Free Speech For People and renowned election security expert Professor Philip Stark allege Election Assistance Commission violated federal laws to privately solicit input from voting system vendors for federal voting system requirements.

Stark serves on the Board of Advisors for the federal agency

WASHINGTON, D.C. (July 13, 2021) – A federally appointed election advisor and the pro-democracy legal advocacy organization Free Speech For People filed a federal lawsuit today alleging the U.S. Election Assistance Commission (“EAC”) met with voting machine manufacturers privately to unlawfully solicit vendors’ comments on the federal voting system standards, and these meetings led to weakening the standards to allow internet connectivity in voting systems. The complaint, filed in US District Court for the District of Columbia, alleges violations under the Administrative Procedure Act (“APA”), the Help America Vote Act of 2002 (“HAVA”), and the Federal Advisory Committee Act (“FACA”). Plaintiffs Professor Philip B. Stark and Free Speech For People claim that these back-door meetings resulted in secretly developed revisions to the standards that benefit manufacturers by weakening voting system security to reduce costs. The revisions were released mere days before the Commission’s vote to approve the new standards, without the proper notice and comment procedure required by law.

“The laws very clearly require the federal voting system guidelines be developed in a completely transparent and public process,” said Susan Greenhalgh, Senior Advisor for Election Security for Free Speech For People. “Instead, the EAC brazenly flouted its legal obligation to adhere to a transparent process, choosing instead to invite the manufacturers into private meetings so they could alter the voting system standards to ease requirements and benefit the manufacturers, all at the expense of the most basic cyber security best practices.”

In July of 2020, after closure of public notice and comment on the draft standards, an EAC official revealed that the Commission was holding regular, non-public meetings with the voting system manufacturers to consider changes to the proposed guidelines. Free Speech For People tried to join these meetings to fulfill its mission to represent the public in the development of the guidelines, but was not permitted to participate. In August of 2020, through a Freedom of Information request, Free Speech For People requested all communications between the EAC and vendors. The EAC failed to produce any documents for more than nine months. In April of 2021, Free Speech For People sued to obtain responsive records, revealing details of the back-door negotiations that resulted in significant modifications to the original language drafted for the VVSG 2.0.

On February 1, 2021, nine days before the scheduled vote to approve the VVSG 2.0, the EAC posted on its website the proposed final VVSG 2.0 and a redline showing many significant changes developed without any public scrutiny and that the Board of Advisors, the Standards Board, and the public had never even seen.

The last-minute material revisions to the new federal voting system guidelines loosen standards in a manner that reduces costs to voting machine manufacturers and weakens standards at the expense of election security and the public interest.

“The ‘bottom line’ in election technology should be the trustworthiness of voting systems, not the profits of vendors,” said plaintiff and member of the EAC Board of Advisors, Philip B. Stark stated. “Removing key security provisions from the version of VVSG2.0 that had been vetted by the Technical Guidelines Development Committee and the Board of Advisors undermines trustworthiness at a time when public trust in U.S. elections is at an all-time low. The EAC has advisory bodies for a reason: to provide expertise and perspectives that the Commissioners lack. Making substantive changes to VVSG2.0 without consulting the Board of Advisors is both unlawful and reckless.”

In addition to weakening a requirement that would ban the inclusion of devices capable of connecting to the internet, the new version of the VVSG 2.0 included other substantive revisions that benefit the vendors such as: (i) removal of the requirement for all voting systems to provide data reports that account for all cast ballots and all valid votes at the termination of a given election; (ii) removal of a transparency requirement granting public access, without an explicit request, to any cryptographic End-to-End protocol submitted for certification, for open review for two years before it enters the voting system certification process; (iii) limitation to voter-facing devices of the logging requirements for backend voting systems to record external connections or disconnections during the activated voting state; (iv) removal of a standard for physical locks installed in voting machines; (v) removal of the requirement that all physical security countermeasures which are reliant on electrical power log incidents of power disruption; (vi) removal of the requirement that systems be expected to have a life span of 10 years; and (vii) removal of the ban on printing voting machine vendors’ advertisements on the ballot.

“The regulatory process has safeguards meant to prevent agency capture by private for-profit regulated entities. In holding regular, private meetings with voting machine vendors to discuss their proposed changes to the VVSG 2.0, the EAC violated the language and intent of the law,” said Courtney Hostetler, Senior Counsel for Free Speech For People.

The U.S. Election Assistance Commission (EAC) was created in 2002 by the Help America Vote Act. One of its principal responsibilities is to develop federal voting system standards, known as the Voluntary Voting System Guidelines (VVSG), and to certify voting systems to those standards. Since it began testing and certifying voting systems in 2006, the EAC has certified voting systems to outdated guidelines from 2005. In 2015 the EAC began developing an updated set of guidelines, termed VVSG 2.0.

The Help America Vote Act (HAVA) mandates a public-facing, stakeholder driven process to develop the VVSG, including the participation of voting system vendors, election officials, computer scientists, election advocates, and other members of the public. The law requires the EAC to obtain input from technical experts (both on and off its official advisory boards) and directs the Technical Guidelines Development Committee, which the National Institute of Standards and Technology chairs and manages, to provide initial recommendations. Prior to consideration for final adoption by the Election Assistance Commission, the EAC must first submit the VVSG to the EAC Standards Board and Board of Advisors for review, as well as solicit public comments and hold a public hearing on the record.

On February 7, 2020, the TGDC voted to recommend the draft VVSG 2.0 to the EAC’s Acting Executive Director. The EAC submitted the VVSG 2.0 for public notice and comment in March of 2020, disbanding the public working group process that had assisted in development of the VVSG 2.0. Notice and comment on the VVSG 2.0 closed in June of 2020. On July 31, 2020, the EAC Standards Board voted to approve the VVSG 2.0.

In July of 2020, an EAC official revealed that the Commission was holding regular, non-public meetings with the voting system manufacturers to consider changes to the proposed guidelines. Free Speech For People asked to participate in these “working group” meetings but was denied access. It became apparent that these closed-door meetings led to later discovered material revisions in the substantive standards of the VVSG 2.0, in a manner that advantage private voting machine manufacturers. The red-line of the VVSG 2.0 containing these modifications was released on the EAC website nine days prior to the February 10, 2021 Commission vote—without ever providing notice to the EAC Standards Board, the EAC Board of Advisors, or the public.

Free Speech For People and the law firm of Akin Gump Strauss Hauer & Feld LLP serve as co-
counsel for the plaintiffs in this case.

The case caption is Philip Stark, et al. v. Election Assistance Commission, docket number TK in
the U.S. District Court for the District of Columbia.

Read the complaint here.