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Indiana Election Division

Election Division > Election Commission > Archived IEC Minutes > 1999 Archived IEC Minutes > August 1999 Meeting Minutes Meeting Minutes

Indiana Election Commission

MINUTES

AUGUST 3, 1999

 

MEMBERS PRESENT: Dudley Cruea, Chairman of the Indiana Election Commission [IEC]; S. Anthony Long, Butch Morgan; Barbara McClellan, proxy for Joseph M. Perkins, Jr.

MEMBERS ABSENT: Joseph M. Perkins, Jr.

STAFF ATTENDING: Laurie P. Christie, Co-Director, Election Division, Office of the Indiana Secretary of State ("Election Division"); Spencer Valentine, Co-Director, Election Division; J. Bradley King, Co-General Counsel, IEC and Election Division; Kristi Robertson, Co-General Counsel, IEC and Election Division; Pam Potesta, Co-Director, Campaign Finance, Election Division; Michelle Thompson, Co-Director, Campaign Finance, Election Division; Bruce Northern, NVRA and Precincts Coordinator.

ALSO ATTENDING: Mr. John A. Black of Election Systems & Software (ES&S); Ms. Betty Browning, Indianapolis League of Women Voters; Mr. Dan Carlson, of Fidlar & Chambers; Mr. Kevin Corcoran, of The Indianapolis Star; Mr. Steve Corey of Governmental Business Systems (GBS); Ms. Glenda B. Hampton, of Evansville; Mr. Louis Kavanaugh, Indiana Citizens for Life PAC; Mr. Robb McGinnis, of ES&S; Mr. Robbin Stewart, of Tavel & Stewart, Indianapolis; Mr. Paul Van Camp, of Fidlar & Chambers; Ms. Julia Vaughn, of Common Cause/Indiana.

 

1. CALL TO ORDER:

The chair called the August 3, 1999 meeting of the Indiana Election Commission to order at 1:47 p.m. in Conference Center Room "A", Indiana Government Center South, 402 West Washington Street, Indianapolis, Indiana. He noted that proper notice of the meeting had been given, as required by state law, and that a quorum of Commission members was present. The chair noted that Mr. Perkins was absent due to a scheduling conflict.

A copy of the meeting notice and agenda is incorporated by reference in these minutes. [Copies of all documents incorporated by reference are available for public inspection and copying at the Election Division office.]

Indiana Election Commission Minutes

August 3, 1999

 

2. WELCOME AND INTRODUCTION OF PROXY MEMBERS:

The chair noted that a document had been filed with the Election Division on August 3, 1999 by Mr. Perkins designating Ms. Barbara McClellan as his proxy for this meeting. A copy of this proxy is incorporated by reference in these minutes. The chair welcomed Ms. McClellan and thanked her for her participation.

3. APPROVAL OF MAY 27, 1999 MINUTES:

The chair noted that each Commission member had previously received a draft of the proposed Commission minutes for the May 27, 1999 regular meeting. There being no corrections, Mr. Long moved that the minutes be approved as submitted. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

4. CAMPAIGN FINANCE ENFORCEMENT:

A. ADOPTION OF FINAL ORDERS 1999-54 THROUGH 1999-77 (CAUSES HEARD MAY 27, 1999):

The chair recognized Mr. King, who stated that Commission members had received a copy of proposed Final Orders 1999-54 through 1999-77, which reflected the enforcement actions taken by the Commission at its May 27, 1999 meeting.

After reviewing the proposed Final Orders, Mr. Long moved, seconded by Mr. Cruea, that Orders 1999-54 through 1999-77 be adopted as presented. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

B. CONTINUED CAUSE FROM MAY 27, 1999 MEETING:

The chair recognized Ms. Potesta, who referred Commission members to a two page document dated August 3, 1999, 9:05:42 a.m., and entitled "Late Committee Filings before the Indiana Election Commission." The Commission consented to the introduction of this document as evidence in each of the causes to be heard before the Commission on this date. A copy of this document is incorporated by reference in these minutes.

Indiana Election Commission Minutes

August 3, 1999

 

Cause 99-0107-103 Transpac, PAC of Transtar

The chair recognized Ms. Potesta, who stated that the proposed civil penalty in this matter was Seven Hundred Five Dollars and Ninety Six Cents ($705.96), being Seven Hundred Dollars ($700) for a delinquent 1999 pre-primary report (due by noon April 16, 1999, and which was filed with the Election Division on April 30, 1999), and Five Dollars and Ninety Six Cents ($5.96) in certified mail costs. She added that this committee had not previously been before the Commission for a campaign finance enforcement cause. Ms. Potesta noted that this matter had been continued at the May 27, 1999 meeting after Commission members reviewed a two page letter dated May 20, 1999 from Ms. Leann Greenwald, attorney for Transtar, concerning this matter. Ms. Potesta added that Commission members had also been provided with the following documents: (1) a two page letter dated July 6, 1999 from Mr. King and Ms. Robertson to Ms. Greenwald responding to the May 20, 1999 letter; (2) a one page letter dated July 29, 1999 from Ms. Greenwald to Mr. King; and (3) a one page affidavit executed on July 29, 1999 by Ms. Kathleen Hillman concerning this matter. A copy of each of these documents is incorporated by reference in these minutes.

After reviewing the documents, the chair asked if any individual was present to testify regarding this matter. There was no response. There being no testimony, Mr. Cruea moved that the hearing in this cause be closed. The Commission adopted this motion by consent.

Mr. Cruea moved that the Commission: (1) find that the assessment of the proposed civil penalty and documented costs in this cause would be unjust under these circumstances for the reasons set forth in these minutes; and (2) assess a civil penalty of One Hundred Eighty Dollars and Ninety Six Cents ($180.96), being a civil penalty of One Hundred Seventy-Five Dollars ($175), plus Five Dollars and Ninety Six Cents ($5.96) in investigative costs properly documented by the Election Division. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

 

C. MOTIONS TO RECONSIDER:

INTRODUCTORY REMARKS:

The chair directed Mr. King to administer the oath to all individuals who wished to testify in any cause to be heard before the Commission on this date. After the administration of the oath, the chair asked that all individuals testifying limit their remarks to three minutes.

