HB 66-ELECTIONS, VOTING, BALLOTS  [Contains discussion of SB 39.] 4:56:44 PM CHAIR KREISS-TOMKINS announced that the first order of business would be HOUSE BILL NO. 66, "An Act relating to voting, voter qualifications, and voter registration; relating to poll watchers; relating to absentee ballots and questioned ballots; relating to election worker compensation; and providing for an effective date." [Before the committee, adopted as the working draft on 4/12/22, was the proposed CS, Version 32-LS0322\O, Klein, 3/30/22, "Version O."] CHAIR KREISS-TOMKINS welcomed invited testimony. 4:58:24 PM MATT ROE, Voting Works, explained that Voting Works was a non- partisan non-profit organization that built election software. He stated that the goal of his testimony was to briefly describe what open-source software was and how it applied to election administration. He stated that he would be speaking from his experience implementing open-source software but would not be speaking to the specifics of Voting Works products. He explained that the "source" in open source referred to source code, which was the set of instructions written by programmers that a computer follows to achieve the desired software behavior. He used an example of source code, which he described as "a complicated recipe for baking a cake," but qualified that for most software the source code was kept secret and available only to the original programmers. By contrast, open-source software had source code that was always available to anyone who wished to see it. Mr. Roe continued his remarks by asserting that much of the software used today (including all major web browsers and much of software that powered the Internet) was open source. He emphasized that the key benefit of open-source technology was transparency. He cited that open-source software was used in almost every industry, including scientific research, financial services, and cybersecurity. He asserted that in the world of election administration, especially when the country was particularly polarized, open-source transparency provided a common ground of facts that could be trusted and verified. He described malicious code that changed votes as an example of a problem that could be dispelled by a technical review of the open-source code. He emphasized the importance of proper security procedures, which should be transparent. He mentioned the public accountability of election officials. 5:02:37 PM MR. ROE wanted to discuss how open-source voting systems were used in practice. He asserted that open-source voting systems were used just like any other voting system with well- established practices for certifying, testing, and operating voting equipment. He stated that the only change introduced to the election process by open-source software would be increased transparency and public confidence in the election outcome. He opined that SB 39 represented a non-partisan commitment to increasing the transparency and security of Alaskan elections throughout the entire cycle of the election. CHAIR KREISS-TOMKINS asked whether Mr. Roe was familiar with the language relating to open-source voting systems in Version O. MR. ROE answered yes. CHAIR KREISS-TOMKINS invited him to comment on the provisions in Version O. 5:06:22 PM MR. ROE clarified that he was familiar with the original version of HB 66. He offered to read a section of an amendment [to SB 39, the companion bill to HB 66,] that was offered in the Senate Judiciary Standing Committee (SJUD). He indicated his support for the language in Amendment 41 to CSSB 39(JUD), [labeled 32- LS0204\D.59, Klein, 4/20/22], which read: Sec. 15.20.910. Standards for voting machines and vote  tally systems. The director may approve a voting machine or vote tally system for use in an election in the state upon consideration of factors relevant to the administration of state elections. A voting machine or vote tally system must meet the United States Election Assistance Commission's voluntary voting system guidelines and be certified by the commission, use only open-source software technology or commercial off-the-shelf software and firmware, and satisfy the requirements of AS 15.15.032(c). MR. ROE explained that Amendment 41 continued by defining both "commercial off-the-shelf" and "open-source software technology." He shared his understanding that Amendment 41 was adopted by SJUD. 5:08:24 PM REPRESENTATIVE VANCE sought to clarify how open-source software would help improve Alaska's voting system. MR. ROE clarified that transparency was the key benefit of open- source technology, as it allowed anyone to review the source code of the voting equipment. As a result, he said, the increase in understanding and transparency would increase public confidence in the election outcome, especially in the context of heavy polarization or distrust in the existing voting equipment. REPRESENTATIVE VANCE asked Mr. Roe to describe, in layman's terms, how the public would access the source code. MR. ROE said the specific implementation was ultimately up to the Division of Elections (DOE), Office of the Lieutenant Governor. He provided several examples of how other states were providing source code to the public, including GitHub, a website for software development that allowed users to store, manage and view code, as well as track the changes made to that code. REPRESENTATIVE VANCE asked whether the general public would be able to understand the source code. More specifically, she questioned whether source code was displayed in layman's terms, such as, "There were 350 votes in precinct 1, and 642 votes in precinct 2, and there were 5 question ballots ? [that had to be] recounted." MR. ROE made a distinction between open-source software and different aspects of a transparent voting system. He explained that a transparent voting system and its implementation should include the ballot count via reports and auditing evidence, which was one layer of transparency. He clarified that sharing the code for public inspection was an additional layer of transparency. 