Mississippi Advisory Opinions October 05, 2007: AGO 2007-00522 (October 05, 2007)

Advisory Opinion Text

Linda Dixon Rigsby, Esq.

Assistant Secretary of State

Mississippi Secretary of State's Office

P. O. Box 136

Jackson MS 39205

Re: Memory Cards for DRE Voting Equipment

Dear Ms. Rigsby:

Attorney General Hood has received your request for an official opinion and it has been assigned to us for research and reply. Your letter states:

As counties are preparing for the general election, some are faced with election contests from the primary election. The Mississippi Secretary of State's Office has received several inquiries concerning the TSX voting system memory cards and clearing the stored information when faced with an election contest.

The memory card is only used as a transport device to download the information from the TSX unit to the GEMS server for tabulation. The transfer of that information does not remove it from the TSX voting system, it only duplicates it for transfer.

There are five (5) possible sources to store the votes cast. The information is stored in the internal memory of the TSX unit, the printed voter verified paper trail tape, and the memory card. Once the memory card is downloaded to the county's tabulation GEMS Server, the GEMS server stores the votes cast and can produce printed ballot images. Additionally, the results report printed at the precinct and reports from the GEMS server can be used to validate the result totals. Furthermore, the memory cards must be cleared to prepare for the upcoming election; and it is practical to clear the memory cards because of the cost factor involved with counties having to purchase additional memory cards.

Given all of the foregoing, we respectfully request your opinion on the following question: Is it permissible to clear the election results from memory cards after an election, even if there is an election contest?

Miss. Code Ann. Section 23-15-921 (1972) allows a candidate in a primary election to file an election contest with the appropriate party executive committee within 20 days of the date of the primary election. Miss. Code Ann. Section 23-15-927 (1972) gives the candidate the right to thereafter file the primary election contest in circuit court. In the case of a general election, Miss. Code Ann. Section 23-15-951 (1972) authorizes a candidate to file an election contest in circuit court within 20 days of the general election.

Miss. Code Ann. Section 23-15-531.1 (1972) , which established the minimum requirements of a DRE voting device, provides, in pertinent part:

Each DRE unit shall:

(d) Produce a permanent paper record with a manual audit capacity which shall be available for any recount conducted with respect to the election in which the DRE unit is used;

(e) Have the capability to print the ballots cast by electors to be utilized in the event of a recount conducted with respect to the election in which the DRE is used;

Miss. Code Ann. Section 23-15-531.4 (1972) , printed in pertinent part below, outlines the duties of election officials with respect to DRE's:

(1) The officials in charge of the election of each county or municipality shall:

(a) Cause the proper ballot design and style to be programmed for each DRE unit which is to be used in any precinct within the county or municipality;

(b) Cause each DRE unit to be placed in proper order for voting;

(c) Examine each unit before it is sent to a polling place;

(d) Verify that each registering mechanism is set at zero; and

(e) Properly secure each unit so that the counting machinery cannot be operated until later authorized.

(2) The circuit clerk shall be the custodian of the DRE units acquired by the county.

(3) The officials in charge of the election shall be responsible for the preparation of the units to be used in the county or municipality at the primaries and other elections in the county or municipality.

(4)(a) On or before the third day preceding any election, except runoff elections, the officials in charge of the election shall have each DRE unit tested to ascertain that it will correctly count the votes cast for all offices and on all questions in a manner that the Secretary of State may prescribe by rule or regulation.

(b) On or before the third day preceding any runoff election, the officials in charge of the election shall test a number of DRE units at random to ascertain that the units will correctly count the votes cast for all offices. If the total number of DRE units in the county is thirty (30) units or less, all of the units shall be tested. If the total number of DRE units in the county is more than thirty (30) but not more than one hundred (100), then at least one-half (1/2) of the units shall be tested at random. If there are more than one hundred (100) DRE units in the county, the officials in charge of the election shall test at least fifteen percent (15%) of the units at random. In no event shall the officials in charge of the election test less than one (1) DRE unit per precinct. All memory cards to be used in the runoff shall be tested. Public notice of the time and place of the test shall be made at least five (5) days prior thereto. Representatives of candidates, political parties, news media and the public shall be permitted to observe such tests...

Miss. Code Ann. Section 531.4 (1972) therefore makes it clear that the memory cards must be made available for preparation, programming, and logic and accuracy testing for each election. Obviously, if memory cards are a necessary component of the TSX voting devices utilized in an election, then the memory cards would likewise be required for any election which follows, including runoffs which fall within weeks after an initial election, or for the general election which follows a primary or second primary.

To not make the memory cards available for an election which follows an immediately preceding election could result in delaying preparation for a runoff or a general election. If the delay goes for too long, it could result in the voting devices not being ready in time for use on election day, which could require the casting of irregular paper ballots in lieu of casting ballots on voting devices, in accordance with Miss. Code Ann. Section 23-15-531.12 (1972):

If for any reason any direct recording electronic voting equipment shall become inoperable, the poll managers, or the officials in charge of the election, shall direct voters to go to an operating terminal or to cast irregular ballots, if necessary, which shall be paper ballots. Such paper ballots shall be administered, as far as is practicable, in accordance with the laws concerning paper ballots.

