[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Proposed Rules]
[Pages 1559-1564]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-311]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Office of Labor-Management Standards
29 CFR Part 452
RIN 1215-AB84; RIN 1245-AA04
Guidelines for the Use of Electronic Voting Systems in Union
Officer Elections
AGENCY: Office of Labor-Management Standards, United States Department
of Labor.
ACTION: Request for information from the public.
-----------------------------------------------------------------------
SUMMARY: This notice is a request for information from the public to
assist the Department of Labor (``Department'') in issuing guidelines
concerning the use of electronic voting systems in union officer
elections. ``Electronic voting systems'' is meant to include:
Electronic voting machines used for casting votes at polling sites;
electronic voting from remote site personal computers via the Internet;
and electronic voting from remote site telephones. ``Electronic voting
systems'' is not meant to include electronic tabulation systems where
votes are cast non-electronically but counted electronically (such as
punch card voting or optical scanning systems).
Title IV of the Labor-Management Reporting and Disclosure Act of
1959 (``LMRDA'') establishes democratic standards for the conduct of
union officer elections. The LMRDA does not, however, require a
particular method or system of voting. Labor organizations are free to
establish their own methods or systems of voting for officer elections
as long as they are consistent with lawful provisions in the union's
constitution and bylaws and the provisions of Title IV of the LMRDA.
Labor organizations and other interested parties have sought guidance
from the Department regarding the LMRDA compliance of electronic voting
systems. This request for information seeks public comment to assist
the Department in the consideration and issuance of such guidance.
DATES: Comments must be received on or before March 14, 2011.
ADDRESSES: You may submit comments, identified by RIN 1215-AB84 and
1245-AA04. (The Regulatory Information Number (RIN) identified for this
rulemaking changed with the publication of the Spring 2010 Regulatory
Agenda due to an organizational restructuring. The old RIN (1215-AB84)
was assigned to the Employment Standards Administration, which no
longer exists; a new RIN (1245-AA04) has been assigned to the Office of
Labor-Management Standards.) The comments can be submitted only by the
following methods:
Internet: Federal eRulemaking Portal. Electronic comments may be
submitted through http://www.regulations.gov. To locate the proposed
rule, use RIN 1245-AA04 or RIN 1215-AB84. Follow the instructions for
submitting comments.
Delivery: Comments should be sent to Stephen J. Willertz, Director
of the Office of Enforcement and International Union Audits, Office of
Labor-Management Standards, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-5119, Washington, DC 20210. Because of security
precautions, the Department continues to experience delays in U.S. mail
delivery. Commenters should take
[[Page 1560]]
this into consideration when preparing to meet the deadline for
submitting comments.
Comments will be available for public inspection at http://www.regulations.gov, and during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: Stephen J. Willertz, Director of the
Office of Enforcement and International Union Audits, Office of Labor-
Management Standards, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room N-5119, Washington, DC 20210, olms-public@dol.gov,
(202) 693-1182 (this is not a toll-free number). Individuals with
hearing impairments may call 1-800-877-8339 (TTY/TDD).
SUPPLEMENTARY INFORMATION: The purpose of this request for information
is to seek public comment on the use of electronic voting systems in
union officer elections. The comments from interested parties,
including unions, union members, union officers, technology experts,
academics, election service providers, public interest groups, and the
public will help the Department issue guidelines in describing minimum
standards that electronic voting systems must meet to comply with the
provisions of LMRDA Title IV. In addition, the comments should help
determine what issues should be addressed and what specific standards
should be included in the guidelines. These guidelines and standards
are intended to assist the Department in its obligation to ensure
compliance with LMRDA Title IV.
I. Background
A. Description of Electronic Voting Systems
The following are general descriptions of the three basic types of
electronic voting systems that OLMS has encountered. They are not all-
inclusive definitions of all electronic voting systems.
(1) Electronic voting machines used for casting votes at polling
sites.