Indiana Election Commission Minutes

August 3, 1999

 

Cause 99-3360-058 Indiana Citizens for Life PAC

The chair recognized Ms. Potesta, who stated that the civil penalty previously imposed by the Commission in this matter was One Hundred Two Dollars and Ninety Eight Cents ($102.98), being One Hundred Dollars ($100) for a delinquent 1998 annual report (due by noon January 20, 1999, and which was filed with the Election Division on January 22, 1999), and Two Dollars and Ninety Eight Cents ($2.98) in certified mail costs. She added that this committee had previously been before the Commission for a campaign finance enforcement cause, namely a delinquent 1996 pre-primary report. Ms. Potesta added that Commission members had also been provided with a three page letter dated June 17, 1999 from Mr. Louis Kavanaugh, Jr. to Ms. Thompson concerning this matter. A copy of this document is incorporated by reference in these minutes.

After reviewing this document, the chair asked if any individual was present to testify regarding this matter. The chair recognized Mr. Kavanaugh, the treasurer of this committee. Mr. Kavanaugh stated that he lived at Rural Route 3, Montgomery, Indiana. He apologized for not attending the March Commission meeting at which this cause had been heard, but indicated that he had not been notified of the meeting. He said that the certified letter had been sent to an old address in Evansville, and that he was unaware of the hearing. He remarked that the letter could have been sent by regular mail, and should have been sent to him to begin with.

Mr. Kavanaugh stated that he realized that the year end report must be mailed on time, but that there were extenuating circumstances in January 1999. He noted that there was terrible ice and snow in his part of Indiana, and that he believed that the mail from Montgomery was delayed in being transported in its usual route to Evansville and then to Terre Haute. He remarked that some postal carriers had not serviced the rural routes for several days during this time, or had only collected mail on parts of the routes. He added that he had filed his federal political action report at the same time, and had not experienced any problems.

Mr. Kavanaugh stated that the committee's report indicates that he completed and signed the report on January 2, 1999, and that it is his practice to fill out the campaign finance reports as soon as possible. He added that he did not post the report on that date, and was not certain exactly when he did so. Mr. Kavanaugh remarked that the committee had no contributions or expenditures during this reporting period. He said that although he was a volunteer for this organization, the committee had filed past reports in a timely manner. He stated that the committee was not trying to bypass the law, but that circumstances beyond the committee's control had prevented a timely filing. Mr. Kavanaugh said that the committee had experienced very limited activity over the last several years. He added that although the proposed fine was not a large amount, he would pay any civil penalty assessed against the committee from his personal funds.

Indiana Election Commission Minutes

August 3, 1999

 

In response to a question from Mr. Long, Ms. Thompson stated that the report had been postmarked January 20, and received by the Election Division on January 22, 1999.

In response to a question from Mr. Long, Mr. Kavanaugh stated that the previous violation concerning the delinquent 1996 pre-primary report had occurred when he was a new volunteer for the committee, and that the committee had not received notice to file. He added that the committee's address had changed in early 1996, and that it was possible that any notice to the committee had been returned.

Mr. Long suggested that Mr. Kavanaugh send future reports by certified mail, so that there would be documentation for the date that the report was deposited in the United States mail.

There being no further testimony, Mr. Cruea moved that the hearing in this cause be closed. The Commission adopted this motion by consent.

Mr. Long moved that the Commission: (1) grant the committee's motion to reconsider in this cause; (2) find that the assessment of the proposed civil penalty and documented costs in this cause would be unjust under these circumstances for the reasons set forth in these minutes; and (3) amend Order 1999-41 to assess a civil penalty of Fifty Two Dollars and Ninety Eight Cents ($52.98), being a civil penalty of Fifty Dollars ($50), plus Two Dollars and Ninety Eight Cents ($2.98) in investigative costs properly documented by the Election Division against this committee. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

 

Cause 99-4170-064 The Committee to Elect Mark Struble for State Representative

The chair recognized Ms. Potesta, who stated that the civil penalty previously imposed by the Commission in this matter was One Hundred Two Dollars and Ninety Eight Cents ($102.98), being One Hundred Dollars ($100) for a delinquent 1998 annual report (due by noon January 20, 1999, and which was filed with the Election Division on January 22, 1999), and Two Dollars and Ninety Eight Cents ($2.98) in certified mail costs. She added that this committee had previously been before the Commission for a campaign finance enforcement cause, namely a delinquent 1996 annual report, and had been closed on January 22, 1999. Ms. Potesta added that Commission members had also been provided with a two page letter dated June 25, 1999 from Mr. Struble to the Commission concerning this matter. A copy of this document is incorporated by reference in these minutes.

Indiana Election Commission Minutes

August 3, 1999

 

After reviewing this document, the chair asked if any individual was present to testify regarding this matter. There was no response. The chair noted that Mr. Struble's letter had stated that he planned to be present today. In response to a question from the chair, Ms. Potesta stated that Mr. Struble had not yet paid the proposed fine. Mr. Long moved that the Commission table this cause until the conclusion of other campaign finance enforcement matters to provide Mr. Struble with additional time to appear. Commission members adopted this motion by consent. The chair directed the Election Division staff to check to see whether Mr. Struble might be present in Conference Center Room C or the Training Center, rather than in Conference Room A. Subsequently, staff reported to the Commission that no one was present for the Commission's hearings at these locations.

Mr. Long then moved that the Commission take this cause from the table. Commission members adopted this motion by consent. There being no testimony, Mr. Cruea moved that the hearing in this cause be closed. The Commission adopted this motion by consent.

