brennan center for justice

the suboptimal structure ofthe voting system marketDiscussion of the need for regulatory reform in the voting system market is incompletewithout mention of the market’s suboptimal structure. Purchasing a particular votingsystem essentially binds election officials to the vendor who sold them their system formany years to come. Because officials have extremely limited funds, they are unlikely toturn to a new vendor when problems arise: the systems (from precinct voting machinesto tally servers) are designed for matched components, which makes it impractical forofficials to replace parts with those produced by a different vendor. Instead, they areeffectively forced to buy an entirely new system and new machines for every polling place(an exceptionally expensive proposition). In addition to this cost, election officials bear theadditional burden of training election workers, poll workers and educating the public onthe new systems.At the same time, as a result of contractual constraints and because voting system vendorsgenerally have monopolies over the production of all replacement parts and exclusivecontrol over the firmware and software in each system, election officials will generallyremain extremely dependent upon the voting system vendor to address problems andensure that their systems are working smoothly. This includes programming their machines,providing them with software patches, diagnosing and fixing malfunctions, and providingreplacements when systems fail.Vendors often constrain election officials in more explicit ways. Many contractsexplicitly disclaim liability for damages resulting from problems that cause “data loss.” 191Furthermore, vendors have in the past threatened to sue election officials and others whopublicize machine flaws or independently investigate and test machines malfunctioningmachines. 192Election officials say this encourages them to keep quiet about machine malfunctions.Though understandable, this reluctance to publicize malfunctions contributes to thepossibility that election officials and watchdog groups remain in the dark about knownproblems. Consequently, it is essential to provide election officials with protections againstvendor retaliation. One solution is to allow election officials to post information aboutknown problems on a nationwide database “semi-confidentially,” meaning that only otherelection officials and/or the agency charged with maintaining the database could viewthe official’s contact information. Similarly, through statute, Congress or the states couldprovide monetary penalties and perhaps the creation of a private right of action againstvendors that retaliate and/or harass individuals or localities who report problems. 193 Lastyear’s announcement that the largest voting system vendors, Election Systems and Software(ES&S) and Premier (formerly known as Diebold), planned to merge raised concerns. Acentral worry was that the merger would leave election officials in an even weaker positionBrennan Center for Justice | 25