NASED Executive Board Comment on the Voluntary Voting System Guidelines Lifecycle Policy
The NASED Executive Board submitted a public comment to the U.S. Election Assistance Commission (EAC) on the Voluntary Voting System Guidelines Lifecycle Policy
The full text of the comment is reproduced below in its entirety and is linked here for download.
Thank you for the opportunity to provide formal feedback on the draft Voluntary Voting System Guidelines (VVSG) Lifecycle Policy. Nearly every state, territory, and local election jurisdiction in the country currently relies on equipment certified to VVSG 1.0, making this policy critical to the successful administration of elections both immediately and in the future. To that end, we appreciate the pre-decisional draft that was shared with the community earlier this year and your willingness to accept input prior to a formal comment period.
The National Association of State Election Directors (NASED) represents all 50 states, the District of Columbia, and the five U.S. territories: American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands. NASED members serve on the Technical Guidelines Development Committee (TGDC), the Election Assistance Commission’s (EAC) Board of Advisors, and the EAC Standards Board. NASED had a VVSG Committee when there was no quorum at the EAC to discuss solutions for moving the standards development process forward.
While each state and territory may provide feedback on how this policy would affect them, NASED is uniquely positioned to provide broader feedback that is not specific to any one jurisdiction. We are happy to speak further regarding any questions or concerns raised in this document to ensure the final version of this policy meets the needs of the state and territorial election officials NASED represents.
Section 2.4: VSTL Accreditation
The language is this section is not specific about EAC accreditation versus accreditation from the National Voting Laboratory Accreditation Program (NVLAP) through the National Institute of Standards and Technology (NIST). Accreditation of the Voting System Test Labs (VSTLs) is a key component to strengthening public confidence in America’s voting equipment. Regardless of whether a change is major or minor, EAC reaccreditation should be required to ensure full compliance with the requirements of the new standard version. We defer to the EAC on the need for NVLAP accreditation.
Section 3.2: Deprecation Definition
We appreciate the clarity that equipment certified to deprecated standards will not be decertified “based solely on the standard it was certified to.” Nearly every jurisdiction in the country currently uses voting equipment certified to a previous version of the VVSG; mass decertification would cause an immediate need for thousands of pieces of equipment, potentially as soon as at the beginning of a major federal election year. We recommend, however, including a clear definitional statement of the word “deprecation” to assist state and local election officials in communicating with their appropriators and stakeholders. It is NASED’s understanding that it means usage is discouraged but still supported, not discontinued as it is defined in Section 3.2, but this demonstrates the point. While it is a common term in software development, it is less common elsewhere, making it critical that there is uniform understanding of what it means.
Section 3.4: Maintenance of Systems Certified to Deprecated Standards
The cycle described in this section is predicated on a determination of whether a submitted system is new or represents a modification to a system certified under a deprecated standard. While Section 3.4.1 details the broad categories that define minimal changes, it is not clear how the EAC will determine the difference between a new system and a modification or how the EAC determined the categories themselves. It is also not clear how the definition of minimal changes in this draft policy interacts, if at all, with the definition of a minor change in Version 3.0 of the Voting System Testing and Certification Program Manual[1] adopted in February 2021, or previous guidance on de minimis changes.
Finally, the draft policy includes no timeline for making such a determination about a system. Jurisdictions often need to understand the review timeline when making procurement and implementation decisions.
Section 3.4.3
Section 3.4.3 states that the EAC will make the determination about each system but does not indicate the objective criteria employed to evaluate submitted systems. If a proposed change to a system certified to the deprecated standard includes both a bug fix and an enhancement, which is a common occurrence, how will the EAC determine whether that is a modification or a new system? Further, the draft policy does not say who will evaluate a submitted system to determine whether it is a new system or a modification to a baseline system. Will the decision be made by EAC staff, by the EAC Executive Director, by vote of the EAC commissioners, or by some combination thereof?
This section also states that the EAC will communicate its decision on the system to the manufacturer and the appropriate VSTL, but there are circumstances where it may be appropriate to notify the effected jurisdictions as well, especially if the change request was the result of a jurisdictional rule change. In addition, all certification decisions are currently posted to the EAC website for easy public viewing, but the draft policy does not specify whether determinations made under Section 3.4.3 of this policy will also be posted on the EAC website.
Finally, Section 3.4.3 encourages voting system manufacturers to request a non-binding opinion on whether a modification would be approved under Section 3.4.1 in advance of a full application. There is no timeline for response on this non-binding opinion nor is it clear what value a non-binding opinion adds. In practice, a manufacturer could request a non-binding opinion, wait several weeks or months for an affirmative response, and then submit a full application, only to learn after application review that the submission does not meet the requirements enumerated under Section 3.4.1.
Section 4.4: Review and Update Process
Broadly speaking, the VVSG review and update process defined here makes sense, but there is not enough specificity to make clear how it will work in practice. As in most things about elections, the devil is in the details. NASED hopes that the next draft of this policy will include a greater level of specificity so election officials can better evaluate how the policy will affect their jurisdictions.
Most concerning to NASED is the EAC’s reliance on the continued goodwill and engagement of EAC staff and commissioners, NIST, the TGDC, the Board of Advisors, and the Standards Board. There are no timeframes for most of the required actions by these bodies in the process detailed in this policy document. Further, the Help America Vote Act of 2002 (HAVA) does not specify a minimum number of annual meetings for the TGDC, though their recently adopted charter estimates they will meet at least once per year[2], and only mandates meeting at least once per year for the Board of Advisors and Standards Board. As recently as 2018, the TGDC did not meet at all. NASED members welcome the opportunity to engage more frequently through these bodies as described in the draft policy but are concerned that turnover among EAC staff or commissioners, or a change of Board leadership, may mean a change in approach. If the TGDC, Board of Advisors, or Standards Board did not meet for any reason – lack of a Designated Federal Officer, a government shutdown, or anything else – the lifecycle policy would be upended. We strongly encourage the EAC to address this concern and develop a contingency plan in the next draft of the policy.