This is a direct-recording electronic (DRE) voting system in which
voters mark their votes directly into an electronic device at a
predetermined location monitored by election officials. The system
records votes by means of a ballot display provided with mechanical or
electro-optical components that can be activated by the voter
(typically by buttons or a touchscreen). It is a computer-based voting
system, running configured software, using computer voting stations,
terminals, or kiosks that are set up in a securable location or
locations. Voters must come to a predetermined location where they are
first authenticated as eligible voters, and then vote at a computer
terminal. Voting data is stored by the electronic device on a computer
hard disk or a portable diskette, CD-ROM or smartcard. The system keeps
an electronic record and may also keep a paper record, which may be
verifiable by the voter, enabling a post-election audit. The system may
also provide a means for transmitting individual ballots or vote totals
to a central location (on either removable portable devices, such as
diskettes, or by a computer network) in order to consolidate and report
results at the central location. The system, as described here, is not
a Web-based Internet voting system.
(2) Electronic voting from remote site personal computers via the
Internet.
This is a DRE voting system that is Web-based in which voters do
not have to vote from a predetermined location. Instead, they can
register and vote from any Internet-connected personal computer (PC) or
other mobile electronic device anywhere in the world. Voters connect to
a central server using a standard Internet browser. Both registration
and voting are accomplished through the Web interface. This system uses
a voter identification number (VIN) for each voter to log into the
system and vote. Some such systems then separate the VINs from the
particular voted electronic ballots so that one individual or server
controls access to the VINs and a separate individual or server
controls access to the voted electronic ballots.
(3) Electronic voting from remote site telephones.
This is a DRE voting system in which voters register and vote from
remote site telephones. They do not have to vote at any specific
predetermined location. Voters identify themselves with voter
identification numbers (VINs) and record their votes directly into a
computer system using the key pads on their telephones, by following a
series of recorded instructions. Voters call a predetermined telephone
number and respond to verbal prompts given by the system. Using the
phone keypad, the voter enters choices. The computer system records
those choices as votes.
B. Statutory, Regulatory and Administrative Framework
Title IV of the LMRDA, 29 U.S.C. 481-484, and interpretive
regulations issued by the Department, 29 CFR part 452, establish
standards for the conduct of union officer elections, including minimum
standards for:
Voter secrecy.
Candidate observer rights and election safeguards.
Preservation of records.
Voter Secrecy
LMRDA Section 3(k), defines a secret ballot as: ``the expression by
ballot, voting machine, or otherwise, but in no event by proxy, of a
choice with respect to any election or vote taken upon any matter,
which is cast in such a manner that the person expressing such choice
cannot be identified with the choice expressed.'' 29 U.S.C. 402(k).
Section 401(a) requires that ``every national or international labor
organization * * * shall elect its national officers * * * by secret
ballot among the members in good standing or at a convention of
delegates chosen by secret ballot.'' 29 U.S.C. 481(a). Section 401(b)
requires that ``every local labor organization shall elect its officers
* * * by secret ballot.'' 29 U.S.C. 481(b). Section 401(d) requires
that ``officers of intermediate bodies * * * shall be elected[hellip]
by secret ballot among the members in good standing or by labor
organization officers representative of such members who have been
elected by secret ballot.'' 29 U.S.C. 481(d).
The Department's regulations at 29 CFR 452.97 state that a prime
requisite of elections regulated by title IV is that they be held by
secret ballot among the members or in appropriate cases by
representatives who themselves have been elected by secret ballot among
the members. A secret ballot under the Act is ``the expression by
ballot, voting machine, or otherwise, but in no event by proxy, of a
choice * * * cast in such a manner that the person expressing such
choice cannot be identified with the choice expressed.'' Secrecy may be
assured by the use of voting machines, or, if paper ballots are used,
by providing voting booths, partitions, or other physical arrangements
permitting privacy for the voter while he is marking his ballot. The
ballot must not contain any markings which upon examination would
enable one to identify it with the voter. Balloting by mail presents
special problems in assuring secrecy. Although no particular method of
assuring such secrecy is prescribed, secrecy may be assured by the use
of a double envelope system for return of the voted ballots with the
necessary voter identification appearing only on the outer envelope.
In addition, should any voters be challenged as they are casting
their ballots, there should be some means of setting aside the
challenged ballots until a decision regarding their validity is reached
without compromising the secrecy requirement. For example, each
[[Page 1561]]
such ballot might be placed in an envelope with the voter's name on the
outside. Of course, it would be a violation of the secrecy requirement
to open these envelopes and count the ballots one at a time in such a
way that each vote could be identified with a voter.
Candidate Observer Rights and Election Safeguards
Section 401(c) of the LMRDA requires that ``adequate safeguards to
insure a fair election shall be provided, including the right of any
candidate to have an observer at the polls and at the counting of the
ballots.'' 29 U.S.C. 481(c).
