Craig Burkhardt, 9-20-04 testimony

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Craig Burkhardt, 9-20-04 testimony

Next, we'd like to move on to our second panelist for the day, Craig Burkhardt, General Counsel for Technology in the Department of Commerce.
MR. BURKHARDT: Thank you, Dr. Rivest. I'm Craig Burkhardt, Chief Counsel for technology matters at United States Department of Commerce.
Today, my comments are not going to be given in the capacity of one in charge of the legal aspects of the technology at the Department of Commerce, but I am going to be harkening back to my approximately 15-year career as an election official during the 20 years that I spent at a private law firm in the Midwest. So I will be reflecting off of the issues in the sense of one who has represented both candidate political party entities, as well as referendum organizations who directly participated, if you will, were consumers of the election systems over time.
And it's useful for us at the moment to recall there are several groups of folks who participate in our election systems. Each of them will have slightly different concerns with respect to security and transparency issues, and those principle groups would be, of course, the election administration committee. Those who are professionals that are involved in the operation of elections on a year-round basis, and those who work closely with them as volunteers or near volunteers on or about Election Day as poll workers.
We, then, of course, have the candidates or referendum committees who are seeking the passage of referendum who are in many respects direct consumers of election systems. These people are often represented by people such as myself, when I was in the private sector as an election attorney. Then, of course, we have the voters, those who, if you will, are the most traditional consumers of our election services and those directly interrelate with the election system in order to leave their intention, the evidence of their intention of what they support and what they don't support.
Finally, then, we have the press and we have the public relations organizations in the United States who in many respects are the entities which put the stamp of approval or disapproval on the efforts that everybody who I have just reviewed puts forward during an election cycle. Meaning that if the public's understanding of an election on the back side of all of the best efforts of those people is good, if they believe that there has been transparency and reasonable security, we have an effective election. If not, often times, that becomes that point in time when people either have confidence in our election system or don't have confidence in our election system. The reality is while we will read in the paper about an election contest or the rare prosecution for election fraud, and a prosecutor may be taking an option to pursue that, those are actually the rarities.
Fortunately, most elections in the United States, most activities of election administers in the United States, result in very clear, understandable elections, and their results.
Well, let's talk about the perspective of an election lawyer who is representing those candidates, the consumers, in their respect of election systems. The duties of that election lawyer are to make sure that the candidate or referendum committee accesses the ballot, and therein really begins the election process.
The election process is really not one that relates to the functioning or the design of a particular piece of machinery, but begins at the very beginning. All of our procedures need to be transparent, and need to have a sense of security, as well as the operations of a piece of technology. So accessing the ballot is one very important part of election procedures. Assuring that the voters have an understandable and unimpeded access to cast their vote, either in the absentee ballot process in advance of Election Day or very near to Election Day, to be able to cast a ballot on Election Day, and then the actual context of Election Day on the stereotypical polling place, to make sure that election functions take place smoothly, and in an atmosphere without fraud.
And for most of that, we rely upon the election administration community, the activist community, to make certain that we have adequate poll watching and supervision to double check our fine administration of elections take place, and then the candidate and campaign committees themselves who will put forward their self interest. And therefore, if we have healthy two-party systems in place, we'll have that check as well.
Finally, then we have a ballot counting and the result reporting process, which needs to be very transparent, meaning that the voters understand the counting process and how it takes place, that the voters understand that there were multiple parties involved in the supervision and the direct counting process.
Of course, Mr. Fischer talked about the necessity to have more than one political party involved. And the more people involved who are certified by the election administrators, the better. And then, as I mentioned, the explanation that is given to the voting public by the election administrators as well as the press afterwards.
The next thing that lawyers deal with, of course, when there are close elections or disputed elections, is a recount of auditable evidence. Now, this auditable evidence includes things such as; the applications to vote: is the voter eligible to vote? The application and vote casting materials related to absentee ballots are often accessed since those have been particularly vulnerable in the technologies and the procedures we have had in the past. And then finally, the recounting of that evidence of voter intent.
I won't repeat what Mr. Fischer's good explanation was as to the different types of technologies that have historically been present in the past, but each technology brings a different type of evidentiary trail to an election lawyer and to a judicial proceeding on the back side of a successful election or a close election.
