by Lou Ann Blake
From the Editor: Bringing a truly secret ballot to the blind has generated tremendous excitement for those who value voting but have felt reluctant to disclose their voting preferences to poll workers or whomever they bring with them to the polls. The Help America Vote Act provided federal funding for the purchase of machines, and all of us who have used them have opinions about the strengths and weaknesses of whatever machines have been purchased.
In the February 2014 issue we ran an article about the discontent of people in New Mexico with their secretary of state's failure to involve them in the selection process and with the machines purchased. In an attempt to explain how new machines are certified and the reasons for the delay blind people see in the incorporation of state-of-the-art text-to-speech and nonvisual navigation, Lou Ann Blake, HAVA project manager and Law Symposium coordinator at the Jernigan Institute, has written this article. Lou Ann is both thorough and interesting—a dream writer for any editor. Here is what she has to say about the difficulty in implementing HAVA:
The passage of the Help America Vote Act (HAVA) in 2002, which requires at least one accessible voting system in each polling place for all federal elections, has enabled many voters with disabilities to vote privately and independently as never before. However, surveys of blind voters conducted by the National Federation of the Blind show that the percentage of blind voters who were able to cast a private and independent ballot on an accessible voting system declined from 86 percent in 2008 to 75 percent in 2012, and 83 percent in 2014. What has happened in the last six years so dramatically to thwart the promise of HAVA? The answer to this simple question is actually fairly complex, because there are many factors and forces at work that affect the ability of blind and other disabled voters to vote with the same privacy and independence as nondisabled voters.
In addition to requiring accessible voting systems for all federal elections, HAVA also created the US Election Assistance Commission (EAC). HAVA mandates the EAC to develop voting system standards and to establish the first federal voting system certification program. To fulfill its HAVA mandate, the EAC created the Technical Guidelines Development Committee (TGDC) to work with the National Institute of Standards and Technology (NIST) to develop voting system standards.
The standards developed by the TGDC and NIST consist of specifications and requirements for testing a voting system to determine if it provides all of the basic functionality, accessibility, and security necessary to be used in an election. In 2002 the EAC adopted the Voting System Standards, which were replaced in December 2005 by the Voluntary Voting System Guidelines (VVSG). Under HAVA, states may elect to adopt these standards in part, in full, or not at all. Currently thirty-nine states have included the 2005 VVSG as part of their voting system certification process.
Accessibility guidelines in the 2005 VVSG address the design of voting systems for use by voters with a broad range of disabilities. For voters who are blind or low vision, the guidelines address features such as the audio-tactile interface (ATI), font size, color, and contrast. For example, the 2005 VVSG requires that the audio system allow the voter to control the rate of speech throughout the voting session, that the range of speeds supported shall be 75 to 200 percent of the normal rate, and that the pitch of the voice not be affected by adjusting the speed. The VVSG also addresses the quality of the audio presentation of verbal information with requirements such as proper enunciation, normal intonation, and the requirement that candidates' names be pronounced as the candidates intend.
In addition to developing the accessibility guidelines that are included in the 2005 VVSG, the EAC also created the nation's first voting system certification program. As mandated by HAVA, the EAC accredits laboratories to test voting systems for compliance with the 2005 VVSG. Those systems that are found to be in compliance are certified by the EAC. When any changes are made to a certified voting system's software or firmware, or a hardware change is made that will change or has a reasonable potential to influence the system's operation or compliance with the VVSG, it must be resubmitted for certification of the modification. The EAC's full accreditation and certification program became effective in January 2007. Currently two laboratories are accredited to perform voting system certification testing.
HAVA authorized the EAC to administer $3.9 billion in grants to the states, so they could replace outdated lever voting machines by January 1, 2006, with either direct-recording electronic (DRE) touchscreen voting machines or an optical-scan system that included an accessible ballot-marking device. These first generation accessible voting systems included the Diebold AccuVote, Election Systems & Software (ES&S) AutoMark, and the Sequoia Edge.
Once the EAC had provided grants to the states to replace lever voting machines, adopted the 2005 VVSG, and completed the implementation of the voting-system-certification program, a number of Republican members of Congress no longer considered the EAC to be necessary. This resulted in an inability of the Senate to confirm EAC commissioner nominees and in attempts by members of the House to pass legislation abolishing the EAC. In addition the EAC’s staff has been cut almost in half and its budget reduced by over $6 million since 2009. The budget cuts, the lack of a quorum of commissioners since 2010, and vacancies in all four seats since 2011 have meant that certification standards have not been updated since 2005, and states have not received grants to improve the administration of elections and purchase new machines. Fortunately this situation may be about to change as three new EAC commissioners were confirmed by the Senate during the waning moments of the 113th Congress.
