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No. 19-01204

United States Court of Appeals
for the Fourth Circuit
__________________

FRANK HEINDEL; PHIL P. LEVANTIS,
Plaintiffs-Appellants,
V.

MARCI ANDINO, Executive Director of the South Carolina State Election
Commission, in her official capacity; JOHN WELLS, Chair of the South Carolina
State Election Commission, in his official capacity; CLIFFORD J. ELDER, AMANDA
LOVEDAY, SCOTT MOSLEY, Members of the South Carolina State Election
Commission, in their official capacity,
Defendants-Appellees.
__________________

On Appeal fom the United States District Court for the South Carolina, Columbia
Division, No. 3:18-cv-01887-JMC
__________________

BRIEF OF NATIONAL SECURITY PROFESSIONALS AS AMICI CURIAE
IN SUPPORT OF NEITHER PARTY
__________________

JOSHUA A. GELTZER
MARY B. MCCORD
INSTITUTE FOR CONSTITUTIONAL
ADVOCACY AND PROTECTION
600 New Jersey Ave., NW
Washington, DC 20001
Telephone: (202) 661-6728
jg1861@georgetown.edu

KWAKU A. AKOWUAH
CHRISTOPHER C. FONZONE
DAVID MCALOON
GABRIEL SCHONFELD
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
Telephone: (202) 736-8000
Facsimile: (202) 736-8711
kakowuah@sidley.com

Counsel for Amici Curiae

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamus
case, except that a disclosure statement is not required from the United States, from an indigent
party, or from a state or local government in a pro se case. In mandamus cases arising from a
civil or bankruptcy action, all parties to the action in the district court are considered parties to
the mandamus case.
Corporate defendants in a criminal or post-conviction case and corporate amici curiae are
required to file disclosure statements.
If counsel is not a registered ECF filer and does not intend to file documents other than the
required disclosure statement, counsel may file the disclosure statement in paper rather than
electronic form. Counsel has a continuing duty to update this information.
19-01204
No. __________

Frank Heindel et al. v. Marci Andino et al.
Caption: __________________________________________________

Pursuant to FRAP 26.1 and Local Rule 26.1,
Amici National Security Professionals
______________________________________________________________________________
(name of party/amicus)

______________________________________________________________________________
Amici Curiae
who is _______________________,
makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)

1.

Is party/amicus a publicly held corporation or other publicly held entity?

2.

Does party/amicus have any parent corporations?
YES ✔ NO
If yes, identify all parent corporations, including all generations of parent corporations:

3.

Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or
other publicly held entity?
YES ✔ NO
If yes, identify all such owners:

09/29/2016 SCC

-1-

YES

✔

NO

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4.

Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(a)(2)(B))?
YES ✔ NO
If yes, identify entity and nature of interest:

5.

Is party a trade association? (amici curiae do not complete this question)
YES ✔ NO
If yes, identify any publicly held member whose stock or equity value could be affected
substantially by the outcome of the proceeding or whose claims the trade association is
pursuing in a representative capacity, or state that there is no such member:

6.

Does this case arise out of a bankruptcy proceeding?
If yes, identify any trustee and the members of any creditors’ committee:

/s/ Kwaku A. Akowuah
Signature: ____________________________________

YES

✔

NO

04/15/2019
Date: ___________________

Amici Curiae
Counsel for: __________________________________

CERTIFICATE OF SERVICE
**************************
04/15/2019
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ Kwaku A. Akowuah
_______________________________
(signature)

04/15/2019
________________________
(date)
-2-

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TABLE OF CONTENTS
Interest of Amici Curiae............................................................................................. 1
List of Amici Curiae .................................................................................................. 2
Introduction ................................................................................................................4
I.

Foreign Actors Have the Means and the Motive to Interfere in U.S.
Elections, Have Done So in the Past, and Will Attempt to Do So Again. .. 6

II.

South Carolina’s Particularly Vulnerable Election Infrastructure Is
Especially Susceptible to Attack and Therefore a Serious National
Security Risk. ............................................................................................. 12

A.

Attacks on our election infrastructure raise particularly acute national
security concens because they strike at the heart of our democracy by
directly threatening the vote count and calling into question the integrity
of our elections........................................................................................ 13

B.

South Carolina’s insecure voting machines are especially vulnerable and
thus a prime target for foreign actors...................................................... 16

Conclusion ...............................................................................................................24

i

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TABLE OF AUTHORITIES
Page(s)
Cases
Reynolds v. Sims,
377 U.S. 533 (1964) .............................................................................................. 6
Statutes
Help American Vote Act of 2002, Pub. L. No. 107-252, 116 Stat.
1666 (codified at 52 U.S.C. § 21083) ................................................................. 14
Other Authorities
Alden Fletcher, Foreign Election Interference in the Founding Era,
Lawfare (Oct. 25, 2018, 9:09 AM),
https://www.lawfareblog.com/foreign-election-interferencefounding-era .......................................................................................................... 7
Alec Yasinsac et al., Security and Assurance in Information
Technology Laboratory, Florida State University, Software Review
and Security Analysis of the ES&S iVotronic 8.0.1.2 Voting
Machine Firmware (2007) .................................................................................. 17
Blue Ribbon Commission on Pennsylvania’s Election Security, Study
and Recommendations (2019) (“Pennsylvania Report”). .............................23, 24
Bob Woodward and Brian Duffy, Chinese Embassy Role in
Contributions Probed, The Washington Post, Feb. 13, 1997 ............................... 8
Carol Morello, Bolton says four foreign adversaries may try to
interfere in U.S. midterms, The Washington Post, Aug. 19, 2018. .................... 11
Christina Pazzanese, The worries over U.S. intelligence, The Harvard
Gazette, June 22, 2018 ........................................................................................ 15
Danielle Root et al., Center for American Progress, Election Security
in All 50 States (2018) ........................................................................................ 18