The Department's regulations at 29 CFR 452.107(a) state that under
the provisions of section 401(c), each candidate must be permitted to
have an observer (1) at the polls and (2) at the counting of the
ballots. The right encompasses every phase and level of the counting
and tallying process, including the counting and tallying of the
ballots and the totaling, recording, and reporting of the tally sheets.
If there is more than one polling place, the candidate may have an
observer at each location. If ballots are being counted at more than
one location or at more than one table at a single location, a
candidate is entitled to as many observers as necessary to observe the
actual counting of the ballots. The observer may note the names of
those voting so that the candidates may be able to ascertain whether
unauthorized persons voted in the election. The observers should be
placed so that they do not compromise, or give the appearance of
compromising, the secrecy of the ballot. The observer is not required
to be a member of the labor organization unless that union's
constitution and bylaws require him to be a member. There is no
prohibition on the use of alternate observers, when necessary, or on
the candidate serving as his own observer. Observers do not have the
right to count the ballots.
And, the Department's regulations at 29 CFR 452.107(c) state that
in any secret ballot election which is conducted by mail, regardless of
whether the ballots are returned by members to the labor organization
office, to a mail box, or to an independent agency such as a firm of
certified public accountants, candidates must be permitted to have an
observer present at the preparation and mailing of the ballots, their
receipt by the counting agency and at the opening and counting of the
ballots.
Further, the Department's regulations at 29 CFR 452.110(a) state,
in part, that the Act contains a general mandate in Section 401(c),
that adequate safeguards to insure a fair election be provided. A labor
organization's wide range of discretion regarding the conduct of
elections is thus circumscribed by a general rule of fairness.
Preservation of Records
Section 401(e) of the LMRDA provides that ``[t]he election
officials designated in the constitution and bylaws or the secretary,
if no other official is designated, shall preserve for one year the
ballots and all other records pertaining to the election.'' 29 U.S.C.
481(e).
The Department's regulations at 29 CFR 452.106 state that in every
secret ballot election which is subject to the Act, the ballots and all
other records pertaining to the election must be preserved for one
year. The responsibility for preserving the records is that of the
election officials designated in the constitution and bylaws of the
labor organization or, if none is so designated, its secretary. Since
the Act specifies that ballots must be retained, all ballots, marked or
unmarked, must be preserved. Independent certification as to the number
and kind of ballots destroyed may not be substituted for preservation.
In addition, ballots which have been voided, for example, because they
were received late or because they were cast for an ineligible
candidate, must also be preserved.
C. Court Cases
With passage of the LMRDA, Congress sought to ``protect the rights
of rank-and-file members to participate fully in the operation of their
union through processes of democratic self-government.'' Wirtz v.
Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492 (1969).
The Supreme Court and other courts have recognized that with respect to
union officer elections covered by the LMRDA, ``Congress' model of
democratic elections was political elections in this country.'' Id. at
502.
This parallel between political elections and union officer
elections extends to the interpretation of the LMRDA's ballot secrecy
provisions. See Marshall v. Local Union 12447, United Steelworkers of
America, AFL-CIO, 591 F.2d 199, 205 (3d Cir. 1978) (``* * * the
facilities available for balloting [in union elections] are * * *
similar to their use in political elections in this country, i.e., in
such a manner that voters cannot be identified with their choices.'').
Several cases make clear that the requirement of a secret ballot in
union officer elections is to be interpreted strictly: If there is any
possibility that a voter can be connected with his or her vote, the
procedure does not comply with the LMRDA. Id. at 203 (``The definition
[of secret ballot] is phrased in mandatory terms: The ballots must be
marked in such a manner that the voter cannot be identified with his
choice.''); Brennan v. Local 3489, United Steelworkers of America, AFL-
CIO, 520 F.2d 516, 522 (7th Cir. 1975) (``The statutory mandate is for
a vote that ``cannot'' be identified with the voter.'').
Courts have further clarified that the secret ballot requirement
not only applies to the act of voting itself, but ``any post-voting
procedure designed to determine how individual union members voted or
would have voted.'' Reich v. District Lodge 720, International
Association of Machinists and Aerospace Worker, 11 F.3d 1496, 1500 (9th
Cir. 1993); see also Bachowski v. Brennan, 413 F.Supp 147, 150 (W.D.
