Category Archives: Election Assistance Commission

“How Trump ally Cleta Mitchell won a seat on the EAC advisory board”

Jessica Huseman for Votebeat:

Mitchell’s selection resulted from an unorthodox process by the Civil Rights commission, according to two people with direct knowledge of the process. In April, the commission changed the nominating procedures for members of the EAC advisory board, following Republican commissioners’ complaints that the two USCCR appointees were both Democrats — there previously was no requirement the nominations be bipartisan, and the USCCR’s appointees have often been Democrats. According to the transcript of the April meeting, commissioners determined that going forward the commissioners from each party would submit two candidates, and each would be allowed to veto one of the opposing party’s choices. Two Democrats, Nevada lawyer David Kladney and New York lawyer Debo P. Adegbile, voted against that change.

The two Republican nominations turned out to be Mitchell and Adams himself.

“The Progressive caucus ranked Ms. Mitchell slightly more suitable for a bipartisanship appointment,” Cantú wrote in a statement, saying it was her obligation as chair to advance the nomination. “Personally, I am not pleased with the appointment and would have welcomed another choice. ”

Cantú laid the blame for this appointment process, and the resulting uproar, at Adams’ feet. Mitchell was “more of an unknown variable” than Adams. Commission staff say Adams’ brash behavior and rank partisanship have gridlocked the committee for months, and the other conservatives on the commission have followed his lead.

Cantú said the conservatives previously had “blocked ratifying my appointment,” leaving the commission without a chair for three months. Cantú was approved in April, immediately after the commissioners approved the changes to the EAC appointment process. The commissioners felt their hands were tied when they approved Mitchell, Cantú said, because the conservatives made clear that relenting to one of the Republicans’ advisory board candidates was the only way to make progress on other business.

It’s unclear when the email discussion of Mitchell’s candidacy took place, or what specific objections, if any, commissioners raised. A commission spokesperson said details of that process had not been shared with her, and the USCCR has not yet responded to a Freedom of Information Act request for documents about their decision-making. In the August meeting, the eight commissioners took a final vote on the pair of appointments, with no discussions of Mitchell’s record or qualifications. She was mentioned by name only twice in the conversation before the roll call. One Democrat, Kladney, voted against the appointments. Yaki abstained, and Adegbile, joining Cantú, voted in favor. None responded to requests for an interview.

After Votebeat broke the news of Mitchell’s appointment Monday, the EAC and the USCCR appeared to scramble to respond, even though the vote had been held months before. The EAC put out a statement late Monday, distancing itself from the decision and explaining that it had no control over the appointments, without referring to Mitchell by name. The USCCR followed with a statement, saying that Mitchell had been selected from two possibilities presented by the commission’s Republican members.

Election administrators and across the country protested in public and reacted more angrily in private, and many were appalled that a person who’d baselessly denigrated their work would be given such a role. Many administrators called EAC commissioners and staff to demand an explanation. For their part, the EAC commissioners have chosen to stay silent about Mitchell’s appointment.

Share this:

EAC Commissioner Hovland calls on “Congress to act boldly and to stand up for our democracy”

Center for American Progress

Senior Fellow at the Center for American Progress, Michael Sozan has this new interview with Election Assistance Commissioner, Ben Hovland. The interview also highlights successes of 2020 including the recruitment of poll workers.

“[T]he untold or under-recognized story of the 2020 election was the amazing job that state and local election officials did to conduct the best-administered election of my career during a global pandemic. . . .

Voters also did their part . . . We saw a record number of mail/absentee ballots as well as a record amount of early in-person voting.

It is also worth noting that Election Day would not have been nearly as smooth without the poll workers, including a new generation of younger poll workers, that signed up to work in polling places across the country in 2020. . . .

Finally, all of this was done and held up to immense scrutiny of every credible examination with no evidence of widespread voter fraud.”

Share this:

“Why did this EAC commissioner talk to the senator behind Arizona’s audit?”

Jessica Huseman (in Votebeat’s indispensable weekly newsletter):

A newly revealed text message about Christy McCormick, a commissioner and past chair of the Election Assistance Commission, raised eyebrows among election observers this week. The exchange between two Arizona state senators notes that McCormick agreed to let them use her name in their press release announcing the “audit” Cyber Ninjas would conduct, to be sent out in late January, though it was apparently never released.