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David A. Eckhardt & Kami Vaniea, PA Verified Voting &
VoteAllegheny, Report on Allegheny Cty. iVotronic Firmware
Verification (Rev. 1.3 2009) ............................................................................... 16
Department of Homeland Security, Statement by Secretary Jeh
Johnson on the Designation of Election Infrastructure as a Critical
Infrastructure Subsector (Jan. 6, 2017), Available online at
https://www.dhs.gov/news/2017/01/06/statement-secretaryjohnson-designation-election-infrastructure-critical .......................................... 14
Director of National Intelligence Daniel R. Coats, Worldwide Threat
Assessment of the U.S. Intelligence Community (2019) (“DNI
Threat Assessment”). ..............................................................................10, 11, 12
Douglas W. Jones, Department of Computer Science, University of
Iowa, Recommendations for the Conduct of Elections in MiamiDade County Using the ES&S iVotronic System (2004). ................................... 17
Dov H. Levin, When the Great Power Gets a Vote: The Effects of
Great Power Electoral Interventions on Election Results, 60 Int’l
Studies Q. 189 (2016) ......................................................................................... 16
Hearing on Cybersecurity of Voting Machines Before the Subcomms.
on Info. Tech. and Intergovernmental Affairs of the H. Comm. on
Oversight and Gov’t Reform, No. 115-64 (2017)
(“Joint Hearing”)...............................................................................19, 20, 21, 24
House Permanent Select Committee on Intelligence, Report on
Russian Active Measures, H. Rep. 115-1110 (2018) (“HPSCI
Report”).....................................................................................................9, 10, 15
Ladislas Fargo, The Game of the Foxes: The Untold Story of German
Espionage in the United States and Great Britain during World
War II (David McKay Publications 1972) ........................................................... 7
Lawrence Norden and Ian Vandewalker, Securing Elections from
Foreign Interference, Brennan Center for Justice (2017) (“Brennan
Center Report”) .......................................................................................11, 13, 15
Matt Blaze et al., DEFCON 25 Voting Machine Hacking Village:
Report on Cyber Vulnerabilities in U.S. Election Equipment,
Databases, and Infrastructure (2017). ............................................................... 20
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Michael Chertoff and Anders Fogh Rasmussen, The Unhackable
Election: What It Takes to Defend Democracy, Foreign Affairs
(Jan./Feb. 2019) .................................................................................................... 8
Michael Tomz and Jessica L.P. Weeks, Public Opinion and Foreign
Electoral Intervention, presented to 2018 Annual Meeting of the
American Political Science Association, Boston, MA (Aug. 2018) .................... 7
Nat’l Academies of Sciences, Securing the Vote: Protecting American
Democracy (Nat’l Academies Press 2018) (“NAS Report”) ................16, 17, 18
Niels Ferguson, Bruce Schneier & Tadayoshi Kohno, Cryptography
Engineering: Design Principles & Practical Applications (Wiley
Publ’g, Inc. 2010) ............................................................................................... 17
Office of the Director of National Intelligence, Intelligence
Community Assessment: Assessing Russian Activities and
Intentions in Recent U.S. Elections, ICA 2017-01D (2017) (“ODNI
Report”).....................................................................................................6, 7, 8, 9
Ohio Secretary of State, EVEREST: Evaluation and Validation of
Election-Related Equipment, Standards and Testing (2007)
(“EVEREST Report”) .................................................... 16, 18, 19, 20, 21, 22, 23
Press Release of Senators Lankford, Klobuchar, Harris, Collins,
Heinrich and Graham to Introduce Election Security Bill (Dec. 21,
2017) ...................................................................................................................15
Ronald L. Rivest, On the Notion of “Software Independence” in
Voting Systems, Philosophical Transactions of the Royal Society
A, 10.1098/rsta.2008.0149 (Oct. 28, 2008) ........................................................ 18
Sean Gallagher, DHS, FBI say election systems in all 50 states were
targeted in 2016, Ars Technica (Apr. 10, 2019, 2:20 PM),
https://arstechnica.com/information-technology/2019/04/dhs-fbisay-election-systems-in-50-states-were-targeted-in-2016/................................... 9
Secretary of Homeland Security Kirstjen M. Nielsen, Rethinking
Homeland Security in an Age of Disruption, Address at George
Washington University (Sept. 5, 2018) (“Nielsen Remarks”) ........................... 12

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Senate Select Committee on Intelligence, Russian Targeting of
Election Infrastructure During the 2016 Election: Summary of
Initial Findings and Recommendations (2018) (“SSCI Report”).............9, 10, 15

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INTEREST OF AMICI CURIAE
Amici Curiae 1 are former national security officials who have substantial
experience addressing cyber threats posed by foreign actors. Amici have worked at
senior levels in administrations of both political parties and share deep concern about
the security of the United States’ election systems.
Amici take no position on whether Plaintiffs have standing, and therefore
write in support of neither party. 2 They have filed this brief to bring to the Court’s
attention two key points: (1) that foreign actors have the means and the motive to
interfere in U.S. elections, have done so in the past, and will attempt to do so again;
and (2) that South Carolina’s especially vulnerable election infrastructure makes it
a particularly attractive target for foreign adversaries. Amici are concerned that the
District Court’s reasoning appears to reflect a misunderstanding of these critical
points, and offer this brief to ensure proper appreciation of the vulnerabilities and
threats associated with election security.