Pa. 1976). Finally, although ``electronic voting systems'' are often
designed and administered by third parties, the ultimate responsibility
for upholding the ballot secrecy requirement remains with the union.
See Local 3489, 520 F.2d at 522; Local Union 12447, 591 F.2d at 204 (3d
Cir. 1978).
As of the publication of this RFI, there are no published cases
that apply these well-established principles of ballot secrecy to
electronic voting systems. The Department addressed the issue in one
court proceeding against the Allied Pilots Association in 2007, but the
litigation was resolved without a judicial determination. In that union
officer election, the union utilized an Internet and telephone voting
system designed by a third-party company. To log into the electronic
voting system to cast a vote, each member was required to enter an
employee identification number (EIN), which was published on the union
website, along with a randomly-generated personal identification number
(PIN) assigned privately. This information was transmitted to a
``member database'' on a computer server maintained by the third-party
company. This ``member database'' contained members' names, their EINs,
and their PINs. If the EIN and PIN entered by members matched those on
the ``member database,'' the system permitted the members to cast their
votes, which were recorded in a separate ``vote database.'' However,
the electronic voting system also generated number identification
markers that linked the members with the votes they cast, which could
be accessed by certain employees of the third-party company.
Additionally, several individuals from the organization administering
the
[[Page 1562]]
election had access to members' EINs and PINs, which gave them the
ability to log onto the voting system to determine how a member had
voted. Upon these facts, the court found that the voting system
violated the LMRDA requirements for ballot secrecy, but declined for
other reasons to resolve the case on the parties' motions for summary
judgment. Chao v. Allied Pilots Ass'n, 2007 WL 518586 (N.D. Tex. Feb.
20, 2007) (depublished). As a condition of the parties' later
settlement agreement, the District Court issued a Consent Decree and
Order vacating its February 20, 2007 order. Secretary of Labor v.
Allied Pilots Ass'n, Case 4:05-CV-338-Y (N.D. Tex. Jun. 13, 2007).
D. Legislation
After the disputed U.S. Presidential election in 2000, many states
and localities mandated the purchase and use of electronic voting
systems. The Help America Vote Act (HAVA) was signed into law in 2002.
Public Law 107-252, 116 Stat. 1666 (42 U.S.C. 15301-15545). It was
drafted, in part, in reaction to the controversy surrounding the 2000
Presidential election. HAVA provided funds for qualifying states to
replace punched card voting systems or lever voting systems with new
systems, including electronic systems, in accordance with HAVA's voting
system standards. 42 U.S.C. 15302(a)(2). HAVA standards require all
electronic voting systems to be auditable and produce a permanent paper
record with a manual audit capacity available. 42 U.S.C.
15481(a)(2)(B). This mandatory paper record is the official record for
recounts. Id.
Since 2002, a number of bills have been introduced in Congress that
would require a voter verified paper audit trail (VVPAT) or verified
paper record (VPR) in U.S. political elections. A VVPAT or VPR is
intended as an independent verification system for voting machines
designed to allow voters to verify that their vote was cast correctly,
to detect possible election fraud or malfunction, to serve as an
independent check on the record produced and stored by the electronic
system, and to provide a means to audit the stored electronic results
and allow for an accurate recount. Voter verified paper legislation
introduced since 2002 include the following: the Voter Confidence and
Increased Accessibility Act of 2005 (H.R. 550, 109th Cong.), 2007 (H.R.
811, 110th Cong.; S. 2295, 110th Cong.), and 2009 (H.R. 2894, 111th
Cong.; S. 1431, 111th Cong.); the Voting Integrity and Verification Act
of 2005 (H.R. 704, 109th Cong.; S. 330, 109th Cong.), 2007 (S. 1869,
110th Cong.), and 2009 (S. 48, 111th Cong.); the Count Every Vote Act
of 2005 (H.R. 939, 110th Cong.; S. 450, 109th Cong.) and 2007 (H.R.
1381, 110th Cong.; S. 804, 110th Cong.); and the Ballot Integrity Act
of 2007 (S. 1487, 110th Cong.). None of these bills were passed in
Congress. Although this national standard for voting has not yet been
established, as of the publishing of this RFI, 32 states require
VVPATs. VerifiedVoting.org, Voter-Verified Paper Record Legislation,
http://www.verifiedvoting.org/article.php?list=type&type=13 (last
visited Sept. 20, 2010). OLMS is not presently aware of an Internet
voting system that offers voter-verified paper records or a manual
audit.
