By Christine Santoro, Esq.

What’s in a Name; and Why a “Foundation?” You Ask

Recently, we were asked, “Why is your organization referred to as a ‘Foundation?‘”  “Are you a true Foundation and why wouldn’t your non-profit simply be known as the TrustTheVote Project?”  Herein some answers to those reasonable questions.

What is a Foundation?

The simplest answer about our name can be explained in observing that dictionaries generally offer, as one of several definitions of the term “foundation” this one:

The basis on which a thing stands, is founded, or is supported.

The “thing” for us is open source election technology.  And the OSET Foundation is the basis on which that stands, was founded, and is supported.  Truly, that’s it.  But then there is the legal naming explanation.  So let’s turn to that aspect.

Legally Speaking…

So, another dictionary definition that applies to us is this one:

foundation (also a charitable foundation) is a legal categorization of nonprofit organizations that will typically either donate funds and support to other organizations, or provide the source of funding for its own charitable purposes.

This applies to us.  Often times a foundation is assumed to be one that either donates funds and support to other organization, but it can also be one that supports its own cause.  It is also common to read a legal definition that describes a Foundation as a “permanent fund” established for purposes of carrying out its charitable mission, but that does not necessarily have to be the case as explained here.

Ultimately, the OSET Foundation (recently re-named from the OSDV Foundation) seeks to do both — support our own cause as well as create a permanent fund to support others.

The notion of a permanent fund to donate to others requires we build an “endowment” of capital whereby we can utilize the interest income to carry out our charitable mission.  We believe it will be some time before we can realize that goal.

Managing our own internally spawned projects such as the TrustTheVote Project only requires that our Foundation be funded by other philanthropic sources, which includes other grantor organizations (sometimes called “GMOs”), high net-worth individuals, private family foundations, government grants, and individual citizens.

  • A Note of Caution: understand that “foundation” is not a legal term, so if an organization has that word in its name such does not necessarily mean the organization is a “grant-making” operation.

Our ultimate goal is to make grants, but not in the immediate future, or at least until we have completed the base development of the open source election technology framework.

So, looking forward, we chose a name that could support a grant-making goal over time, and then immediately turned our attention to the TrustTheVote Project.

Generally Speaking…

Our objective is to build a basis on which publicly available election technology innovation can be sustained for the public benefit as a charitable cause to assist in the preservation of democracy.  Over time, we hope to have a portfolio of OSET Foundation “projects” to do just that.  Today, our flagship effort is, and remains the TrustTheVote Project.

There were some additional nuanced legal and technical reasons for structuring (and naming) this CA Public Benefit Corporation and tax-exempt charitable organization in this manner.  We’re glad to wade into those legal and technical nuances off-line if someone has a sincere interest.

Free at Last: We Earn Our 501(c)(3) Tax Exempt Status

I am pleased to announce to our readers that the IRS has granted our 7-year old organization full unbridled tax exempt status under section 501(c)(3) of the Internal Revenue Code as a public charity.  This brings to a close an application review that consumed over 6 years—one of the longest for a public benefits non-profit organization.  Our Chief Development Officer, Gregory Miller has already offered his insight this morning, but I want to offer a couple of thoughts from my view point (which I know he shares).

By now, you may have seen the WIRED Magazine article that was published this morning.  Others here will surely offer some additional comment of their own in separate posts.  But it does set the context for my brief remarks here.

First, to be sure,  this is a milestone in our existence because the Foundation’s fund raising efforts and corresponding work on behalf of elections officials and their jurisdictions nationwide has been largely on hold since we filed our original IRS Form 1023 application back in February 2007.

The Foundation has managed to remain active through what self-funding we could afford, and through generous grants from individuals and collaborating organizations that continued to support the “TrustTheVote™ Project” despite our “pending” status.

A heartfelt “thank you” to Mitch Kapor, Heather Smith and Rock the Vote, Alec Totic, Matt Mullenweg, Pito Salas, the Gregory Miller family and the E. John Sebes family (to name a few of the those who so believed in us early on to offer their generous support).  The same thanks goes to those who wished to remain anonymous in their support.