1

The Amici Curiae certify that no counsel for a party authored this brief in
whole or in part; that no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief; and that no person other than the
amici or their counsel made a monetary contribution to its preparation or submission.
The views expressed herein reflect those of the Amici Curiae but not those of any
academic or other institution with which they are affiliated.
2
All parties consent to the filing of this brief.
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LIST OF AMICI CURIAE
Merritt Baer served as Senior Technology Advisor to the Department of Homeland
Security and Lead Cyber Advisor to the Federal Communications Commission.
Patrick Barry served as Counselor for Counterterrorism and Intelligence in the
Office of the Secretary at the Department of Homeland Security.
Rand Beers served as Acting Secretary of Homeland Security and Undersecretary
of the National Protection and Programs Directorate at the Department of Homeland
Security.
J. Michael Daniel served as Special Assistant to the President and Cybersecurity
Coordinator at the National Security Council staff.
Joshua A. Geltzer served as Senior Director for Counterterrorism and Deputy Legal
Advisor at the National Security Council staff and as Counsel to the Assistant
Attorney General for National Security.
Dipayan Ghosh served as Senior Advisor on Technology Policy at the Office of
Science and Technology Policy and National Economic Council.
Oona A. Hathaway served as Special Counsel to the General Counsel for National
Security Law at the Department of Defense.
Robert Knake served as Director for Cybersecurity Policy at the National
Security Council staff.
Mary B. McCord served as Acting Assistant Attorney General for National
Security and Principal Deputy Assistant Attorney General for National Security.
Matthew G. Olsen served as Director of the National Counterterrorism Center at
the Office of the Director of National Intelligence, Deputy Assistant Attorney
General for the National Security Division at the Department of Justice, and Special
Counsel to the Director of the Federal Bureau of Investigation.
Christopher Painter served as Coordinator for Cyber Issues at the Department of
State.

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Daniel Rosenthal served as Director for Counterterrorism at the National Security
Council staff, Senior Counsel to the Assistant Attorney General for National
Security, and Senior Legal Counsel in the Office of the Director of National
Intelligence.
Phil Stupak served as Elections Counsel to the House of Representatives, Staff
Attorney to the New York City Board of Elections, and Senior Advisor to the Deputy
Secretary of the Department of Homeland Security.
Francis Taylor served as Undersecretary of the Office of Intelligence and Analysis
at the Department of Homeland Security.
James C. Trainor served as Assistant Director for the Cyber Division at the Federal
Bureau of Investigation.

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INTRODUCTION
Foreign interference in U.S. elections is a persistent and intensifying national
security challenge. Unable to match our Nation’s military might or diplomatic reach,
foreign actors have long sought to manipulate and undermine our elections, and the
emergence of modern communications technologies has made it easier for them to
do so. The risk is real, and it is growing. Moreover, the state of our election
infrastructure only magnifies these risks. Direct tampering with the vote-counting
process by foreign actors would strike directly at the heart of our democracy, and
would likely diminish public confidence in it. Yet the tools used in parts of the
United States to store voter rolls and to collect and tabulate votes remain deeply
vulnerable to attack and a prime target for foreign adversaries. Outdated systems
like South Carolina’s iVotronic voting machines are among the most vulnerable.
Amici take no position on whether Plaintiffs have standing, but write because
the District Court’s analysis does not appear to reflect a full appreciation of these
vulnerabilities and threats. The District Court indicated that the passage of time
since Russia’s well-documented interference in the 2016 presidential election
rendered speculative the risk of future election interference. D. Ct. Op. at 20. The
District Court also questioned whether the acknowledged flaws in South Carolina’s
voting machines would make them a prime target for foreign attackers. D. Ct. Op.
at 20-23.

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Based on their experience in addressing election interference and knowledge
of national security matters, Amici believe that both of those suggestions by the
District Court are mistaken. First, as the Director of National Intelligence has
frequently warned, the threat of foreign vote tampering is substantial. Foreign actors
have abundant reason to seek to interfere with U.S. elections, and history shows that
they have attempted to do so repeatedly. There is every reason to believe they will
attempt to do so again in the future. The events of 2016 were thus not a one-time
threat, but rather a warning sign about how foreign actors likely will attempt to
manipulate our elections in the digital age.
Second, Amici dispute the notion that South Carolina’s voting machines are
not a comparatively attractive target. To be sure, foreign actors do not solely focus
on ease of access when deciding which parts of the U.S. election infrastructure to
attempt to infiltrate.

But adversaries are of course more likely to engage in

operations they think will be successful, and they accordingly are more likely to
target infrastructure that can be easily overcome. South Carolina iVotronic voting
machines not only have numerous publicly documented security flaws, but also lack
the basic auditability that would help identify or remediate an attack. They are thus
a particularly attractive target.