E. Recent Developments
Electronic voting at polling stations using computer terminals or
similar touch-screen machines which store and tabulate votes, but which
are not Internet-based, are widely used in U.S. political elections.
These are not on-line forms of voting, meaning the systems are not
connected to the Internet.
Internet voting has not been widely adopted for political elections
in this country and, in one situation, a Federal agency chose not to
utilize Internet voting due to security concerns. See David Jefferson
et al, A Security Analysis of the Secure Electronic Registration and
Voting Experiment (``SERVE''), available at http://servesecurityreport.org/paper.pdf (report advising against Department
of Defense use of Internet voting in 2004 political elections for
military serving overseas due to security concerns).\1\
---------------------------------------------------------------------------
\1\ In March 2007, the Federal Voting Assistance Program (FVAP)
and the Department of Defense's Business Transformation Agency
released a Request for Information to solicit from industry
electronic solutions for three absentee voting tasks: voter
registration, ballot request, and blank ballot delivery. See
Department of Defense: Expanding the Use of Electronic Voting
Technology for UOCAVA Citizens As Required by Section 596 of the
National Defense Authorization Act for Fiscal Year 2007, May 2007.
http://servesecurityreport.org/DoDMay2007.pdf. (The acronym UOCAVA
stands for Uniformed and Overseas Citizens Absentee Voting Act.) See
also Elections: Action Plans Needed to Fully Address Challenges in
Electronic Absentee Voting Initiatives for Military and Overseas
Citizens, Government Accountability Office, June 2007. GAO-07-774.
http://www.gao.gov/new.items/d07774.pdf. The FVAP program introduced
in 2009 is not Internet or online voting. It is the electronic
transmission and online marking of the absentee ballot. The voter
would still print out the ballot and send it in like any regular
absentee ballot. http://www.fvap.gov/global/news/nr19-2009.html.
---------------------------------------------------------------------------
Internet voting has been tested overseas in public elections in
Switzerland, the United Kingdom, and Estonia. Bryan Mercurio, Democracy
in Decline: Can Internet Voting Save the Electoral Process?, 22 J.
Marshall J. & Info. L. 409, 409-51 (2004). Internet voting has also
been tested in the U.S. as a voting option in the 2000 Democratic
primary in Arizona and the Republican straw poll in Alaska in 2000. Id.
Proponents of remote Internet voting make several arguments in its
favor. R. Michael Alvarez & Thad E. Hall, Point, Click, and Vote: The
Future of Internet Voting (2004) Voting would be more convenient for
Internet users, allowing them to vote at home, at work, or anywhere the
Internet is available. Id. Internet voting would be logistically easier
for some disabled voters and for military personnel overseas. Id.
Internet voting might encourage greater voter participation,
particularly among younger Americans typically well-versed in using the
Internet. Id. Internet voting could also lower the cost of voting. Id.
However, there are still concerns regarding on-line computer security,
viruses and attacks, voter fraud, unequal computer and Internet access
(the ``digital divide''), and potential disintegration of civic life by
moving away from a community-based electoral process where voting at
the polls is an observable act of citizenship. Id.
In 2007, the National Mediation Board (``NMB'') announced that it
would primarily conduct representation elections offering participants
both Internet voting and telephone electronic voting. 34 NMB No. 13, at
71 (Jan. 29, 2007) (Introduction of Internet Voting/Mock Election); 34
NMB No. 41, 200, 206 (Sept. 14, 2007) (Internet Voting Comment Period).
The NMB adopted Internet voting based on its conclusion that ``offering
Internet voting in addition to phone voting will further its mission
and enhance the Board's ability to conduct representation elections
fairly and effectively.'' Id.