Mr. Long moved that the Commission deny the committee's motion to reconsider the final order previously adopted in this cause. Mr. Cruea seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

 

Cause 99-4016-084 Committee to Elect Glenda Hampton

The chair recognized Ms. Potesta, who stated that the civil penalty previously imposed by the Commission in this matter was Five Hundred Two Dollars and Ninety Eight Cents ($502.98), being Five Hundred Dollars ($500) for a delinquent 1998 annual report (due by noon January 20, 1999, and which was filed with the Election Division on March 18, 1999), and Two Dollars and Ninety Eight Cents ($2.98) in certified mail costs. She added that this committee had previously been before the Commission for a campaign finance enforcement cause, namely a delinquent 1996 pre-primary report. Ms. Potesta added that Commission members had also been provided with a four page letter dated June 10, 1999 from Ms. Hampton concerning this matter. A copy of this document is incorporated by reference in these minutes. Ms. Potesta noted that the civil penalty in this cause of One Thousand Dollars ($1,000) had been previously reduced by the Commission, and that Ms. Hampton had closed this committee on March 18, 1999

After reviewing this document, the chair asked if any individual was present to testify regarding this matter. The chair recognized Ms. Hampton. Ms. Hampton stated that the facts concerning this matter were set forth in her letter to the Commission.

Indiana Election Commission Minutes

August 3, 1999

 

In response to a question from the chair concerning the delinquent 1996 pre-primary report, Ms. Hampton stated that the committee's treasurer suffered from Alzheimer's disease. She remarked that her treasurer had served as a city common council member for many years, and that at the time, she believed that he was properly attending to all the campaign finance reporting requirements on behalf of her committee. She said that no one had any idea that he was suffering from this illness. Ms. Hampton stated that she had not previously been a candidate, that her committee was a "grass roots" effort, and that the committee had no intention of disregarding the reporting requirements.

In response to a question from Mr. Morgan, Ms. Hampton stated that Mr. Landers had always served as the committee's treasurer, and had done so in 1996 at the time of the previous violation. She said that she now believed that Mr. Landers had been suffering from Alzheimer's in 1996, but that she was not aware of his illness at that time.

Ms. Hampton asked why her committee's proposed fine was $500, rather than the $100 assessed against other committees. Mr. Long responded that the amount of any civil penalty is fixed by state statute at $50 per day or any part of a day that the report is delinquent after the filing deadline, with a maximum fine of $1,000. He noted that the previous committees were subject to a $100 penalty, since their reports were filed two days after the filing deadline. The chair added that the Commission had previously reduced the committee's proposed penalty from $1,000 to $500.

In response to a question from the chair, Ms. Hampton stated that she believed that this report had been filed before the deadline with the Vanderburgh County Circuit Court Clerk, and so she assumed that the report had also been timely filed with the Election Division. She said that she had not been notified of any delinquency by the Clerk's office. In response to a question from the chair, Ms. Hampton stated that she believed that Mr. Landers had filed her report with the Vanderburgh County Clerk. In response to a question from Mr. Morgan, Ms. Hampton stated that she did not bring any file stamped copies from the Vanderburgh County Circuit Court Clerk with her to the Commission meeting today.

Ms. Hampton said that when she contacted the Election Division she was told that she was not required to appear and "really did not need to appear" at the Commission meeting concerning this cause. She stated that she did not attend the earlier Commission meeting as a result.

Ms. Hampton remarked that the proposed fine was almost as much as the committee had raised during her entire campaign, and that she did not plan to run again for office. She said she agreed with Mr. Morgan that filing these reports was part of the responsibility of being a candidate.

Indiana Election Commission Minutes

August 3, 1999

 

In response to a question from Mr. Morgan, Ms. Hampton stated she taught fourth and fifth grade students in elementary school. Mr. Long remarked that Ms. Hampton was a well respected citizen of Vanderburgh County, and that he had known of her by good reputation for many years.

There being no further testimony, Mr. Cruea moved that the hearing in this cause be closed. The Commission adopted this motion by consent.

Mr. Cruea moved that the Commission: (1) grant the committee's motion to reconsider in this cause; (2) find that the assessment of the proposed civil penalty and documented costs in this cause would be unjust under these circumstances for the reasons set forth in these minutes; and (3) amend Order 1999-46 to assess a civil penalty of Two Hundred Fifty Two Dollars and Ninety Eight Cents ($252.98), being a civil penalty of Two Hundred Fifty Dollars ($250), plus Two Dollars and Ninety Eight Cents ($2.98) in investigative costs properly documented by the Election Division against this committee. Mr. Long seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

In response to a question from Ms. Hampton, the chair advised her that the Commission would sign an order in this matter at its next meeting, which would then be mailed to her. He added that her committee would be given thirty days to pay the civil penalty, beginning on the date that the order was signed.

Cause 99-4171-116 Democratic Legislative Campaign Committee

The chair recognized Ms. Potesta, who stated that the civil penalty previously imposed by the Commission in this matter was One Hundred Fifty Two Dollars and Ninety Eight Cents ($152.98), being One Hundred Fifty Dollars ($150) for a delinquent 1999 pre-primary report (due by noon April 16, 1999, and which was filed with the Election Division on April 28, 1999), and Two Dollars and Ninety Eight Cents ($2.98) in certified mail costs. She added that this committee had not previously been before the Commission for a campaign finance enforcement cause, and that the Commission had reduced the proposed civil penalty for this committee at its previous meeting. Ms. Potesta added that Commission members had also been provided with a three page letter dated May 21, 1999 from Mr. Brian G. Svoboda, of Perkins Coie LLP, counsel to this committee. A copy of this document is incorporated by reference in these minutes.

After reviewing this document, the chair asked if any individual was present to testify regarding this matter. There was no response. There being no testimony, Mr. Cruea moved that the hearing in this cause be closed. The Commission adopted this motion by consent.

