Thread Subject: Re: Voting machine procurement litigation

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From: David Poehlman
Date: Wed, Mar 28 2007 3:40 PM

Dianne,

As a point of clarification, how does automark work? It is my
understanding that the voter does not handle the ballot.

On Mar 28, 2007, at 5:15 PM, Diane Golden wrote:

If the bid reviewers decided that a ballot marking device is more secure
than a DRE with VVPAT, that is a security determination. But to say
one is
more accessible than the other using conformance to FEC or VVSG access
standards is difficult to understand since each have a major non-
conformance
issue. A ballot marking device (like AutoMark) requires people to
manually
handle the paper ballot which means individuals with motor limitations
cannot independently verify and cast their vote. The print on VVPATs is
currently not accessible to individuals with vision disabilities, so
they
cannot verify the secondary vote record. With either system, a
constituency
group of individuals with disabilities cannot vote without
assistance. If
by some chance the DRE bid was one without paper, then the difference in
conformance to access standards between it and a ballot marking
device would
be striking as a paperless DRE does not have a VVPAT to pose access
problems
and since it is paperless does not have the problem of paper handling.

My guess is that the driving force behind the decision was based on
security
concerns which resulted in a preference for an exclusive paper
ballot over
either an electronic ballot with secondary paper or electronic only
ballot.
This is perfectly legitimate for rating security -- but should not
influence
the review/rating of conformance to access standards. The level of
accessibility should stand on it's own and somehow be weighed into the
decision-making process with other considerations like security and
cost.
Which is exactly the kind of conundrum we've been dealing with
related to
business and technical specs vs conformance to access standards vs
cost in
EIT procurements and how each is used in final decision-making.

Diane

-----Original Message-----
From: David Poehlman [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Wednesday, March 28, 2007 3:15 PM
To: = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Voting machine procurement litigation


I think you read this a bit rong. Security was a requirement equal
to if not surpassing accessibility. Automark is both secure and
accessible accordingg to the findings.

On Mar 28, 2007, at 4:04 PM, Diane Golden wrote:

Thanks for the update. I find this quote curious -- "After extensive
testing and analysis for security, I have determined that the AutoMark
terminal is the one that will best enable voters with disabilities to
cast
their ballots without the assistance of another person." Testing for
security doesn't seem all that related to an acessibility determination
(smile.)

Diane

-----Original Message-----
From: Lybarger, Barbara (MOD) [mailto: = EMAIL ADDRESS REMOVED = ]
Sent: Wednesday, March 28, 2007 1:39 PM
To: = EMAIL ADDRESS REMOVED = ; TEITAC Subpart A Subcommittee
Subject: RE: [teitac-subparta] Voting machine procurement litigation

Diebold lost it's initial bid for an injunction to halt voting machine
purchases, and its bid to expedite the fact gathering phase of the case
(called discovery). For more information go to
http://computerworld.com/action/article.do?command=viewArticleBasic
<http://computerworld.com/action/article.do?
command=viewArticleBasic&taxonom
yName=hardware&articleId=9014518&taxonomyId=12&intsrc=kc_top>
&taxonomyName=hardware&articleId=9014518&taxonomyId=12&intsrc=kc_top

Barbara Lybarger
_____

From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane
Golden
Sent: Tuesday, March 27, 2007 12:04 PM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Voting machine procurement litigation


Was the accessibility rating done by judging conformance to a set of
access
standards (FEC or VVSG) or was it done via user preference rating? Just
FYI, both systems have a pretty comparable electronic interface that
delivers similar access features (audio-tactile ballot, enlarged visual
display, etc.) The big difference is the the system purchased is a
ballot
marking device where the vote begins and ends as a paper ballot and the
Diebold is a system that produces an electronic vote record with a Voter
Verified Paper Audit Trail (VVPAT) as a second vote record. Each
system has
it's own large unresolved access problem. The ballot marking device
requires people to manually handle the paper ballot which means
individuals
with motor limitations cannot independently verify and cast their
vote. The
print on the VVPAT is not accessible to individual with vision
disabilities
so they cannot verify that vote record. So given each has a pretty
large
access barrier -- I'm just curious how the review was done to rate
one more
accessible than the other.

Diane


-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ]On Behalf Of Lybarger,
Barbara (MOD)
Sent: Tuesday, March 27, 2007 10:18 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Voting machine procurement litigation



It's someone who lost. The lawsuit was filed by DieBold, another
manufacturor of voting equipment. Massachusetts did extensive user and
reliability testing of all the bidders' equipment. Another vendor's
equipment scored higher over all and on accessibility than Diebold.
Diebold
is saying that our Secretary of State misapplied best value and the
other
system requirements provisions of the bid. The court has not ruled
yet on
Diebold's request for an injunction to stop further purchases under
the $9
million contract.