5:14:38 PM REPRESENTATIVE STORY asked [which states] were using the open- source technology and what voting equipment was compatible with it. MR. ROE reported that the Voting Works open-source voting system was being used in five counties in Mississippi. Additionally, Voting Works developed an open-source, post-election auditing tool, named Arlo, which was used in 12 states. In 2016, he said, New Hampshire successfully implemented open-source ballot marking devices statewide. Los Angeles County, he continued, built a voting system, referred to as Voting System for All People, that they planned to open source. Additionally, California allowed counties to pilot open-source voting systems with a certification process. He added that several state legislatures, including New Jersey and Tennessee, had introduced legislation that would require open-source voting technology. REPRESENTATIVE STORY asked how much the voting machines cost. MR. ROE reported that the Voting Works open-source voting system was 50 percent of the total cost of ownership relative to a closed-source voting system. 5:17:45 PM CHAIR KREISS-TOMKINS inquired about the specific cost of a Voting Works voting machine. MR. ROE stated that the price of the Voting Works voting machine was posted on the Voting Works website. He reported that a variety of reports had analyzed the cost of voting equipment in given jurisdictions and found that the price was between $5,000 and $10,000. CHAIR KREISS-TOMKINS asked whether open-source election equipment was on track for federal certification by 2024. MR. ROE shared that Voting Works planned to federally certify by 2023. 5:20:10 PM REPRESENTATIVE EASTMAN asked whether the unanswered questions from the previous hearing on Version O had been answered, such as the rationale for the statutory retention requirements [pertaining to election material]. 5:20:48 PM REPRESENTATIVE CHRIS TUCK, Alaska State Legislature, prime sponsor of HB 66, sought to clarify whether Representative Eastman was referring to the retention of ballots. REPRESENTATIVE EASTMAN clarified that he was referring to the retention of all documents, including ballots. REPRESENTATIVE TUCK explained that the retention requirements were included in the bill to preserve integrity and ensure that nothing was destroyed until after the election was certified in case questions arose. REPRESENTATIVE EASTMAN shared his understanding that the current language in Version O reduced the length of retention. He asked whether the bill sponsor would be amiable to an amendment that increased or maintained the current statutory retention requirements. REPRESENTATIVE TUCK indicated that Version O required election material to be retained for 22 months. He asked whether Representative Eastman was hoping to extend that amount of time. REPRESENTATIVE EASTMAN pointed out that under current law, the current retention requirement was four years. REPRESENTATIVE TUCK conveyed that it was a policy call for the committee to make. CHAIR KREISS-TOMKINS asked whether DOE had any perspective on the length of document retention or the merits of two years versus four years. 5:23:25 PM GAIL FENUMIAI, Director, Division of Elections, Office of the Lieutenant Governor, explained that the division retained records according to the state's record retention schedule. She declined to opine on 22 months versus four years. 5:24:00 PM REPRESENTATIVE VANCE directed attention to Section 44, Subsection (c), and inquired about the definition of "forensic examination." REPRESENTATIVE TUCK acknowledged that there was no statutory definition of forensic examination. He suggested replacing the term with "Risk-Limiting Audit (RLA)." REPRESENTATIVE VANCE pointed out that Section 43, paragraph (5), made reference to a party primary. She asked whether that term was still applicable. REPRESENTATIVE TUCK confirmed that the language needed to be changed due to the passage of Alaska Ballot Measure 2 [Top-Four Ranked-Choice Voting and Campaign Finance Laws Initiative (2020)]. He shared that Representative Claman was drafting a forthcoming amendment to address the language in question. REPRESENTATIVE VANCE directed attention to page 19, lines 3-4, and asked why an election official would need access to the political affiliations of all persons. 5:27:12 PM MIKE MASON, Staff, Representative Chris Tuck, Alaska State Legislature, on behalf of Representative Tuck, prime sponsor, shared his understanding that the language in question was the subject of an amendment to the companion bill in the Senate [SB 39]. Further, he shared his belief that it would be challenging to exclude a person's political affiliation from the voter records. 