brennan center for justice

iv.a better way to track and address voting system problemsAs this report shows, the current regulatory scheme for voting systems does not adequately ensurethat problems with these systems are detected and corrected. 199 The Brennan Center proposes a newregulatory structure to address this inadequacy, one based upon our interviews with election officialsand regulatory experts, our review of analogous regulatory structures in other important industries. Thenew regulations and/or statute must include at least four key provisions:1. A Publicly Available, Searchable Centralized Database: Election officials, in particular, wouldbenefit from a publicly available, searchable online database that includes official (i.e., electionofficial-reported or vendor-reported) and unofficial (i.e., voter-reported) data regarding votingsystem failures and vulnerabilities, and other reported problems and establishes criteria for thedatabase’s contents and organization.2. Vendor Reporting Requirements: Vendors must be required to report to the appropriategovernment agency via the database and certified mail “early warning” data regarding knownand suspected voting system failures and vulnerabilities, and other reported problems,including when vendors receive a complaint from a customer (an election official), when theyreceive a warranty claim and/or take some action to satisfy a warranty, when they conduct aninvestigation of a reported problem, and when a customer or other person sues them.3. A Federal Agency with Investigatory Powers: The best way to ensure that vendors addresspotential problems in a timely manner is to empower the appropriate government agency toinvestigate all voting system failures and vulnerabilities listed on the database, grant the agencysubpoena power to facilitate its investigations, and require vendors to, among other things,maintain records that may help the agency determine whether there are indeed voting systemfailures or vulnerabilities, and whether the vendor has taken appropriate action to address thefailures or vulnerabilities.4. Enforcement Mechanisms: The appropriate government agency must have the power to levycivil penalties on vendors who fail to meet the reporting requirement or to remedy failures orvulnerabilities with their voting systems. 200This section discusses in detail how we believe each of these critical provisions should be drafted,analogous legislation and regulations that contain similar provisions, and the key benefits that the newprovisions would bring to the regulation of voting systems.Of course, as with any regulation or law, good definitions will be critical to creating an effectiveregulatory scheme. We provide suggested definitions for many key terms used in these sections (“votingsystems,” “vendors” “failures,” etc.) in Appendix A.1. A Publicly Available, Searchable Centralized DatabaseA robust regulatory system should mandate the creation of a searchable online database. It shouldbe easily accessible through the appropriate government agency’s home page. And, it should containcomprehensive information about all reported voting system failures, usability concerns, vulnerabilities,Brennan Center for Justice | 27