Barbara Lybarger

_____

From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Gregg
Vanderheiden
Sent: Tuesday, March 27, 2007 10:59 AM
To: 'TEITAC Subpart A Subcommittee'
Subject: Re: [teitac-subparta] Voting machine procurement litigation



Barbara,



Was this someone who was arguing FOR more access using Best
Value? Or
was is someone who won on accessibility and someone else was arguing
against
accessibility based on best value argument?




Gregg
-- ------------------------------
Gregg C Vanderheiden Ph.D.

_____

From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Weinstein,
Michael
Sent: Tuesday, March 27, 2007 9:16 AM
To: TEITAC Subpart A Subcommittee
Subject: Re: [teitac-subparta] Voting machine procurement litigation



I sympathize with the time and effort required to defend against a
protest,
but it is the ability to protest an award that could lead to effective
enforcement of Section 508.



Michael Weinstein, Esq.
Contracts
Systems Research and Applications Corporation
3434 Washington Boulevard
Arlington, VA 22201
Ph: 703-284-6165
Fax: 703-284-3170

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From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of
= EMAIL ADDRESS REMOVED =
Sent: Tuesday, March 27, 2007 9:11 AM
To: TEITAC Subpart A Subcommittee
Cc: TEITAC Subpart A Subcommittee; teitac-subparta-
= EMAIL ADDRESS REMOVED =
Subject: Re: [teitac-subparta] Voting machine procurement litigation


The problem with any best value determination is that a non-successful
offeror can always state that their proposal was the best value. I have
been in a best value protest (and our award was sustained - the protest
denied) that had nothing to do with accessibility. If state
procurement law
is anything like the Federal, the protestor is operating under the
limited
information that they received in a post-award debriefing. You know
your
extensive due diligence in determining the technical ranking and with
any
luck, so will the judge.

I do feel your pain, however; I lost 3 months (weekends included) to
defend
our award.






"Lybarger, Barbara (MOD)" < = EMAIL ADDRESS REMOVED = >
Sent by: = EMAIL ADDRESS REMOVED =

03/26/2007 05:23 PM


Please respond to
"TEITAC Subpart A Subcommittee" < = EMAIL ADDRESS REMOVED = >


To

= EMAIL ADDRESS REMOVED = , "TEITAC Subpart A Subcommittee"
< = EMAIL ADDRESS REMOVED = >


cc




Subject

Re: [teitac-subparta] Voting machine procurement litigation











Massachusetts went through a detailed and extensive process to decide on
which machines the Secretary of State would approve. The process
included technical specifications on accessibility and accuracy, as well
as usability reviews. Several test runs were also conducted to surface
and problems before a general election. Although we are not named in
the lawsuit, my agency was part of the selection process, and we feel
everything humanly possible was done to comply with HAVA.

One can never protect oneself from being sued, only from being sued
successfully. We'll keep you posted as the case develops.

Barbara Lybarger

-----Original Message-----
From: = EMAIL ADDRESS REMOVED =
[mailto: = EMAIL ADDRESS REMOVED = ] On Behalf Of Diane
Golden
Sent: Monday, March 26, 2007 5:14 PM
To: TEITAC SubPart A listserv (E-mail)
Cc: David Baquis (E-mail); David Capozzi (E-mail)
Subject: [teitac-subparta] Voting machine procurement litigation

I just excerpted and pasted in a few sentences about a new lawsuit in
Massachusetts related to their procurement of "accessible" voting
machines.
While the standards for accessibility used should have been either the
FEC
2002 or the VVSG access standards, rather than 508, the issues are
exactly what the Subpart A group has been struggling to address. How
does "best value" drive a procurement decision and how does conformance
to accessibility standards fit into that scheme with cost, company
experience/expertise and conformance with other technical requirements?

-- One of the nation's top manufacturers of voting machines is taking
the state to court Monday to try to block distribution of machines for
the disabled in Massachusetts, saying it was unfairly denied the
lucrative contract. An attorney for Diebold Election Systems Inc. said
the company should have been awarded the $9 million contract if
Secretary of State William Galvin followed his own criteria when
deciding which firm the state should contract with for the new machines.
"Diebold's proposal provided the best value to the commonwealth," said
William Weisberg, an attorney for Diebold. "We believe that using those
criteria correctly Diebold should have received the award." Those
criteria include cost, the ability of the company to meet the scope of
the request, and the degree to which the machines met technical
requirements. --

Maybe Barbara and/or Joe have more info on this litigation?

Diane Golden
NASCIO

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