Indiana Election Commission Minutes

August 3, 1999

 

Mr. Cruea then moved that the Commission deny the committee's motion to reconsider the final order previously adopted in this cause. Mr. Morgan seconded the motion. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

D. STATUS REPORT: CAMPAIGN FINANCE DATA BASE AUDITS

The chair recognized Ms. Potesta, who reported that the campaign finance staff had run the database audit functions, and would be examining the reports generated by the audit functions to determine whether further potential enforcement actions should be brought to the Commission.

E. ADVISORY OPINION 1999-01 (EXPENDITURES BY COMMITTEES FOR SALARIES OR WAGE REIMBURSEMENTS)

The chair recognized Mr. King, who noted that Commission members had previously received a draft of a document entitled "Advisory Opinion 1999-01." A copy of this document is incorporated by reference in these minutes.

Mr. King noted that the document sets forth the history of the Commission's previous consideration of the use of contributions to a candidate's committee for the reimbursement of a candidate's lost wages. He stated that the Advisory Opinion arose from the Commission's consideration of the complaint filed against the Citizens for Anthony Underly Committee at the Commission's May 27, 1999 meeting. Mr. King recalled that the issue in this complaint concerned the committee's reimbursement of the candidate for documented lost wages. He noted that at that meeting, staff had advised the Commission that when the Federal Election Commission (FEC) applied its rules concerning the use of campaign funds for personal purposes, the FEC had approved a candidate committee's payment of a salary to the family member of a candidate, but had deadlocked on the question of whether a candidate's committee could pay a salary directly to the candidate.

Mr. King said that after the dismissal of the Underly complaint, the Commission directed staff to prepare an advisory opinion concerning this matter for further consideration by the Commission. He indicated that Commission members had expressed the view that such an opinion would provide guidance to candidates and the general public concerning what would be considered an acceptable use of candidate committee funds in this context. He noted that Indiana Code 3-9-3-4, the only legislation applicable to this topic, did not specifically prohibit a committee from reimbursing a candidate for lost wages.

Indiana Election Commission Minutes

August 3, 1999

 

Mr. King noted that staff had three options in preparing the draft Advisory Opinion: (1) to prohibit the payment of salaries and reimbursements in all cases; (2) to permit the payment of salaries and reimbursements in all cases; or (3) to permit the payment of these salaries or reimbursements under some circumstances.

In reviewing the draft, Mr. King stated that SECTION 1 specified that the Advisory Opinion would only apply to candidate's committees, and not to political action committees or regular party committees. He noted that SECTION 2 clarifies that these salaries and reimbursements would be permitted under the circumstances outlined in the Opinion. He indicated that SECTION 3 and SECTION 4 the payment of a salary by the committee to the candidate or a member of the candidate's family must be made after: (1) the execution of a contract stating the services to be rendered by the individual, and the basis for computing any salary; and (2) the filing of this contract in the election office where the committee files its campaign finance reports. Mr. King stated that if a candidate chose to enter into this type of contract with the candidate's committee, potential contributors to the committee would be placed on notice that their contributions might be used in this manner. Mr. King remarked that SECTION 5 instructed the Election Division to provide advice in accordance with this Opinion to county election boards, candidates, and other interested parties. He added that under SECTION 6, the Commission recommended that the 2000 session of the General Assembly enact legislation to codify the policies expressed in this Opinion. He noted that SECTION 7 required the Election Division to forward copies of the final version of this Opinion to each county election board and the State Chairman of the three political parties with automatic ballot access under Indiana law. Mr. King concluded by noting that SECTION 8 provided for the expiration of this order on July 1, 2000, so that the legislature would have an opportunity to address this issue.

Mr. King emphasized that this document was labeled "DRAFT" because it was not intended to be the recommended position of the Election Division to the Commission, but was intended to serve as the framework for the Commission's discussion.

The chair recognized Mr. Long, who thanked staff for preparing this draft, and suggested that the word "written" be inserted in SECTIONS 3 and 4 to clarify that the contract or agreement must take written form. Mr. Long added that SECTION 4 should contain a proviso that any reimbursement made under this SECTION would under no circumstances exceed the actual wages that would have been earned by the candidate.

Mr. Long also recalled that under the former federal law, a candidate's committee could make a "balloon" salary payment at the end of a year after the election of all the remaining money left in the committee's account. He indicated that there should be an appropriately documented amount specified in advance in the candidate's contract before any such payment was made. Mr. Long said that he could envision that a candidate would forego reimbursement in the weeks before an election to spend money on advertising, with the hope that more funds would be

Indiana Election Commission Minutes

August 3, 1999

 

available to the committee later to permit reimbursement of the candidate. Mr. Long said that he was not opposed to a candidate prioritize expenditures in this manner, so long as the amounts to be reimbursed were appropriately characterized as a debt owed by the committee. He indicated that it might be desirable to prohibit amendments to the contract after the contract was filed with an election office, unless the same filing procedures were followed regarding any such amendment.

In response to a question from Mr. Morgan concerning whether other states had acted to address this issue, Mr. King responded that he was sure that other states had done so, but that he did not have detailed information available at this time. He noted that other states might have more detailed statutes or regulations that the Indiana law. Mr. King indicated that he would be happy to research this matter further and provide additional information to Commission members.

Mr. Long asked whether the intent of SECTION 8 was to have this order expire after the state legislature had been given an opportunity to address this issue. Mr. King responded that this was correct. Mr. Long then suggested that the Commission provide for the expiration of this order on December 31, 2000, so that order would apply throughout the entire year 2000 election cycle unless the order was superseded by an act of the legislature. He noted that if the legislature chose not to act, the Commission could find itself facing this issue in the midst of the general election process.

Mr. Long requested that Election Division staff be directed to prepare a revised version of the Advisory Opinion for consideration by the Commission at its next meeting. The Commission members concurred with Mr. Long's request.

