May 20, 2019
NHCSL advocates for the expansion of voting rights
NHCSL recently testified at a hearing by the US Election Assistance Commission (EAC) to oppose proposed Voluntary Voting System Guidelines, after NHCSL approved a resolution to expand voting opportunities for all Americans.
Voluntary Voting System Guidelines (VVSG) are a set of specifications and requirements against which voting systems can be tested to determine if the systems meet required standards. Some factors examined under these tests include basic functionality, accessibility, and security capabilities. The Help America Vote Act (HAVA) of 2002 mandates that EAC develop and maintain these requirements.
- To assess the ability of the election systems to correctly execute secure, usable and accessible elections in order to provide assurance to voters that the election is an accurate reflection of the voters’ will.
- To enable, not obstruct or impede, innovation and needed response to changing statutes, rules, jurisdictional and voters’ needs.
- To create a set of implementable guidelines that allows effective deployment of systems by jurisdictions constrained by election calendars, schedules and budgetary restrictions.
- To facilitate the interoperability of election systems.
- To facilitate an open and transparent process that allows voters and election jurisdictions to assess the performance and capability of the election systems.
- To provide a set of testable requirements that a jurisdiction can understand and use to evaluate the performance of election systems and to procure new systems.
See NHCSL's Director of Legislation, Policy & Advocacy, Guillermo Mena, testifying at 2:05:30.
Silver Spring VVSG Public Hearing - Voluntary Voting System Guidelines 2.0 Principles and Guidelines
The National Hispanic Caucus of State Legislators opposed the proposed VVSG 2.0 for the following reasons:
1) The proposed VVSG 2.0 contains language that can lead to unintended consequences and/or is too vague to be useful, such as:
a) “best practice” – because there is no reference to what those are, where a person should find them, who defines them, or what minimum standards they should contain (except for a vague reference to being “usercentered” in principle 2.2), particularly when, regarding design, there are several competing best-practice guidelines available;
b) “commonly-accepted election process specifications” - because precisely the role of the US Election Assistance Commission is to improve on what for years was commonly accepted, if there even is such a thing;
c) The phrases “a wide range of representative voters” (principles 2.2 and 8.3), and “the widest range of voters” (principle 7.1) – making it unclear what range refers to (particularly when disabilities are the only criteria specifically mentioned in principles 2.2 and 8.3), and if there is a leeway intended between “a wide range” and “the widest range;”
d) “currently accepted federal standards for accessibility” on principle 8.2, which doesn’t make it clear if it is referring to the Americans with Disabilities Act, some other source, or many sources, but should certainly spell it out; and which is one of two instances (the other being principle 15.4) where the words “current” or “currently” are used without explaining if they refer to the time of the adoption of VVSG 2.0, the time the system is first implemented, or the time each election is held;
e) “consistent experience… in all modes of voting” on principle 5.1, which is frankly impossible and even undesirable because what we should strive for is the best possible experience for each particular mode of voting; and finally,
f) the use of the word “ballot” on principles 6, 7 and 10, to apparently refer to at least two things which could be different: what is displayed to the voter, and what is finally cast.
2) The VVSG 2.0 fails to address, in its lists of specifics on principle 7, the concept of “cast as intended” which is in the heading, and the best ways to gauge that intent.
3) The proposed VVSG 2.0 fails to define minimally acceptable number and quality of “settings” and “preferences” in principle 7.1.
4) The proposed VVSG 2.0 does not meet the needs of paper ballot systems, treating them at best as an afterthought (for example requiring that “voters can adjust settings and preferences to meet their needs” [principle 7.1], or “configurable authentication mechanisms” [principle 11.3], “equivalent… options in all modes of voting” [principle 5.2] or entire lines that seem to address only electronic systems without differentiating the front-end systems that voters interact with and the back-end reporting and aggregation systems that all systems include), even though Section 301 of HAVA (52 U.S.C. § 21081) underscores that paper ballot systems are protected under the Act.
5) The proposed VVSG 2.0 fails to define minimally acceptable results for the measurements it requires in principle 8.3 when it requires using a wide range of representative voters to measure “effectiveness,” “efficiency,” and “satisfaction.”
6) The proposed VVSG 2.0, in principle 8.1, fails to define the threshold of harm and predictability that “harmful conditions” must meet in order to require a priori protection.
7) The proposed VVSG 2.0, in principle 15, fails to define how an election official would be able to identify the minimally acceptable “mechanisms to protect against malware” or the “appropriate, well-vetted modern defenses against network-based attacks, commensurate with current best practice,” and when it becomes necessary to update those defenses.
8) The VVSG 2.0 fails to define who will fill-out or interpret the glaring gaps in its language, how stakeholders can request such definitions or interpretations, and what guarantees of impartiality come with that delegated authority.
9) The current makeup of the VVSG 2.0 implies that there will be subsequent processes to define the gaps and details, but those are not spelled out and there are no guarantees regarding their content or the processes to comment on them. The vagueness of VVSG 2.0 points to upcoming drawn-out arguments regarding what the document means to say in those subsequent processes instead of addressing the true concerns. This makes approval of VVSG 2.0 premature, at best, and a blank check at worst.
10) Beyond the Commission’s current mandate, NHCSL plans to propose that ballot design standards be mandatory.
In May, the NHCSL Executive Committee approved a Resolution to call for the nationwide use best practices in ballot design. It will be up for ratification at the December 2019 Annual Summit.