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Foreign Actors Have the Means and the Motive to Interfere in U.S.
Elections, Have Done So in the Past, and Will Attempt to Do So Again.
It is well documented that the United States faces an ongoing threat of foreign

election interference. Nevertheless, the District Court suggested that the risk of
foreign tampering could not go on “for an indefinite amount of time,” and would
become more uncertain as Russia’s 2016 interference recedes into the past. D. Ct.
Op. at 20. The experience and judgment of national security experts counsel against
this understanding of the threat now facing our elections.
Free and fair elections are fundamental to our political system. Elections
channel the popular will into government action, and do so in a way that gives the
electorate confidence that the Government is deriving its power “from the great body
of the people.” James Madison, Federalist No. 39. As the Supreme Court has put
it, the “right to vote freely for the candidate of one’s choice is of the essence of a
democratic society.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).
This centrality of elections to the U.S. system of government is precisely what
makes them a particularly attractive target for foreign actors. Because the United
States makes choices about how it will govern itself through popular voting, foreign
actors know that the election of candidates expected to pursue their favored policies
will help to advance their agenda.

See Office of the Director of National

Intelligence, Intelligence Community Assessment: Assessing Russian Activities and
Intentions in Recent U.S. Elections, ICA 2017-01D, at 1 (2017) (“ODNI Report”).
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Moreover, foreign actors know that even an intervention that does not produce a
specific desired electoral outcome can advance their agenda by unsettling our
election-based system of governance. Public awareness of foreign interference
efforts can both sow discord in the U.S. electorate and “undermine public faith in
the U.S. democratic process.” Id. Indeed, as a recent study concluded, “[v]oters
who learned of a foreign intervention—particularly those who learned of active
interventions such as . . . hacking voting machines—were substantially more likely
to distrust the results of the election, protest the electoral outcome, lose faith in
American democracy, and avoid voting in future elections.” Michael Tomz and
Jessica L.P. Weeks, Public Opinion and Foreign Electoral Intervention, presented
to 2018 Annual Meeting of the American Political Science Association, Boston, MA
(Aug. 2018), available at https://web.stanford.edu/~tomz/working/TomzWeeksElectoralIntervention-2018-08-24.pdf.
In short, election interference can have significant consequences for American
democracy—which is precisely why foreign actors have long have sought to engage
in it. See, e.g., Alden Fletcher, Foreign Election Interference in the Founding Era,
Lawfare (Oct. 25, 2018, 9:09 AM), https://www.lawfareblog.com/foreign-electioninterference-founding-era (describing French intervention in support of Thomas
Jefferson during the 1796 presidential election); Ladislas Fargo, The Game of the
Foxes: The Untold Story of German Espionage in the United States and Great

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Britain during World War II 387 (David McKay Publications 1972) (noting how, in
1940, Nazi Germany bribed a U.S. newspaper to publish a document it hoped would
convince Americans that President Franklin D. Roosevelt was a “warmonger”); Bob
Woodward and Brian Duffy, Chinese Embassy Role in Contributions Probed, The
Washington Post, Feb. 13, 1997 (noting how, during the 1996 presidential campaign,
China attempted to direct financial contributions to the Democratic National
Committee). During the Cold War, for example, the Soviet Union used influence
agents, forged compromising materials, and manipulated American media to harm
candidates that it viewed as hostile to its interests. ODNI Report at 5; see also
Michael Chertoff and Anders Fogh Rasmussen, The Unhackable Election: What It
Takes to Defend Democracy, Foreign Affairs (Jan./Feb. 2019) (describing Soviet
misinformation campaigns during the Cold War).

Viewed through this lens,

Russia’s well-known and multi-faceted campaign to influence the 2016 election is
just the latest manifestation of a threat that has long persisted.
Russia’s 2016 attacks also show how technological advances have
exacerbated the risk of foreign election interference. As the Intelligence Community
and intelligence committees in both the Senate and House of Representatives found,
Russia’s cyberattacks on election infrastructure and social media misinformation
campaign “highlighted technical vulnerabilities in U.S. digital infrastructure” and
achieved their “primary goal of inciting division and discord among Americans.”

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House Permanent Select Committee on Intelligence, Report on Russian Active
Measures, H. Rep. 115-1110, at 1 (2018) (“HPSCI Report”) 3; Senate Select
Committee on Intelligence, Russian Targeting of Election Infrastructure During the
2016 Election: Summary of Initial Findings and Recommendations 2, 4 (2018)
(“SSCI Report”) 4; ODNI Report at ii-iii.
Of particular note here is the finding that Russian-backed actors “conducted
an unprecedented, coordinated cyber campaign against state election infrastructure.”
SSCI Report at 1. Indeed, intelligence reporting suggests that this campaign targeted
all 50 states. As a recent Federal Bureau of Investigation and Department of
Homeland Security Joint Intelligence Briefing put it:
Russian cyber actors in the summer of 2016 conducted online research
and reconnaissance to identify vulnerable databases, usernames, and
passwords in . . . greater than 40 [states]. Despite gaps in our data where
some states appear to be untouched by Russian activities, we have
moderate confidence that Russian actors likely conducted at least
reconnaissance against all US states based on the methodical nature of
their research. 5