 

5. VOTING SYSTEM DEMONSTRATIONS AND STAFF REPORTS:

A. STAFF RECOMMENDATION: VOTING SYSTEM TESTING FOR COMPLIANCE WITH INDIANA CODE 3-11-15:

The chair recognized Ms. Christie, who stated that at its May 27 meeting, the Commission had directed Election Division staff to present a recommendation to the Commission concerning the procedures to be used for the certification of a voting system for marketing and use in Indiana based on the system's compliance with Indiana statutes. She noted that Mr. King and Ms. Robertson had prepared a memo explaining that Indiana law requires a voting system to comply with requirements above and beyond the minimum standards established under the Federal Election Commission guidelines and which are employed by the independent testing authorities (ITAs) to test voting systems. She indicated that the ITAs (Wyle Laboratories and Nichols Research) conduct voting system tests under an arrangement with the National Association of State Election Directors (NASED). Ms. Christie stated that several years ago, Indiana had

Indiana Election Commission Minutes

August 3, 1999

 

codified its additional standards into state law (Indiana Code 3-11-15). Ms. Christie stated that

she and Mr. Valentine had provided Commission members with their recommendations in a fourteen page memorandum dated July 28, 1999 and entitled "Proposed Supplemental System Requirements Document for Certification of Voting Equipment". A copy of this memorandum is incorporated by reference in these minutes.

Ms. Christie noted that an earlier memorandum prepared by Mr. King and Ms. Robertson (and provided to Commission members at a previous meeting) had indicated that the state of Indiana did not have its own testing authority to determine whether a voting system complied with the additional requirements under IC 3-11-15. She added that unless the legislature repealed this statute, the Co-Directors believed that the Commission should have some type of written confirmation from a voting system vendor that any voting system meets these additional requirements before the Commission votes to certify the system. She said that the additional requirements under Indiana Code 3-11-15 are not particularly rigid, or complicated, but the problem arises since the Election Division staff lacks the technology and expertise to conduct the tests necessary to advise the Commission that a voting system complies with these requirements.

Ms. Christie remarked that she and Mr. Valentine were recommending that each vendor seeking certification (or re-certification) of a voting system in Indiana be required to complete the survey included in the July 28 memorandum. She added that the survey included an attachment listing section-by-section each of the requirements imposed under IC 3-11-15, and that each applicant would be required to document the manner in which the voting system meets each of the applicable Indiana statutory requirements. She noted that the staff was particularly trying to ascertain and ensure that the voting equipment being presented to the Commission for certification is the specific model and software version, and identical in every way, to the equipment that was tested through the NASED ITAs (Wyle and Nichols). Ms. Christie noted that the survey would require the chief executive officer of the voting system vendor to certify under the penalties for perjury that the statements made by the vendor in response to this survey were complete and accurate, to the best of the vendor's knowledge and belief. She said that the Election Division staff would evaluate each vendor's response, and if the staff feels confident that the vendor has documented that the system meets the Indiana requirements, the staff would bring the system to the Commission for final certification.

Ms. Christie emphasized that the recommended survey was designed to be fair and consistent to everyone in the application of these requirements, and to ensure that the Election Division asked for the same information from each vendor. Ms. Christie remarked that this approach would place the burden on each vendor to come before the Commission and Election Division with a prepared report documenting exactly how the voting system complies with the Indiana standards. She then distributed additional copies of the memorandum to representatives of each of the voting system vendors present. She noted that several vendors had requested that the Commission provide some specific guidance for them in this matter so that the vendors could be prepared to market their

Indiana Election Commission Minutes

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equipment for the year 2000 election. Ms. Christie added that staff would forward this memorandum to any vendor which did not have representatives present at today's meeting. She concluded by stating that this document was also a draft for further Commission consideration, and that she and Mr. Valentine were seeking direction from Commission members as to whether this approach was an acceptable methodology for the certification process.

Commission members commended the staff for their work in preparing this document. Mr. Long suggested that this matter be placed on the Commission's next agenda for action, with interested parties being encouraged to provide comments in advance of the meeting. He noted that staff would then have an opportunity to act in response to any comments so that Commission members could proceed to consider whether to give final approval to this recommendation. Commission members concurred with Mr. Long's suggestion. The chair indicated that any suggestions from vendors should be in writing.

The chair recognized Mr. Corey of GBS, who remarked that the ACCU-TOUCH voting system that his company will bring before the Commission has been assigned a NASED control number since 1996. He said that when GBS took this voting system for ITA testing, Wyle was the only ITA. He noted that Wyle tested both hardware and software since Nichols was not accredited as an ITA at that time. Mr. Corey asked whether the Commission will require GBS to take this voting system to Nichols Research, or whether the ACCU-TOUCH system would be "grandfathered in" since GBS had already taken the system to the only ITA testing both hardware and software at that time. Ms. Christie responded that it was probably premature to address this question, and that the best approach would be to allow each of the vendors to submit their written comments. She added that some vendors had expressed their concern to the staff that there had not been a uniform way of handling voting system certifications that had entered the process at different times over the last several years. She stated that Mr. Corey was correct in stating that different voting equipment had been certified at different times. Ms. Christie emphasized that the survey was designed to ensure that the voting system being brought before the Commission for certification is identical in every way to the system certified by whatever ITA in 1996. She added that this concern regarding the identity of the voting system being presented for certification is critical to every state election authority grappling with this issue. She concluded by stating that what the voting system tests revealed would be up to the vendors to tell the Commission.

