Commissioner Martin: So Diebold has acknowledged that these are legitimate bugs?
John Silvestro: Yes. Diebold is not, I mean, they understand. You know there is a big difference between, in the business world, the guy down the street coming to tell you, you have a problem and the Secretary of State's office in California. Okay? The Secretary of State's office in California tells you, you have a problem, you pay attention. The Secretary of State's office in New Hampshire tells you, you have a problem, you pay attention. And they acknowledge them, and they are being addressed.
Despite the vendor's own admission and incontrovertible evidence that the technology in question could not "ensure the integrity of election results" per the Commission's own rule, the Ballot Law Commission granted unconditional approval for this defective technology.
The Ballot Law Commission met and approved this firmware in March 2006 after having allowed their rules to lapse in 2004.
In response to a public records request, the NH Department of State sent a package of apparently expired Ballot Law Commission rules enacted in 1996, and wrote:
"Please find attached expired Ballot Law Commission rules that are responsive to your request. We have also attached the history of adoption of rules by the Ballot Law Commission, and RSA 541-A:17, which states that no rule shall be effective for more than 8 years."
In fact, the last time the Commission established rules, as they are statutorily required to do, was in 1996. NH administrative law states that rules are in effect for 8 years. The Commission has not established new rules since 1996. It is unclear whether lapsed rules remain in effect by default when an agency neglects to establish new rules.
RSA 656:42 states:
I. The ballot law commission shall make such rules as may be necessary to ensure the accuracy of voting machines or devices, including rules for the testing of voting machines or devices prior to each election and the submission of testing records to the secretary of state. The ballot law commission shall make such rules as may be necessary in order that voting machines or devices for computerized casting and counting of ballots may be used in this state in such a manner that the election laws may be complied with as far as possible.
The statute clearly states "shall" and not "may", meaning the Commission is required to establish proper rules. This is not optional.
By allowing the rules to lapse and by not establishing new rules as they are required to do, the Ballot Law Commission's 2006 approval of new firmware for use in NH elections apparently occurred outside the bounds of the law. If the old rules remained in effect, equipment was approved that failed the rule of ensuring the integrity of election results. If the old rule did not remain in effect, then there were NO rules in effect, which means the approval itself fails statutory requirements.
Furthermore, in the summer of 2007 internationally recognized computer security expert, Harri Hursti, testified to the NH Legislature and the NH Department of State that the fixed firmware referred to in Mr. Silvestro's testimony above had in fact been developed by Diebold and was currently implemented in Florida.
Yet the NH Legislature, Ballot Law Commission, and Department of State took no action to obtain the newer version that was supposed to have taken care of these known defects.
Delegation of Governmental Functions to a Private Corporation without Imposing Any Legal or Procedural Public Oversight
The US Office of Budget and Management defines "governmental functions" as follows:
"As a matter of policy, an "inherently governmental function" is a function that is so intimately related to the public interest as to mandate performance by Government employees. These functions include those activities that require either the exercise of discretion in applying Government authority or the making of value judgments in making decisions for the Government."