3

Available online at https://www.congress.gov/115/crpt/hrpt1110/CRPT115hrpt1110.pdf.
4
Available online at https://www.intelligence.senate.gov/sites/default
/files/publications/RussRptInstlmt1.pdf.
5
Sean Gallagher, DHS, FBI say election systems in all 50 states were targeted
in
2016,
Ars
Technica
(Apr.
10,
2019,
2:20
PM),
https://arstechnica.com/information-technology/2019/04/dhs-fbi-say-electionsystems-in-50-states-were-targeted-in-2016/.
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The degree of access Russia obtained was notable for not only its breadth, but
also its depth. As part of the 2016 campaign, Russian-backed hackers successfully
penetrated voter registration databases in multiple states. HPSCI Report at 42. In
some instances, these hostile foreign actors compromised those systems so deeply
that they were “in a position to, at a minimum, alter or delete voter registration data.”
SSCI Report at 1-2. In short, although there is no evidence of which Amici are aware
indicating that Russia actually did tamper with the vote count in 2016, there is
evidence that Russia had the capacity to alter the vote count if it had chosen to do
so.
The threat, moreover, continues to grow. Earlier this year, Director of
National Intelligence Dan Coats disclosed that unidentified actors targeted United
States election infrastructure in 2018, and the best assessment of U.S. intelligence
and law enforcement agencies is that more attacks are coming in 2020 and beyond.
Director of National Intelligence Daniel R. Coats, Worldwide Threat Assessment of
the U.S. Intelligence Community 7 (2019) (“DNI Threat Assessment”). 6
As the 2019 DNI Threat Assessment—the Intelligence Community’s annual
assessment of threats to U.S. national security—puts it, “[o]ur adversaries and
strategic competitors probably already are looking to the 2020 U.S. elections as an

6

Available online at https://www.dni.gov/files/ODNI/documents/2019-ATASFR---SSCI.pdf.
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opportunity to advance their interests,” and will continue to “refine their capabilities
and add new tactics as they learn from each other’s experiences.” Id. at 7.
Importantly, the Intelligence Community also has made clear that the threat is
not confined to Russia. Id. at 5-7 (flagging cyber capabilities of China, Iran, and
North Korea); see also Lawrence Norden and Ian Vandewalker, Securing Elections
from Foreign Interference 5, Brennan Center for Justice (2017) (“Brennan Center
Report”). A few months prior to the 2018 midterm elections, for example, National
Security Advisor John Bolton revealed that there was sufficient “national security
concern” about election interference by China, Iran, and North Korea that the federal
government was “taking steps to try and prevent it.” Carol Morello, Bolton says
four foreign adversaries may try to interfere in U.S. midterms, The Washington Post,
Aug. 19, 2018. 7 Nor is the threat of election interference emerging solely from state
actors.

Terrorist organizations such as al Qaeda and ISIS have conducted

cyberattacks on foreign governments, Brennan Center Report at 5, and could turn
their efforts toward elections in the future.
In sum, at almost exactly the same time the district court was suggesting that
the risk exemplified by Russia’s 2016 election interference efforts was fading into

7

Available online at https://www.washingtonpost.com/world/nationalsecurity/bolton-says-four-foreign-adversaries-may-try-to-interfere-in-us-midterms
/2018/08/19/9d8987f8-a3b6-11e8-97ce-cc9042272f07_story.html?utm_term=
.0db08156ac0d.
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the past, the Intelligence Community was warning precisely the opposite: that future
interference efforts may go even further. Hostile actors may not content themselves
with canvassing voter rolls and state systems and instead might actually “seek to use
cyber means to directly manipulate or disrupt election systems—such as by
tampering with voter registration or disrupting the vote tallying process.” DNI
Threat Assessment at 7; see also Secretary of Homeland Security Kirstjen M.
Nielsen, Rethinking Homeland Security in an Age of Disruption, Address at George
Washington University (Sept. 5, 2018) (“Nielsen Remarks”) (noting the risk and
commenting that the Department of Homeland Security has made election security
one of its “highest and continuous priorities,” and is working with state and local
governments to help secure their network infrastructure). 8
In other words, the threat is real—and it is not going away. National security
professionals in and out of government—Amici Curiae included—take that
continuing threat extremely seriously.
II.

South Carolina’s Particularly Vulnerable Election Infrastructure Is
Especially Susceptible to Attack and Therefore a Serious National
Security Risk.
A hostile actor’s attack on balloting infrastructure would be a particularly

damaging form of election interference because it could directly affect the vote count

8

Available online at https://www.dhs.gov/news/2018/09/05/secretarynielsen-remarks-rethinking-homeland-security-age-disruption.
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and call the integrity of the election into question. And because hostile actors will
choose targets based in part on the relative strength or weakness of those targets’
defenses, they will likely view South Carolina’s vulnerable infrastructure as an
especially inviting target. In the understanding and experience of Amici, the District
Court erred in downplaying the connection between a state election system’s
vulnerable defenses and the likelihood of attack by a foreign actor. D. Ct. Op. at 2024.
A.

Attacks on our election infrastructure raise particularly acute
national security concens because they strike at the heart of our
democracy by directly threatening the vote count and calling into
question the integrity of our elections.

