Re: code validation?

From: Ed Kennedy <ekennedyx_at_yahoo_dot_com>
Date: Sun Feb 27 2005 - 23:47:03 CST

Hello Ron:

Yes but: This is a state constitutionally mandate office, not a Federal Office and I think you would have little success pushing a Hatch Act type of thing there. Remember, politics isn't a bad thing per se. (Unless they are not in your party.)

Thanks, Ed Kennedy
  ----- Original Message -----
  From: Ron Crane
  To: Open Voting Consortium discussion list
  Sent: Sunday, February 27, 2005 9:29 PM
  Subject: Re: [OVC-discuss] code validation?

  Look up the "Hatch Act". You'd be surprised what it prohibits in the way of political activity by federal employees. It's been around a long time and was upheld by the Supreme Court in 1973. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=413&page=548 . I suspect they'd buy a similar rationale with respect to secretaries of state. But it'd probably be, as you say, a mere fig leaf.

  -Ron

  On Feb 27, 2005, at 9:03 PM, Ed Kennedy wrote:

    Hello Ron:
     
    An interesting proposal on the Secretary of State not being an actively political partisan. I agree that it might only be a fig leaf and could easily be dealt with via a proxy. More importantly, I, not even being a lawyer, can state with reasonable confidence that it would very likely be a violation of that Secretary of State's freedom or expression and association. As for your proposal that OVC set up its own development shop, don't let me discourage you. I am, I think, just restating a previous discussion. As always, try the archives.
     
    Thanks, Ed Kennedy
    ----- Original Message -----
    From: Ron Crane
    To: Open Voting Consortium discussion list
    Sent: Sunday, February 27, 2005 7:23 PM
    Subject: Re: [OVC-discuss] code validation?

    On Feb 26, 2005, at 9:09 PM, Ed Kennedy wrote:

    As for replacing the defective equipment like the Diebold Acuvote DRE, in San Diego County, California, (my home) it depends on how sharp the county officials were who negotiated the original deal. If I understand it correctly, in San Diego County there was something like a performance guarantee written into the purchase contract for the equipment. It seemed that the County officials had been tipped of that there was something of a 'bad smell' associated with Diebold. When the California Secretary of State decertified the Diebold Acuvote, Diebold had to eat the costs of a warehouse full of voting equipment and step up to the plate with optical ballot scanners at no additional cost.

    However, in Riverside County, California, they are probably going to have to pay the entire cost of replacing their election system. Considering the hubris of the Riverside officials, it might be appropriate for something like that to happen but who am I to judge? With the awful smog they have there I'll cut them a little slack. While I suppose a county could try to sue for product defect, misrepresentation or some other grounds to either break the contract or even recover funds, I wouldn't expect the plaintiff to have much success.

    Overall, it seems unlikely that there will be much large-scale replacement of recently-purchased voting systems, unless, as you illustrate, replacements comes for free. But with the right kind of backing, we could make it well, not free, but much cheaper than buying and supporting existing systems.

    As for Secretaries of State and the issue of partisan adminstration of elections, this is a knotty problem. A Secretary of State is a position that is usually defined into existence in a state constituion as an elected (read partisan) official. Please be aware that as I consider the phrase, "Non partisan elected official as elected in a non partisan election," to be something like the tooth fairy, similarly I believe suggestions that the postion should be non-partisan to be a non-starter. I have considered the idea of a civil service postion of an election commissioner but as I am a civil servant I know that ultimately a civil servant has to answer to the people through their elected representatives. So, I'm open to suggestions.

    But we can at least bar secretaries of state and possibly other elections officials from high positions in campaigns (e.g. Katherine Harris and Ken Blackwell), though the effect might well be more of a feel-good pill than a cure. I need to consider this topic more deeply.

    I confess that I have the pervasive and nagging doubt that many elected officials deem elections as either something that they would not like to leave to chance or as just an inconvenient formality that they have to dance around.

    I share your doubts. Far too many officials treat vital parts of the process (e.g. provision of sufficient machines, use of the correct ballot for each precinct, actually conducting hand recounts when the law calls for them, truly random selection of precincts for such counts, etc.) as optional inconveniences. But we're not going to change that culture. Instead, we have to create a voting platform that works securely despite it.

    In general, for the security/integrity issues, I like the idea of harnessing the aminosity and distrust that political parties have for each other in verifying the integrity of software and the election results.

    Agreed! That's part and parcel of our public-comment and open-source model.

    Specifically, Ron I dislike the idea of OVC going into the election system business. It leaves us wide open to the charge that we're not truely neutral and that we have a vested interest in promoting our own system. I'll admit that many of your concerns are valid and could be solved by having OVC or an affiliate make and market a system. None the less, I'm uncomfortable with the idea.

    We'll be charged with that, and with other villainous intentions and acts, no matter what we do. The very fact that we're writing software implies that we have a vested interest in someone using it. That we hold events primarily in the Bay Area will, by some, be used to imply that we are not to be trusted. That our project is open-source will be misunderstood by many, and vilified by others. All significant public-benefit entities routinely are subjected to similar criticisms, most of which are unfounded and many of which are even recklessly defamatory. It comes with the territory.

    But as for become a vendor, we're betting the entire project on someone using our software to do so, or upon some existing vendor adopting it. I give the second "Fat chance!" odds [1], so it's got to be the first. Yet who, when the rubber meets the road, will enter the market with our software? The market for elections systems is fixed and of limited size. With recent scrutiny, the requirements and red tape are much thicker than they once were. Many jurisdictions recently have purchased systems, and are unlikely to replace them; many more will purchase them before a platform based upon our software makes it to market. Basically the profits are limited, which limits the financial incentive to enter the market. What other incentives, then, are there? Only two come to mind: the incentive to cheat, and the incentive to do good. A vendor motivated by the former will be recalcitrant about conducting and incorporating comments from public review [2], and probably will use the hardware-based cheating techniques I've recently described to make such review meaningless anyway. A vendor motivated by the latter well, that's us or, at least, that's us with good financing.

    What are some of the benefits of becoming a vendor? Aside from the hardware security benefits I discussed earlier, we would get a platform to market more quickly than a vendor (who would lack our detailed knowledge). As a public-benefit foundation, we wouldn't need to profit shareholders, so we could sell (and support) our platform more cheaply than ordinary vendors; if we got particularly good financing, we might even be able to give it away. This would give us a marketability advantage, which could, in time, help drive the bad and doubtful platforms off the market and out of the polls.

    Becoming a vendor would be a big commitment. But I think it's a necessary one, and a good one.

    -Ron

    [1] Why would an existing vendor adopt our software? Wouldn't it be an implicit admission that its existing software is insufficient and unfixable? And wouldn't it involve a big writedown of existing capital? That'd be trouble with shareholders, even though it might be mostly non-cash.

    [2] Assuming, of course, that robust legislation is enacted to require them to do so. But that's a doubtful assumption. Recently I reviewed HR 550, which requires, among other things, complete disclosure of voting system software. I talked briefly with one of the bill's sponsors, and he said, point blank, that he didn't think the GOP would even give it a hearing. Much less, I think, will the politicos actually pass a bill mandating David Mertz's recommended procedure (see, e.g. the 3/22 messages titled "code validation"). Not for a long time, anyway.

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Received on Thu Mar 31 23:17:03 2005

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