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State Requirements and the Federal Voting System Testing and Certification Program

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State Requirements and the Federal Voting System Testing and Certification Program State Requirements and the Federal Voting System Testing and Certification Program State Participation in EAC Voting System Certification Program U.S. Election Assistance Commission Table of Contents How to Use This Guide………………………………………………………………………3 Categories of State Participation in Federal Voting Standards………………………………5 State Fact Sheets (in alphabetical order)……………………………………………………..6 Appendix: Statutes and Regulations (in alphabetical order)…...……………...…………….61 State Participation in EAC Voting System Certification Program 2 U.S. Election Assistance Commission How to Use This Guide Introduction: Section 311 of the Help America Vote Act of 2002 (HAVA) requires the U.S. Election Assistance Commission (EAC) to periodically adopt standards for voting systems in the form of Voluntary Voting System Guidelines (VVSG). Section 231 of HAVA further requires the EAC to provide for the testing, certification, decertification, and recertification of voting system hardware and software to these Federal standards. To accomplish this mandate, HAVA requires the EAC to develop a program that provides for the accreditation of independent, non-federal laboratories to test voting systems. Thus, the EAC’s Testing and Certification Program provides (1) voluntary voting system standards, (2) voting system testing by accredited laboratories, and (3) voting system certification. Participation in EAC’s Testing and Certification Program is strictly voluntary. However, some states, through legislation or administrative rules, mandate participation to varying degrees. Currently, 35 states mandate at least one element of the Testing and Certification Program. This document consists of a summary table, a fact sheet for each state, and an appendix of corresponding statutes and administrative regulations. For more information about the Federal Testing and Certification Program, visit www.eac.gov. Methodology: This document provides a broad overview of the state voting system certification process, including the degree states have mandated (though statutes or administrative regulations) the use of EAC’s Testing and Certification Program. The term “state” includes the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the United States Virgin Islands.1 As demonstrated by the research of the requirements in this area, states utilize varying approaches for both the type of testing required and the language used to require testing. Because of the diversity of approaches taken by each state, EAC staff classified each state’s requirements into one of four groups: (1) No Federal Requirements, (2) Requires Testing to Federal Standards, (3) Requires Testing by a Federally Accredited Laboratory, and (4) Requires Federal Certification. Staff reviewed each state’s statute and code of regulations to make a plain language interpretation. The language of the reviewed statutes and regulations is provided in the Appendix to allow readers to make their own determination about the regulatory effect. Please note that this document is intended to provide a general understanding regarding the relationship between each state and voluntary Federal certification. This document is not intended to provide an authoritative interpretation of State and local law. The EAC recognizes such an interpretation is not the purview of the Federal government. 1 The Help America Vote Act of 2002 defines states to include the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the United States Virgin Islands. 42 U.S.C. §15541 (2002). State Participation in EAC Voting System Certification Program 3 In viewing each category, it is important to note the classification only reflects state and local statutes and regulations, and does not address either policy or practice. The fact that a state has not statutorily mandated the use of EAC’s Testing and Certification Program does not mean the state does not utilize the program. For example, while some states have historically relied on a national certification program, their state’s statutes or regulations may not require it. It is also important to remember classification is based upon a narrow interpretation of the state’s requirements, and not necessarily on a state’s intent. For example, when a state required voting systems to be certified by an accredited laboratory (versus the EAC), staff read this requirement only as requiring testing by Federal laboratories and not requiring Federal certification. Description of Categories: EAC staff reviewed statutes and administrative regulations for all states, territories, and the District of Columbia to determine what level of participation each may require regarding EAC’s Testing and Certification Program. The following is a description of each category: 1) No Federal Requirements: Relevant state statutes and/or regulations make no mention of any Federal agency, certification program, laboratory, or standard. 2) Requires Testing to Federal Standards: Relevant state statutes and/or rules require testing to Federal voting system standards. (States reference standards drafted by the Federal Election Commission (FEC), National Institute of Standards and Technology, or the EAC). 3) Requires Testing by a Federally Accredited Laboratory: Relevant state statutes and/or regulations require testing by a federally or nationally accredited laboratory to Federal standards. 4) Requires Federal Certification: Relevant state statutes and/or rules require that voting systems be certified by a federal agency. Fielded Voting Systems: After the EAC completes and issues the 2008 Election Administration and Voting Survey, information about fielded voting systems will be added to this document. Specifically, readers will find a list of the name, version and type of voting system used. In the meantime, readers will find a link to a state website where information on the voting systems may be found (if available). Synopsis of 2009 Update: Since the first publication in 2007, this document has been updated to reflect the following: Two states (Ohio and Wyoming) changed statutes or regulations to require Federal certification, bringing the total number of states listed in Category 4 (requiring Federal certification) to 12; Further review of Michigan’s statute led to a determination to move the state from Category 3 to Category 1, because the language does not reference Federal standards; Each state’s fact sheet will soon include a list of voting systems used in the field; Each state’s fact sheet also includes internal hyperlinks to the full text of statutes and regulations in the Appendix to enhance navigation within the document; and All statutes and regulations reflect updated versions as of April 30, 2009. State Participation in EAC Voting System Certification Program 4 U.S. Election Assistance Commission Categories of State, Territory, and District of Columbia Participation in Federal Voting Standards Last Updated 4/30/2009 1.) No Federal 2.) Requires Testing 3.) Requires Testing by a 4.) Requires Federal Requirements to Federal Standards Federally Accredited Certification Laboratory 20 10 13 12 AK CT AL CA AS DC AZ CO AR IN IL DE FL KY IA GA GU MN LA* ID** HI NV MA NC** KS NY MD ND ME OR MO OH MI*** TX NM SC MS VA PA SD MT RI* WA NE UT* WY NH WI* NJ OK PR TN VT VI WV * Statutes/regulations require testing by an independent testing authority or NASED accredited laboratory according to standards adopted by either the FEC or EAC. ** Statute allows for either NASED or EAC certification. *** Statutes/regulations prescribe testing by an independent testing authority accredited by NASED, with no mention of Federal standards. State Participation in EAC Voting System Certification Program 5 U.S. Election Assistance Commission ALABAMA State Participation: Requires Testing by a Federally Accredited Laboratory. AL requires that its voting systems are tested according to FEC and state requirements by an independent test authority. Applicable Statute(s): “The vote counting system shall be certified after a satisfactory evaluation and testing has been performed to determine that the equipment meets the requirements of this article and performance and test standards for electronic voting systems issued by the Federal Election Commission.” ALA. CODE § 17- 7-23 (2008). Applicable Alabama does not have a regulation regarding the federal certification process. Regulation(s): State Certification The Alabama Electronic Voting Committee selects an independent test authority, Process: or successor entity to verify that the state requirements of and the standards issued by the FEC have been met. The committee can employ no more than three additional individuals to assist in the examination process who are experts in any or all of the following fields; data processing, mechanical engineering, and/or public administration. These individuals can be either state or non-state employees, and are also required to provide a written report of their examination to the committee. The committee may only approve the electronic vote counting systems (EVCS) that are certified by the authorized independent testing authority, or successor entity, as meeting the performance and test standards for EVCS. Any change/improvement in the EVCS will be certified by the committee prior to the adoption of any change or improvement by any county. ALA. CODE § 17-7- 23 (2008). Fielded Voting [After the EAC completes and issues the 2008 Election Administration and Systems: Voting Survey, information about fielded
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