Comments on the Pennsylvania HAVA Plan

To: "Suzanne Seitz, Department of State" <STHAVA@state.pa.us>
Subject: State Plan
Date: Fri, 25 Aug 2006 22:43:18 -0400

Dear Ms. Seitz

Below please find my comments on the state's HAVA Plan,
as downloaded from the Secretary of the Commonwealth's
web site (PDF file author "tharbaugh", modification date
08/04/06 13:29:44).

My name is David A. Eckhardt.  I reside at 330 Jefferson
Drive in the municipality of Mt. Lebanon in Allegheny
County.  I am a registered voter and have served as a
Judge of Elections since 1997.  In addition, I hold a
Ph.D. in Computer Science from Carnegie Mellon University;
my areas of specialization are computer operating systems
and computer networks.

Forthwith are my comments on the Plan.

1. On page 54 the Plan states:

| The Election Code provides that an electronic voting
| system must produce a permanent physical record of each
| vote cast.  DREs currently in use in Pennsylvania meet
| this requirement through electronic ballot image retention
| (BIR) of each vote cast and the ability to print the
| contents of the BIR on paper for use in conducting audits.

As you may be aware, in November of 2004, 4,438 votes were
irretrievably lost by a Unilect Patriot DRE operated under
the false presumption that electronic BIR plus a subsequent
printing step provides a permanent record of each vote cast.
The number of votes lost was greater than the margin of
victory in the race for Secretary of Agriculture in North
Carolina, with the result that the outcome of the election
was in doubt for months until one candidate graciously
conceded.

To me the Commonwealth's presumption that BIR serves as a
faithful physical record of each vote cast is not justified.
I do not believe it is appropriate for this assumption to be
embodied in the Plan unless it is accompanied by an explanation
of who made this determination, the authority of the person
or entity who made the determination, and an explanation of
why the determination is reasonable in light of the failure
detailed above and the potential for similar failures--or
malicious vote tampering activity--in the future.

2. As you may be aware, some elements of the iVotronic voting
system used in Allegheny County in the May 16, 2006 primary
were controlled by software which was not certified by the
Secretary of the Commonwealth.  For example, I am in receipt
of a letter from Mark Wolosik, dated August 21st of this year,
stating that five PEB modules were running uncertified firmware.

In addition, to the best of my knowledge and understanding,
Allegheny County's procedure for determining that elements of
its iVotronic voting system are running certified software
relies on asking the software to declare its identity.  Since
it is trivial for malicious software to report any version
number it wishes, it is not possible for county election
officials to ensure their machines are running software certified
by the Secretary of the Commonwealth unless the Secretary
institutes software version verification procedures.

I urge the Secretary to promptly design and deploy such procedures
as a necessary step toward providing voters with some degree of
confidence that electronic voting machines are accidentally running
uncertified software and are not maliciously tampered with.  Such
procedures should include routine, automatic pre-election and
post-election code comparisons of machines in each county.

3. On page 55, the Plan contains this text:

| The Department of State will work with the General Assembly
| to identify options available to the counties to use electronic
| voting systems with a VVPAT and define the role of the VVPAT
| during a recount.

I urge the Commonwealth to set a target date for such identification
and definition, including especially a general framework for
routine, automatic post-election audits of voting-system integrity.

4. Page 11 of the Plan states

| The Department heard testimony at public hearings before the
| publication of the 2003 State Plan supporting the use of DRE
| machines only if they include voter verifiable ballots, which
| allegedly provide a paper record of how the voter has voted.

I question the use of the word "allegedly" in this context.
I wonder whether there is a particular reason for its presence
here, since all claims made by any party could be modified by
the word "allegedly".  For example, the sentence I quote in
my first comment could have been written "through [...] the
alleged ability to print the contents of the BIR on paper [...]"
or "[...] the ability to print the contents of the alleged
BIR on paper [...]".

The Plan continues

| It is the opinion of the Department of State that current
| Pennsylvania law does not address the use of such a ballot.
| Therefore, unless the EAC or other competent authority should
| interpret HAVA to require a voter verifiable ballot, or the
| Legislature should amend the Pennsylvania Election Code to
| require one, the Department does not believe it to be within
| the statutory scheme to permit the use of such a DRE system
| in Pennsylvania.

I am curious as to the gap between "require" and "forbid".
Would it not be possible for the Legislature to amend the
Election Code to permit, but not require, a DRE-plus-VVPB
system?

I urge the Secretary to amend the Plan to be at least neutral,
rather than hostile, to the institution of an election integrity
method favored by many citizens of the Commonwealth.

5. Page 11 of the Plan states

| Counties that decide to procure an electronic voting system
| would have to meet the Pennsylvania constitutional requirement
| that the voters of those counties approve the use of an
| electronic voting system through referendum.

I am confused by this text given the firm opposition of the
Commonwealth to exactly these referendums in the case of Kuznik v.
Westmoreland County Board of Commissioners.  I do not believe it
is appropriate for this text to stand; the Plan should include an
explanation of the Commonwealth's opposition to the referendums,
an explanation of what, if any, applicability the referendum
statute has for the future, and details of the State's plan to
enforce (or not enforce) whatever applicability might remain.

I would appreciate a written response to my comments on the Plan.

Sincerely,

David A. Eckhardt

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