Posted on March 29, 2021 (March 29, 2021) Election Protection Share: After failure to comply with a Freedom of Information Act request, Free Speech For People files a federal lawsuit against the U.S. Election Assistance Commission WASHINGTON, D.C. – Free Speech For People filed a federal lawsuit in the District of Columbia today under the Freedom of Information Act, challenging the federal U.S. Election Assistance Commission’s failure to disclose records of its closed-door communications with voting machine vendors that led to recent last-minute changes in federal voting system guidelines. The lawsuit charges that the meetings led to unpublished and rushed changes that favor private vendors and weaken key security provisions in proposed voting system guidelines to permit the inclusion of wireless connectivity. After an EAC official revealed last summer that the Commission was holding regular, non-public meetings with the voting system manufacturers in consideration of changes to the proposed guidelines, Free Speech For People submitted multiple public records requests for the Commission’s communications regarding the closed-door meetings. The EAC has failed to produce any records responsive to the public interest organization’s requests. “Not only has the EAC flagrantly flouted the Freedom of Information Act by failing to produce records of its closed-door meetings with the voting system manufacturers, the EAC re-wrote key provisions that materially weaken the proposed voting system standards outside of the process directed by law,” said Susan Greenhalgh, Senior Advisor on Election Security 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 Since its inception, the EAC has certified voting systems to outdated guidelines from 2005. In 2015, the EAC began to develop a long-overdue update to the guidelines, known as VVSG 2.0. This included convening multiple public working groups that consisted of voting system vendors, election officials, computer scientists, election advocates, and other stakeholders. The Help America Vote Act also directs the EAC to obtain input from technical experts (both on and off its official advisory boards) and to publish the guidelines for public comment. The law also dictates that material revisions must also go through the public notice-and-comment process. In early 2020, the EAC had a finished draft of VVSG 2.0 that was published for public comment and shared with its advisory boards. The draft VVSG 2.0 banned the capability for a voting system to connect wirelessly to the internet. In July of last year, it was revealed that the EAC was regularly meeting with voting system vendors, after the public comment process, to solicit their input on the VVSG 2.0 in non-public meetings. Free Speech For People submitted public records requests for records regarding those meetings. In late January 2021, the EAC announced it would be voting on the VVSG 2.0 on February 10th. It was not until February 1st that the EAC published a modified version of the VVSG 2.0 that revealed that the ban on wireless capability had been amended to allow wireless radios, modems, and devices in voting machines — an issue that has attracted considerable press and public attention. Free Speech For People is suing the EAC for records of the non-public communications between EAC staff and private voting machine vendors. “The records may reveal that private influence is fueling revisions to the voting machine guidelines outside the public notice-and-comment process,” said Gillian Cassell-Stiga, Special Counsel for Free Speech For People. “We don’t know whether the EAC deliberately stalled the response to our FOIA requests in order to run out the clock on the vote to adopt weakened guidelines, or whether it is simply slow-walking disclosure of communications that could shed light on the private influence of voting machine vendors on EAC elections standards and oversight.” The lawsuit seeks a court order to produce those undisclosed communications. The records may indicate that the EAC made material revisions to the VVSG 2.0, long after the close of public notice-and-comment and statutorily required board approvals, due to the back-channel influence of the very private voting system vendors that the EAC is supposed to be regulating. “The goal of this lawsuit is not only to obtain the records, but to shine a light on the agency that is supposed to be protecting the security of our elections, rather than making backdoor deals to appease regulated entities,” said John Bonifaz, President of Free Speech For People. Matthew Nicely and Caroline Wolverton of the law firm of Akin Gump Strauss Hauer & Feld LLP and Gillian Cassell-Stiga, Ron Fein, John Bonifaz, and Ben Clements of Free Speech For People serve as co-counsel for the organization in this case. The case caption is Free Speech For People v. United States Election Assistance Commission, docket number 21-cv-00838 in the U.S. District Court for the District of Columbia. Read the complaint. Learn more about Free Speech For People’s work to fight for free and fair elections.