A screenshot of the message came in a document dump given to American Oversight, as part of the organization’s lawsuit against Senate Republicans in pursuit of more transparency into Cyber Ninjas’ contract and work. In a message to Arizona Senate President Karen Fann, state Sen. Warren Petersen writes, “McCormick says she’ll be in our press release too.” 

“So won’t she be in deep dodo [sic] for saying this public[ly]?” Fann asked. “Nope, it’s a fact,” Petersen responded. 

The text messages weren’t clear about McCormick’s role in the press release or whether it would signal her support for the audit, and McCormick has provided no public explanation, so I asked for one. McCormick offered a statement: “Commissioners respond to requests from state officials on a weekly if not daily basis. As I do with any state official, I relayed the factual and publicly available information that EAC labs are not accredited by the EAC to perform the type of work that Arizona was seeking to do. The EAC did not track nor see a press release in this instance, and what gets published is not always within our control.”

Those who have talked to McCormick about this tell me they believe her: She was asked by Arizona officials if the EAC-accredited labs could do the kind of audit Fann and Petersen sought, and McCormick — not knowing what kind of audit they even wanted — told them it was not the EAC’s function. Because the press release wasn’t issued and Arizona Republicans haven’t been transparent about the decision-making behind the audit, we’ll probably never know the details of the exchange, but McCormick’s explanation seems plausible. It’s not helped by the fact that apparently no one else at the EAC knew McCormick had taken such a call, or green-lighted her name for a press release. (It’s not clear from McCormick’s statement if she even knew if a press release was in the works, or expressly gave permission.) 

The explanation would be believable and entirely reasonable coming from most other election officials. But McCormick has a years-long history of working behind the scenes at cross purposes with the EAC’s goal of strengthening elections, as revealed in text messages or emails made public in lawsuits or by records requests. Let’s review the evidence.

After 2016, McCormick began to surprise those who had known her work by actively resisting the finding that Russia had interfered in the November election. She repeatedly attempted to convince state election officials it was nonsense. She did so at conferences, she did so by email. “It is my opinion that the entire thing is complete BS,” McCormick wrote to her fellow EAC commissioners and the director of an election association on Dec. 30, 2016. “It sickens me that this administration appears to be creating false intelligence narratives to bolster whatever their agenda is.” She forwarded the full chain to Georgia Secretary of State (now governor) Brian Kemp. “I am appalled by what I am seeing,” she said. He replied to her, calling it “unreal.” 

She didn’t keep it to election officials — she made these claims publicly and with no regard for the facts. In a blog post she published on the EAC’s website in January 2017, McCormick wrote that the claims were “deceptive propaganda perpetrated on the American public” by the outgoing Obama administration. She would not publicly correct this assertion until 2019.

And it wasn’t just words: I reported in 2018 that in the months after the 2016 election McCormick passed up multiple opportunities to hear classified briefings on the issue, essentially lying down on the job as an EAC commissioner. Neil Jenkins, who worked with DHS at the time, told me that she rarely came to meetings, and when she did was actively hostile to the information presented. 

In 2017, McCormick shocked the election world by willingly participating in Trump’s “voter fraud commission,” the drama of which I covered from start to finish. Emails released (also by American Oversight) show that McCormick worked behind the scenes with Republican commissioners Hans Von Spakovsky and J. Christian Adams to find right-leaning staff members to employ. She recommended one statistician, and said she was “pretty confident that he is a conservative (and a Christian too).” When I spoke to her at the voter fraud commission’s first meeting in 2017 at the White House, she told me she’d joined the commission because she’d seen voter fraud with her own eyes. She didn’t elaborate. …

Share this:

Federal court sends states’ “proof of citizenship” requirement back to EAC for reconsideration

In an underdiscussed opinion from last week, Judge Richard J. Leon in the District Court of the District of Columbia issued a decision in League of Women Voters v. Harrington (once League of Women Voters v. Newby). This longstanding dispute traces back to 2016, when then-Director Brian Newby approved Kansas’s, Georgia’s, and Alabama’s requests to modify the “Federal Form” for voter registration to include proof of citizenship instructions for their states. (The legacy of this dispute also goes back to Arizona v. Inter Tribal Council of Arizona, Inc., a Supreme Court decision back in 2013, on the EAC’s authority and proof-of-citizenship on the Federal Form.)