Election interference takes many forms, from disinformation campaigns to
direct attacks on systems used to register voters, cast ballots, and count votes. As
national security officials repeatedly have recognized, however, an attack on either
the voter rolls or balloting itself would be potentially devastating. Preventing
foreign actors from directly tampering with voting infrastructure is thus a national
security priority.
The reasons for this are myriad and flow from the centrality of elections to
American democracy itself. For most Americans, “voting machines are elections,”
and direct vote tampering is a “concrete, easy-to-understand method for tampering
with elections,” Brennan Center Report at 7. While the precise effects of other forms
of interference can be difficult to measure, nothing could be clearer in its dramatic
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consequences than changing a vote from one candidate to another. And nothing
would so quickly diminish the public’s confidence in an election’s outcome than if
it knew that a foreign actor had tampered with particular votes.
Interference with the computerized voter registration databases that states
must maintain under the Help American Vote Act of 2002, Pub. L. No. 107-252, 116
Stat. 1666 (codified at 52 U.S.C. § 21083), presents a similar risk. While such
systems play no role in the actual counting of votes, they tell officials who may vote.
An attack on such a database could disrupt and seriously undermine the legitimacy
of an election by interfering with qualified voters’ ability to cast a ballot. Brennan
Center Report at 14.
For this reason, intelligence and law enforcement agencies, elected officials,
and security professionals believe that hardening our entire election infrastructure is
a national security imperative. In January 2017, Secretary of Homeland Security
Jeh Johnson exercised his authority under the PATRIOT Act to designate the
nation’s election systems as “critical infrastructure,” so that it would be a “priority
for [federal] cybersecurity assistance and protections.” Department of Homeland
Security, Statement by Secretary Jeh Johnson on the Designation of Election
Infrastructure as a Critical Infrastructure Subsector (Jan. 6, 2017). 9 More recently,

9

Available online at https://www.dhs.gov/news/2017/01/06/statementsecretary-johnson-designation-election-infrastructure-critical.
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Secretary Nielsen called on all states to ensure that they have redundant, auditable
election systems in place for the 2020 elections. See Nielsen Remarks.
The House and Senate Select Committees on Intelligence investigating
Russia’s interference in the 2016 election also advised that the United States’
election infrastructure must be fortified for the future, see HPSCI Report at 133;
SSCI Report at 5-6, a sentiment echoed by a bipartisan group of congressional
leaders, see, e.g., Press Release of Senators Lankford, Klobuchar, Harris, Collins,
Heinrich and Graham to Introduce Election Security Bill (Dec. 21, 2017).
Intelligence and security experts further echo these sentiments and emphasize the
need for action.
To this end, recent comments from Former Director of Central Intelligence R.
James Woolsey, Jr., are instructive. Unlike Pearl Harbor and the 9/11 attacks,
Woolsey has said, the targets of recent cyber attacks were not “ships or airplanes or
buildings, but the machinery of our democracy. We will be attacked again. We must
act again—or leave our democracy at risk.” Brennan Center Report at 2; see also
Christina Pazzanese, The worries over U.S. intelligence, The Harvard Gazette, June
22, 2018 (former Director of National Intelligence James Clapper stressing the need
for increased focus on election interference). 10

10

Available online at https://news.harvard.edu/gazette/story/2018/06/clapperfrets-over-past-damage-present-shortcomings-future-threats-to-us-intelligence/.
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South Carolina’s insecure voting machines are especially
vulnerable and thus a prime target for foreign actors.

There are a wide range of reasons a foreign attacker might choose to attack
the election infrastructure of one jurisdiction over another. An attacker may seek to
support a favored candidate, or be encouraged to intervene by the prospect of
flipping the result in a close contest.

Whatever other motives drive attacker

considerations, however, a key consideration with respect to every attack will be the
likelihood of success. See Dov H. Levin, When the Great Power Gets a Vote: The
Effects of Great Power Electoral Interventions on Election Results, 60 Int’l Studies
Q. 189, 190 (2016) (noting that “electoral interventions usually occur when” a
would-be attacker has both motive and opportunity); Nat’l Academies of Sciences,
Securing the Vote: Protecting American Democracy 89 (Nat’l Academies Press
2018) (“NAS Report”) (making the point that “stronger defenses increase the time
and effort required to conduct an attack,” such that “well-defended targets are less
attractive” to attackers).
Viewed in this light, South Carolina’s iVotronic voting system is particularly
vulnerable to attack. Multiple studies have evaluated the security of the system, and
found it deeply wanting. See Ohio Secretary of State, EVEREST: Evaluation and
Validation of Election-Related Equipment, Standards and Testing (2007)
(“EVEREST Report”); David A. Eckhardt & Kami Vaniea, PA Verified Voting &
VoteAllegheny, Report on Allegheny Cty. iVotronic Firmware Verification (Rev. 1.3
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2009); Alec Yasinsac et al., Security and Assurance in Information Technology
Laboratory, Florida State University, Software Review and Security Analysis of the
ES&S iVotronic 8.0.1.2 Voting Machine Firmware (2007); Douglas W. Jones,
Department of Computer Science, University of Iowa, Recommendations for the
Conduct of Elections in Miami-Dade County Using the ES&S iVotronic System
(2004). Indeed, as laid out below, it is likely that South Carolina’s system is one of
the most vulnerable in the country and thus a distinctively attractive target.
We do not have the space to repeat every aspect of the analysis found in the
studies of the iVotronic system or to detail every security flaw that those studies
uncovered. Rather, we instead focus on identifying a few key points that epitomize
the systems’ vulnerabilities.
To begin, the basic design of South Carolina’s election system means that it
provides no audit trail or other way reliably to discover election interference. It is
axiomatic that in computing “[t]here is no such thing as perfect security,” Niels
Ferguson, Bruce Schneier & Tadayoshi Kohno, Cryptography Engineering: Design
Principles & Practical Applications 10 (Wiley Publ’g, Inc. 2010), and that
“computer [voting] systems, [therefore], no matter how well constructed, cannot
anticipate and prevent all the possible means of attack.” NAS Report at 89. Thus,
because electronic balloting can never be fully secure from cyber threats, a reliable
audit trail is necessary for confidence in any voting system with an electronic

