New York state recently certified two voting systems, and the end of the process is an interesting insight into current certification and standards — particularly the view of the dissent-voting participant, Bo Lipari, who explained his vote in his blog My Vote on NY Voting Machine Certification. It’s certainly worth reading Bo’s complete rationale, but I think that the most important take-away is very aptly expressed by today’s guest blogger, Candice Hoke, the Director of the Center for Election Integrity and Associate Professor of Law at the Cleveland-Marshall College of Law at Cleveland State University.

I read Bo Lipari’s blog regarding the NY VS certification issue, and the 9:1 vote in favor of certification, with Bo’s vote the only dissent. To provide a lawyer’s view, I would mention that Anglo-American law includes a principle termed “substantial compliance.” It has limitations and caveats, but it’s worth considering how this principle might apply to the voting tech certification area, or instead be excluded from it.

At base, Bo’s blog, and certification facts he presents, pose a very important question:

Do we really want voting system vendors to be able to “substantially comply” with the certification standards, or do we want to require more rigorous, complete compliance; and if so, why?

This is a critical question, of course.  Certainly, in the earlier NASED certification process, the ITAs (labs operating as Independent Testing Authorities) viewed substantial compliance to be all that was required.  The ITA view of “substantial” seemed to be inchoate and ad hoc, perhaps based on a general gestalt of the voting system product under review. As the California TTBR and other independent voting system studies documented, “substantial” offers a great deal of interpretive wiggle room.

My thanks to Candice both for posing this important question and for pointing that any answer is not going to be tidy, whether it is black-or-white, or a paler shade of gray.

— EJS