Finally, there is no acknowledgement or space in the described process for the HAVA mandated public hearing on draft standards. Where does that fit in Section 4? If every version of VVSG must go through the HAVA approval process, presumably that would include the entire HAVA process, including the public meeting.
Section 4.4.2
This section requires clarification as to when the public comment period begins. It would seem logical for the public comment to begin after the TGDC approves changes, but it is not clear in the policy.
Section 4.4.3 and Section 4.4.4
Section 4.4.3 states that if there are proposed changes to the VVSG resulting from the TGDC and/or the public comment period, NIST will address these changes. Section 4.4.4 states that the EAC Executive Director will submit the revised VVSG to the Board of Advisors and Standards Board. As described, the version shared with the Boards is never shared with the TGDC for their review and approval, whether their approval is necessary under HAVA or not. One of the true benefits of the full VVSG development process is the transparency it offers; it demonstrates that election officials and our private sector partners have nothing to hide. Any appearance of obfuscation hurts all election administrators in the long term.
We also encourage the EAC to make a redline version of any changes made by NIST available to both the TGDC and the public prior to submitting a revised version of the VVSG to the Board of Advisors and the Standards Board. A commitment to transparency at every point in the process is an important step towards maintaining confidence in the certification process itself as well as in the equipment it certifies.
Section 4.4.5
This section states that the EAC and NIST will review and address comments, but it is not clear whether this refers to comments received from the Board of Advisors and the Standards Board or a public comment period (or both). If a public comment period, it is unknown whether it refers to the same public comment period as Section 4.4.2 or if there is a second opportunity for public comment. This should be clarified.
This section is also the first and only substantive mention of the VVSG program manuals in this policy, but there is no opportunity described for public review or comment on those documents. Historically, the program manuals have been available for public comment; the manuals associated with VVSG 2.0 are the first time that has not happened. Opportunities for review demonstrate that election officials and the private sector have nothing to hide. We strongly encourage the EAC to put all future versions of the manuals out for public comment and for the lifecycle process to include public review and comment on the manuals. NASED also encourages the EAC to publish redline versions of the manuals for public inspection to help avoid any of the confusion that took place around the adoption of the VVSG 2.0 manuals. We believe that transparency throughout every aspect of the VVSG development process is critical.
Section 4.4.5 and Section 4.4.6
Section 4.4.5 states that the EAC will work with NIST to review and address comments, though as detailed previously, it is unknown whether that refers to comments received from the Boards or from a public comment period or both. Section 4.4.6 states that the Testing and Certification Program Director will submit the updated VVSG to the EAC Executive Director and the EAC commissioners. The version shared with EAC leadership and thus the version that, ultimately, is voted on by the commissioners, is never shared with the TGDC, the Board of Advisors, or the Standards Board. While HAVA may not mandate this level of transparency, the community demands it for the same reasons detailed above: any appearance of obfuscation hurts the election community in the long term.
Finally, NASED encourages the EAC to share redline versions of VVSG revisions with the TGDC, the Board of Advisors, and the Standards Board, as well as with the public, that reflect changes made under Section 4.4.5 before the commissioners vote. Doing so would eliminate some of the confusion that surrounded the adoption of VVSG 2.0.
Section 4.5: Commissioner Quorum
Many NASED members have voiced concerns about the effect a lack of quorum among EAC commissioners could have on the VVSG. NASED members do not want to see the EAC without a quorum, but while we are pleased to see reference to that possibility included in this draft policy, the proposed solution does not address our concerns. In fact, the language mostly reflects current practice at the EAC: when quorum was restored at the EAC in 2015 after over four years without, VVSG 1.1 was waiting for them. The commissioners adopted VVSG 1.1 on March 31, 2015, 2.5 months after quorum was restored. In our reading of the draft policy, Section 4.5 complicates the existing process due to the steps laid out in Section 4.4. This is easiest imagined in a hypothetical. For example, if there is no quorum for two VVSG update cycles as described in Section 4.4:
When quorum is restored, do the commissioners vote on cycle 1 revisions or cycle 2?
When quorum is restored and assuming cycle 2 revisions are inclusive of cycle 1 revisions, can the commissioners approve cycle 1 revisions and not cycle 2?
Will the Boards still meet without commissioners?
How will the EAC hold the HAVA required public meeting without a quorum?
Election officials plan for all possibilities. While NASED members are optimistic that the EAC will not be without a quorum in the future, it is critical the EAC have a well-articulated contingency plan in place for the VVSG should that occur.
Michelle Tassinari, President
Meagan Wolfe, Incoming President
Bryan Caskey, Vice President
Rob Rock, Treasurer
Mandi Grandjean, Midwest Region Representative
Will Senning, Northeast Region Representative
Chris Piper, South Region Representative
Mandy Vigil, West Region Representative
Judd Choate, NASED TGDC Representative, NASED President, 2017-2018
Keith Ingram, NASED Board of Advisors Representative, NASED President, 2019-2020
Linda Lamone, NASED Board of Advisors Representative, NASED President, 2005-2006
[1] See Section 3.5.1 of the Voting System Testing and Certification Program Manual Version 3.0, adopted February 10, 2021.
[2] See Clause 9 of the TGDC Charter, adopted April 13, 2021