone examples, indicated that there are many examples where many people voting machines have malfunctioned and voting officials had to improvise by asking people to write their votes on slips of paper. She stated she wants the upcoming Senate seat filled by the vote of the people, not by faulty machines. Number 0425 REPRESENTATIVE GRUENBERG told Ms. Zirnheld that her testimony is causing him to wonder about whether the [electronic voting] systems should be implemented without being thoroughly checked out. MS. ZIRNHELD responded that all the machines have been checked out. She noted that it is scary, because it is the manufacturers that are checking them out and giving assurances [that the machines are in working order]. REPRESENTATIVE GRUENBERG said that is what is frightening to him. Number 0325 REPRESENTATIVE LYNN asked Ms. Zirnheld to clarify whether or not the machines are checked out by a third "uninterested" party. MS. ZIRNHELD offered her "impression" that the manufacturers check out the code, while independent parties "have done other kinds of testing." She added, "There have been other people who have been testing, ... which has proved that there's ... problems with these machines." She offered to do research to further answer Representative Lynn's question. Number 0233 REPRESENTATIVE GARA, on the same note, said California, for example, requires that only approved software be used on its machines. After making that requirement, the state did an audit and found out that in 17 counties the approved software was not being used. He described the situation as a regulatory nightmare, where it is necessary to have state computer consultants spend their time to ensure that each of the machines is working properly. He said, "We know that that is also an area that can be fraught with error like it was in California." Number 0155 LUKE HOPKINS, testifying on behalf of himself, encouraged the committee to move [HB 459] out of committee, which he said will allow Alaska's excellent voting system to continue to have the important paper documentation that it has currently. He stated that Alaska's system of vote recording is one of the best in the nation. He said the state has developed the system at great expense and should continue to maintain its system of electronic counting, transmitting data, and providing a paper record for each vote. MR. HOPKINS noted that there have been extremely important recounts in Alaska. He indicated the importance of ensuring that all parties are able to oversee a recount that has accurate and valid information. He opined that the added cost to the State of Alaska and, possibly, to the Division of Elections to ensure that there is a paper trail is small, compared to what the state has already spent in developing the AccuVote system that it has [acquired]. TAPE 04-39, SIDE A Number 0001 DORIS PFALMER, testifying on behalf of herself, opined, "In a time when electronic wizardry is commonplace, ... it's imperative that we have a receipt ... and a paper trail system for these machines." She stated that many people have cited reasons to [pass HB 459] and she cannot think of any reason "why it wouldn't automatically be put in place." She said it seems to be a "no-brainer." She said [the public] has seen "what they can do with movies" and "just about anything electronically." She concluded, "Paper rules, to me." Number 0147 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), told the committee that AkCLU met recently and spent a great deal of time deliberating this issue. She said electronic voting and "direct recording equipment" are new technologies. She said, "We are very wary of some of the concerns you've already [heard] from folks who've testified, as well as some of the actual problems that came up on 'super Tuesday' and in previous elections where these machines were implemented." She indicated that she would offer some points on behalf of "a unanimous board of directors." MS. RUDINGER stated that in 2002, Alaska was recognized as number one in the nation for the best electoral system. She said that begs the question, "If it ain't broke, why are we in such a big hurry to fix it?" She said [AkCLU] shares the concerns of Representative Gruenberg and others, who have suggested that perhaps the machines should not be used until more testing is done, better security is in place, and it is certain that using the machines will not compromise the integrity of the state's elections. She stated that the integrity of the voting process is fundamental to the operation of the democracy. She said a major component of a valid electoral process is voting technology that honestly and accurately counts every single ballot. She opined, "Because voting technologies have always been susceptible to error, bias, and corruption, we must remain vigilant about new technologies and insist that before they're implemented, they maximize the likelihood of recording what each voter intends, regardless of the voter's race, economic status, or geographic location." MS. RUDINGER said [the state] must require that voting machines be accessible to all voters, by reducing barriers to participation erected by language, physical disability, or the complexity of the technology. She emphasized the importance of protecting the confidence of the public in the results of elections, by ensuring that voting technologies may not be rigged in a way that would thwart the true will of the electorate. She said [AkCLU] recognizes that touch-screen voting systems do offer tremendous potential advantages. She noted that, as Representative Gara had previously indicated, electronic voting is helpful to people with disabilities who can't operate a manual lever. Furthermore, for people with visual impairment, there are cards that can be inserted into the machines that will read the ballot to the voter. Number 0415 MS. RUDINGER noted that the ballots can be made available in other languages, which she said could be helpful to some of the elders in the Native villages of Alaska, whose languages are not even written. Conversely, she noted that an Alaska Native on [the AkCLU's] board of directors raised the point that there is not a familiarity with technology and "these computers" in many of the villages, and people might be more wary of going to vote, even if the machine is promoted as giving the ballot to the voter in his/her language. MS. RUDINGER pointed out that the existing statutes make using the machine optional; therefore, the state could hold off from their use to do further testing. Notwithstanding that, she stated that if the legislature sees fit to authorize "going ahead