5:27:53 PM REPRESENTATIVE EASTMAN turned attention to Section 44, Subsection (d), and asked why a precinct tabulator needs to connect to the Internet 24 hours before the polls open on election day. He suggested prohibiting Internet connectivity entirely. REPRESENTATIVE TUCK explained that precinct tabulators require internet connection to be tested and checked prior to the election to confirm their ability to function properly. REPRESENTATIVE EASTMAN asked whether it was necessary to access the tabulators remotely ahead of time to test them. REPRESENTATIVE TUCK answered yes, to ensure that they work properly. He directed the question to Ms. Fenumiai. MS. FENUMIAI asserted that Representative Eastman was referring to the logic and accuracy testing, which was performed in the division's regional offices prior to field deployment. She clarified that they are not connected to the Internet when voting occurs. 5:30:41 PM REPRESENTATIVE EASTMAN asked why the tabulators needed the capability of connecting to the Internet. MS. FENUMIAI stated that the Internet connection allowed the tabulators to transmit the election results in a timely manner. REPRESENTATIVE EASTMAN pointed out that per Section 44, Subsection (d), the tabulators could not be connected to the Internet from 24 hours before the polls open on election day until 14 days after the polls close. He asked whether there was another rationale for connecting the tabulators to the Internet or a cellular network. MS. FENUMIAI described how the tabulators were briefly connected to the Internet to transmit the election results following poll closure. She added that, should the bill pass in its current form, the division would need to find a different method to collect the results from the majority of the precincts that relied on an analogue or cellular network to transmit results. MR. MASON pointed out that the language in question was not included in the original version of the bill. He explained that it was added in an effort to compromise with the Senate version of the bill. He directed attention to the following sentence in Subsection (d), which specified that "all tabulator data shall be loaded from the tabulator onto a separate storage device and transmitted from a computer that is not connected to the tabulator." 5:33:22 PM REPRESENTATIVE EASTMAN suggested removing the ability to connect to the Internet entirely, as the connection would not be used to transmit results. MR. MASON pointed out that removing the connectivity entirely would preclude the ability to update or fix the open-source software on the tabulator. REPRESENTATIVE EASTMAN asked whether the software could be updated with CD-Rom or USB. CHAIR KREISS-TOMKINS suggested that Representative Eastman draft an amendment to address his concerns. 5:35:12 PM REPRESENTATIVE STORY questioned whether two days post-election was sufficient time for the director to send notifications of deficient ballots for the curing process. She shared her understanding that [SB 39] was amended to include a five-day deadline and inquired about the rationale for the expanded timeline [in the Senate]. REPRESENTATIVE TUCK expressed his support for the ballot curing process. He deferred to Ms. Fenumiai. MS. FENUMIAI was unsure why the Senate made that change. She opined that any curing process put into statute should allow for the maximum amount of time possible. 5:37:43 PM REPRESENTATIVE STORY asked whether the division was amenable to five days post-election, as opposed to two days. She opined that dive days seemed more reasonable. MS. FENUMIAI agreed that more time would be favorable. 5:39:45 PM REPRESENTATIVE TARR expressed her concern about the language, "the director shall immediately make a reasonable effort to contact the voter", on page 19, lines 17-18. She suggested that "reasonable effort" needed further clarification. MR. MASON highlighted that the ballot curing sections [Section 41 and Section 42] mirrored provisions in Governor Dunleavy's election bill. He explained that the original version of HB 66 included a more lenient [ballot curing] system that utilized an affidavit. REPRESENTATIVE TARR, in response to a follow-up question from Representative Tuck, opined that "reasonable effort" was ambiguous and could be challenged. Additionally, she agreed with Representative Story's suggestion of increasing the two-day time period. She went on to address the minimum pay for election workers. She expressed her support for raising their pay to $15.50; however, she wondered whether the prescriptiveness of the language would prevent election workers from being paid more than $15.50 MR. MASON recalled the drafting process of the original version of HB 66, indicating that the intent was to reflect DOE's processes during the 2020 election. He opined that the language would not restrict election workers from being paid more than the minimum amount. Further, he suggested tying the pay scale to a step above minimum wage, to ensure that their wages would be adjusted annually for inflation. 5:45:06 PM REPRESENTATIVE TARR asked the director to weigh in on the pay scale and the difficulty of attracting employees. MS. FENUMIAI understood the language [in Section 53] to mean that the division shall pay not less than $15.50. Nonetheless, she acknowledged that by cementing an arbitrary number in statute, the division would have less flexibility to make pay increases. She believed that it would be easier to keep rates of pay in regulation, as opposed to statute, and adjust them accordingly with the budget increases provided by the legislature. She noted that DOE had submitted a budget request to increase election worker compensation to $20 per hour for precinct workers, which would require amending the regulations to accommodate the new rates of pay if passed. REPRESENTATIVE TARR pointed out that the statutory language in Version O, should it pass, would supersede the regulatory pay increase; therefore, the division's plan for the upcoming election would be impacted. MS. FENUMIAI confirmed. She maintained her belief that keeping the pay scale in regulation would provide the division with more flexibility to increase pay, which was much needed, she opined. REPRESENTATIVE TARR asked whether Ms. Fenumiai would prefer that the minimum compensation for election workers exist in statute, as written in Version O, or that the pay scale remain a regulatory item. MS. FENUMIAI suggested that the word "minimum" could lead to speculation about pay increases. Additionally, she asserted that pay increases were a budgetary concern, as raising the minimum pay from $12.50 an hour to [$15.50] was a substantial increase for the division. 