Mr. Morgan asked whether there are provisions to alert each ITA that the Commission will be asking each vendor to verify, by way of this survey, that the voting equipment submitted by the vendor as part of the Indiana certification process is identical to the voting system previously submitted to the ITA. Ms. Christie responded that this was not a bad idea, and noted that Question #4 in the survey asked the vendor whether this equipment had been submitted to Wyle and Nichols. She indicated that staff could also notify Wyle and Nichols, as well as NASED, concerning these survey requirements, so that if a vendor needed to obtain additional documentation from either or both of the ITAs, the ITAs could assist the vendors in obtaining

Indiana Election Commission Minutes

August 3, 1999

 

this information for the Commission. The chair noted that he understood that testing by an ITA can be quite expensive. Mr. Van Camp of Fidlar & Chambers stated that complete testing costs for a voting system at an ITA could approach $80,000. The chair responded that the Commission wished to avoid imposing unnecessary financial burdens on vendors through the certification process.

Mr. Long stated that he understood the concern that there be no discrepancy between the voting system model number tested by the ITA and the model presented to the Commission for certification. He expressed his concern that the survey process would simply require the vendor to write down that the voting system complied with the Indiana requirements, but would not provide for an independent verification of these statements. Commission members asked whether NASED might perform this function.

Ms. Christie responded that earlier she had contacted Doug Lewis of the Election Center concerning this issue, and had been advised that under its contractual arrangements with the ITAs, NASED could not require an ITA to perform testing for additional standards beyond the FEC minimum requirements. She noted that the Indiana requirements were not extensive, and focused on standards such as year 2000 compliance and the use of high level language.

Ms. Christie concluded by stating that the major problem the Commission needed to avoid was the certification of a voting system that differed from the system tested by an ITA, so that if version of the system certified by the Commission experienced problems when used by a county in an election, the county would have a complaint against the Commission regarding the Commission's certification of the voting system.

Mr. Long responded that if a vendor provided a county with a voting system that differed from the model tested by an ITA, in his view the vendor would not have complied with the Indiana law prohibiting the use of a voting system that had not been properly certified, and that the Commission could proceed to revoke its certification of this system. Mr. Long stated that he still had concerns regarding the Commission's certification of a voting system as meeting Indiana standards in the absence of testing to determine compliance with Indiana standards.

The chair thanked Ms. Christie for her presentation, and indicated that vendors would have until August 31, 1999 to submit written comments to the Election Division concerning this proposed recommendation.

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B. PENDING APPLICATIONS:

1. GOVERNMENTAL BUSINESS SYSTEMS ACCU-TOUCH DIRECT RECORDING ELECTRONIC VOTING SYSTEM:

The chair recognized Mr. King, who noted that Mr. Steve Corey of GBS was present to address the Commission concerning this voting system.

The chair recognized Mr. Corey, who provided Commission members with a one page document titled "Global Election Systems Accu-Touch (DRE) Voting System State Certifications." A copy of this document is incorporated by reference in these minutes. Mr. Corey stated that this system had been previously tested at the Wyle Laboratories ITA.

Mr. Corey noted that this system was currently certified for sale in ten states, and that applications are pending in three additional states, including Indiana. He remarked that the remaining documentation concerning this application had been filed with the Election Division more than a year ago. He commented that the survey prepared by the Election Division staff was definitely called for, and that GBS would continue to work with the staff regarding this application.

In response to a question from Mr. Long, Mr. Corey explained that the "Accu-Touch User List" indicated jurisdictions which had purchased this voting system, while the list of "Jurisdictions where the Accu-Touch has been used in Elections" indicated counties which had leased (rather than purchased) the system.

Mr. Corey added that GBS currently has the ACCU-VOTE certified in Indiana, and this system is used in several counties. He remarked that the ACCU-TOUCH is a completely different direct recording electronic type system. Mr. Corey indicated that if the Commission requires GBS to take the ACCU-VOTE system to Nichols Research for testing, GBS plans to take both the ACCU-TOUCH and a revised version of the ACCU-VOTE system to Nichols with a merged software system that will drive both voting systems. He remarked that GBS currently plans to pursue certification of the ACCU-TOUCH as a stand alone voting system. The chair thanked Mr. Corey for his presentation.

2. FIDLAR & CHAMBERS EV 2000 DIRECT RECORDING ELECTRONIC VOTING SYSTEM:

The chair recognized Mr. King, who stated that Mr. Paul T. Van Camp, National Sales Manager, Fidlar & Chambers, was present to speak regarding the application submitted for certification of the Fidlar & Chambers EV 2000 direct recording electronic voting system.

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The chair recognized Mr. Van Camp, who advised the Commission that since the last Commission meeting, the EV2000 had been certified by three additional states, and that certification was pending in the State of Ohio.

Mr. Van Camp noted that the report for this voting system prepared by Wyle Laboratories contained several photographs and charts which might assist the Commission in determining the EV2000's compliance with the Indiana standards. The chair thanked Mr. Van Camp for his presentation.

3. MICROVOTE DRE INFINITY MODEL VP-1:

The chair recognized Mr. King, who stated that Mr. Shamo from MicroVote had advised him that MicroVote needed additional time to prepare and file the application for approval of this voting system. Mr. King noted that Commission members had received a copy of a letter dated July 2, 1999 from the Co-Directors to Mr. James M. Ries, Sr., of MicroVote Corporation, advising him of the Commission's approval of the MEMS 7.3 software upgrade to the MV 464 voting system. A copy of this letter is incorporated by reference in these minutes.

4. DIVERSIFIED:

Mr. King stated that Diversified had received an application for certification of a voting system, but had not yet filed the application with the Division.

5. ELECTION SOFTWARE & SERVICES MODEL 550 OPTICAL SCAN BALLOT CARD TABULATOR:

6. ELECTION SOFTWARE & SERVICES MODEL-100 PRECINCT LEVEL OPTICAL SCAN COUNTER:

7. PBC-2100 PRECINCT LEVEL PUNCH CARD COUNTER

8. VOTRONIC DIRECT RECORDING ELECTRONIC PRECINCT LEVEL COUNTER:

Mr. King noted that Mr. Black and Mr. McGinnis were present to provide information regarding these systems.

