Free Speech For People filed a federal lawsuit under the Freedom of Information Act (“FOIA”) against the Election Assistance Commission (“EAC”), seeking disclosure of nonpublic communications between the agency and voting machine manufacturers concerning material revisions to the Voluntary Voting System Guidelines (“VVSG”) 2.0.

The requested communications between the agency and privately regulated parties occured over the course of many months, after the closure of the public notice and comment period mandated by the Help America Vote Act of 2002.  The lawsuit alleges that these negotiations gave rise to material revisions to the VVSG 2.0, published only nine days prior to the final vote approving the requirements and guidelines on February 10, 2021.

The lawsuit seeks not only to confirm the existence of these meetings, but to establish that the EAC has negotiated the language and terms of regulations directly with voting machine manufacturers in a nonpublic, parallel proceeding violating the principles of transparency and open government.

Akin Gump Strauss Hauer & Feld LLP joins Free Speech For People as counsel in this case.

Key Facts

Caption Free Speech For People v. United States Election Assistance Commission
Court U.S. District Court, District of Columbia
Docket No.

1:21-cv-00838-APM

Status Order Issued
Plaintiffs Free Speech For People
Defendants United States Election Assistance Commission

Background

In July of 2020, FSFP learned that the EAC might be holding private, weekly meetings with voting machine manufacturers to discuss the companies’ comments and proposed revisions to the draft Voluntary Voting System Guidelines (VVSG) 2.0. The public notice and comment period concerning the VVSG 2.0 closed in June of 2020, but these closed-door meetings between the agency and the industry continued well afterwards.

FSFP issued a request for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, seeking “all communications” between agents of the EAC and agents of the most prominent voting machine manufacturers: Election Systems & Software, Dominion Voting, Unisyn Voting, Clear Ballot, VotingWorks, and Hart InterCivic.

Later, FSFP issued supplemental requests for records evidencing the date, time, and/or length of communications or meetings between the EAC and vendors.  FSFP also requested any policy memorandum or guidance addressing the distinction between VVSG ‘requirements’ and ‘guidelines’ in the agency approval process.

For many months, the EAC did not respond to FSFP’s requests. On February 10, 2021, the EAC voted to approve the VVSG 2.0—merely nine days after making public a “final” version with extensive and material revisions to the “draft” circulated during public notice and comment.

On March 29, 2021 we sued the EAC for its EAC’s failure to respond to our request for its communications with voting machine manufacturers, as well as its failure to respond to our other FOIA requests, seeking court ordered disclosure of the withheld records.

 

Initial release of records

On April 16, 2021, in response to our lawsuit, the EAC responded to our request with records of communications that confirm and memorialize the ongoing private meetings between the EAC and the regulated voting machine manufacturers.

However, the agency’s response is incomplete. It purports to withhold certain records based on the vague assertion of an inapplicable statutory exemption.

To read the agency’s disclosed records from April 16, 2021, click here.

Learn more about FOIA Request 20-00039

The agency has yet to respond to other FOIA requests that are also the subject of our lawsuit.

Akin Gump Strauss Hauer & Feld LLP joins Free Speech For People as counsel in this case.

 

Why Voting System Guidelines Matter

Wireless modems are used to transmit unofficial election results from the polling places to the county headquarters via the Internet, exposing the voting devices to remote attackers anywhere in the world.  Free Speech For People has been a leader in exposing this threat to our elections and this issue has attracted considerable press and public attention.

To learn more about Free Speech For People’s work to challenge the use of wireless modems in voting machines, read these blogs:

CHALLENGING FALSE ADVERTISING BY VOTING MACHINE VENDORS

On August 13, we won a significant victory before the US Election Assistance Commission (EAC). In January, we co-wrote a letter to the EAC which detailed evidence showing that Election Systems & Software (ES&S), the nation’s largest voting machine manufacturer, was deceptively marketing its DS200 voting machines that include wireless modems as federally certified by the EAC. In response to our letter, the EAC launched an investigation of the voting system and agreed with our findings. The EAC has now censured ES&S for the false claims, and is directing ES&S to recall all misleading marketing materials, in addition to notifying customers to inform them that the voting systems with modems are non-EAC certified.

Read More

LETTER URGING MICHIGAN ATTORNEY GENERAL TO INITIATE INQUIRY INTO ELECTRONIC VOTING MACHINE VENDOR’S MISREPRESENTATION OF INSECURE WIRELESS MODEMS

Free Speech For People issued a letter to Michigan Attorney General Dana Nessel urging her office to launch an inquiry into ES&S’s false claims about its DS200 ballot tabulators with wireless modems. Although ES&S frequently claims that its voting tabulators never connect to the internet, researchers have found multiple election systems visible on the internet. The letter further calls for the state to compel ES&S to remove the modems at no cost to the state or localities and consider judicial action if the vendor refuses to do so.

Read More

Major Case Developments and Documents