Monday, September 14, 2009
Judge Cardoza issues written order enjoining use of electronic voting machines in Hawaii
by Larry Geller
Judge Joseph E. Cardoza has issued a written order dated September 10, 2009 following his May oral injunction against Hawaii’s use of electronic voting machines. His order also prohibits the illegal transmission of vote results over telephone lines or over the Internet.
Will the Office of Elections be ready for the 2010 election? At an Elections Commission hearing held on July 22, 2009, Bart Dame asked a question about this lawsuit:
Update: See comment by Bart Dame attached to this article.
An unofficial copy of Cardoza’s order in Babson v. Cronin, made searchable, is posted on Disappeared News here. The case was argued by Maui attorney Lance Collins on behalf of plaintiffs Robert G. Babson, Jr., Ann C. Babson, Joy Brann, Paula Brock and Daniel Grantham.
In his analysis, Judge Cardoza noted that there are many administrative rules related to voting, but none cover electronic voting machines, though a place is reserved for them:
The Hawai'i Administrative Rules are replete with rules governing voting procedures and vote disposition. See, HAR §§ 2-50-80, et seq., §§ 2-51-90, et seq. These sections of the HAR contain detailed rules pertaining to, among other issues, how to correctly mark a paper ballot (HAR § 2-5-1-80), how to correctly administer punchcard ballots (HAR § 2-51-83), how to properly handle spoiled ballots (HAR §§ 2-51-81, 2-51-84, 2-51-85, 2-51-85.2), how to correctly mark a marksense ballot (HAR § 2-51-85.1), how to collect and transport ballots (HAR § 2-51-86), counting and tallying paper ballots (HAR §§ 2-51-90, 2-51-91), counting center procedures and centralized counting regarding electronic voting systems (HAR §§ 2-51-92, 2-51-93, 2-51-94, 2-51-95, 2-51-96, 2-51-96.1, 2-51-96.2), and auditing (HAR § 2-51-95.3). Section 2-51-99 of the Hawai'i Administrative Rules is reserved for rules regarding "Direct recording electronic." The necessity for rules regarding DRE voting systems has been clearly anticipated.
The judge’s order notes that the Office of Elections in effect tried to create rules for voting equipment requirements and specifications by writing them into the RFP for new equipment, instead of by creating new administrative rules as required by law.
Although not mentioned explicitly in the order, the adoption of the HART mark-sense readers might also be called into question if they are not covered by the administrative rules. Among the rules cited above are old rules that do not conform with the way elections are currently conducted, for example, regarding the marking and folding of paper ballots. There are probably quite a number of old rules that need to be updated in addition to the creation of new rules specifically related to electronic voting systems, yet the process had not begun as of the July 22 hearing.
The present rules also call for a “logic and accuracy test” to be performed on all computer equipment prior to use in an election (§2-54-4). If these procedures have been followed at all for the mark-sense devices such as were used in the 2008 election, the Office of Elections will still have a hard time conducting the tests in 2010 unless its budget woes are substantially relieved.
Lawsuit aimed to protect integrity of the voting process
One objective of the Babson lawsuit was to protect against “man-in-the-middle” attacks. This phrase describes a subterfuge in which data is sent to a third location, which may alter the data, before forwarding it to the intended location. The ultimate receiver would not know that the data did not come from the source or if the data had been altered.
If administrative rules are proposed which would permit voting equipment to be vulnerable to this or other form of attack, then the rules may meet with challenges, further delaying the use of electronic computers for voting in Hawaii.
In addition to this lawsuit, the Office of Elections has been challenged by other suits (ES&S v. Cronin, Hart InterCivic v. ES&S, Cronin v. ES&S) that will also require attention. These relate to procurement of the electronic machines that now cannot be used anyway.
State Legislature to hold hearings tomorrow
Budget cuts imposed by Governor Linda Lingle on the Hawaii state Office of Elections have left them without funds to prepare for the 2010 general elections next year. The Senate Ways and Means Committee has scheduled a hearing for Tuesday at 1:30 in room 211 of the State Capitol (hearing notice is here).
While the legislature can provide budget relief in a number of ways, the governor holds the ultimate card in that she can delay or fail to release the money apportioned by the legislature. The governor’s staff has already said that she will not release further funding to the Office of Elections. Whether this will continue up until election day 2010 is a question the legislature may have to ask.
Thanks, Larry, for continuing to track this.
I expect the State will seek a stay of the judge's order. My sense is that administrative rule-making can be be time-consuming, so I am not convinced it can be completed in a timely fashion, given the need for getting an new RFP out there and evaluated. (On the other hand, if the Office of Election follows the pattern they have established over the past 3 or 4 procurement cycles, maybe we can also save time by not bothering with the pretense of an RFP and just award the contract outright to Hart, since they are going to get it anyways.
