brennan center for justice

affirmative steps to increase their transparency and would ensure, among other things, that at the very least,election officials and the appropriate government agency will have access to problems soon after vendorsdiscover them.3. A Federal Agency with Investigatory PowersA. Provision DetailsIf this new regulatory structure is going to be effective, a federal agency must have adequate enforcementauthority. The most logical model would allow the appropriate federal agency to initiate an investigationafter reviewing any of the information posted to the database and determining that a machine failureor vulnerability potentially exists.In order to facilitate these investigations, new legislation should provide the appropriate federal agencywith the power to issue subpoenas and include a provision that would require vendors of electronicvoting machines to maintain records, reports, and other information to enable the agency to determinewhether there is compliance with other provisions of the legislation.B. Responsible AgencyThe EAC already has some investigatory powers related to its federal certification program. Specifically,manufacturers who register to have new voting systems federally certified by the EAC must, pursuant tothe EAC’s VSTCPM (discussed previously at page 8), 250 agree to “[c]ooperate with any EAC inquiries andinvestigations into a certified system’s compliance with VVSG standards and the procedural requirementsof this Manual . . . .” 251 While the VSTCPM does not currently require vendors to report all of the typesof problems we have detailed (see supra pp. 8 - 9) to a centralized database (none currently exists, ofcourse), we could imagine an amendment to the VSTCPM which would require such reporting as partof the Voting System Testing and Certification Program, and require manufacturers to cooperate with anyinvestigations into their compliance with such mandates. Of course, as previously noted in this report, theEAC is currently limited to investigating manufacturers registered under the Voting System Testing andCertification Program, and who stay registered under that program. 252 For this reason, Congress mightneed to explicitly empower the EAC to employ these investigatory powers as applied to problems arisingwith non-EAC certified systems. It would also probably need to provide the EAC with extra funding, asthe EAC has previously stated that even if given this power, it does not have the resources to track andresolve problems related to non-EAC certified systems. 253Alternatively, the GAO regularly conducts investigations in support of its mission. 254 As discussed in greaterdetail below, the GAO is almost certainly constitutionally barred from taking enforcement action againstvendors or others, but as a legislative agency, it should have the power to investigate and gather information. 255Consequently, if the GAO is given responsibility for creating and maintaining the database, it might wellmake sense to also give it explicit investigatory powers necessary to ensure that the database is accurate.Finally, it may make sense to vest investigatory powers with the Department of Justice, an agencywith a substantial infrastructure to conduct investigations and bring enforcement actions, wherenecessary. 256 The Voting Rights Section of the Civil Rights Division at the Department of Justicehas a long history of taking enforcement actions under a variety of federal laws relating to voting,including voting machines, and also has experience administering complex statutory schemes. 257 TheBrennan Center for Justice | 35