In addition to our being set free to move full speed ahead on our charter, I think this is interesting news for another reason: this project, which has a clear charitable cause with a compelling public benefit, was caught up in an IRS review perhaps mostly for having the wrong words in its corporate name.

Our case became entangled in the so-called “Bolo-Gate” scandal at the IRS Exempt Division.  And we unintentionally became a poster child for be-on-the-lookout reviews as such applied to entities involved in open source technology.

In sum and substance, our case required 6 years and 4 months for the IRS to decide.  The Service ultimately dragged us into our final administrative remedy, the “conference-of-right” we participated in last November, following their “intent to deny” letter in March of last year.  Then it took the IRS another 220 days to finally decide the case, albeit in our favor, but not before we had a] filed close to 260 pages of interrogatory responses, of which 182 were under affidavits; b] developed nearly 1,600 pages of total content; and c] ran up a total bill for legal and accounting fees over those years in excess of $100,000.

We’ve definitely learned some things about how to handle a tax exempt application process for an organization trying to provide public benefit in the form of software technology, although frankly, we have no intentions or interest in ever preparing another.

But there is a story yet to be told about what it took for us to achieve our 501(c)(3) standing—a status that every single attorney, CPA, or tax expert who reviewed our case over the years believed we deserved.   That noted, we are very grateful to our outside tax counsel team at Caplin Drysdale led by Marc Owen, who helped us press our case.

I am also deeply relieved that we need not raise a legal defense fund, but instead can finally start turning dollars towards the real mission: developing accurate, transparent, verifiable, and more secure elections technology for public benefit rather than commercial gain.  Its not lost on us, nor should it be on you, how we could’ve spent the money we need to pay to our lawyers and accountants on advancing the substantive cause of the TrustTheVote Project.

So, now its time to focus ahead, get to work, and raise awareness of the TrustTheVote Project and the improvements it can bring to public elections.

We’re a legitimate legally recognized 501(c)(3) tax exempt public benefits corporation.  And with that you will begin to see marked changes in our web sites, our activities.  Stay tuned.  We’re still happily reeling a bit from the result, but wrapping our heads around what we need to do now that we have the designation we fought for 6 years to have in order to fund the work our beneficiaries — elections jurisdictions nationwide — so deserve.

Please join me in acknowledging this major step and consider supporting our work going forward.  After all, now it really can be tax deductible (see your accountant and lawyer for details).

Best Regards,
Christine M. Santoro
Secretary, General Counsel

The Court Acts on Voting Rights; Our Comment

The Supreme Court struck down Section 4 of the Voting Rights Act this week, eliminating protections against racial discrimination in our voting process. The ability for each American to cast a ballot in our democracy without fear of discrimination – regardless of race, age, gender – is fundamental to the strength of our democracy.

This ruling, of course, has already been ingested by the 24-hour cable news cycle.  But I want to offer a rare comment here, as the Foundation’s Secretary & General Counsel, because what we’re doing can help mitigate an unfortunate Supreme Court ruling and provide data where data can help to fortify efforts to re-engage Congress.

In short, while it can be argued that we had to see this coming, the good news is that we’re developing tools that officials and the public can use to monitor the borders of racial disenfranchisement.

1st, to be fair we probably should have seen this coming.  After all, a call to recalculate the coverage formula in the NVRA has been heard for some time now.

The court’s opinion said that it did not strike down the act of Congress “lightly,” and noted it “took care to avoid ruling on the constitutionality of the Voting Rights Act” in a separate case back in 2009. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional.”

The majority believes that the South has made great progress in enforcing the NVRA during the last 50 years, including the states affected by Section 4.  That may be true to a point, but Congress held hearings on these issues in 2006 and overwhelmingly voted to leave the NVRA intact as is (or was until this week.)