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component. In short, jurisdictions “must adopt methods that can assure the accuracy
of the election outcome without relying on the [integrity of] hardware and software
used to conduct the election.” Id. at 91.
But South Carolina’s voting machines—known as “paperless direct recording
electronic” or “paperless DRE” voting machines—cannot do this. Paperless DRE
machines record votes in digital memory only and do not create a paper trail.
Danielle Root et al., Center for American Progress, Election Security in All 50 States
6 (2018). Thus, by design, paperless DRE machines lack any record of a voter’s
intention that is independent from the electronic system itself. To be audited,
however, a voting system must produce a voter-verified, human-readable paper trail
so that election officials can count each ballot without any risk that a compromised
computer is lying to them. NAS Report at 82 n.83 (citing Ronald L. Rivest, On the
Notion of “Software Independence” in Voting Systems, Philosophical Transactions
of the Royal Society A, 10.1098/rsta.2008.0149 (Oct. 28, 2008)). South Carolina’s
system of paperless DRE voting makes such assurances impossible. 11

11

The iVotronic system also may create a false sense of security in election
officials by producing “audit logs” that cannot actually be used to conduct a
meaningful audit. Each voting machine in South Carolina stores two copies of each
vote: one in built-in memory that is transferred to the central tabulating computer at
the end of election days, and one on a removable memory card that is saved for
“audit” purposes. EVEREST Report at 35. In theory, election officials could
attempt to detect irregularities by comparing the tabulated data to the “audit” data.
But, because both sets of data are produced by the voting machine itself, that
comparison could not reliably detect if a machine had been compromised. An
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Moreover, the risks posed by the iVotronic system’s lack of auditability are
compounded by the insecurity of South Carolina’s voting system. As a leading
security researcher recently stated at a congressional hearing on elections, security
is “especially imperative” where the “accuracy and integrity of the recorded vote
tally depends completely on the correctness and security of the [voting] machine’s
hardware, software, and data.” Hearing on Cybersecurity of Voting Machines
Before the Subcomms. on Info. Tech. and Intergovernmental Affairs of the H. Comm.
on Oversight and Gov’t Reform, No. 115-64, at 37 (2017) (“Joint Hearing”)
(Statement of Matt Blaze, Professor, University of Pennsylvania) (emphasis added).
South Carolina’s use of paperless DRE machines ensure that this dependency exists
here, but its voting system does not have in place the protection necessary to cover
for its lack of auditability.
Consider the “several pervasive, critical failures” identified by security
researchers:
• The voting machines themselves “can be easily tampered with in the field.”
EVEREST Report at 29.

attacker could easily change any altered votes in both records, and auditors would
be unable to do anything more than compare the corrupted system against itself.
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• The machines’ basic software can be compromised through interfaces that are
exposed to ordinary voters, “without knowledge of passwords and without the
use of any specialized proprietary hardware.” Id.
• Moreover, the iVotronic system’s central tabulating and election management
software, although not exposed to voters directly, “is vulnerable to attacks that
exploit coding and design errors and that can be triggered from data sent from
the field.” Id.
These are not hypothetical attacks only possible under laboratory conditions.
They are “practical threats” to South Carolina’s elections, and researchers were
unable to “identify [any] practical procedural safeguards that might substantially
increase the security of the . . . system in practice.” Id. at 30.
Nor should election officials take any comfort from the fact that the
researchers who identified these vulnerabilities had access to the iVotronic system’s
source code and documentation. Experience has shown that “technical minds with
little or no previous knowledge about voting machines, [even] without . . .
documentation or tools, can still learn how to hack the machines within tens of
minutes or a few hours.” Matt Blaze et al., DEFCON 25 Voting Machine Hacking
Village: Report on Cyber Vulnerabilities in U.S. Election Equipment, Databases,

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and Infrastructure 14 (2017). 12 When hackers were given access to six paperless
DRE machines—including the iVotronic—for only three days, “every piece of
equipment . . . was effectively breached in some manner.” Id. at 4, 16.
One potential attack identified by security researchers, which would exploit
several vulnerabilities in combination to take over a county’s entire election
infrastructure, is particularly illustrative of the vulnerability of South Carolina’s
system. Every South Carolina voting machine has a front-facing slot, designed to
accept a “Personalized Electronic Ballot,” or PEB. Each PEB is a small handheld
computer, EVEREST Report at 33, 37, and inserting a PEB into a voting machine
will prompt the machine to take different actions depending on the PEB’s
programming, id. at 50. The PEB and voting machine communicate through infrared
light signals—essentially the same technology used in television remote controls.
Id.
The software that governs the interactions between the PEB and the voting
machine, however, has a serious vulnerability. It allows any attacker able to gain
physical access to a PEB slot—access afforded every South Carolina voter—to “load
malicious software that takes complete control over the [terminal’s] processor.”
EVEREST Report at 55. The consequences could be substantial. Because it permits

12

Available
online
at
https://www.defcon.org/images/defcon25/DEF%20CON%2025%20voting%20village%20report.pdf.
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“complete control” of a voting terminal, an attacker could “alter the terminal
firmware, change recorded votes, mis-record future votes, and so on throughout the
election day and in future elections.” Id.
Carrying out this attack would not need to be complex. All that an attacker
needs in order to exploit this vulnerability is physical access to a voting terminal’s
PEB slot, and a device loaded with malicious code that the terminal will treat as a
PEB. The PEB slot is located on the front of each voting terminal, only an inch or
so away from the voting touchscreen, and “it is difficult for poll workers to monitor
for [suspicious behavior] . . . without sacrificing voter privacy.” EVEREST Report
at 65. Moreover, researchers have determined that any handheld computer (the
researchers used a Palm Pilot) capable of transmitting data over infrared, in
combination with a handheld magnet strong enough to trip the voting terminal’s
magnetic switch, can easily present itself to a voting terminal as a legitimate PEB.
Id.
The risk is not limited to individual voting machines. Security researchers
have found that the iVotronic system’s central tabulation and election management
software is also vulnerable. EVEREST Report at 59. That vulnerability “can be
exploited when election . . . results are processed” from a PEB purporting to contain
vote tallies downloaded from voting machines. Id. Because the malicious code can
be hidden in vote tallies, and PEBs with vote tallies must be brought to election