with these machines" and the Division of Elections sees fit to use the machines in 2004, then [AkCLU] cautiously endorses HB 459. She said [AkCLU] recognizes that HB 459 may help people feel better about the integrity of the process by giving the voters the opportunity to verify that what prints out of the machine is the intended vote. However, she stated that voter-verified paper balloting is also untested. She revealed that computer experts have pointed out that "we may find out voter-verified paper balloting doesn't ensure the integrity of the election at all." She said [AkCLU] has serious reservations regarding both the effectiveness and the practicality of the proposal. Number 0561 MS. RUDINGER continued as follows: Elections would resort to using a voter-verified paper trail only in the case of a recount or a contest, which a hacker can prevent or deter. In most jurisdictions, recounts are triggered only when an election is close. So, anyone who is savvy enough to hack into a digital system and alter the election results could simply select a margin of victory big enough to prevent a recount or discourage a contest. And, in these jurisdictions, a competent hacker could block the review of any paper ballot. MS. RUDINGER noted that even in those few jurisdictions that automatically do a recount of a small percentage of ballots as a test, a sophisticated fraud could thwart detection by corrupting the code for the paper printout. She said that brings her to her second point: The voter-verified paper trail could be used by a sophisticated hacker to give voters a false sense of security that their vote was correctly tallied. If the computer code is genuinely vulnerable to attack, a competent hacker could not only compromise it to make the machined record a fraudulently vote, but could also compromise the code that runs the printer, causing the printer to display the voter's intent, while the machine records something different than what the voter intended. MS. RUDINGER also pointed out that there's no reason to assume that paper recounts are more accurate than machine tabulations. Paper is notoriously difficult to handle and easy to manipulate. Counting the paper ballots generated by [machine] would be subject to all of the historical problems associated with paper ballots, including human error, fraud, and mishandling. Number 0672 MS. RUDINGER stated that [AkCLU] believes that voter-verified paper ballots should not be employed until there has been rigorous testing of their reliability. She added that it also feels that way about the electronic voting machines. She suggested that two years from now, everyone might realize that [HB 459] did not protect the election [process] at all. Number 0700 MS. RUDINGER offered recommendations as follows: If DREs [Direct Recording Electronic voting machines] are to be employed ... in 2004, ... the computer source code for all security critical functions of the machines should be subjected to thorough, independent review. And when we say independent review, we definitely mean not people who are selected ... by the manufacturers of the machines. ... At a minimum, the full code should be subjected to a review by an independent body, and only open source codes ... should be used for tabulating the results. Number two, rigorous physical security measures need to be instituted to ensure that the machines and any associated paper ballots are not compromised. Third, election officials need to be thoroughly trained in their use, ... [as well as in] the physical infrastructure necessary to ensure their use. For example, sufficient electrical wiring needs to be "assured." This could be challenging in some parts of rural Alaska where the infrastructure doesn't currently exist to implement these machines. Fourth, the jurisdiction should have a permanent, broad base security task force or oversight body representing all interested segments of the community, to evaluate the potential for fraud or error in voting systems, and to address the new security challenges that will inevitably arrive in the future. That task force should have complete unrestricted access to the DRE code, and [it] should conduct [its] own independent testing. Fifth, election officials should select technology that gives them maximum flexibility in taking advantage of emerging innovation. In other words, whatever we buy today should be adaptable to what we decide we really need to do tomorrow to ensure the integrity of the election. If a jurisdiction chooses to employ optical scan or a method other than DREs for its balloting, it should be required to have a sufficient number of electronic DRE machines available to accommodate the needs of people with disabilities - because we do recognize that that needs to happen - and they should employ systems that can accommodate the needs of language minorities. Number 0564 CHAIR WEYHRAUCH asked Ms. Rudinger if she would submit the remainder of her testimony in writing. MS. RUDINGER explained that she was reading "from a white paper," but she offered to create a summary of what her testimony and send it to the committee. Number 0897 JOHN DUNKER, testifying on behalf of himself, stated he supports [HB 459]; however, he admitted that some of the testimony gives him pause about "employing it rapidly." He said he had hoped it would have an immediate effect and that might prevent the next election cycle from being the only one in "our" history without a paper trail. He added, "And I think that is still a good thing." MR. DUNKER said he would like to see the bill strengthened to include mandatory testing, "similar to what [the] Division of Elections has described in response to your 9 March questions." He mentioned performing on the AccuVote process. He indicated that he wants mandatory testing and random recounts, either by district or precinct. He said, "I believe those should not hinge on a percentage difference of vote outcomes, which may make sense in a paper voting system. But I think it's evident that that sort of a percentage difference threshold does not make sense with electronic voting." MR. DUNKER concluded by saying that the process isn't good enough if it only satisfies technocrats. He said [the process] must maintain the confidence of every citizen. Number 1023 REPRESENTATIVE GRUENBERG reiterated that he is concerned about implementing this system at all until these problems are addressed. Number 1049 CHAIR WEYHRAUCH told Representative Gruenberg that he would eventually be offering quite a substantial amendment to the bill. [HB 459 was heard and held.]
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