Paper trails include everything from a traditional written ballot, to a punch card, to receipts, which are generated by certainly types of election technologies. The paper trail which is created by either paper ballots or paper which is reflective of votes which are cast on electronic ballots, those need to be maintained in a very highly secured environment, and those need to be available and open for public inspection, both before the election takes place as the particular technologies are demonstrated, as well as afterwards.
Lever machines and DREs which do not maintain precise ballot-by-ballot records of votes cast, of course, generate totals, and the recount process there is accessing accurate totals. Those are auditable. They are not auditable necessarily on a comprehensive ballot-by-ballot basis, but they also must be highly secure and understandable to the public.
Finally, we now have with some of the newer electronic processes in technology, we have ballot-by-ballot records, almost keystroke records that take place at the ballot place that would give a voter-by-voter ballot evidence of their intent. As you know, there are now paper trail ballots that also purport to provide a ballot-by-ballot confirmation of what that voter intent was.
Finally, the last job of an election lawyer would be to then present this evidence in a court proceeding. And the court proceeding would operate as any other typical civil proceeding, meaning that the civil rules of evidence applied, meaning, frankly, that the rules of conviction don't apply. What a judge or a multi-judge panel, or in some election jurisdictions, an administrative panel, will look at, is the preponderance of the evidence. Does the evidence, if you will, the 50/50 or 51 percent standard as opposed to the 99.9 percent standard that we're familiar with in criminal proceedings.
Well, the first question we're asked to look at today is to describe the issues of voting system security and transparency in a larger context, historical, worldwide, or as compared to other technologies. Well, the history of voting technology showes that early on paper technologies were almost exclusively the only technology used in the United States and that the development of voting machines was thought to increase the security as well as the transparency of that system. And the machines, in fact, I believe, were positive advancements of the voting security that was available at the time. The security and transparency issues with respect to lever punch cards, optical scans, and DREs, and now DREs with the paper trails have always and will continue to be possible to tamper with, particularly when that technology is utilized in the increasing context during the counting process.
Now, the importance for those newer technologies as well as the older technologies to be secure and transparent really relates to the formula that candidates utilize the election system to get elected, but public officials utilize the election system to govern effectively. They need to have an effective mandate. They need to have an understandable, overwhelming victory, which in many cases there isn't a review of auditable evidence, or whether it's a close election, on whether there is a recount or recount-styled proceeding that takes place after the election, because in that election, that public official needs to govern credibly. And in order to govern credibly, the public needs to have the understanding and confidence that the mandate was given at an election.
The principle components of that credibility are going to be whether the public understands that election process, and if the security, while not perfect, is regarded by the public to have rendered honest election results.
Now, the standard that is utilized by a judge or by an election panel when it comes to security, the standard of security is used to determine if the security was good enough to make sure that the election outcome was not to be invalidated or to be overturned, meaning that the legal standard is the defect or fraud in an election or in the recount of election must be significant enough in order to overturn the result of that election. So the security standard in the legal context is not that security needs to be absolutely perfect within an election system context.
And, of course, I would confirm the comments of Eric Fischer that with the historic attempts often successful to defeat election security, we know we will never probably get to absolute effects, but we certainly need to get security to the standard where those defects that might take place are not the types of defects or intrusions in our system that can cause an outcome to be changed.
Another comment I wanted to make is in the context of the role of the TGDC. I believe the TGDC should look at all the different technologies that are available out there and realize that the different election technologies will be selected by different election authorities. And so I believe that we need to be certain that we have good, voluntary voting system guidelines that are available, or technology will be available to those coming on line, and the newer technologies which the vending community is developing, as well as those technologies that will taper off over time, such as the lever machines, which appear to be diminishing in popularity.
Second, what are the relevant lessens to be derived from the larger context as applied to the mission, the mission of the TGDC? Well, the guidelines which are developed should be guidelines which are capable of being implemented. So the cost of those guidelines should be considered. Also, the possibility of implementing these by election authorities and by the volunteer or near volunteer poll workers who work with them on Election Day should also be taken into account.
And then, finally, being certain that we establish that there is an auditable record that is generated, that a secret record of the vote is made, that the record, an accurate record of the intent of the voters is preserved with sufficient back-up, particularly in the non-paper environment, that whatever record is created, that that record is capable of being reconstructed in a recount environment that is trusted and understood by the public and that, finally, that would be it there.
