brennan center for justice

Regulations should stipulate that the database be searchable by: (1) the date of discovery of the problemwith the voting machine; (2) the make and model of the voting machine involved; (3) the nature of theproblem with the machine; (4) the jurisdiction in which a system is used; and (5) such other categoriesas the appropriate government agency deems necessary. Additionally, we propose that the legislationor regulatory framework include a provision that prohibits the appropriate government agency fromdisclosing to anyone other than an election official the contact information of an election official, voter,or vendor employee who submits a report to the database without the express written consent of theperson submitting this information. 203The database should also be searchable by and distinguish among reports submitted by (1) electionofficials, acting in their official capacities on behalf of their governmental units; (2) vendors; and (3)all other submitters, including voters, whistleblowers and anyone else. Voters, election officials, andvendors are likely to discover very different issues with voting systems, and their reports are likely tocarry different weights with different audiences. This division should particularly help election officials,voting rights groups, and any agency investigating potential problems.Finally, the agency responsible for creating and maintaining the database should probably be givensome ability and responsibility to review reports before they are posted, to ensure that on their face theybelong on the database. Allowing anyone to report anything without a filter could allow individuals tooverload the database with useless or irrelevant reports, resulting in an essentially useless database. 204B. Responsible AgencyThe EAC could construct and maintain the database. The EAC is already in the business of establishing“voluntary” guidelines to which new voting systems are tested. Section 202 of HAVA gives the EACthe responsibility of serving as a “national clearinghouse and resource for the compilation and reviewof information” related to the administration of elections. And, as already discussed (supra pp. 8 - 9)the agency collects anomaly reports provided by vendors and election officials for the few systems it hascertified. The EAC does not currently list the data it receives from vendors and election officials in thekind of searchable database that other agencies use, and that we believe would be most useful to electionofficials, but there is no reason it could not do so in the future (in fact, this may be largely addressedwith the adoption of a new clearinghouse policy in the near future).More problematically, the EAC has taken the position that its powers to facilitate the understandingand resolution of problems with non-EAC certified voting equipment is extremely limited, absentexplicit Congressional authority that does not currently exist. 205 As the vast majority of machinescurrently in use in the United States have not been certified by the EAC, 206 this could represent aserious impediment to the creation of a database under the auspices of the EAC, absent a clarificationfrom the EAC or Congress. As the Government Accountability Office has noted, if Congress explicitlyexpands the EAC’s powers in this regard, it should also consider providing the EAC with the additionalresources necessary to take on this additional work. 207 The EAC’s Voting System Testing and CertificationProgram currently employs only five staff members. 208Alternatively, the Comptroller General and the GAO could assume responsibility for the database.The GAO has a strong reputation of competence and impartiality, and it has a well-established trackrecord for acquiring and publicizing information. 209 It has also already done a considerable amount ofwork related to HAVA and voting machines, 210 and has in fact noted the void that currently exists inidentifying and resolving problems with non-EAC-certified voting systems, in particular. 211Brennan Center for Justice | 29