Monday, September 28, 2009


Motion filed in state court to block voting machine RFP

by Larry Geller

A motion was filed on September 24, 2009, in Babson v. Cronin to block Chief Elections Officer Kevin Cronin and the state from taking any action on the Request for Proposals RFP-10-001-SW "Sealed Offers for A Voting Equipment System."

If granted by Judge Joseph E. Cardoza, procurement of voting equipment would have to stop until administrative rules have been put in place for electronic voting. Plaintiffs also ask that Cronin and the state be held in contempt of the court’s oral and written rulings.

For more on the administrative rule issue, see: Judge Cardoza issues written order enjoining use of electronic voting machines in Hawaii.

Part of the discussion in the judge’s order centered around whether the state could set rules as part of the procurement process, and this argument was rejected.

A permanent injunction enjoining Defendants and their agents and employees, and all persons acting under, in concert with, or for them from any conduct in conformance with the EAC Guidelines or transmitting ballot counts and election results by telephone line or the internet until rules have been promulgated pursuant to HRS Chapter 91 shall issue in favor of Plaintiffs and against Defendants. This permanent injunction shall have no effect on any rules promulgated pursuant to HRS Chapter 91.

In the current RFP (attached to the September 14 motion), as stated in the motion, there is reference to EAC guidelines:

…In the alternative, all voting equipment shall be
certified by the U.S. Election Assistance Commission (EAC) to meet the 2002 federal voting system standards, or any subsequent iteration of the federal voting system standards, referred to as the Voluntary Voting System Guidelines (VVSG) (e.g. 2005 VVSG).

The motion also includes a portion of Kevin Cronin’s testimony during a legislative briefing of the Senate Committee on Ways and Means on September 15, 2009. Here is a snippet:

SENATOR KIM: I raise that point because Cardoza's ruling talked about the securities of the system. About what happened when you transmitted information over the phone lines and the internet they also required you to go ahead and do rules and regs and my understanding is you issued the RFP prior to getting your rules and regs out.

CRONIN: Let me say Senator Kim, we received a copy of the Court's decision midafternoon yesterday. We are reviewing it and analyzing it and I can't speak at this time to any points uh arising out of that decision. Let me say we have invited the deputy attorney general who represented us in that litigation who is here in the hearing room now and the person may, uh is available to answer questions.

SENATOR KIM: But you did in fact put the bid out prior to your rules and regs being formalized?


SENATOR KIM: Kay, But you did start working on the rules and regs prior to getting Judge Cardoza's ruling.

CRONIN: Well. As part of our process to review the administrative rules, we have been reviewing those rules for an extended period of time. And those rules after our review and conferring with the county clerks were then presented to the attorney general's office I believe about two weeks or so ago.

If Judge Cardoza grants this motion, there will be increased pressure on the Office of Elections, operating at present with extremely limited funds, to accelerate the process of establishing administrative rules in time to purchase equipment for the 2010 elections.

For previous articles on Hawaii’s 2010 election woes, see this Google Search



I have some concerns about this lawsuit. Perhaps someone can comfort me if I raise them here.

I have been hoping the process for adoption of administrative rules would allow for a thorough airing of the vulnerabilities at each step of the elections process and a discussion over alternate means of safeguarding the elections to ensure transparency, security, accuracy and verifiability. (Am I missing anything?)

Pressuring the OoE to rush through the AR hearings prior to evaluating the competing vendor proposals strikes me as a bad thing. Do Babson and Collins hope to use the hearings as a means to force the state to completely abandon electronic voting systems for the 2010 elections? If so, how to they propose Hawaii comply with the HAVA requirements for handicapped accessible voting?

It may very well be that my desire for extended and thorough hearings is an unrealistic pipe dream and that the OoE has no intention of holding anything but the most perfunctory hearings anyways. But it is my strong sense that plans have to be made and contracts have to be issued fairly soon if we wish for the 2010 elections to run smoothly.

If, OTOH, Babson and Collins believe there is no time pressure and the delay will not cause serious problems, I would hope they can present a convincing case to comfort myself and the small handful of others who have been tracking the Hawaii elections system for several years.

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