However, the Department's responsibility over union elections
differs from NMB's in at least two ways. First, unlike the LMRDA which
requires union officer elections to be conducted by secret ballot, the
Railway Labor Act (RLA), which the NMB enforces, has no such ballot
secrecy requirement. In a section titled, ``Statutory Difference
Between LMRDA and RLA,'' the NMB discussed LMRDA section 401(a)'s
specific election standards, particularly its requirement of a secret
ballot. It then drew a contrast with the RLA. ``The language of the RLA
gives the Board broad discretion in conducting representation
elections. Section 2, Ninth provides that the Board ``shall be
authorized to take a secret ballot of the employees involved, or to
utilize any other appropriate method of ascertaining the names of their
duly
[[Page 1563]]
designated and authorized representatives,'' and further that the Board
may ``establish the rules to govern the election.'' 34 NMB No. 41, 200,
206 (Sept. 14, 2007) (Emphasis in original.) Second, the NMB conducts
representation elections itself and maintains direct control (along
with its contractor) of the electronic voting system. In contrast,
elections under the LMRDA are independently conducted by unions. The
Department's involvement in an election is not triggered until a post-
election complaint is filed, whereupon the Department investigates and,
if the claim is substantiated, seeks a remedial election either through
a voluntary settlement or by filing a complaint in district court.
Because the Department does not have the degree of direct control over
the electronic voting system that NMB has, and due to the heightened
ballot secrecy requirements under the LMRDA, there are additional
questions that must be addressed to ensure that the Department fulfills
its legal obligations under the LMRDA.
II. Information Sought
The Secretary seeks public comment from interested parties to help
the Department issue guidelines concerning the use of electronic voting
systems in union officer elections. ``Electronic voting systems'' is
meant to include: (1) Electronic voting machines used for casting votes
at polling sites; (2) electronic voting from remote site personal
computers via the Internet; and (3) electronic voting from remote site
telephones. The comments should help identify and describe what issues
concerning the use of electronic voting systems in union officer
elections should be addressed and what specific standards should be
included in the guidelines. These guidelines and standards could
further the Department's interest in ensuring compliance with LMRDA
Title IV.
In particular, the Secretary is seeking written comments in
response to the questions enumerated below. We request that all
commenters identify themselves and any organizations or entities with
which they are affiliated and generally describe their involvement or
association with electronic voting systems. In responding to questions,
please note and consider the preceding background information provided
in Part I. Also, in your responding comments, please provide as much
detail and specific examples as possible. Thank you for your
cooperation and consideration.
1. Should the Department issue guidelines concerning the use of
electronic voting systems in union officer elections? What specific
issues concerning electronic voting systems should be addressed? What
specific standards should be included in the guidelines?
2. Describe the potential advantages and disadvantages of
electronic voting systems in union officer elections. For unions that
have considered electronic voting systems, what factors guided your
decision to either adopt or reject electronic voting systems?
3. In elections other than union officer elections (for example,
contract ratification votes, National Mediation Board elections,
National Labor Relations Board elections, and national and local
political elections), what are the voting system trends? Are there
trends toward: (1) Electronic voting machines used for casting votes at
polling sites; (2) electronic voting from remote site personal
computers via the Internet; and (3) electronic voting from remote site
telephones? How do these systems protect ballot secrecy and have these
protections been effective?
4. Are voter verified ballots and paper audit trails necessary
safeguards for union officer elections? If so, why? If not, why not?
5. If an electronic voting system has no voter verified paper
ballots, how could a voter confirm that his or her vote was recorded
accurately on the electronic ballot and stored accurately in the
computer memory? Does the electronic display shown to the voter of the
votes cast necessarily mean that the votes are stored or tallied as
displayed?
6. If an electronic voting system has no voter verified paper
ballots, can an observable recount be conducted? If so, how would this
be accomplished?
7. If the electronic balloting system includes a function that
prints paper versions of electronically stored ballots, but individual
paper ballots are not voter-verified, does this function allow for a
meaningful recount? Would these non-voter-verified paper ballots
produced by the electronic system be independent of the electronic
votes stored in the electronic system?
8. Are there technologies or systems that provide a check on the
accuracy of the electronic system that is independent of the software
in the system? If so, what are those technologies or systems?
9. How can observers participate meaningfully in all phases of the
election process in an electronic voting system environment? How can
remote site electronic voting systems ensure that candidates have the
right to observe all aspects of the election? Are there features of
electronic voting systems that establish or replicate processes for
candidates to have observers at the polls and at the counting of the
ballots? If so, what are those features?
10. Most remote site electronic voting systems use a voter
identification number (VIN) for each voter to log into the system and
vote. In these systems, what safeguards exist to prevent the connection
of a voter's identifying information and his or her vote?
