120 Broadway Suite 1750 New York, New York 10271 646.292.8310 Fax 212.463.7308 www.brennancenter.org
September 27, 2018 Secretary Lawson Office of the Indiana Secretary of State 200 W. Washington St., Room 201 Indianapolis, IN 46204 Dear Secretary Lawson, On behalf of the Brennan Center for Justice, I write to alert you to a recent opinion in the case of
Curling v. Kemp,
advise you of its potential implications for the few remaining states like Indiana that continue to use paperless DREs as their primary polling place equipment in at least some jurisdictions, and offer assistance to minimize the risk of continuing to use these systems this fall, as well as to transition away from them in 2019. U.S. District
Judge Totenberg’s
opinion in
Curling
highlights some of the substantial risks associated with the ongoing use of paperless DREs, as well as the ways in which the continued use of such systems may violate the Constitutional rights of voters. The Court state
d that Georgia’s “
continued reliance on the use of DRE machines in public elections likely results in
‘
a debasement or dilution of the weight of
[Plaintiffs’] vote[s],’
even if such conduct does not completely deny Plaintiffs the right to vote.”
1
Litigation pending in South Carolina also asserts that their vulnerable DRE-based voting system violates the Constitution. Importantly, the
court’s opinion is
consistent with the strong consensus of cyber security, national security, and election administration experts that paperless DREs present a security risk and must be replaced promptly. Most recently, the National Academy of Sciences issued a report this month urging
that “
[a]ll local, state and federal elections should be conducted using human-readable paper ballots by
the 2020 presidential election.”
Given these facts, and the mounting public concern over election system security, it is likely that other states, including Indiana will also soon face litigation to ensure paperless DREs are replaced prior to 2020.
1
Curling v. Kemp,
No. 1:17-cv-02989-AT, slip op. at 33 (N.D. Ga. Sept. 19, 2018),
available at
https://www.courtlistener.com/recap/gov.uscourts.gand.240678/gov.uscourts.gand.240678.309.0_2.pdf.
We understand it will not be possible to replace all of the paperless voting equipment in Indiana this year, so soon before a major election. We offer two suggestions to make your elections more secure in the short and long term. In the short term, there are a number of steps you can take to minimize the risks of using DREs in the midterm elections. The Brennan Center has prepared a checklist to assist election officials in contingency planning, including for those jurisdictions that use DREs. We have attached a copy of that planning checklist. Specifically, we recommend focusing on items that will mitigate the risks associated with fielding DREs. These include:
•
Conducting
thorough
Logic and Accuracy testing on 100% of the voting equipment that will be used in the November election. This will allow you to verify ballots are appropriately programmed and identify any calibration issues with individual machines.
•
Having emergency backup paper ballots printed and distributed to account for 2 to 3 hours of peak voting. Backup paper ballots will allow voters to cast a ballot if polling places experience voting machine failures. This will provide time for election officials to deploy replacement machines or provide additional paper ballots to a polling place since malfunctioning machines should never be placed back in service during an election.
For a more permanent solution, we strongly recommend that you begin plans for transitioning to paper-
based voting systems as soon as possible after the conclusion of this November’s elections.
Two Brennan Center experts, Edgardo Cortés and Liz Howard, oversaw the transition to paper-based voting systems while running
Virginia’s state elections office. Another Brennan Center expert, Christopher
Deluzio, is currently assisting the Blue Ribbon
Commission on Pennsylvania’s Election Security in its
fact-
finding and preparation of a report on Pennsylvania’s election security (including Pennsylvania’s
transition away from DREs). We would welcome the opportunity to work cooperatively with you in developing and implementing a transition plan rather than engaging in protracted litigation to accomplish our shared goal of fair and accurate elections. As Judge Totenberg
noted in this week’s opinion, “a
wound or reasonably threatened wound to the integrity
of a state’s election system carries grave consequences beyond the results in any specific election, as it pierces citizens’ confidence in the electoral system and the value of voting.”
2
We share the same goal of ensuring well-run elections where all eligible voters have the ability to meaningfully participate and have their vote counted. Please let us know if you would like any additional information or have any questions. We look forward to working with you.
Larry Norden
Deputy Director
, Democracy Program Lawrence.Norden@nyu.edu CC: Co Directors of Elections, Brad King and Angela M. Nussmeyer
2
Id.
at 45.
120 Broadway Suite 1750 New York, New York 10271 646.292.8310 Fax 212.463.7308 www.brennancenter.org
September 27, 2018 Secretary Kobach Kansas Secretary of State Memorial Hall, 1st Floor 120 SW 10th Avenue Topeka, KS 66612-1594 Dear Secretary Kobach, On behalf of the Brennan Center for Justice, I write to alert you to a recent opinion in the case of
Curling v. Kemp,
advise you of its potential implications for the few remaining states like Kansas that continue to use paperless DREs as their primary polling place equipment in at least some jurisdictions, and offer assistance to minimize the risk of continuing to use these systems this fall, as well as to transition away from them in 2019. U.S. District
Judge Totenberg’s
opinion in
Curling
highlights some of the substantial risks associated with the ongoing use of paperless DREs, as well as the ways in which the continued use of such systems may violate the Constitutional rights of voters. The Court state
d that Georgia’s “
continued reliance on the use of DRE machines in public elections likely results in
‘
a debasement or dilution of the weight of [Plaint
iffs’] vote[s],’
even if such conduct does not completely deny Plaintiffs the right to vote.”
1
Litigation pending in South Carolina also asserts that their vulnerable DRE-based voting system violates the Constitution. Importantly, the
court’s opinion is
consistent with the strong consensus of cyber security, national security, and election administration experts that paperless DREs present a security risk and must be replaced promptly. Most recently, the National Academy of Sciences issued a report this month urging
that “
[a]ll local, state and federal elections should be conducted using human-readable paper ballots by the
2020 presidential election.”
Given these facts, and the mounting public concern over election system security, it is likely that other states, including Kansas will also soon face litigation to ensure paperless DREs are replaced prior to 2020.
1
Curling v. Kemp,
No. 1:17-cv-02989-AT, slip op. at 33 (N.D. Ga. Sept. 19, 2018),
available at
https://www.courtlistener.com/recap/gov.uscourts.gand.240678/gov.uscourts.gand.240678.309.0_2.pdf.