5:48:49 PM REPRESENTATIVE KAUFMAN returned attention to Section 44 and asked how a person would identify whether a precinct tabulator was connected to a cellular network. MS. FENUMIAI explained that the current precinct tabulators were not equipped with an internal mechanism to connect to the Internet, adding that they used an external modem to connect. She said if the bill were to pass, the precincts would not be provided with the external modems to attach to the tabulators. REPRESENTATIVE KAUFMAN pondered strengthening the language to clarify that modem connections were not permissible. He asked whether that would create a hardship for the division. MS. FENUMIAI offered to follow up with the requested information. 5:50:28 PM REPRESENTATIVE KAUFMAN directed attention to Section 44, subsections (d) and (e), and asked whether there were safeguards against someone accessing the computer [that the storage device connects to]. MS. FENUMIAI conveyed that Alaska remained a paper-based ballot system, which in itself was a safeguard. She emphasized that the machines underwent logic and accuracy testing conducted by bipartisan boards before each election. Additionally, the machines were sealed with security seals, which were not broken for any reason. 5:52:28 PM REPRESENTATIVE VANCE asked whether myAlaska had the capacity to [send notifications to voters]. She suggested implementing a notification system that could be used for tracking and curing ballots. MS. FENUMIAI said she was unfamiliar with innerworkings of myAlaska. She added that currently, DOE did not use the website for anything. She conveyed that Ballot Trax would be used for the upcoming special election, which had the ability to notify voters who had opted in of the need for a cure. REPRESENTATIVE VANCE requested additional information on Ballot Trax. MS. FENUMIAI offered to follow up with the requested information. 5:56:03 PM REPRESENTATIVE KAUFMAN sought to confirm that voters were purged from the voter roll after failing to vote for four consecutive years. REPRESENTATIVE TUCK deferred to Ms. Fenumiai. MS. FENUMIAI remarked that the list maintenance procedure involved a "lookback" of two years. She stated that a voter remained on the roll for two federal general election cycles, or four years, past the point of inactivity. REPRESENTATIVE KAUFMAN asked Ms. Fenumiai to opine on [Risk- Limiting Audits (RLAs)] and whether they offered a valid method for verifying the accuracy of the system. MS. FENUMIAI declined to comment at this time. REPRESENTATIVE KAUFMAN asked whether she would feel comfortable sharing her opinion on that subject in the future. MS. FENUMIAI believed that it was a policy call for the legislature. She added that the division would carry out the statute as directed. REPRESENTATIVE KAUFMAN asked whether the director would advise the legislature upon the discovery of any gaps or flaws in the auditing system. MS. FENUMIAI remarked that it was not the director's role to advise the legislature on those decisions. She reiterated that she had not read through the proposed auditing provisions in great detail; nonetheless, she acquiesced that if directed to do so, the division would comply. 5:59:06 PM MR. MASON noted that Mr. Roe was available to speak to RLAs. REPRESENTATIVE KAUFMAN asked whether RLAs could be trusted and whether they were "the best way to go" in regard to the auditing process. MR. ROE stated that all post-election audits, including RLAs, were important tools in addition to open-source voting equipment. Ultimately, he said, building secure systems included multiple layers of protection. REPRESENTATIVE KAUFMAN asked whether Version O required the renewal of absentee ballot requests each election cycle. REPRESENTATIVE TUCK explained that after requesting an absentee ballot, the voter could continue to vote absentee until he/she missed two election cycles, in which case the voter would need to reapply. He emphasized that permanent absentee voting was optional. REPRESENTATIVE KAUFMAN shared his belief the requiring voters to request an absentee ballot annually would act as a "failsafe" against unused ballots being sent out into "the ether." REPRESENTATIVE TUCK said permanent absentee voting was a policy call. Nonetheless, he pointed out that absentee voting made it more convenient for senior citizens, disabled people, and those living in rural Alaska. He conveyed that the idea was to capitalize on the success of the [2020] election, which saw over 60 percent statewide participation due to the the convenience of by-mail voting. He added that he opposed the idea of requiring voters to reapply for absentee ballots on an annual basis. 6:04:35 PM CHAIR KREISS-TOMKINS announced that the proposed CS for HB 66, Version O, was held over.