PURPOSE: This rule provides that voting machine manufacturers file an initial affidavit stating that the voting machine complies with all applicable rules and laws and a second affidavit stating that when any changes are made in the system the voting machine’s ability to continue to comply with the applicable rules and laws will not be affected and that voting machine manufacturers deposit into an escrow account the source code for each version of their voting system qualified for sale and use in Missouri.

1. (1) As a prerequisite to approval from the secretary of state, each manufacturer or supplier of electronic voting systems or equipment shall have completed and submitted to the secretary of state a certification statement in substantially the same form as contained in section (5), and shall have received certification from an independent testing authority approved by the secretary of state.
2. (2) Beginning on July 1, 2006, when no amendments have been made to an approved system or machine subsequent to qualification, the manufacturer or supplier shall notify the secretary of state that no amendments have been made on a semi-annual basis on January 1 and July 1 starting on the notification date immediately following approval.

3. (3) As a prerequisite to approval from the secretary of state, each manufacturer or supplier of electronic voting systems or equipment shall execute an escrow agreement with an escrow agent for the manufacturer’s source code for each system fully qualified by the Office of the Secretary of State. At a minimum, the agreement must:

   1. (A) Identify an escrow agency;
   2. (B) Provide the software source code for all voting system components in a minimum of two (2) formats (one (1) human readable and one (1) machine readable) to the escrow agent;
   3. (C) Provide the software documentation to the escrow agent;

   4. (D) Contain a statement confirming that the state of Missouri will, within seven (7) days of the occurrence of one of the following events, receive full access to the source code and unlimited rights to continue using and supporting the software at no cost to the state or the agency should the manufacturer:

      1. 1. Become insolvent; or
      2. 2. Make a general assignment for the

benefit of creditors; or

1. 3. File a voluntary petition of bankrupt-

cy; or

1. 4. Suffer or permit the appointment of a

receiver for its business or assets; or

1. 5. Become subject to any proceeding of

bankruptcy or insolvency law, whether foreign or domestic; or

1. 6. Wind up or liquidate its business vol-

untarily or otherwise and the state has reason to believe that the vendor will fail to meet future obligations; or

1. 7. Discontinue support of the provided

products or fail to support the products in accordance with its maintenance obligations and warranties;

1. (E) Contain a statement agreeing to notify in writing the Independent Testing Authority

1. (ITA) that certified the system, giving the state of Missouri full access to “final build,” records and test results related to the certification tests at no charge to the state; and

   1. (F) Contain a statement agreeing that the escrow will stay in place as long as the system is used in Missouri, at no cost to the state.

2. (4) If any modification, deletion or improvement to approved voting or tabulating equipment, procedures or systems is made, the manufacturer, programmer or supplier shall notify the secretary of state and a certification amendment statement shall be submitted.

   1. (A) No certification need be submitted if one (1) of the following conditions are met:

      1. 1. The equipment is not a device

which—

1. A. Converts the intent of the voter

into a data string, as an example, a card reader or scanner;

1. B. Changes, interprets, converts,

modifies or records the data string being transmitted from the ballot counter; or

1. C. Manipulates data or the results of

any data conversion into a report exclusive of the printer; or

1. 2. The software only monitors system

operation.

1. (B) Certificates from the software supplier or programmer shall always be submitted in the following cases when the additions could be used during the tabulating process:

   1. 1. Installation of a new release of system

software, utilities software, or both;

1. 2. Installation of new or expanded cen-

tral processing units;

1. 3. Installation of additional random

access or read only memory (RAM or ROM); and

1. 4. Installation of additional magnetic,

electronic or optical data storage units.

1. (C) All systems installed as of January 1, 1987 are approved in the configuration that existed as of that date.

1. (5) Manufacturer’s certification statement shall be completed substantially as the example which follows:

   MANUFACTURER’S CERTIFICATION STATEMENT

I, ________________________, president of ____________________________________ (electronic voting systems company) do hereby certify to ___________________, Secretary of State of Missouri that the ______________________ electronic voting (name of equipment) system will permit in accordance with section 115.225, RSMo:

1. 1. Voting in absolute secrecy;
2. 2. Each elector to vote at any election

for all persons and offices for whom and for which s/he is lawfully entitled to vote;

1. 3. The automatic tabulating equipment

to be set to reject all votes for any office or on any measure except write-in votes when the number of votes exceeds the number the voter is entitled to cast;

1. 4. Each elector to vote for as many per-

sons for an office as s/he is entitled to vote for;

1. 5. Each elector to vote for or against any

questions upon which s/he is entitled to vote; and to vote, by means of a single device, where applicable, for all candidates of one (1) party or to vote a split ticket as s/he desires;

1. 6. Each elector, at presidential elections,

by one (1) punch or mark, to vote for the candidate of that party for president, vice-president and their presidential electors; and

1. 7. The __________________________

electronic voting system complies with all other requirements of the election laws of the state of Missouri where they are applicable.

(Briefly describe the type of electronic voting system provided by ____________________________________, the means by which it meets the requirements of provisions 1.–6. and list the areas in which the system is in use.)

I do hereby certify that the above information is true and accurate this ______________ day of _________________ , 20___.

____________________________________ (President) ____________________________________ (Name of Company)

The above signator appeared before me this _________ day of _________, 20__, and did personally sign this affidavit.

____________________________________ (Notary)

My commission expires ________________

1. (6) Compliance with this certification statement will assist this office when approval is requested for use of electronic voting systems in this state. After receiving this information, the secretary of state will schedule a meeting with the election official making the request to use electronic equipment and representatives of the voting equipment company to discuss approval of its use in Missouri.

2. (7) The certification amendment statement shall be completed substantially as the example which follows:

   AMENDMENT TO CERTIFICATION STATEMENT

I, ___________________________________ (Name) __________________________________, of (Office) ______________________, do hereby certify (Company) to _______________________, Secretary of State of Missouri, that the change outlined here will not affect the accuracy or legal operational requirements as outlined in section 115.225, RSMo of ____________________________________. (Product Name and Version)

____________________________________ (Briefly describe the change.)

____________________________________ (Signature)

The above signator appeared before me this _____ day of _____, 20___ and did personally sign this affidavit. ____________________________________ (Name) ____________________________________ (Name of Company) ____________________________________ (Notary)

My commission expires _________________

1. (8) No change in system software, utilities software, or both, may be made within six (6) weeks prior to an election in which the automated tabulating equipment will be used for the tabulating of ballots. In the event that system software, utilities software, or both, is to be changed within thirty (30) days after any election in which the automated tabulating equipment is used for the tabulating of ballots, the election authority shall have copies made of the original system software, utilities software, or both, and those copies shall be stored in the same manner as the ballots counted in that election.

AUTHORITY: section 115.225, RSMo Supp. 2005.* Original rule filed March 31, 1972, effective April 10, 1972. Amended: Filed April 7, 1978, effective July 13, 1978. Emergency amendment filed Oct. 5, 1982, effective Nov. 2, 1982, expired Feb. 2, 1983. Amended: Filed Oct. 5, 1982, effective Feb. 11, 1983. Amended: Filed Dec. 15, 1986, effective Feb. 28, 1987. Rescinded and readopted: Filed Aug. 8, 2001, effective March 1, 2002. Emergency amendment filed June 21, 2006, effective July 1, 2006, expired Feb. 22, 2007. Amended: Filed June 21, 2006, effective Dec. 30, 2006. *Original authority: 115,225, RSMo 1977, amended 1993, 1995, 2002.