Just as a matter of information, how does an audit take place in a typical election case on the back side. Many of us are, of course, familiar with the practices that accountants are involved in, in the audit process, but the audit of an election on the back side of an election is, essentially, a legal process that is going to be defined by the statutes within that state or election jurisdiction. It is not going to take place under the types of auditing standards that are present in the financial community.
The key items that would take place in an audit are, number one; to determine if the DRE software or software loaded onto optical standard equipment, is it certified by an independent testing laboratory, is it accurate, is it certificated by the earlier types of testing laboratories that were available.
A second item in an audit would be to check that software where might be involved in the election technology against an escrowed copy. The escrowed copy is typically maintained by the state, sometimes by the manufacturer, and now increasingly it will be maintained by the organizations such as NIST on a national basis.
The next step would be to check the redundant memories that are available. In case of multiple memories that might be available on a machine, do the multiple memories match. If in the audit, the multiple memories do not match then it needs to be resolved, whatever that change might be.
Finally, then an actual recount, and the recount would be either on a ballot-by-ballot basis where that particular type of memory exists, either in paper or an electric standpoint or a reconstruction of the totals which are available in the machine.
If the machine, be it optical scan, be it something else contained mal wear of some type, if there is an examination of the programming, then that would need to be examined in audit type circumstances. If a recount is conducted on a DRE, then the recounts become based on the vote tallies. If ballot-by-ballot memories are available, then a hand count or, if you will, a machine-tabulated assisted count would take place.
I guess, in conclusion, my comments would be that the TGDC should develop reasonable security and transparency requirements that are capable of being implemented for the multiple technologies that will be not only those coming on line, but those which are currently being utilized across the country. Also, to develop guidelines for voting systems that will provide a clear, auditable trail that establishes evidentiary standards and is understandable to the public that is involved with the election process.
Finally, the guidelines should include procedural guidelines as well as the standards for machinery that might be involved, because that procedural environment that surrounds the utilization of our election technologies themselves are just as important, and in many cases, in the election lawyers' involvement and in the explanation to the public are sometimes even more important.
Finally, I will take an opportunity to respond as well to the last question that was asked, and that would be; should a voter, if the voter believes that the election system that the voter might be interacting with is less than perfect, should the voter cast a vote or should the voter not participate in that election system.
And I will say the unqualified answer to that is, yes, cast your vote, and not only cast your vote but participate in the voting system; become a poll watcher, for instance, or become a poll worker. We need good, qualified poll workers in our election system. And for one who is questioning a system, for one who is interested in upgrading the direct citizen participation in upgrading the honesty and integrity of our systems, they should vote and they should somehow participate in our election system, in many respects. To not participate in our election system is to send a message that you have abandoned your interest, and we certainly don't advise that of anybody.
Thank you.
DR. RIVEST: Thank you, very much, Mr. Burkhardt, for your excellent testimony. Now, time for questions and comments.
MR. CRAFT: That was very good, Craig. You have touched on an issue that I think other people have shied away from, which is probably, in my mind, one of the key issues we, as a country, have to resolve for ourselves. The very nature of the transparency, and the key issue for transparency comes down to who looks and what should he be able to see. And I think you have correctly pointed out that right now, the evaluation authority for elections is the press. I have many good friends in the press who do an excellent job. You were talking about people who only have three or four hours to research and write a story every day, and who, by the nature of their environment, frequently come to less than perfect conclusions.
Is there a better way? Can we provide an alternative, some sort of form of evaluation process as opposed to relying, as we do currently, pretty much solely on press interpretations, or is it perhaps a fair standard to say that, okay, if the press can understand it and have confidence in it, that maybe it is a very high standard we should continue to meet.
MR. BURKHARDT: A counting process and the recounting process that takes place say ten or 15 days after election night is done in a highly transparent way in election jurisdictions across this country. It is an issue of making sure the press is aware that the election authorities will allow them into the room where the county processes are taking place.
For obvious reasons, I am not allowed to touch any ballot material or interact or interfere with the counting process, but it is a totally transparent process. Having been involved with it for 15 years, I know in those jurisdictions where the press is aware and is motivated to cover the story, they are invited. Election authorities are more than happy to explain how things work.
In recount circumstances, it is really the identical circumstances, the press is allowed in to observe all of the activities, as was proven in the Florida recount. Extraordinary transparency and availability was provided in that counting and recounting environment. It is a matter of making sure that the press is educated and aware of what happens there.