The vacuum that has been created by the absence of EAC commissioners for four years has had a negative affect on accessible voting in the United States. Because of the lack of federal grants, many of the first-generation accessible voting machines purchased with HAVA grants prior to 2006 were still in use during the November 2014 election, even though these machines have reached the end of their useful life. The end result is that since 2008 an increasing number of blind and visually impaired voters have not been able to vote privately and independently because there was no working accessible voting machine in their polling place.
In addition the lack of updated certification standards has caused a great deal of uncertainty among the developers and producers of voting systems and the states and counties that purchase them. While the state of the art in voting technology has changed since 2005, the certification standards have not. For example, voting system vendors such as ES&S, Everyone Counts, Dominion Voting Systems, and Scytl have developed online ballot delivery systems, but there are no design or testing standards to certify these systems. The result of this lack of standards is that recent testing for the city of Toronto, Canada, of online ballot delivery systems developed by Dominion, Everyone Counts, and Scytl found that these systems did not meet the WCAG 2.0 Level AA standards and were not accessible.
Many states and counties have put off purchasing new voting machines because they do not have the money to purchase them and/or because of the limited number of voting systems that have been certified under the 2005 VVSG. With the slow economic recovery that is continuing in the United States and the lack of federal funding from the EAC, many states have delayed purchasing new voting systems. In 2010 Maryland put off purchasing a new voting system until 2015 because of inadequate funding and a lack of accessible voting machines that were certified under the 2005 VVSG. In Florida the legislature has delayed until 2020 the replacement of the first generation DRE voting machines, which are now used only by voters with disabilities while all other voters use an optical scan system.
The lack of an adequate selection of 2005 VVSG certified-accessible voting machines has also made it difficult for states to replace their first-generation systems. The first system to be certified under the 2005 VVSG was the Microvote EMS in 2009, followed by the Unisyn OpenElect in 2010. Both Microvote and Unisyn are minor players in the arena of voting systems vendors, and they do not market their systems on a national scale. It was not until 2012 that a VVSG-certified machine was available nationally, when Dominion Voting Systems' ImageCast Evolution (ICE) received its certification. A fourth accessible voting machine, the ExpressVote developed by ES&S, the largest vendor of election systems in the United States, received 2005 VVSG certification in 2014. In addition, two other major players, Hart InterCivic and Everyone Counts, currently have accessible voting systems in the certification testing process.
Why has there been such a delay in getting new accessible voting systems certified under the 2005 VVSG? A significant contributing factor to this delay has been the trend of states moving away from the use of DREs to a system that produces a voter-verifiable paper record. In 2003, shortly after many states had begun implementing voting systems based on a DRE voting machine, computer security experts at Johns Hopkins University performed a security analysis of DRE voting systems that revealed security vulnerabilities. This analysis was followed by others that also raised security concerns, and nervous state legislators started following the lead of the Nevada legislature, which passed a law in 2004 requiring a voting system that produced a voter-verifiable paper record.
At the time that HAVA was passed in 2002, eliminating the use of mechanical lever voting machines, the future of voting was all electronic. However, that future was changed by virtually all of the states requiring a voter-verifiable paper record in response to the security concerns surrounding DREs. At about the same time that the states were passing laws requiring a voter-verifiable paper record, the EAC was in the process of adopting the 2005 VVSG. The result of this perfect storm was that voting system vendors had to develop new systems that would be tested and certified for functionality, accessibility, and security under new guidelines.
Another contributing factor to the dearth of 2005 VVSG-certified voting machines is the duration and rigidity of the certification process. Certification testing of the ES&S ExpressVote System took seventeen months, and the Hart InterCivic Verity has been in certification testing since December 2012. In addition to the initial certification testing, a voting system must be resubmitted for certification testing following any modification to the software or firmware and following a modification to the hardware that will alter or has the potential to alter the system's reliability, functionality, and operation. Since the initial certification of the ES&S system, it has been resubmitted twice for testing of modifications. The first modification testing took four months and the second seven months. While the EAC certification testing program helps to ensure that voting systems are secure and accessible, it also contributes to the high cost of these systems and delays the introduction of new systems. Perhaps what is more critical is that it delays improvements to existing systems.