The chair recognized Mr. Black, who stated that ES&S had submitted the application for certification of this system, which had been tested by Wyle Laboratories, and was inquiring what steps the Election Division would take next in the certification process. Mr. King responded that

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was the point addressed earlier by Ms. Christie's presentation concerning the certification process in that Wyle Laboratories does not certify that a voting system meets the Indiana standards. He said that the Commission must make that determination, either through the survey discussed earlier or by having another entity evaluate the voting system. He added that the Commission was under a legal obligation in certifying any voting system to determine that the Indiana standards had been complied.

Mr. Black added that the Votronic voting system was currently undergoing testing at Wyle Laboratories. The chair thanked Mr. Black for his presentation.

Mr. Corey asked whether a vendor would be required to take a voting system to Wyle or Nichols for an expensive testing for recertification due to a minor update to the software program. Mr. King referred Mr. Corey to Indiana Code 3-11-15-56, 3-11-15-57, and 3-11-15-58, which set forth the procedures for a voting system vendor to refer either an emergency or a "non-emergency" voting system change to the Election Division for evaluation and subsequent action by the Commission. He noted that the MicroVote MEMS software update had been approved by the Commission under these statutes without requiring the MV 464 voting system to be retested by an ITA.

 

6. VOTER REGISTRATION:

A. DISABLED STUDENTS VOTER REGISTRATION SERVICES SURVEY:

The chair recognized Mr. Northern, who noted that Commission members had received a four page document entitled "Disabled Students Voter Registration Services Survey." A copy of this document is incorporated by reference in these minutes.

Mr. Northern stated that the Co-General Counsels had prepared this survey in response to the Commission's discussion at its May 27, 1999 meeting concerning the designation by the Commission of certain college and university offices serving disabled students as "full service" voter registration sites. He indicated that the survey requested each college and university to respond to the Election Division no later than September 7, 1999.

Mr. Northern advised the Commission that the Election Division would evaluate the responses, and report back to the Commission at its next meeting. Mr. Long moved, seconded by Mr. Morgan, that the survey be approved as presented, and that staff be directed to send this survey to each college and university for response. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted.

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7. LITIGATION REPORT:

A. ANDERSON v. LONG

The chair recognized Ms. Robertson, who noted that Commission members had received a fourteen page document in this matter dated June 30, 1999, and captioned "Order Approving Settlement Agreement and Dismissing Case with Prejudice." A copy of this document is incorporated by reference in these minutes. She explained that the United States District Court had approved the proposed settlement in this case, as discussed at prior Commission meetings, and that the case was finally concluded more than five years after it was initially filed.

B. BAPAC v. BALDWIN

Ms. Robertson noted that Commission members had received a seventeen page document in this matter dated June 23, 1999 issued by the Indiana Supreme Court concerning the question certified to the court by the Seventh Circuit Court of Appeals. A copy of this document is incorporated by reference in these minutes. Ms. Robertson stated that the Supreme Court determined that the definition of "political action committee" under Indiana Code 3-5-2-37 only includes groups which engage in "express advocacy." She indicated that the Indiana Supreme Court's answer to this question would probably lead to the prompt conclusion of this case before the Seventh Circuit.

C. LEAF v. ABELL

Ms. Robertson stated that she had no additional information to report at this time concerning this case.

D. SPRINGER v. ALABAMA

Ms. Robertson stated that she had no additional information to report at this time concerning this case. The chair thanked Ms. Robertson for her report.

E. SMITH v. KING

The chair recognized Mr. King, who reported that Commission members had received a copy of a letter dated July 7, 1999 to himself and Ms. Robertson from Mr. Douglas M. Grimes, Attorney, representing State Representative Vernon Smith in his election contest against Mayor Scott King. Mr. King noted that the Commission was not a party to this litigation, but had been requested by Mr. Grimes to produce documents relating to the certification of the MicroVote MV 464 voting system used in the 1999 Gary mayoral primary. Mr. King reported that these documents had been furnished to Mr. Grimes pursuant to his request.

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8. REPORT BY CO-DIRECTORS:

The chair recognized Ms. Christie, who stated that she wished to report for the record that although the notice for today's meeting had indicated that Training Center Room A would be the site of this meeting, she had been advised that the Conference Center staff had unilaterally changed the location to Conference Center Room A without advising the Election Division. She added that the Conference Center staff had apparently done so since they did not wish to relocate a week-long computer class that was being conducted in Training Center A. She noted that Election Division staff members had been periodically checking outside the Training Center location during today's meeting to ensure that no person who wished to attend the Commission meeting was confused regarding this change in location.

Ms. Christie announced that she would be resigning as Co-Director to accept another position. She stated that she anticipated that she planned to begin her new employment shortly after the Labor Day weekend. She remarked that she had enjoyed working with each of the Commissioners and with the Election Division staff during the last four years, and anticipated that she would continue to be in contact with them in the future. Ms. Christie read the note written on a card delivered to her during the meeting (along with a beautiful bouquet of red roses):

Thank You For Your Excellent

Service To The State Of

Indiana And Its Voters!

Your Service Will Be Truly Missed!

Yours Truly,

Al Gore

Commission members congratulated Ms. Christie and thanked her for her dedication to the people of the State. Mr. Morgan remarked that he could not add to the words to the praise given to her by Vice-President Gore. Ms. Christie remarked that this card had been a great surprise, considering her voting record, and that she hoped that no explanation would be necessary to Mrs. Gore. Mr. Valentine expressed his own warm regards for the Second Lady.

Mr. Valentine remarked that he had come to rely on Ms. Christie's election administration experience, and her composure in crisis, and would miss working with her.

 

9. CAMPAIGN FINANCE EXPENDITURE CODES:

The chair recognized Mr. Valentine, who said that Commission members had received a four page document entitled "Indiana Campaign Finance Expenditure Codes", a copy of which is incorporated by reference in these minutes.