If a court were to consider staying Cardoza's order regarding the promulgation of administrative rules, I would hope they would at least insist upon establishing safeguards against the "man in the middle" exploit Babson has warned about. I have no objection to the transmission of election results over telephone lines, or, if you prefer the language, "over the internet." PROVIDED reasonable, and easy, safeguards are instituted. The re is no technical reason (I am aware of) why the memory cards at remote ballot collection centers cannot be read by the memory card reader, with the results printed out, witnessed and signed by official observers before transmitting the results to Honolulu. If the numbers arriving in Honolulu are any different than the numbers observed at the remote station, any such fraud would be exposed.
The Office of Elections (and/or County Clerks) have instituted what strikes e as a "half-ass" solution to this problem. I understand they print out the results AFTER the transmission, but that does not provide the safeguard which a PRIOR printout would provide.
The Office of Elections is simultaneous facing multiple crises. It's budget has been slashed, it has still not secured a contract for voting machines for the 2010 elections and it must adopt administrative rules governing the use of electronic voting systems BEFORE they can be used in 2010.
In part, these problems have been caused by the Office itself. The 2008 procurement process was so poorly handled that the State itself found it was marred by "bad faith" on the part of the CEO. The OoE tried to award a contract for $52 million when another vendor offered comparable services for $18 million, and the Office felt no need to justify the added expense to the general public. Some of us predicted the contract would be tossed out, but Cronin refused to make plans for such a possibility.
As you saw in the video clip, he has also refused to make contingency plans for promulgating administrative rules, even though the judge's ruling was clearly going against the State. If your readers were to watch the entire video:
And listen to the efforts Cronin was taking to resolve his problems, you will be struck by how many of the meetings he made occurred "yesterday"--the day immediately before the commission meeting. In other words, he had been procrastinating until the day before the meeting to work on problems he had known about for months in advance!
Readers interested in reading a lengthy critique of the Office from August 2008 can go to the Progressive Democrats Blog. Although those comments are a year old, they still apply today:
"Continuing Concerns with the Office of Elections"
A stay is only permitted on appeal if there is substantial certainty that the appellant would win on appeal. This is decided in the first instance by the trial court. The other issue is potential harm without a stay. The Court states in the order at page 50: "If Defendants commit themselves to conducting rulemaking as required by law, this can be completed within a reasonable period of time." Given that Babson filed this lawsuit before the 2008 election, I don't really see they can plead potential harm since they have ample rules for older forms of voting and their failure to make rules has been their own doing for this latest technology. I can't image a stay happening in this case -- but maybe I don't know something about this case that Bart does.
I appreciate the comment. I do not have direct experience with administrative rule-making and will yield to those with such experience. When Safe Vote Hawaii worked to pass the voter verified paper audit trail legislation, we were told by legislators to try to put as much specificity as possible into statute rather than rely upon the development of appropriate administrative rules because the AR process was so time-consuming.
While I remain very impressed with the ability of the Office of Elections to handle the massive logistics of running the elections during the primary and general elections, I admit to not having a good sense of what they do during the rest of the two year cycle. There are a lot of things which have been handled very badly, whether it is due to under-staffing, too few qualified people, or poor management, I am not able to judge. Do they have the ability to draft proposed administrative rules, hold hearings on them, get them adopted in a timely given the budget constraints and the need to issue a redrafted RFP? They should also revamp their evaluation process used for picking the voting system. Obvious bias has crept in during recent procurement cycles.
Let's not forget, they may also have to develop a plan for consolidating a large percentage of the polling places, inform the voters and volunteers of these MAJOR changes and prepare for a (potential) massive increase in mail-in early voting.
I am skeptical their workload can expand to cover the AR rule-making. Perhaps someone more knowledgeable about the internal workings of the Office and the AR making process can chime in?
The ongoing pattern of serious legal errors: no AR for electronic voting systems, the Hart contract invalidated, the failure to provide the political parties advance proofs of the ballots prior to printing, and conflicted interpretations during the Kirk Caldwell, Chrystn Eades filing fiascos, suggest the Office is getting terrible legal advice from the AG's office.
Cardoza has confirmed that Babson and Collins are right about the law. And I would agree that the Office should have not have waited for the judge's written ruling to have started the rulemaking process. But given the current situation, what can be done to ensure the 2010 elections are run with the least amount of chaos? My pragmatism suggests a triage system and if the A-R making process is too time consuming to be done right, I would hope a judge would recognize this and stay the order until after the 2010 election, provided adequate safeguards are instituted to protect against the "man in the middle" exploit Babson is worried about.
I'm having a pau hana beer, so this will be short. Apparently, I was wrong to assume the RFP for voting machines has not yet been issued. It has, and apparently on the OE website.
Also, I may have over-estimated how long it would take to adopt admin rules. The OE says it has submitted draft rules to the AG's office for their review. After that, they go to the Governor and then to public hearings. It is important that folks with election integrity concerns attend those hearings.
Chug-a-lug. (oh, the first sip always tastes ono!)
The admin rules might have to meet the judge's requirements, as I understand it... in other words, not just any admin rule will do.
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