Finally, poll worker training on the operation of accessible voting machines continues to be a problem in all states. According to surveys of blind voters conducted by the National Federation of the Blind, following the 2008, 2012, and 2014 federal elections, untrained poll workers are the primary reason why blind voters are not able to cast a private and independent ballot on an accessible voting machine. Of the blind voters surveyed in 2014, 29 percent said that poll workers had problems setting up or operating the accessible voting machine as compared to 33 percent in 2012 and 19 percent in 2008. With many states converting from a DRE voting system, where everyone uses the same machine, to an optical scan system, where only voters with disabilities use a machine to mark their ballot while the majority of voters hand mark their ballot, it is even less likely in future elections that poll workers will know how to operate the accessible voting system.
The commitment to guarantee an electronic secret ballot for blind people in America currently confronts many challenges. The replacement of worn out first-generation accessible voting machines with new 2005 VVSG-certified machines has been slow. Consequently, the number of blind voters who were able to cast a private and independent ballot on an accessible voting machine has declined from 86 percent in 2008 to 75 percent in 2012 to 83 percent in 2014 due to machines that do not work or the absence of an accessible machine. The ongoing problem of untrained poll workers continues to make it difficult for blind voters to take advantage of existing machines when they are available.
In states that have implemented new 2005 VVSG-certified systems, the process has not always been smooth. New Mexico and Iowa, for example, selected new voting machines without first consulting with members of the disability community. In addition, voters, poll workers, and election administrators must always negotiate a learning curve whenever a new voting system is put into use. While blind voters are able to vote privately and independently on the four systems currently certified under the 2005 VVSG, none of these systems are perfect, and the incorporation of improvements is slowed down by the certification testing requirements and process.
With all of these challenges, what can blind and visually impaired voters do to ensure that we are able to vote privately and independently just as the nondisabled do? The most important thing a blind voter can do is file a HAVA complaint with her local and state elections officials if she is unable to cast a private and independent ballot at her polling place during a federal election. Filing a HAVA complaint is the most effective way blind voters can be sure that problems are brought to the attention of elections officials and the US Department of Justice, which has authority to enforce HAVA. Because there is no private right of action under HAVA, it is imperative that blind voters who are not able to vote privately and independently at their polling place during a federal election file a HAVA complaint so that the Justice Department has a true picture of the problems that voters with disabilities are experiencing.
By working directly with local and state elections officials, members of the National Federation of the Blind can develop a relationship to achieve more accessible elections through improved communications. There are many ways this can be accomplished: invite election officials to a chapter meeting or your affiliate convention, attend board of elections meetings, testify before legislative committees and boards of election on issues that affect voters with disabilities, and participate on your local or state disabled voter advisory committee. If your local or state board of elections or secretary of state's office does not have an advisory committee of voters with disabilities, work with these officials to establish one.
At the National Federation of the Blind Jernigan Institute, we are using our HAVA grant from the US Department of Health and Human Services to work with voting rights advocates, elections officials, and election technology developers to improve the accessibility of the election process. Recently NFB staff worked closely with Maryland State Board of Elections (MDSBE) programmers to ensure that the state's online ballot delivery system is accessible, and we advised MDSBE's selection team on accessibility during the selection of a new voting system that will be used statewide starting in 2016. We have also assembled a working group of developers and users of online ballot-delivery systems to develop guidelines to ensure that these systems will be accessible. In addition, every two years we bring election technology researchers and developers to our National Center for Nonvisual Election Technology to introduce them to topics such as the incorporation of personal access technology into voting systems and accessible apps. These are just a few examples of the many services we provide under our HAVA grant to improve the accessibility of the election process for blind voters.As blind voters we have faced and continue to face many challenges to the exercise of our fundamental right to vote privately and independently since the Help America Vote Act became law in 2002. We cannot let tight budgets, rigid bureaucratic processes, and lax enforcement erode this long-delayed right which belongs to us as citizens of this country. We did not do that work simply to watch our newly won right slip away. With firm and persistent advocacy, the members of the National Federation of the Blind will continue to ensure that voters with disabilities exercise their right to full and equal participation in our democracy.