The court found that under the Administrative Procedure Act, Newby’s decision was “arbitrary and capricious.” The National Voter Registration Act requires that the instructions on the Federal Form are “necessary to enable [States] to assess the eligibility of [] applicant[s] and to administer voter registration and other parts of the election process.” The court found that Newby was “mistaken” in believing that he was not required to consider the “necessity” of the changes. Without any belief he needed to consider the matter, he acted improperly. There’s some detail discussion about some of the constitutional issues at play (what I described back in 2014 as the “play in the joints” of the Election Clauses), but it’s a short and readable opinion.

There are a series of Tenth Circuit cases on Kansas’s saga after Inter Tribal on this matter. But the case is now sent back to the EAC (five years after the original decision) to consider Georgia’s and Alabama’s requests pursuant to the NVRA (to the extent they continue to seek state-specific instructions).

Share this:

“Judge: US election official violated law in voter form case”

AP:

A former high-ranking election official violated federal law in 2016 when he granted requests by Kansas, Georgia and Alabama to modify the national voter registration form to require documentary proof of citizenship in those states, a federal judge ruled.

U.S. District Judge Richard Leon threw out the contested decisions made by Brian Newby, then-executive director of the Election Assistance Commission, an independent federal agency, after finding on Thursday that Newby failed to determine whether the proposed requirements were necessary to register to vote.

The long-delayed ruling by Leon has little practical effect since a federal appeals court had earlier granted a preliminary injunction in the case, blocking the enforcement of the requirement.

In a separate case, the Kansas law requiring documentary proof of citizenship was found unconstitutional by a federal appeals court, and the U.S. Supreme Court declined to intervene.

Leon remanded the requests for the changes sought by Georgia and Alabama to the Election Assistance Commission to reconsider in a manner consistent with his ruling, should those state continue to seek the state-specific instructions to the form.

Share this:

“Last-Minute Tweaks to Voting Machine Standards Raise Cyber Fears”

USLW:

Last-minute changes to proposed federal standards for new voting machines could expose the equipment to cyberattacks, according to some members of Congress and security professionals.

The Election Assistance Commission, slated to authorize new voting system guidelines on Feb. 10, amended key sections of a 328-page document less than two weeks before the decision. The amended language of the Voluntary Voting System Guidelines 2.0 would allow next generation voting machines to include components capable of wireless communications, as long as they’re disabled. The changes were made even though the EAC’s technical advisory committee recommended an outright wireless ban.

Cybersecurity experts, some of the EAC’s own advisers and members of Congress are calling for the agency’s four commissioners to vote on a version of the document finalized in July 2020 which included the prohibition on wireless capability. In a letter reviewed by Bloomberg, a bipartisan coalition of more than 20 members of Congress led by Representative Bill Foster told the EAC’s Chairman Ben Hovland that the current version would “diminish confidence in both the federal voting system certification program and the security of our election systems.”

“We cannot sanction the use of online networking capabilities when they carry the very real and increased risk of cyber-attacks, at scale, on our voting machines,” reads the letter….

Meanwhile, others are asking the EAC to explain why changes to a document 15 years in the making were made less than two weeks before the scheduled vote.

“The issue here is the EAC made changes to some of the most commented-on sections of the standard without clearly explaining who made the change, why the change was made and that’s inviting a lot of questions,” said Matt Masterson a former EAC commissioner, referring to some of the 50,000 public comments submitted to the EAC in 2020.

Masterson said there’s no reason to believe the late amendments were born out of malfeasance. “There is an opportunity here for further transparency by the commission which I hope they provide,” said Masterson, former election security lead at the Cybersecurity & Infrastructure Security Agency, part of the Department of Homeland Security.

Share this:

Republican EAC Commissioners Speaking on Zoom Call Organized by “Lawyers Democracy Fund” “to Analyze Effects of Vote-By-Mail Litigation in PA, IA, WI, and Across US”

This seems worthy of a deeper dive, particularly what Christy McCormick and Don Palmer should be saying about this topic:

Lawyers Democracy Fund (calling itself “LDF”–hmm) seems to have a lot of overlap with RNLA and Honest Elections Project.