So the coverage formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.  In his bench statement, Roberts said that Congress had extended a 40-year-old coverage formula based on “obsolete statistics and that the coverage formula “violates the constitution.” Congress, the court ruled, “may draft another formula based on current conditions.”

This effectively sends it back to Congress to restructure Section 4.  Given the current logjam in reaching any consensus within the House of Representatives, it seems unlikely that draft formula, based upon current statistics, will be considered any time soon.  And analysts believe that this Congress’s actions (or lack thereof) will likely result in the death of Section 5 as well (which has not yet been touched by the Court).  While we no longer live in an era of Jim Crow laws, we have witnessed first hand that discrimination continues.  The Court’s ruling today appears to remove the exact law that protects our citizens.  Thus I believe Congress must be pressed into acting.  Incidentally, if the reader would like some excellent background on this and a solid recap of what happened just 7 years ago in when the VRA was reauthorized during a completely Republican controlled government, see Molly Ball’s article in the Atlantic online published today.

2nd, there is some good news we can offer.  The TrustTheVote Project is building the tools now — analytic tools to monitor and track the performance of elections.  These tools will analyze and detail several aspects of the processes for voter registration and balloting.  We believe these tools will provide a detection service to identify when and where the conduct the Voting Rights Act sought to prevent, breaks out again.

While our efforts will not be as strong as Congress fortifying the NVRA to restore those protections of Section 4, our open source tools can help elections officials detect if and/or when such discrimination and disenfranchisement occurs.

However, we need more funding to expand and extend the core capabilities of these tools, currently slated for deployment in the State of VA, then elsewhere.  Perhaps the results of the Supreme Court review of Shelby County v. Holder today will catalyze both a call to Congress and supporting our work here — now more than ever.

For our readers, I hope you will consider helping this effort, because regardless of Congressional actions, this work is fundamental to our democracy.  Ours is not another effort to influence Congress, rather an effort to actually build better election administration tools to cast transparency on process and help root out trouble and improve integrity.  With all due respect to my colleagues working on policy development, there is noting like developing real apps.  So, please consider supporting us, and by any and all means, let your Congressional representatives know that it is imperative to revitalize the coverage formula in Section 4 the NVRA.

Christine M. Santoro
Secretary & General Counsel

Election Snags

According to CNN’s Matt Smith, long lines and sporadic problems with voting machines caused snags in some key states during Tuesday’s closely watched U.S. election.

For example, in Pennsylvania, nonpartisan election monitors from Philadelphia’s Committee of Seventy said two voting machines had broken down at one precinct on the city’s north side, forcing poll workers to issue provisional ballots. That slowed down an already long line, and at least 30 voters had dropped out, the group said. One of the problems with a provisional vote is that your vote does not have to be opened and counted until later – in some situations, as late as November 17, 2012.

In what has become a controversial attempt to accommodate voters who were displaced by hurricane Sandy, state officials in New Jersey allowed voters to cast ballots electronically or by fax.The state chapter of the American Civil Liberties Union headed to court this afternoon on behalf of voters who stated that their requests for an electronic ballot were not being recognized by election officials.

The TrustTheVote Project, is addressing a serious problem in voting technology: the lack of open election technology that is demonstrably worthy of the public’s trust. The snags that have and are occurring in many states during today’s elections magnify the problems that The TrustTheVote Project is dedicated to resolve.

– CS

A New Voice

Hello –

My name is Christine Santoro, the Foundation’s General Counsel.  Although you probably have never heard from me before (well, at least read my writing here anyway), I am responsible for the legal machinery underneath the OSDV Foundation and TrustTheVote Project.  We’ve heard from our readers that they would like to read more from us on issues of law and policy concerning elections and voting technology.  So, I’ve decided to start voicing my thoughts and musings on topics of interest to our readership ranging from election law to issues of technology policy related to voting systems and machinery.

I look forward to sharing my thoughts with you, and more importantly, reading your comments and feedback and engaging in a conversation.  If you have anything in particular that you would like us to talk about let me know.  Talk to you soon.