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Mr. Valentine remarked that he and Ms. Christie had appeared before the Legislative Council on July 22 to present proposed campaign finance report expenditure codes for comment. He noted that legislation enacted by the General Assembly in 1997, as amended during the 1999 session, required the use of these expenditure codes for reports filed after January 1, 2000. He added that although this legislation required the codes to be submitted to the Legislative Council for comment (rather than any required approval by that body), the Co-Directors had hoped that Council members could provide guidance concerning various aspects of the proposed expenditure coding system. Mr. Valentine said that the Council members had instead questioned the need for expenditure coding at all, and had expressed concern regarding the burden that this legislative requirement would impose on candidates and their treasurers.

Mr. Valentine informed the Commission that the proposed expenditure codes were largely derived from the coding system used in the State of Washington, with three code categories having been eliminated to reduce the number of proposed Indiana expenditure codes to ten, the maximum number permitted under state law. Mr. Valentine indicated that he and Ms. Christie were seeking guidance for the staff on this issue since the printing of campaign finance reporting forms for the year 2000 must begin shortly, and must be available for distribution at the annual election administrator conference scheduled for December 8, 1999.

Ms. Christie added that the vendors supplying campaign finance computer software programs also needed to begin incorporating program changes to accommodate the new expenditure coding system. She noted that any expenditure coding system would apply not only to candidates and their committees, but to legislative caucus committees, political action committees, and regular party committees.

In response to a question from Mr. Long, Mr. King stated that the only civil penalty that a committee could incur from failing to properly identify an expenditure through the coding system would be if the Election Division or a county election board advised the committee that its campaign finance report was defective, and if the committee then failed to file an amended report within five days after receiving notice of the defect.

After further discussion by Commission members, the chair suggested that the Co-Directors to send a copy of the proposed expenditures codes, along with an explanatory memo, to each of the state political party chairmen, and to the circuit court clerks and county election boards for comment. The chair also suggested that the memorandum request written comments no later than August 31, 1999. Commission members concurred in the chair's suggestion. Mr. Long stated that the expenditure coding system should be as simple as possible.

The chair recognized Ms. Julia Vaughn, of Common Cause/Indiana. Ms. Vaughn stated her organization was primarily responsible for the legislation imposing the expenditure coding requirement in 1997. She remarked that while she recognized that an expenditure coding system

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would impose an additional burden upon some candidates, particularly first-time candidates without great resources, she believed that the voters were expressing increased interest in obtaining information concerning campaign finance expenditures by committees. Ms. Vaughn said that in attending public meetings concerning campaign finance conducted throughout Indiana she had been surprised by the amount of public interest in not only the source of contributions to committees, but in the expenditures by these committees. She said that, whether or not this view was fair, there was a widespread impression that candidates were spending campaign funds for personal purposes.

Ms. Vaughn said that she believed that the Washington State expenditure coding system was a reasonable, workable system. She expressed her shock that the members of the Legislative Council were unaware of the legislation enacted by the General Assembly to implement expenditure coding.

Mr. Long noted that the current campaign finance reports provided for the purpose of each expenditure to be indicated on this form. He observed that an expenditure code might provide less information concerning the expenditure than a specific statement of the expenditure's purpose. Ms. Vaughn stated that the primary purpose for the expenditure coding system was to assist with analysis of expenditures through electronic data processing, and that codes were necessary for this purpose. The chair thanked Ms. Vaughn for her statements.

The chair directed that the issue of expenditure coding be placed on the agenda for the next Commission meeting.

10. APPROVAL OF FORMS (ORDER 1999-78):

The chair recognized Mr. King, who stated that the Co-General Counsels (particularly Ms. Robertson) had been working on the campaign finance Internet disclosure filing contract with Quest Information Systems, Inc., and that as a result, the order approving new and revised election and registration forms had not been completed in time for this meeting. He indicated that since this contract had been finalized, he hoped that he and Ms. Robertson would have several of these forms would be available shortly. Mr. King noted that many vendors had contacted the Election Division concerning the new absentee ballot security envelopes required for the municipal elections in November, and that as a result the staff might need to distribute copies of these absentee forms before the approval of Order 1999-78 by the Commission at its next meeting.

Mr. King noted that Commission members had received a copy of the certification signed by himself and Ms. Robertson concerning the distribution of registration forms approved at the last Commission meeting. A copy of this certificate is incorporated by reference in these minutes. Mr. King added that members had also received a copy of the letter dated July 6, 1999 from himself

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and Ms. Robertson to Mr. Chiabai concerning the forms and method for compensation of precinct election officials in Lake County. A copy of this letter is incorporated by reference in these minutes.

 

11. OTHER BUSINESS:

Ms. Christie advised Commission members that Mr. Perkins had advised her that he could not attend the proposed September 21 Commission meeting. Mr. Long indicated that he would also be out of Indiana at that time. The chair asked the Co-Directors to contact Commission members to schedule an alternative meeting date.

The chair noted that Commission members had received copies of two documents: (1) a letter dated July 17, 1999 to the chair from Governor O'Bannon appointing him to another term as a member of the Commission, effective July 1, 1999; and (2) a letter dated June 11, 1999 to Mr. Long, appointing him to another term as a member of the Commission. Copies of these letters are incorporated by reference in these minutes.

 

12. ADJOURNMENT:

The chair asked if there was further business to come before the Commission. There being no response, Mr. Long moved, seconded by Mr. Morgan, that the Commission do now adjourn. There being no further discussion, the chair called the question, and declared that with four members voting "aye" (Mr. Cruea, Mr. Long, Ms. McClellan, and Mr. Morgan), and no member voting "nay", the motion was adopted. The Commission then adjourned at 3:35 p.m.

Respectfully submitted,

 

 

________________________ ________________________

Laurie P. Christie, Spencer Valentine,

Co-Director Co-Director

 

APPROVED,

 

________________________

Dudley R. Cruea, Chair