I think if there is anything we can try to be vigilant on with those who are election administrators and those who are candidates or lawyers involved with the candidates, is to make sure we take the time to explain the result of counting or recounting processes in a way which is understandable and which is readily accessed by the press and the public.
I used to think of myself, when I was representing the candidate in a disappointing situation where there was a recount afterwards that was taking place, one of the most important services I provided was the press conference afterwards, where we explained why we won by eight votes or why we lost by 15 votes, or to assure the public what took place, how the counting process took place. So the winner had the mandated -- had the credibility of someone who has been honestly elected.
MS. PURCELL: Helen Purcell. As one who has a recount scheduled for tomorrow, it is the main reason I can't attend all the time, but Mr. Burkhardt, do you feel that it is important, in a recount situation, to use either a different type of a system or technology in conducting that recount, different from what was done on Election Day?
MR. BURKHARDT: Generally speaking, from an evidentiary standpoint, you want to utilize the identical machines, the identical information to construct the identical auditable results.
If, of course, there is a broken machine or something that is specifically wrong with a piece of machinery, we would want to make sure that the election procedure would cause that particular machine to be replaced, but the key thing for a recount is to examine the machinery that has been utilized in the counting process prior to the recount, make sure it is fully functioning, and then to recount using the identical evidence of voter intent.
MR. GANNON: Mr. Burkhardt, if I recall correctly, you made a statement there, something to the effect of transparency yields confidence. I thought that was quite helpful.
Certainly, my own experience has been that security is never absolute, and it's usually about trust and security. So if a lot of what we have to do is balancing that trust and security, my question is; from your experience, have you found that greater transparency throughout the entire process, as you described, really does lead to one, higher confidence in the consumers of the voting process, as well as fewer lawsuits or claims of voting fraud?
MR. BURKHARDT: Transparency is so important. Part of transparency is supervision. Proper procedures that place supervision in place, so the eyes of the election administrator, the poll watchers, the candidates and advocacy organizations, are allowed to be involved as observers in the system, that is one aspect of transparency. And all of those organizations, if you look at them as part of the greater election system, they, as well as the press, will put their stamp of confidence or lack of confidence in the election system, so supervision is really one aspect of confidence. Then, of course, the transparency of the technology, the understanding, if you will, of the technology enables somebody who once they have heard that it's been a good election, if their experience in the polling place was positive, and even understandable, if the explanation they heard from the election administrator as to how the counting process took place was understandable, that is really the second prong of that transparency, at least in the public context. So supervision and understanding on the part of the voter are key issues there.
MR. GANNON: Let me do a follow-up. When you talk about the process of supervision, from what I understand of the newer technologies, there are some significant, fundamental changes now occurring, and this goes directly to the processes by which you could have observers observing that process. So, for example, where there are now voting management systems that are used to download the ballot onto some sort of memory device, which is then transported to a precinct voting machine and inserted into the machine, the question's been asked in the observation process of an observer wanting to see something displayed on a larger screen, so observers can see, not just stand in the room and see somebody typing on a computer, but observe what is on the screen of the computer, observe that memory device is emptied, but it is loaded with the ballot, so that something wasn't loaded on there before it began the process.
And understanding that these type of things are fundamentally different and, therefore, the people involved may not have the experience, especially many of the outlying precincts, how do we go about a process, how do we go about creating transparency where are these entirely new ways of transmitting ballots and counting, etc.?
MR. BURKHARDT: I believe that those technologies which are involved which provide readouts, screen informational feedback, to those who are observing will probably be preferred over time. Also, the skills of the observers will need to adjust over time as well. This is something which is not new at all. I recall having been involved in elections where, for the first time, people were using punch cards or the optical scan information, and the first time, rather than having hand count, the ballots, they were relying upon a counting device which had a computer-aided aspect to that counting device.
So the skills of the election administrators needed to be upgraded, so they could be involved in that. Some of the higher technology machines, we will probably want to make sure that we recruit to our election administrators as Election Day workers. In some cases, college students and other who are familiar with higher technologies and able to follow that. And so, anyways, I think it is a combination of the skills of those overseers involved, as well as the technologies that provide feedback, which provide more feedback, if you will, for observing, though fewer things would be very positive.
DR. RIVEST: Thank you.

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