Electronic Election Evidence Readiness
Wednesday, September 14, 2016
Posted by: Mary Mack
With charges of rigged elections from both sides of the aisle and known hacks, the fabric of our democracy is at risk of being torn. The technical legal community is well positioned to assist in keeping the electronic part of the election clean.
The security community is stepping forward to prevent hacks. As we know, security is concerned with keeping systems up and intruders out and not as much on evidence preservation.
Imagine if our extended community—ACEDS, our partners and friends, law schools, legal departments and those who serve them, offered ourselves as observers and/or experts to witness and document election evidence collection in places likely to have a dispute.
In a letter to Leslie Reynolds, Executive Director of the National Association of Secretaries of State (NASS) on September 12, I offered our help for the states with electronic voting machine to validate best practices and to be available in case there are precincts, counties or states with disputed electronic results.
The specific areas we offered help:
1. Reviewing the current chain of custody standard operating procedures for collecting electronic election results in the precinct, county or state.
2. Authenticity of the results, usually with a hash (are the results in the original election equipment the same as on the thumb drive and on the receiving computer.)
3. Supplying or assisting in validating the collection media (USB) is clean before collecting.
4. Witnessing/documenting such collection with a contemporaneous affidavit.
5. Actually doing the collection.
6. Serving as resources for the unexpected.
Ms. Reynolds has forwarded our offer to the Secretaries of State with electronic voting. We will also offer help directly to the states, counties and parties. I do not know whether our offers of help will be accepted.
Time is short, and even if we do not have an official role, there are still things we can do to prepare to participate:
1. Arrange for early voting for yourself.
2. Arrange for your work to be covered, or schedule lightly for election week.
3. Ask for your team to be given pro bono time on and around Election Day (November 8, 2016).
4. Take a vacation or personal day on November 8, 2016.
5. Ask your organization or local law schools to give the day off.
6. Consider where you will be most useful. We will do a situation analysis to pinpoint areas of highest risk.
7. If you have years of experience, especially with contested evidence, contact your local county or state election board to volunteer as an expert. If you are unsure of your experience, contact your local party or candidate to volunteer at the precinct/witness level.
8. Look within your organization for election attorneys, or for pro bono projects already in motion that may need assistance on election day and volunteer in advance to be a resource.
9. Look for webinars and communications from us as we get requests.
We will be talking about this at a panel at the Masters 10 Year event in DC on October 18: http://themastersconference.com/events/washington-dc
Similar to litigation readiness, electronic election evidence preparedness will not be on the radar for most election officials. Knowing they have someone to reach out to in an emergency may make the difference. And if preparing turns out to be like Y2K, we can all breathe a sigh of relief.
It is a tender time in our democracy. Let us raise our hand to contribute toward the integrity of the election where and if it would serve.