The handling of memory cards by election officials is addressed in Miss. Code Ann. Section 23-15-531.10 (1972) , which is printed in pertinent part below:

(3) After the polls have closed and all voting in the precinct has ceased, the poll manager shall shut down the DRE units and extract the election results from each unit as follows:

(a) The manager shall obtain the results tape from each DRE unit and verify that the number of ballots cast as recorded on the tape matches the public count number as displayed on the DRE unit;

(b) If a system is established by the Secretary of State, the poll manager shall first transmit the election results extracted from each DRE unit in each precinct via modem to the central tabulating center of the county; and

(c) The manager shall then extract the memory card, if applicable, from each DRE unit.

(4)(a) Upon completion of shutting down each DRE unit and extracting the election results, the manager shall cause to be completed and signed a ballot recap form, in sufficient counterparts, showing:

(i) The number of valid ballots;

(ii) The number of spoiled and invalid ballots;

(iii) The number of affidavit ballots; and

(iv) The number of unused affidavit ballots and any other unused ballots.

(b) The manager shall cause to be placed in the ballot supply container one (1) copy of the recap form and any unused, defective, spoiled and invalid ballots, each enclosed in an envelope or communication pack.

(5) The manager shall collect and retain the zero tape and the results tape for each DRE unit and place the tapes with the memory card, if any, for each unit and enclose all such items for all of the DRE units used in the precinct in one (1) envelope or communication pack which shall be sealed and initialed by the manager so that it cannot be opened without breaking the seal.

(6) The returning manager shall then deliver the envelope or communication pack to the tabulating center for the county or municipality or to such other place designated by the officials in charge of the election and shall receive a receipt therefor. The copies of the recap forms, unused ballots, records and other materials shall be returned to the designated location and retained as provided by law.

(7) Upon receipt of the sealed envelope or communication pack containing the zero tapes, results tapes and memory cards, the officials in charge of the election shall verify the signatures on the envelope or communication pack. Once verified, the officials in charge of the election shall break the seal of the envelope or communication pack and remove its contents. The officials in charge of the election shall then download the results stored on the memory card from each DRE unit into the election management system located at the central tabulation point of the county in order to obtain election results for certification.

Miss. Code Ann. Section 23-15-639 (1972) states in pertinent part as follows:

When there is a conflict between an electronic voting system and a paper record, then there is a rebuttable presumption that the paper record is correct.

It is evident from your letter that in a DRE election utilizing the Diebold TSX voting devices the electronic record of the votes cast is recorded not just on the memory cards, which you refer to as a “transport device”, but also is recorded in each TSX's internal memory, which has the capacity to store election results for several elections and which we understand is not required to be “cleared” after each election. We understand from your letter that the electronic record of ballots cast and recorded on the memory card simply duplicates the electronic record stored in each TSX's internal memory. Furthermore, we understand from your letter that the electronic record of votes cast is also stored on the GEMS server Miss. Code Ann. Section 23-15-531.1 (1972) requires DRE's to have “a permanent paper record with a manual audit capacity which shall be available for any recount conducted with respect to the election in which the DRE unit is used” and “the capability to print the ballots cast by electors to be utilized in the event of a recount conducted with respect to the election.” These paper records available in DRE elections utilizing the Diebold TSX voting devices include, foremost, the paper receipt generated on the individual printers attached to each voting device which the voters are instructed to review upon casting their ballot, as well as reports printed in each precinct at the close of polls and from the GEMS server itself.

Moreover, Miss. Code Ann. Section 23-15-639 (1972) provides that where there is “conflict between an electronic voting system and a paper record, then there is a rebuttable presumption that the paper record is correct.”

Finally, we take note of the fact that purchasing duplicate memory cards is often prohibitively expensive, particularly for the counties which are least able to afford them. Monroe County has advised this office that they have 127 TSX machines, that the memory cards cost $120 each, therefor to purchase duplicate memory cards would cost their county $15,240 to purchase one additional memory card for each device.

Our conclusions, therefore, are as follows: Memory cards are a required and necessary component used in Diebold TSX DRE voting devices, and they are required to be cleared and tested for the logic and accuracy tests required by law.

As you have disclosed in your request letter, the electronic information stored on the memory cards are also stored elsewhere, including in each TSX device's internal memory.

Nowhere in the Mississippi Election Code has the Legislature made it mandatory that counties obtain or use duplicate memory cards for DRE voting devices.

It is our opinion that except where a court may order otherwise, the appropriate officials in charge of the election may clear memory cards of the Diebold TSX Direct Recording Electronic Voting Equipment at any time after the certification of the election, and in any case must do so in a timely manner so as to not to delay logic and accuracy tests and other required preparations for the next election. However, the electronic information stored in each TSX's internal memory and on the GEMS server cannot be cleared and must be made available as may be ordered by a court for any outstanding election contest. All precinct reports and printed voter verified paper trail tapes must likewise be retained in case they be needed for a contest.

Please let me know if you would like to discuss this matter or if I can be of further assistance.

Sincerely,

Jim Hood Attorney General.

Reese Partridge Assistant Attorney General