11. Some systems separate the VINs from the particular voted
electronic ballots so that one individual or server controls access to
the VINs and a separate individual or server controls access to the
voted electronic ballots. In those systems, can the voter and the vote
be reconnected? How can voters have confidence that there is no
connection of voter and vote and that their votes remain secret?
12. Is there a software protocol that can restrict the transfer of
any information that could potentially link a voter to his or her vote?
If there is such a software protocol, can it be re-programmed to permit
the link? Can such re-programming be detected afterwards?
13. In a remote site electronic voting system, if a determination
is made that a voter is ineligible after he/she has already voted, can
that vote be removed from the system without reconnecting the voter and
vote? If not, can an observer challenge a voter's eligibility after
voting has begun or must all such challenges be made prior to
balloting?
14. How does a remote site electronic voting system deal with a
``spoiled'' ballot situation, i.e., when a member marks and submits a
ballot in error, such as failing to vote for a particular race? Can
that ballot be identified and voided and can that member be allowed to
vote again? How does the system accomplish this without reconnecting
the voter and vote?
15. In a remote site telephone voting system, can the system log
and store the caller/voter's telephone number as well as the caller/
voter's VIN and voting data?
16. What safeguards exist to prevent malicious or fraudulent
software (e.g., software that would delete or change vote totals) from
being embedded in an Internet voting system? If such code was
introduced or embedded, would it be possible to detect? If so, how? How
would an allegation of software tampering be resolved? If electronic
voting system software is proprietary, would a third party, such as
OLMS, be allowed to inspect the software to resolve an allegation of
tampering? If so, how? How would a third party, such as OLMS, be
allowed access to the
[[Page 1564]]
proprietary software codes to resolve the allegation of tampering?
17. If OLMS receives an election complaint challenging the software
code in an electronic voting system, how can OLMS ensure that the code
examined by OLMS in the investigation is the same code that was in
place and operational during the challenged election?
18. In the electronic voting systems with which you are familiar,
are all system activities of the union or third party election
administrators permanently recorded or logged into the system? What
safeguards exist to prevent accidental deletion from or tampering with
the log? How could a third party, such as OLMS, investigate alleged
tampering with the log? Does this log file, or other similar system
file or database, include each voter's entry into the system, along
with that voter's IP address, VIN, and voting data in sequential order?
19. What safeguards exist to prevent vote manipulation by
``insiders'' such as computer programmers, equipment manufacturers,
technicians, system administrators, or election officials who may have
legitimate access to election software and/or data? How could a third
party, such as OLMS, investigate allegations of insider attacks?
20. How would the use of electronic balloting affect the issue of
voter intimidation, if at all? For any voter intimidation that might
take place in the context of an election using electronic balloting,
what safeguards have been or could be used to address the issue?
21. What safeguards exist to prevent denial of service attacks,
``spoofing'' (i.e., when one person masquerades as another and gains
illegitimate access), automated vote buying, and viral attacks on voter
personal computers? How could a third party, such as OLMS, investigate
allegations of such activity?
22. There are reported cases of electronic voting system
malfunctions in civic elections where votes have either not been
recorded or have not been recorded accurately. These cases include:
Volusia County, Florida (2000), Broward County, Florida (2004),
Franklin County, Ohio (2004), Sarpy County, Nebraska (2004), Carteret
County, North Carolina (2004), and Sarasota County, Florida (2006).
What safeguards exist to detect such malfunctions? How could a third
party, such as OLMS, investigate allegations that such malfunctions
occurred?
23. What safeguards exist to prevent ``phishing'' in remote
Internet voting systems? ``Phishing'' is a scheme that uses a web page
set up to look just like the union's voting web page. Union members are
brought to the site by email, links, or reminders to vote with an
embedded link. The union member ``votes'' on the fake site. The person
who sets up the fake site then has the voter's VIN and other
identifying information which the person then uses to log onto the real
site and vote in place of the real voter. How could a third party, such
as OLMS, investigate allegations of phishing?
24. Are there any other potential issues with the legality or
practicality of electronic voting systems that have not been addressed
in the preceding questions? If so, please explain.
Signed in Washington, DC, this 5th day of January 2011.
John Lund,
Director, Office of Labor-Management Standards.
[FR Doc. 2011-311 Filed 1-10-11; 8:45 am]
BILLING CODE 4510-CP-P