[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Proposed Rules]
[Pages 1559-1564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-311]


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DEPARTMENT OF LABOR

Office of Labor-Management Standards

29 CFR Part 452

RIN 1215-AB84; RIN 1245-AA04


Guidelines for the Use of Electronic Voting Systems in Union 
Officer Elections

AGENCY: Office of Labor-Management Standards, United States Department 
of Labor.

ACTION: Request for information from the public.

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SUMMARY: This notice is a request for information from the public to 
assist the Department of Labor (``Department'') in issuing guidelines 
concerning the use of electronic voting systems in union officer 
elections. ``Electronic voting systems'' is meant to include: 
Electronic voting machines used for casting votes at polling sites; 
electronic voting from remote site personal computers via the Internet; 
and electronic voting from remote site telephones. ``Electronic voting 
systems'' is not meant to include electronic tabulation systems where 
votes are cast non-electronically but counted electronically (such as 
punch card voting or optical scanning systems).
    Title IV of the Labor-Management Reporting and Disclosure Act of 
1959 (``LMRDA'') establishes democratic standards for the conduct of 
union officer elections. The LMRDA does not, however, require a 
particular method or system of voting. Labor organizations are free to 
establish their own methods or systems of voting for officer elections 
as long as they are consistent with lawful provisions in the union's 
constitution and bylaws and the provisions of Title IV of the LMRDA. 
Labor organizations and other interested parties have sought guidance 
from the Department regarding the LMRDA compliance of electronic voting 
systems. This request for information seeks public comment to assist 
the Department in the consideration and issuance of such guidance.

DATES: Comments must be received on or before March 14, 2011.

ADDRESSES: You may submit comments, identified by RIN 1215-AB84 and 
1245-AA04. (The Regulatory Information Number (RIN) identified for this 
rulemaking changed with the publication of the Spring 2010 Regulatory 
Agenda due to an organizational restructuring. The old RIN (1215-AB84) 
was assigned to the Employment Standards Administration, which no 
longer exists; a new RIN (1245-AA04) has been assigned to the Office of 
Labor-Management Standards.) The comments can be submitted only by the 
following methods:
    Internet: Federal eRulemaking Portal. Electronic comments may be 
submitted through http://www.regulations.gov. To locate the proposed 
rule, use RIN 1245-AA04 or RIN 1215-AB84. Follow the instructions for 
submitting comments.
    Delivery: Comments should be sent to Stephen J. Willertz, Director 
of the Office of Enforcement and International Union Audits, Office of 
Labor-Management Standards, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-5119, Washington, DC 20210. Because of security 
precautions, the Department continues to experience delays in U.S. mail 
delivery. Commenters should take

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this into consideration when preparing to meet the deadline for 
submitting comments.
    Comments will be available for public inspection at http://www.regulations.gov, and during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Stephen J. Willertz, Director of the 
Office of Enforcement and International Union Audits, Office of Labor-
Management Standards, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room N-5119, Washington, DC 20210, [email protected], 
(202) 693-1182 (this is not a toll-free number). Individuals with 
hearing impairments may call 1-800-877-8339 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The purpose of this request for information 
is to seek public comment on the use of electronic voting systems in 
union officer elections. The comments from interested parties, 
including unions, union members, union officers, technology experts, 
academics, election service providers, public interest groups, and the 
public will help the Department issue guidelines in describing minimum 
standards that electronic voting systems must meet to comply with the 
provisions of LMRDA Title IV. In addition, the comments should help 
determine what issues should be addressed and what specific standards 
should be included in the guidelines. These guidelines and standards 
are intended to assist the Department in its obligation to ensure 
compliance with LMRDA Title IV.

