The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) writes to offer comments regarding the Department of Elections’ proposed decertification of the WINVote voting machines.

The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. The principal mission of the Lawyers’ Committee is to secure equal justice under law, particularly in voting rights, criminal justice, community development, employment, educational opportunities, fair housing and fair lending, and immigration. As part of the Lawyers’ Committee’s mission to secure equal justice under law, the Lawyers’ Committee leads the Election Protection coalition, a non-partisan coalition formed to ensure that all voters have an equal opportunity to participate in the electoral process. The Election Protection coalition operates a suite of voter assistance hotlines, including 866-OUR-VOTE (English language), 888-VE-Y-VOTA (Spanish language) and 888-API-VOTE (Asian language), that provides citizens accurate and timely information about voting and also receives reports of problems voters encounter when casting a ballot. The coalition includes more than 100 local, state and national partners. Every general election year, Election Protection receives hundreds of calls from Virginia voters.

The Lawyers’ Committee has several concerns regarding the use of WINVote voting machines: (1) The WINVote machines are at least ten years old and are prone to breakdowns, no longer receive software updates, and have become less secure as technology advances (see http://elections.virginia.gov/WebDocs/VotingEquipReport/3.pdf); (2) the widespread issues with voting machines in Virginia threaten the State’s ability to ensure elections remain free, fair and accessible; and (3) failure to replace faulty machines could result in a violation of the Board’s responsibility to protect the integrity of elections in Virginia, in keeping with the Virginia Code 24.2-103. Given these challenges posed by the continued use of WINVote machines, the Lawyers’ Committee respectfully suggests that the Department of Elections discontinue the use of WINVote voting machines, and that the General Assembly should enable localities to purchase new and better voting machines.

Voters calling into the Election Protection hotline have reported problems with touch screen voting machines in Virginia, similar to those identified in the audit report. In 2012, for instance, one polling place in Hampton had only a single working voting machine at one point on Election Day, contributing to long lines to vote. Similarly, in 2014, Election Protection received calls from voters in Henrico and other counties reporting malfunctioning touch screen machines. While some of these voters were able to receive help, others may not have noticed that the machine did not accurately reflect their vote and may have left the voting booth effectively disenfranchised. As stated by Elections Commissioner Edgardo Cortes, the machines have passed the point of usefulness and need to be replaced with newer, more reliable, systems.

While voting machines are expensive, protecting confidence in Virginia elections and ease of voter participation is certainly worth the cost. Some localities have already begun replacing these dated machines. The General Assembly and localities with fewer readily available funds should work together to replace WINVote machines and comply with a state mandate to phase out WINVote machines.

The Lawyers’ Committee appreciates the opportunity to offer these comments and looks forward to working with the Virginia State Board of Elections to ensure that all voting equipment functions properly and allows for fair and accessible elections. The Lawyers’ Committee strongly urges the Board to move to immediately decommission the WINVote machines to protect the integrity of Virginia elections.