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headquarters in order to count votes, an attacker would not need either physical or
internet access to the central server in order to carry out this attack. EVEREST
Report at 53. The attacker would need only to compromise a single PEB from a
single precinct. That would allow an attacker “to gain full control of the machine
running the [central election management] server,” and to “install[] a virus or Trojan
that could then be used to change the election results and spread the virus to other”
components of the voting system. Id. at 59-60.
In other words, these flaws allow every component of South Carolina’s voting
system to exploit every other component, including the central election management
system. Thus, “[i]nserting malicious code at any step in this process could result in
a virus spreading to all of the other components, completely compromising the
election.” Id. at 98. Indeed, an attacker able to compromise even a single PEB in a
single precinct could introduce a “persistent viral infection of malicious code in . . .
[a county’s entire] electronic voting infrastructure,” using nothing more than a
magnet and a Palm Pilot. Id.
Even relative to other American jurisdictions, then, South Carolina’s voting
system is notably insecure. South Carolina is one of only five states—along with
Delaware, Louisiana, Georgia, and New Jersey—that, despite the widely publicized
vulnerability of paperless DRE machines, continues to use such systems exclusively.
Blue Ribbon Commission on Pennsylvania’s Election Security, Study and

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Recommendations 20 (2019) (“Pennsylvania Report”). Delaware and Louisiana,
however, are in the process of phasing those machines out of use. Id. Moreover, the
number of states that use paperless DRE machines at all has been shrinking and will
likely continue to do so: Virginia phased out its paperless DRE machines in favor
of paper ballots in time for its 2017 elections. Joint Hearing at 21 (Statement of
Edgardo Cortes, Commissioner, Virginia Department of Elections). Pennsylvania
has also made the decision to switch to all-paper voting. Pennsylvania Report at 22.
Considering the attention brought to election interference in 2016, and the
emergence of a “consensus view” among security experts in favor of paper balloting,
id., this trend is likely to continue. And as South Carolina clings to its inadequate
system and the number of other states using this insecure technology shrinks, South
Carolina’s elections may stand out as an especially vulnerable target for foreign
adversaries seeking to interfere in our elections.
CONCLUSION
Foreign actors have interfered in our elections before, are likely to do so again,
and have enough common sense to aim at easy targets. The District Court discounted
each of these alarming facts, which the national security community accepts across
party lines. Amici take no position on the ultimate question of whether Plaintiffs
have standing, but urge this Court to decide the case on a basis that aligns with the
troubling but powerful evidence that there is now a present and grave threat that

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foreign hackers will target South Carolina’s voting system in the 2020 election cycle
and beyond.
Dated:

April 15, 2019
Respectfully submitted,
/s/ Kwaku A. Akowuah
Kwaku A. Akowuah
Christopher C. Fonzone
David McAloon
Gabriel Schonfeld
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
Telephone: (202) 736 8000
Facsimile: (202) 736 8711
kakowuah@sidley.com
Joshua A. Geltzer
Mary B. McCord
INSTITUTE FOR CONSTITUTIONAL
ADVOCACY AND PROTECTION
600 New Jersey Avenue, NW
Washington, DC 20001
Telephone: (202) 661-6728
jg1861@georgetown.edu
Attorneys for Amici Curiae

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Effective 12/01/2016
No. ____________
19-01204

Frank Heindel et al. v. Marci Andino et al.
Caption: __________________________________________________

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT
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Appellant’s Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee’s
Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus Brief may
not exceed 6,500 words or 650 lines. Amicus Brief in support of an Opening/Response Brief may not
exceed 7,650 words. Amicus Brief filed during consideration of petition for rehearing may not exceed
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Type-Volume Limit for Other Documents if Produced Using a Computer: Petition for permission
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exceed 7,800 words. Petition for rehearing or rehearing en banc may not exceed 3,900 words. Fed. R.
App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) & 40(b)(1).
Typeface and Type Style Requirements: A proportionally spaced typeface (such as Times New
Roman) must include serifs and must be 14-point or larger. A monospaced typeface (such as Courier
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This brief or other document complies with type-volume limits because, excluding the parts of the
document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of
citations, statement regarding oral argument, signature block, certificates of counsel, addendum,
attachments):
5,365

[✔]

this brief or other document contains

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this brief uses monospaced type and contains

[state number of] words
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This brief or other document complies with the typeface and type style requirements because:
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this brief or other document has been prepared in a proportionally spaced typeface using
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this brief or other document has been prepared in a monospaced typeface using
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(s) Kwaku A. Akowuah
Party Name Amici Curiae
Dated: 04/15/2019
11/14/2016 SCC

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CERTIFICATE OF SERVICE

April 15, 2019
I certify that on _________________
the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:

/s/ Kwaku A. Akowuah
___________________________
Signature

04/15/2019
________________________
Date