I. Background

A. Description of Electronic Voting Systems

    The following are general descriptions of the three basic types of 
electronic voting systems that OLMS has encountered. They are not all-
inclusive definitions of all electronic voting systems.
    (1) Electronic voting machines used for casting votes at polling 
sites.
    This is a direct-recording electronic (DRE) voting system in which 
voters mark their votes directly into an electronic device at a 
predetermined location monitored by election officials. The system 
records votes by means of a ballot display provided with mechanical or 
electro-optical components that can be activated by the voter 
(typically by buttons or a touchscreen). It is a computer-based voting 
system, running configured software, using computer voting stations, 
terminals, or kiosks that are set up in a securable location or 
locations. Voters must come to a predetermined location where they are 
first authenticated as eligible voters, and then vote at a computer 
terminal. Voting data is stored by the electronic device on a computer 
hard disk or a portable diskette, CD-ROM or smartcard. The system keeps 
an electronic record and may also keep a paper record, which may be 
verifiable by the voter, enabling a post-election audit. The system may 
also provide a means for transmitting individual ballots or vote totals 
to a central location (on either removable portable devices, such as 
diskettes, or by a computer network) in order to consolidate and report 
results at the central location. The system, as described here, is not 
a Web-based Internet voting system.
    (2) Electronic voting from remote site personal computers via the 
Internet.
    This is a DRE voting system that is Web-based in which voters do 
not have to vote from a predetermined location. Instead, they can 
register and vote from any Internet-connected personal computer (PC) or 
other mobile electronic device anywhere in the world. Voters connect to 
a central server using a standard Internet browser. Both registration 
and voting are accomplished through the Web interface. This system uses 
a voter identification number (VIN) for each voter to log into the 
system and vote. Some such systems then separate the VINs from the 
particular voted electronic ballots so that one individual or server 
controls access to the VINs and a separate individual or server 
controls access to the voted electronic ballots.
    (3) Electronic voting from remote site telephones.
    This is a DRE voting system in which voters register and vote from 
remote site telephones. They do not have to vote at any specific 
predetermined location. Voters identify themselves with voter 
identification numbers (VINs) and record their votes directly into a 
computer system using the key pads on their telephones, by following a 
series of recorded instructions. Voters call a predetermined telephone 
number and respond to verbal prompts given by the system. Using the 
phone keypad, the voter enters choices. The computer system records 
those choices as votes.

B. Statutory, Regulatory and Administrative Framework

    Title IV of the LMRDA, 29 U.S.C. 481-484, and interpretive 
regulations issued by the Department, 29 CFR part 452, establish 
standards for the conduct of union officer elections, including minimum 
standards for:
     Voter secrecy.
     Candidate observer rights and election safeguards.
     Preservation of records.
Voter Secrecy
    LMRDA Section 3(k), defines a secret ballot as: ``the expression by 
ballot, voting machine, or otherwise, but in no event by proxy, of a 
choice with respect to any election or vote taken upon any matter, 
which is cast in such a manner that the person expressing such choice 
cannot be identified with the choice expressed.'' 29 U.S.C. 402(k). 
Section 401(a) requires that ``every national or international labor 
organization * * * shall elect its national officers * * * by secret 
ballot among the members in good standing or at a convention of 
delegates chosen by secret ballot.'' 29 U.S.C. 481(a). Section 401(b) 
requires that ``every local labor organization shall elect its officers 
* * * by secret ballot.'' 29 U.S.C. 481(b). Section 401(d) requires 
that ``officers of intermediate bodies * * * shall be elected[hellip] 
by secret ballot among the members in good standing or by labor 
organization officers representative of such members who have been 
elected by secret ballot.'' 29 U.S.C. 481(d).
    The Department's regulations at 29 CFR 452.97 state that a prime 
requisite of elections regulated by title IV is that they be held by 
secret ballot among the members or in appropriate cases by 
representatives who themselves have been elected by secret ballot among 
the members. A secret ballot under the Act is ``the expression by 
ballot, voting machine, or otherwise, but in no event by proxy, of a 
choice * * * cast in such a manner that the person expressing such 
choice cannot be identified with the choice expressed.'' Secrecy may be 
assured by the use of voting machines, or, if paper ballots are used, 
by providing voting booths, partitions, or other physical arrangements 
permitting privacy for the voter while he is marking his ballot. The 
ballot must not contain any markings which upon examination would 
enable one to identify it with the voter. Balloting by mail presents 
special problems in assuring secrecy. Although no particular method of 
assuring such secrecy is prescribed, secrecy may be assured by the use 
of a double envelope system for return of the voted ballots with the 
necessary voter identification appearing only on the outer envelope.
    In addition, should any voters be challenged as they are casting 
their ballots, there should be some means of setting aside the 
challenged ballots until a decision regarding their validity is reached 
without compromising the secrecy requirement. For example, each

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such ballot might be placed in an envelope with the voter's name on the 
outside. Of course, it would be a violation of the secrecy requirement 
to open these envelopes and count the ballots one at a time in such a 
way that each vote could be identified with a voter.
Candidate Observer Rights and Election Safeguards
    Section 401(c) of the LMRDA requires that ``adequate safeguards to 
insure a fair election shall be provided, including the right of any 
candidate to have an observer at the polls and at the counting of the 
ballots.'' 29 U.S.C. 481(c).
    The Department's regulations at 29 CFR 452.107(a) state that under 
the provisions of section 401(c), each candidate must be permitted to 
have an observer (1) at the polls and (2) at the counting of the 
ballots. The right encompasses every phase and level of the counting 
and tallying process, including the counting and tallying of the 
ballots and the totaling, recording, and reporting of the tally sheets. 
If there is more than one polling place, the candidate may have an 
observer at each location. If ballots are being counted at more than 
one location or at more than one table at a single location, a 
candidate is entitled to as many observers as necessary to observe the 
actual counting of the ballots. The observer may note the names of 
those voting so that the candidates may be able to ascertain whether 
unauthorized persons voted in the election. The observers should be 
placed so that they do not compromise, or give the appearance of 
compromising, the secrecy of the ballot. The observer is not required 
to be a member of the labor organization unless that union's 
constitution and bylaws require him to be a member. There is no 
prohibition on the use of alternate observers, when necessary, or on 
the candidate serving as his own observer. Observers do not have the 
right to count the ballots.
    And, the Department's regulations at 29 CFR 452.107(c) state that 
in any secret ballot election which is conducted by mail, regardless of 
whether the ballots are returned by members to the labor organization 
office, to a mail box, or to an independent agency such as a firm of 
certified public accountants, candidates must be permitted to have an 
observer present at the preparation and mailing of the ballots, their 
receipt by the counting agency and at the opening and counting of the 
ballots.
    Further, the Department's regulations at 29 CFR 452.110(a) state, 
in part, that the Act contains a general mandate in Section 401(c), 
that adequate safeguards to insure a fair election be provided. A labor 
organization's wide range of discretion regarding the conduct of 
elections is thus circumscribed by a general rule of fairness.
Preservation of Records
    Section 401(e) of the LMRDA provides that ``[t]he election 
officials designated in the constitution and bylaws or the secretary, 
if no other official is designated, shall preserve for one year the 
ballots and all other records pertaining to the election.'' 29 U.S.C. 
481(e).
    The Department's regulations at 29 CFR 452.106 state that in every 
secret ballot election which is subject to the Act, the ballots and all 
other records pertaining to the election must be preserved for one 
year. The responsibility for preserving the records is that of the 
election officials designated in the constitution and bylaws of the 
labor organization or, if none is so designated, its secretary. Since 
the Act specifies that ballots must be retained, all ballots, marked or 
unmarked, must be preserved. Independent certification as to the number 
and kind of ballots destroyed may not be substituted for preservation. 
In addition, ballots which have been voided, for example, because they 
were received late or because they were cast for an ineligible 
candidate, must also be preserved.

C. Court Cases

    With passage of the LMRDA, Congress sought to ``protect the rights 
of rank-and-file members to participate fully in the operation of their 
union through processes of democratic self-government.'' Wirtz v. 
Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492 (1969). 
The Supreme Court and other courts have recognized that with respect to 
union officer elections covered by the LMRDA, ``Congress' model of 
democratic elections was political elections in this country.'' Id. at 
502.
    This parallel between political elections and union officer 
elections extends to the interpretation of the LMRDA's ballot secrecy 
provisions. See Marshall v. Local Union 12447, United Steelworkers of 
America, AFL-CIO, 591 F.2d 199, 205 (3d Cir. 1978) (``* * * the 
facilities available for balloting [in union elections] are * * * 
similar to their use in political elections in this country, i.e., in 
such a manner that voters cannot be identified with their choices.''). 
Several cases make clear that the requirement of a secret ballot in 
union officer elections is to be interpreted strictly: If there is any 
possibility that a voter can be connected with his or her vote, the 
procedure does not comply with the LMRDA. Id. at 203 (``The definition 
[of secret ballot] is phrased in mandatory terms: The ballots must be 
marked in such a manner that the voter cannot be identified with his 
choice.''); Brennan v. Local 3489, United Steelworkers of America, AFL-
CIO, 520 F.2d 516, 522 (7th Cir. 1975) (``The statutory mandate is for 
a vote that ``cannot'' be identified with the voter.'').
    Courts have further clarified that the secret ballot requirement 
not only applies to the act of voting itself, but ``any post-voting 
procedure designed to determine how individual union members voted or 
would have voted.'' Reich v. District Lodge 720, International 
Association of Machinists and Aerospace Worker, 11 F.3d 1496, 1500 (9th 
Cir. 1993); see also Bachowski v. Brennan, 413 F.Supp 147, 150 (W.D. 
Pa. 1976). Finally, although ``electronic voting systems'' are often 
designed and administered by third parties, the ultimate responsibility 
for upholding the ballot secrecy requirement remains with the union. 
See Local 3489, 520 F.2d at 522; Local Union 12447, 591 F.2d at 204 (3d 
Cir. 1978).
    As of the publication of this RFI, there are no published cases 
that apply these well-established principles of ballot secrecy to 
electronic voting systems. The Department addressed the issue in one 
court proceeding against the Allied Pilots Association in 2007, but the 
litigation was resolved without a judicial determination. In that union 
officer election, the union utilized an Internet and telephone voting 
system designed by a third-party company. To log into the electronic 
voting system to cast a vote, each member was required to enter an 
employee identification number (EIN), which was published on the union 
website, along with a randomly-generated personal identification number 
(PIN) assigned privately. This information was transmitted to a 
``member database'' on a computer server maintained by the third-party 
company. This ``member database'' contained members' names, their EINs, 
and their PINs. If the EIN and PIN entered by members matched those on 
the ``member database,'' the system permitted the members to cast their 
votes, which were recorded in a separate ``vote database.'' However, 
the electronic voting system also generated number identification 
markers that linked the members with the votes they cast, which could 
be accessed by certain employees of the third-party company. 
Additionally, several individuals from the organization administering 
the

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election had access to members' EINs and PINs, which gave them the 
ability to log onto the voting system to determine how a member had 
voted. Upon these facts, the court found that the voting system 
violated the LMRDA requirements for ballot secrecy, but declined for 
other reasons to resolve the case on the parties' motions for summary 
judgment. Chao v. Allied Pilots Ass'n, 2007 WL 518586 (N.D. Tex. Feb. 
20, 2007) (depublished). As a condition of the parties' later 
settlement agreement, the District Court issued a Consent Decree and 
Order vacating its February 20, 2007 order. Secretary of Labor v. 
Allied Pilots Ass'n, Case 4:05-CV-338-Y (N.D. Tex. Jun. 13, 2007).

D. Legislation

    After the disputed U.S. Presidential election in 2000, many states 
and localities mandated the purchase and use of electronic voting 
systems. The Help America Vote Act (HAVA) was signed into law in 2002. 
Public Law 107-252, 116 Stat. 1666 (42 U.S.C. 15301-15545). It was 
drafted, in part, in reaction to the controversy surrounding the 2000 
Presidential election. HAVA provided funds for qualifying states to 
replace punched card voting systems or lever voting systems with new 
systems, including electronic systems, in accordance with HAVA's voting 
system standards. 42 U.S.C. 15302(a)(2). HAVA standards require all 
electronic voting systems to be auditable and produce a permanent paper 
record with a manual audit capacity available. 42 U.S.C. 
15481(a)(2)(B). This mandatory paper record is the official record for 
recounts. Id.
    Since 2002, a number of bills have been introduced in Congress that 
would require a voter verified paper audit trail (VVPAT) or verified 
paper record (VPR) in U.S. political elections. A VVPAT or VPR is 
intended as an independent verification system for voting machines 
designed to allow voters to verify that their vote was cast correctly, 
to detect possible election fraud or malfunction, to serve as an 
independent check on the record produced and stored by the electronic 
system, and to provide a means to audit the stored electronic results 
and allow for an accurate recount. Voter verified paper legislation 
introduced since 2002 include the following: the Voter Confidence and 
Increased Accessibility Act of 2005 (H.R. 550, 109th Cong.), 2007 (H.R. 
811, 110th Cong.; S. 2295, 110th Cong.), and 2009 (H.R. 2894, 111th 
Cong.; S. 1431, 111th Cong.); the Voting Integrity and Verification Act 
of 2005 (H.R. 704, 109th Cong.; S. 330, 109th Cong.), 2007 (S. 1869, 
110th Cong.), and 2009 (S. 48, 111th Cong.); the Count Every Vote Act 
of 2005 (H.R. 939, 110th Cong.; S. 450, 109th Cong.) and 2007 (H.R. 
1381, 110th Cong.; S. 804, 110th Cong.); and the Ballot Integrity Act 
of 2007 (S. 1487, 110th Cong.). None of these bills were passed in 
Congress. Although this national standard for voting has not yet been 
established, as of the publishing of this RFI, 32 states require 
VVPATs. VerifiedVoting.org, Voter-Verified Paper Record Legislation, 
http://www.verifiedvoting.org/article.php?list=type&type=13 (last 
visited Sept. 20, 2010). OLMS is not presently aware of an Internet 
voting system that offers voter-verified paper records or a manual 
audit.

E. Recent Developments

    Electronic voting at polling stations using computer terminals or 
similar touch-screen machines which store and tabulate votes, but which 
are not Internet-based, are widely used in U.S. political elections. 
These are not on-line forms of voting, meaning the systems are not 
connected to the Internet.
    Internet voting has not been widely adopted for political elections 
in this country and, in one situation, a Federal agency chose not to 
utilize Internet voting due to security concerns. See David Jefferson 
et al, A Security Analysis of the Secure Electronic Registration and 
Voting Experiment (``SERVE''), available at http://servesecurityreport.org/paper.pdf (report advising against Department 
of Defense use of Internet voting in 2004 political elections for 
military serving overseas due to security concerns).\1\
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    \1\ In March 2007, the Federal Voting Assistance Program (FVAP) 
and the Department of Defense's Business Transformation Agency 
released a Request for Information to solicit from industry 
electronic solutions for three absentee voting tasks: voter 
registration, ballot request, and blank ballot delivery. See 
Department of Defense: Expanding the Use of Electronic Voting 
Technology for UOCAVA Citizens As Required by Section 596 of the 
National Defense Authorization Act for Fiscal Year 2007, May 2007. 
http://servesecurityreport.org/DoDMay2007.pdf. (The acronym UOCAVA 
stands for Uniformed and Overseas Citizens Absentee Voting Act.) See 
also Elections: Action Plans Needed to Fully Address Challenges in 
Electronic Absentee Voting Initiatives for Military and Overseas 
Citizens, Government Accountability Office, June 2007. GAO-07-774. 
http://www.gao.gov/new.items/d07774.pdf. The FVAP program introduced 
in 2009 is not Internet or online voting. It is the electronic 
transmission and online marking of the absentee ballot. The voter 
would still print out the ballot and send it in like any regular 
absentee ballot. http://www.fvap.gov/global/news/nr19-2009.html.
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    Internet voting has been tested overseas in public elections in 
Switzerland, the United Kingdom, and Estonia. Bryan Mercurio, Democracy 
in Decline: Can Internet Voting Save the Electoral Process?, 22 J. 
Marshall J. & Info. L. 409, 409-51 (2004). Internet voting has also 
been tested in the U.S. as a voting option in the 2000 Democratic 
primary in Arizona and the Republican straw poll in Alaska in 2000. Id. 
Proponents of remote Internet voting make several arguments in its 
favor. R. Michael Alvarez & Thad E. Hall, Point, Click, and Vote: The 
Future of Internet Voting (2004) Voting would be more convenient for 
Internet users, allowing them to vote at home, at work, or anywhere the 
Internet is available. Id. Internet voting would be logistically easier 
for some disabled voters and for military personnel overseas. Id. 
Internet voting might encourage greater voter participation, 
particularly among younger Americans typically well-versed in using the 
Internet. Id. Internet voting could also lower the cost of voting. Id. 
However, there are still concerns regarding on-line computer security, 
viruses and attacks, voter fraud, unequal computer and Internet access 
(the ``digital divide''), and potential disintegration of civic life by 
moving away from a community-based electoral process where voting at 
the polls is an observable act of citizenship. Id.
    In 2007, the National Mediation Board (``NMB'') announced that it 
would primarily conduct representation elections offering participants 
both Internet voting and telephone electronic voting. 34 NMB No. 13, at 
71 (Jan. 29, 2007) (Introduction of Internet Voting/Mock Election); 34 
NMB No. 41, 200, 206 (Sept. 14, 2007) (Internet Voting Comment Period). 
The NMB adopted Internet voting based on its conclusion that ``offering 
Internet voting in addition to phone voting will further its mission 
and enhance the Board's ability to conduct representation elections 
fairly and effectively.'' Id.
    However, the Department's responsibility over union elections 
differs from NMB's in at least two ways. First, unlike the LMRDA which 
requires union officer elections to be conducted by secret ballot, the 
Railway Labor Act (RLA), which the NMB enforces, has no such ballot 
secrecy requirement. In a section titled, ``Statutory Difference 
Between LMRDA and RLA,'' the NMB discussed LMRDA section 401(a)'s 
specific election standards, particularly its requirement of a secret 
ballot. It then drew a contrast with the RLA. ``The language of the RLA 
gives the Board broad discretion in conducting representation 
elections. Section 2, Ninth provides that the Board ``shall be 
authorized to take a secret ballot of the employees involved, or to 
utilize any other appropriate method of ascertaining the names of their 
duly

[[Page 1563]]

designated and authorized representatives,'' and further that the Board 
may ``establish the rules to govern the election.'' 34 NMB No. 41, 200, 
206 (Sept. 14, 2007) (Emphasis in original.) Second, the NMB conducts 
representation elections itself and maintains direct control (along 
with its contractor) of the electronic voting system. In contrast, 
elections under the LMRDA are independently conducted by unions. The 
Department's involvement in an election is not triggered until a post-
election complaint is filed, whereupon the Department investigates and, 
if the claim is substantiated, seeks a remedial election either through 
a voluntary settlement or by filing a complaint in district court. 
Because the Department does not have the degree of direct control over 
the electronic voting system that NMB has, and due to the heightened 
ballot secrecy requirements under the LMRDA, there are additional 
questions that must be addressed to ensure that the Department fulfills 
its legal obligations under the LMRDA.

II. Information Sought

    The Secretary seeks public comment from interested parties to help 
the Department issue guidelines concerning the use of electronic voting 
systems in union officer elections. ``Electronic voting systems'' is 
meant to include: (1) Electronic voting machines used for casting votes 
at polling sites; (2) electronic voting from remote site personal 
computers via the Internet; and (3) electronic voting from remote site 
telephones. The comments should help identify and describe what issues 
concerning the use of electronic voting systems in union officer 
elections should be addressed and what specific standards should be 
included in the guidelines. These guidelines and standards could 
further the Department's interest in ensuring compliance with LMRDA 
Title IV.
    In particular, the Secretary is seeking written comments in 
response to the questions enumerated below. We request that all 
commenters identify themselves and any organizations or entities with 
which they are affiliated and generally describe their involvement or 
association with electronic voting systems. In responding to questions, 
please note and consider the preceding background information provided 
in Part I. Also, in your responding comments, please provide as much 
detail and specific examples as possible. Thank you for your 
cooperation and consideration.
    1. Should the Department issue guidelines concerning the use of 
electronic voting systems in union officer elections? What specific 
issues concerning electronic voting systems should be addressed? What 
specific standards should be included in the guidelines?
    2. Describe the potential advantages and disadvantages of 
electronic voting systems in union officer elections. For unions that 
have considered electronic voting systems, what factors guided your 
decision to either adopt or reject electronic voting systems?
    3. In elections other than union officer elections (for example, 
contract ratification votes, National Mediation Board elections, 
National Labor Relations Board elections, and national and local 
political elections), what are the voting system trends? Are there 
trends toward: (1) Electronic voting machines used for casting votes at 
polling sites; (2) electronic voting from remote site personal 
computers via the Internet; and (3) electronic voting from remote site 
telephones? How do these systems protect ballot secrecy and have these 
protections been effective?
    4. Are voter verified ballots and paper audit trails necessary 
safeguards for union officer elections? If so, why? If not, why not?
    5. If an electronic voting system has no voter verified paper 
ballots, how could a voter confirm that his or her vote was recorded 
accurately on the electronic ballot and stored accurately in the 
computer memory? Does the electronic display shown to the voter of the 
votes cast necessarily mean that the votes are stored or tallied as 
displayed?
    6. If an electronic voting system has no voter verified paper 
ballots, can an observable recount be conducted? If so, how would this 
be accomplished?
    7. If the electronic balloting system includes a function that 
prints paper versions of electronically stored ballots, but individual 
paper ballots are not voter-verified, does this function allow for a 
meaningful recount? Would these non-voter-verified paper ballots 
produced by the electronic system be independent of the electronic 
votes stored in the electronic system?
    8. Are there technologies or systems that provide a check on the 
accuracy of the electronic system that is independent of the software 
in the system? If so, what are those technologies or systems?
    9. How can observers participate meaningfully in all phases of the 
election process in an electronic voting system environment? How can 
remote site electronic voting systems ensure that candidates have the 
right to observe all aspects of the election? Are there features of 
electronic voting systems that establish or replicate processes for 
candidates to have observers at the polls and at the counting of the 
ballots? If so, what are those features?
    10. Most remote site electronic voting systems use a voter 
identification number (VIN) for each voter to log into the system and 
vote. In these systems, what safeguards exist to prevent the connection 
of a voter's identifying information and his or her vote?
    11. Some systems separate the VINs from the particular voted 
electronic ballots so that one individual or server controls access to 
the VINs and a separate individual or server controls access to the 
voted electronic ballots. In those systems, can the voter and the vote 
be reconnected? How can voters have confidence that there is no 
connection of voter and vote and that their votes remain secret?
    12. Is there a software protocol that can restrict the transfer of 
any information that could potentially link a voter to his or her vote? 
If there is such a software protocol, can it be re-programmed to permit 
the link? Can such re-programming be detected afterwards?
    13. In a remote site electronic voting system, if a determination 
is made that a voter is ineligible after he/she has already voted, can 
that vote be removed from the system without reconnecting the voter and 
vote? If not, can an observer challenge a voter's eligibility after 
voting has begun or must all such challenges be made prior to 
balloting?
    14. How does a remote site electronic voting system deal with a 
``spoiled'' ballot situation, i.e., when a member marks and submits a 
ballot in error, such as failing to vote for a particular race? Can 
that ballot be identified and voided and can that member be allowed to 
vote again? How does the system accomplish this without reconnecting 
the voter and vote?
    15. In a remote site telephone voting system, can the system log 
and store the caller/voter's telephone number as well as the caller/
voter's VIN and voting data?
    16. What safeguards exist to prevent malicious or fraudulent 
software (e.g., software that would delete or change vote totals) from 
being embedded in an Internet voting system? If such code was 
introduced or embedded, would it be possible to detect? If so, how? How 
would an allegation of software tampering be resolved? If electronic 
voting system software is proprietary, would a third party, such as 
OLMS, be allowed to inspect the software to resolve an allegation of 
tampering? If so, how? How would a third party, such as OLMS, be 
allowed access to the

[[Page 1564]]

proprietary software codes to resolve the allegation of tampering?
    17. If OLMS receives an election complaint challenging the software 
code in an electronic voting system, how can OLMS ensure that the code 
examined by OLMS in the investigation is the same code that was in 
place and operational during the challenged election?
    18. In the electronic voting systems with which you are familiar, 
are all system activities of the union or third party election 
administrators permanently recorded or logged into the system? What 
safeguards exist to prevent accidental deletion from or tampering with 
the log? How could a third party, such as OLMS, investigate alleged 
tampering with the log? Does this log file, or other similar system 
file or database, include each voter's entry into the system, along 
with that voter's IP address, VIN, and voting data in sequential order?
    19. What safeguards exist to prevent vote manipulation by 
``insiders'' such as computer programmers, equipment manufacturers, 
technicians, system administrators, or election officials who may have 
legitimate access to election software and/or data? How could a third 
party, such as OLMS, investigate allegations of insider attacks?
    20. How would the use of electronic balloting affect the issue of 
voter intimidation, if at all? For any voter intimidation that might 
take place in the context of an election using electronic balloting, 
what safeguards have been or could be used to address the issue?
    21. What safeguards exist to prevent denial of service attacks, 
``spoofing'' (i.e., when one person masquerades as another and gains 
illegitimate access), automated vote buying, and viral attacks on voter 
personal computers? How could a third party, such as OLMS, investigate 
allegations of such activity?
    22. There are reported cases of electronic voting system 
malfunctions in civic elections where votes have either not been 
recorded or have not been recorded accurately. These cases include: 
Volusia County, Florida (2000), Broward County, Florida (2004), 
Franklin County, Ohio (2004), Sarpy County, Nebraska (2004), Carteret 
County, North Carolina (2004), and Sarasota County, Florida (2006). 
What safeguards exist to detect such malfunctions? How could a third 
party, such as OLMS, investigate allegations that such malfunctions 
occurred?
    23. What safeguards exist to prevent ``phishing'' in remote 
Internet voting systems? ``Phishing'' is a scheme that uses a web page 
set up to look just like the union's voting web page. Union members are 
brought to the site by email, links, or reminders to vote with an 
embedded link. The union member ``votes'' on the fake site. The person 
who sets up the fake site then has the voter's VIN and other 
identifying information which the person then uses to log onto the real 
site and vote in place of the real voter. How could a third party, such 
as OLMS, investigate allegations of phishing?
    24. Are there any other potential issues with the legality or 
practicality of electronic voting systems that have not been addressed 
in the preceding questions? If so, please explain.

    Signed in Washington, DC, this 5th day of January 2011.
John Lund,
Director, Office of Labor-Management Standards.
[FR Doc. 2011-311 Filed 1-10-11; 8:45 am]
BILLING CODE 4510-CP-P