Plain Talk Series on Understanding Voting System Updates Part 4: When to Update

This is the 4th of a 6-part series of slightly longer vignettes on the challenge of updating voting systems. It’s a slice-and-dice of a recent briefing on the topic.

It’s intended to acquaint relatively newcomers to understanding how voting system are purchased and maintained, and that includes anyone and everyone from concerned citizens, to journalists, to policy makers.

When Is It Time to Update?

After voting system manufacturers deploy voting systems in an election jurisdiction, that jurisdiction (county, township, etc.) typically uses the same voting system for many years – up to a decade, and often longer.

During that time, if updates are made available from the voting system manufacturer, they are typically released for one or more of the following reasons:

1. To offer users new value-added features and functionality (e.g., improvements that make election management easier, or more efficient, or that increase the performance of the voting system).
2. To correct system defects (e.g., “bug fixes”).
3. To comply with changes in federal or state law or administrative rules, so that the voting system can perform mandated functions.
4. To mitigate supply chain concerns, by updating COTS software or hardware (e.g., operating systems, scanners, or printers) that is no longer supported, or which cannot be easily sourced.

Examples of Recent Voting System Updates

More specifically, these are real-world examples of updates that one or more major voting system vendors have offered in recent years:

• To introduce new types of voting devices that the vendor previously did not offer, such as newly-designed “hybrid” ballot marking devices.
• To comply with state-specific rules for certain types of voting variations (e.g., such as particular ways of tabulating straight party votes, or special rules around entering write-in votes).
• To increase the “system limits” and foreign language capabilities of the voting system, so that it is suitable for use by very large jurisdictions with many districts, precincts, contests, and ballot styles.
• To update the underlying COTS operating system on the voting system (e.g., updating from Windows 7 to Windows 10).

What About the Fine Print?

All of those are pretty straightforward reasons for potentially updating voting systems, but uncertainties about their actual development and deployment arise, primarily for two reasons:

1. Vague contract language. Unless election jurisdictions push back against the typical “default” contracts that vendors offer, contractual language about updates is usually quite murky; and
2. Unequal contract language. The contractual language about updates that does exist usually increases the power and discretion of vendors to release updates only when they choose to do so.

Below are three examples of representative contract language about updates from each of the major vendors, based on actual “Master Agreements” or “General Terms,” available from public sources on the Internet (e.g., government procurement departments).

What Do the Terms of Vendor Contracts Look Like?

It should be underscored that in each example, the brief paragraphs below represent the full extent of contract language about updates; there are typically no additional details anywhere else in the contract — and as you can see, the language often lacks specificity. Emphasis has been added, where applicable.

Contract Example #1 – Updates from Voting System Vendor A

Upgrades. In the event that Vendor, at its sole discretion, certifies a software upgrade under the applicable provisions of the election laws and regulations of the Licensee’s State, Vendor may make the certified software upgrade available to the Licensee [e.g. the election jurisdiction] and install the upgrade during a regularly schedule preventive maintenance as described in Exhibit A.

Contract Example #2 – Updates from Voting System Vendor B

Software Support Services may consist of periodic updates to Vendor’s Proprietary Software, at Vendor’s discretion. Because not all errors or defects can or need to be corrected, Vendor does not warrant that all errors or defects will be corrected. Software errors or defects must be reported in writing and be accompanied with sufficient detail to enable Vendor staff to reproduce the error and provide a remedy or suitable corrective action. The exclusions from warranty coverage under Section 9.5 also are exclusions from Software Support Services under this Section. There may be consumable, shipping and on-site service charges for update releases of software and there may be feature charges for update or enhancement releases of software.

Contract Example #3 – Updates from Voting System Vendor C

During the Software Maintenance and Support Term, Vendor may provide new releases, upgrades or maintenance patches to the Software, along with appropriate documentation (“Updates”), on a schedule solely defined by Vendor. Customer is responsible for obtaining and installing any upgrades or purchases of third party hardware or software required to operate the Updates. Customer may install the Updates in accordance with Vendor’s recommended instructions or may request that Vendor install the Updates. Vendor will charge Customer separately to (a) deliver the Updates, (b) train customer on the use of such Updates, and (c) provide maintenance and support on the Software which is required as a result of Customer’s failure to timely install an Update. Customer shall pay Vendor for any Update which is required due to a change in state law.

Who Do These Contracts Protect?

As these examples illustrate, the key takeaways about voting system updates are:

• Typical contracts leave it up to the sole discretion of vendors – not election jurisdictions — to decide whether and when software updates will be developed and made available.
• Typical (i.e. “default” or “boilerplate”) contract language is vague, with few restrictions placed on voting system vendors.
• There may be additional costs associated with vendor provision of updates to customers, beyond those covered through annual license and support fees (though this is often unclear); such charges may include, for example, costs of development, shipping, and installation.

Not surprisingly, since typical contracts increase vendor discretion at the expense of local election officials, at best it is not uncommon for local election officials to be relatively unclear about when their voting systems might be updated, or what it might cost them to do so.

At worst, customers might pay considerable annual license and support fees that provide few benefits beyond a right to use software, and telephonic support.

Indeed, some users of older voting systems have had to live with software that their vendor has chosen not to update at all for a decade or more.

What Can Election Officials Do?

Why are local election officials often so relatively powerless? And why might voting system vendors resist making more frequent updates? A big part of the answer lies in the complexities of what’s actually required to release and implement an updated version of voting system software. Under the current environment, it’s not easy. We’ll look at the details in our next blog post in this series. To read more, here are all of the articles in this Voting Systems Update Series published to date.