Share this:

“Election commission orders top voting machine vendor to correct misleading claims”

Kim Zetter for Politico:

The federal Election Assistance Commission has rebuked the nation’s top voting-machine maker over marketing materials that the panel says deceptively implied the company’s voting machines are EAC-certified.

The commission admonished Election Systems & Software over promotional literature and statements on its website that appear to assert, falsely, that voting machines the company sells with embedded modems have been sanctioned by the EAC under its testing and certification program. The statements put ES&S in violation of the EAC’s testing and certification rules, the commission wrote in apreviously unreportedMarch 20 letter to the company that POLITICO obtained, and directed ES&S to revise the literature and notify customers that the systems are not certified….


ES&S told POLITICO it sent a letter via email the first week of April to “all applicable modem customers (89 in total),” and posted a notice on its customer portal.

When asked, ES&S did not identify those 89 customers, saying it could not release specific information about customers without their permission. A spokesperson for the Wisconsin Election Commission, whose state is known to use DS200 machines with modems, told POLITICO it did receive the letter from ES&S in early April. Other jurisdictions known to have purchased DS200 systems with modems and contacted by POLITICO did not respond to inquiries.

Key background: This isn’t the first time ES&S has faced accusations of making fabricated or misleading assertions about its voting machines. In 2018, the company denied to The New York Times that it had ever installed remote-access software on any of its election management systems. But after being pressed by Sen. Ron Wyden (D-Ore.) about the matter, the companyadmitted it had installed the software on systems in at least 300 election jurisdictions. (The company has refused to identify which jurisdictions had the software.)

Election-management systems are critical components that are used to tally official results and in some cases program voting machines before each election. Remote-access software, which ES&S was using to access those systems over the internet or via modem for troubleshooting, exposed those systems to potential hacking by intruders.

Similarly, the company has long insisted, along with its election customers, that none of its voting systems ever connect to the internet. But researchers found what they believed to be more than three dozen ES&S systems connected to the internet, in a story published last year. Company diagrams showing the configuration of modem-enabled DS200 systems clearly depict the modems transmitting election results over the internet to ES&S election-management systems that also are connected to the internet.

Share this:

In Must-Read Piece on Dysfunction at the U.S. Election Assistance Commission, Jessica Huseman Reveals that Excellent Republican Commissioner Matt Masterson Was Forced Out by Von Spakovsky and EAC Commissioner McCormick for Being “Insufficiently Partisan”

In my 2012 book, The Voting Wars, I chronicled how Congress created the United States Election Assistance commission in 2002 after the debacle of 2000’s Bush v. Gore, how the agency started out with great promise as one that could rise above partisan squabbles, and how Republicans worked to sabotage the commission almost from the start.

Jessica Huseman picks up the story in this must-read Propublica/Atlantic piece. It is a story of bureaucratic incompetence, Democratic passivity, and Republican malevolence. For those who follow these issues, it is a true American tragedy.

Share this:

Two Republican EAC Commissioners on “True the Vote” Podcast: “U.S. Election Assistance Commissioners Join Voter Suppression Group to Discourage Mail-In Voting”

Alex Kotch:

In late May, two Republican members of the U.S. Election Assistance Commission used a podcast produced by True the Vote, a right-wing voter suppression group, to cast doubt on the security of mail-in voting for the upcoming November 2020 elections.

The Election Assistance Commission (EAC) is an independent, bipartisan commission, established in 2002 by the Help America Vote Act (HAVA) that serves as “a national clearinghouse” of election administration information.

True the Vote has close GOP ties and is known for its campaigns to purge voter rolls, push voter ID laws, and intimidate voters. The group is now recruiting ex-military and law enforcement officers to patrol the polls in November under the guise of guarding against alleged voter fraud.

Christy McCormick and Don Palmer, the two Republicans on the four-member EAC, spoke on the podcast with True the Vote founder Catherine Engelbrecht about mail-in voting. Engelbrecht describes the process as “a disaster waiting to happen,” claiming that millions of registered voters who should be struck from the rolls will receive ballots.

Share this: