January 17, 2020
VIA EMAIL
AND OVERNIGHT DELIVERY
Jerome Lovato
Director, Voting System Testing and Certification
U.S. Election Assistance Commission
1335 East West Highway, Suite 4300
Silver Spring, Maryland 20910
RE: Request for Election Systems & Software, LLC (“ES&S”) Marketing Material
Dear Mr. Lovato:
ES&S is in receipt of your request for ES&S’ marketing materials associated with ES&S’
United States Election Assistance Commission’s (“EAC”) certified voting systems. Due to the
volume and size of the materials being provided, ES&S is sending to your attention by overnight
mail today, a thumb drive which contains ES&S’ corporate marketing materials for ES&S’ EAC
Certified EVS 5.2.0.0 version through ES&S’ most recent EAC certified EVS 6.1.0.0 version.
Although many of the materials being provided are public documents and have been provided to
customers as well as displayed on our website, ES&S respectfully requests that the EAC not
publicly disclose any information provided without first contacting ES&S to determine if such
materials being requested contain ES&S proprietary and confidential information or links to such
ES&S’ proprietary and confidential information.
Please be advised that it was never the intent of ES&S to state or imply that ES&S’
DS200 modeming capability was EAC certified. Further, ES&S makes those states which allow
for modeming fully aware that the modeming configuration has not been approved by the EAC.
In all cases, ES&S’ voting system releases capable of modeming unofficial results are
separate releases that are tested by NVLAP/EAC accredited voting system testing laboratories
on behalf of those jurisdictions which allow for modeming of unofficial election results. In no case
has ES&S ever represented to these jurisdictions these releases to be EAC certified.
In order to avoid any confusion with respect to ES&S’ EAC certified voting systems and
ES&S’ voting systems which allow for the modeming of unofficial results, ES&S has removed all
references in its current corporate marketing materials related to the “optional use” of modems.
Included please see updated ES&S corporate marketing materials for ES&S’ products, including
ES&S’ DS200 marketing material as this is the only ES&S voting system unit which can allow for
modeming of unofficial election results.
If you have any questions or need additional information, please do not hesitate to
contact me directly.
Sincerely,

Steve Pearson
Senior Vice President of Certification
cc:

Kathy Rogers – ES&S

 U. S. ELECTION ASSISTANCE COMMISSION
VOTING SYSTEM TESTING AND CERTIFICATION PROGRAM

1335 East West Highway, Suite 4300
Silver Spring, MD 20910

March 20, 2020

Sent via e-mail

Steve Pearson, Senior Vice President of Certification
Election Systems & Software
11208 John Galt Blvd.
Omaha, NE 69137
Re: DS200 Misrepresentation
Dear Mr. Pearson,
On January 7, 2020, the U.S. Election Assistance Commission (EAC) received a complaint from two
organizations, Free Speech for People and National Election Defense Coalition, stating that:
1. ES&S may have violated Sections 5.14 and 5.15.1 of the EAC Testing and Certification Program
Manual Version 2.0 by representing or implying that the DS200 with modem configuration is
EAC certified when in fact only the DS200 without modem is EAC certified.
2. ES&S also may have violated Section 5.16 by failing to warn purchasers that adding a modem to
the DS200 will void the EAC certification of the voting system in its entirety.
The complaint requested that the EAC conduct an investigation, require corrective action, and determine
whether to suspend ES&S’s manufacturer registration.
On the same day, I requested that ES&S submit all marketing material for all ES&S EAC-certified
voting systems by COB on January 10, 2020. ES&S requested to extend the deadline to January 17th due
to unavailability of ES&S’s marketing manager. ES&S submitted the marketing material, including their
response to the complaint, on January 17th. In their response, ES&S stated they have remedied the issue
by removing all references in its current corporate marketing materials related to the “optional use” of
modems.
I have reviewed the marketing material submitted by ES&S and confirm that ES&S has several
documents that state that the DS200 is “fully certified and compliant with EAC guidelines” while also
listing a modem as optional. This misrepresentation is in violation of the EAC’s Testing and
Certification Program. I am pleased that ES&S has taken prompt action to revise their marketing
material. In order to be in compliance with our Program, ES&S must take the following corrective
actions:
Provide a plan to remove all misrepresented marketing material from circulation.
Notify current and potential customers who received the misrepresented information that
previous information was inaccurate.
Distribute the revised information to those same customers.

 In several other documents, ES&S states, “All ES&S tabulation systems are submitted to rigorous and
extensive independent test campaigns as part of the Election Assistance Commission’s (EAC) Voting
System Certification Program." I find this statement to be a misrepresentation since ES&S has statecertified voting systems that have not been tested or certified under the EAC’s Program. In order to be in
compliance with our Program, ES&S must take the following corrective actions:
Revise the marketing material to properly represent voting systems that have been certified by
the EAC.
Provide a plan to remove all misrepresented marketing material from circulation.
Notify current and potential customers who received the misrepresented information that
previous information was inaccurate.
Distribute the revised information to those same customers.
As you are aware, the EAC has the authority to conduct reviews of fielded voting systems to ensure
compliance with our Testing and Certification Program. We will conduct reviews of EAC-certified
DS200s to ensure that they comply with our Program.
Finally, according to Section 5.15.4 of the Testing and Certification Program Manual, you have 15 days
from receipt of this letter to comply with the recommended corrective actions. Failure to comply will
result in the EAC publicly announcing that the voting system no longer complies with its original
certification, and could include initiating decertification actions and/or suspension of manufacturer
registration.
You are a valued stakeholder and I appreciate your proactive and prompt response.
Sincerely,

Jerome Lovato
Director, Voting System Testing and Certification
cc:

Mona Harrington, Acting Executive Director
Amanda Joiner, Associate Counsel

 April 3, 2020
VIA EMAIL
AND OVERNIGHT DELIVERY
Jerome Lovato
Director, Voting System Testing and Certification
U.S. Election Assistance Commission
1335 East West Highway, Suite 4300
Silver Spring, Maryland 20910
RE: Election Systems & Software, LLC (“ES&S”) DS200® Modem Marketing
Material Complaint
Dear Mr. Lovato:
I am in receipt of your letter dated March 20, 2020, which sets forth certain findings
b he Elec ion A i ance Commi ion ( EAC ) regarding ES&S marke ing ma erial for i
DS200 precinc o ing
em ab la or ( DS200 ) and other ES&S voting tabulation
systems. ES&S has reviewed your letter and provides the following response to the findings
identified by the EAC.
The EAC alleges that ES&S made certain misrepresentations in its DS200 marketing
materials i h re pec o he DS200 being f ll cer ified and complian i h EAC g ideline
while also listing the use of a modem in the DS200 as an option for customers. As
previously communicated to the EAC with respect to the use of modems with the DS200, it
a ne er he in en of ES&S o a e or impl ha ES&S DS200 modeming capabili
a
EAC certified. Further, ES&S makes those states which allow for modeming fully aware that
the modeming configuration has not been approved by the EAC. Notwithstanding the
foregoing and in order o a oid an conf ion i h re pec o ES&S EAC cer ified o ing
em and ES&S o ing
em
hich allo for modeming, ES&S has and/or will take
the following corrective actions as request by the EAC:
ES&S has revised all of its DS200 marketing materials included on its website,
as well as revised all print marketing materials for its DS200, to make it clear that
the EAC has not certified the DS200 with the use of modeming;
ES&S will send the enclosed letter to all of its DS200 customers who use the
DS200 with modem, informing them that the DS200 with modem has not been
certified by the EAC; and
ES&S ill po a no ice o i c omer por al ad i ing all ES&S c
the DS200 with modem has not been certified by the EAC.

omer

ha

In addition to the above finding by the EAC, the EAC alleges that ES&S also made
certain representations in other ES&S marketing documents by stating that All ES&S
tabulation systems are submitted to rigorous and extensive independent test campaigns as
par of he Elec ion A i ance Commi ion (EAC) Vo ing S em Cer ifica ion Program.

 Jerome Lovato
April 3, 2020
Page: 2
The EAC believes this statement is inaccurate since ES&S has state-certified voting
systems that have not been tested or certified nder he EAC Cer ifica ion and Te ing
Program. ES&S di agree
i h he EAC finding with respect to this statement, as all
ES&S tabulation systems are submitted to independent test campaigns as part of the EAC
Voting System Certification Program.
Please be advised that all ES&S tabulation systems are submitted for review and
approval through the EAC Testing and Certification Program. This applies even to those
ES&S tabulation systems which ES&S submits to states that do not require EAC certification
and approval. All current ES&S tabulation systems which have been approved for use by
those states which do not require EAC approval have been approved by the EAC.
Therefore, ES&S a emen i fac al and i no a mi repre en a ion a the EAC concluded
in its findings. As such, ES&S does not believe that any corrective actions are necessary
with respect to this statement.
As you are fully aware, the United States is currently involved with the
unprecedented COVID-19 pandemic that has forced many employees of ES&S and its
customers to take drastic actions through social distancing by working from home voluntarily
or manda ed hro gh a a home order i
ed b a c omer
a e or local go ernmen .
As a result of the COVID-19 pandemic, it may take ES&S additional time in notifying its
customers as requested by the EAC. To that end, ES&S will make commercially reasonable
efforts to provide its DS200 modem customers with the enclosed letter, as well as post its
no ice o ES&S c omer por al b no later than April 15, 2020.
If you have any questions or need additional information, please do not hesitate to
contact me directly.
Sincerely,

Steve Pearson
Senior Vice President of Certification
cc:

Kathy Rogers

ES&S

 April 3, 2020
VIA ELECTRONIC MAIL
CONTACT NAME
STATE/CUSTOMER NAME
ADDRESS
ADDRESS
RE: Election Systems & Software, LLC (“ES&S”) DS200® Marketing Materials
Dear CONTACT NAME:
It has recently been brought to our attention that certain ES&S DS200 precinct scanner
and tabulator (DS200) marketing materials may contain potential inaccuracies. In prior DS200
marketing materials you may have received from ES&S, ES&S states that the DS200 has been
certified by the United States Election Assistance Commission (EAC), while also listing the use
of modems as an option for the DS200. Please be advised that the DS200 has been fully
certified by the EAC, however the certification does not include modem capability.
Please be advised that it was never the intent of ES&S to state or imply that DS200
modeming capability was EAC certified. Further, ES&S made known to states which allow
modeming that the modeming configuration has not been approved by the EAC. As you know,
the DS200 has been fully certified and approved by your state for use in your jurisdiction with the
use of modems. Your jurisdiction may continue to use the DS200 with modem capability as
certified by your state.
In order to avoid any confusion with respect to ES&S’ EAC certified voting systems and
ES&S’ voting systems which allow for the modeming of unofficial results, ES&S has removed all
references in its current corporate marketing materials related to the “optional use” of modems.
To view
updated corporate marketing materials for the DS200, please visit
www.essvote.com/products/ds200/.
In addition, your jurisdiction may have received DS200 units which include a sticker on
the back of the unit stating that the DS200 has been certified by the EAC. In order to ensure
compliance with the EAC Testing and Certification Program, ES&S requests that you remove all
such stickers from those DS200s which include modem capability. If you would like ES&S to
remove these stickers, please contact your Account Manager and arrangements will be made for
ES&S to come on-site and remove such stickers.
We thank you for being a customer of ES&S. If you have any questions or need
additional information, please contact your Account Manager and they will respond accordingly.
Sincerely,

Steve Pearson
Senior Vice President of Certification

 April 3, 2020
VIA ELECTRONIC MAIL
CONTACT NAME
STATE/CUSTOMER NAME
ADDRESS
ADDRESS
RE: Election Systems & Software, LLC (“ES&S”) DS200® Marketing Materials
Dear CONTACT NAME:
It has recently been brought to our attention that certain ES&S DS200 precinct scanner
and tabulator (DS200) marketing materials may contain potential inaccuracies. In prior DS200
marketing materials you may have received from ES&S, ES&S states that the DS200 has been
certified by the United States Election Assistance Commission (EAC), while also listing the use
of modems as an option for the DS200. Please be advised that the DS200 has been fully
certified by the EAC, however the certification does not include modem capability.
Please be advised that it was never the intent of ES&S to state or imply that DS200
modeming capability was EAC certified. Further, ES&S made known to states which allow
modeming that the modeming configuration has not been approved by the EAC.
In order to avoid any confusion with respect to ES&S’ EAC certified voting systems and
ES&S’ voting systems which allow for the modeming of unofficial results, ES&S has removed all
references in its current corporate marketing materials related to the “optional use” of modems.
To view updated corporate marketing materials for the DS200, please visit
www.essvote.com/products/ds200/.
We thank you for being a customer of ES&S. If you have any questions or need
additional information, please contact your Account Manager and they will respond accordingly.
Sincerely,

Steve Pearson
Senior Vice President of Certification

 April 17, 2020
(This letter contains revisions to the original letter provided on April 3, 2020)
VIA ELECTRONIC MAIL: jlovato@eac.gov
AND OVERNIGHT DELIVERY
Jerome Lovato
Director, Voting System Testing and Certification
U.S. Election Assistance Commission
1335 East West Highway, Suite 4300
Silver Spring, Maryland 20910
RE: Electi
S
& S
Material Complaint

(“ES&S”) DS200® Modem Marketing

Dear Mr. Lovato:
I am in receipt of your letter dated March 20, 2020, which sets forth certain findings
b he Elec ion A i ance Commi ion ( EAC ) ega ding ES&S ma keting materials for its
DS200
ecinc o ing
em ab la o ( DS200 ) and other ES&S voting tabulation
systems. ES&S has reviewed your letter and provides the following response to the findings
identified by the EAC.
The EAC alleges that ES&S made certain misrepresentations in its DS200 marketing
materials i h e ec o he DS200 being f ll ce ified and com lian i h EAC g ideline
while also listing the use of a modem in the DS200 as an option for customers. As
previously communicated to the EAC with respect to the use of modems with the DS200, it
a ne e he in en of ES&S o a e o im l ha ES&S DS200 modeming ca abili
a
EAC certified. Further, ES&S makes those states which allow for modeming fully aware that
the modeming configuration has not been approved by the EAC. Notwithstanding the
foregoing and in o de o a oid an conf ion i h e ec o ES&S EAC ce ified o ing
em and ES&S o ing systems which allow for modeming, ES&S has and/or will take
the following corrective actions as request by the EAC:
ES&S has revised all of its DS200 marketing materials included on its website,
as well as revised all print marketing materials for its DS200, to make it clear that
the EAC has not certified the DS200 with the use of modeming;
ES&S will send the enclosed letter to all of its DS200 customers who use the
DS200 with modem, informing them that the DS200 with modem has not been
certified by the EAC; and
ES&S ill o a no ice o i c ome o al ad i ing all ES&S c
the DS200 with modem has not been certified by the EAC.

omers that

In addition to the above finding by the EAC, the EAC alleges that ES&S also made
certain representations in other ES&S marketing documents by stating that All ES&S
tabulation systems are submitted to rigorous and extensive independent test campaigns as

 Jerome Lovato
April 17, 2020
Page: 2
a of he Elec ion A i ance Commi ion (EAC) Vo ing S em Ce ifica ion P og am.
The EAC believes this statement is inaccurate since ES&S has state-certified voting
systems that have no been e ed o ce ified nde he EAC Ce ifica ion and Te ing
Program. ES&S respectfully di ag ee
i h he EAC finding as to this statement, as all
ES&S tabulation systems are submitted to independent test campaigns as part of the EAC
Voting System Certification Program. This applies even to those ES&S tabulation systems
which ES&S submits to states that do not require EAC certification and approval.
All current ES&S DS200 tabulation systems which have been approved for use by
those states which do not require EAC approval have successfully undergone EAC and
VSTL testing. These same tabulation systems serve as the baseline for all ES&S tabulation
systems which feature post-voting modeming. ES&S incorporates the modem capability
onto these baseline EAC certified tabulation systems and creates a separate release for
review and approval by those states which allow for the use of modems. The efo e, ES&S
statement is factual as all of its baseline tabulation systems are submitted through the EAC
Testing and Certification Program and such statement is not a misrepresentation as the
EAC concluded in its findings. As such, ES&S does not believe that any corrective actions
are necessary with respect to this statement.
As you are fully aware, the United States is currently involved with the
unprecedented COVID-19 pandemic that has forced many employees of ES&S and its
customers to take drastic actions through social distancing by working from home voluntarily
o manda ed h o gh a a home o de i
ed b a c ome
ate or local government.
As a result of the COVID-19 pandemic, it may take ES&S additional time in notifying its
customers as requested by the EAC. To that end, ES&S will make commercially reasonable
efforts to provide its DS200 modem customers with the enclosed letter, as well as post its
no ice o ES&S c ome o al b no la e han A il 15, 2020.
If you have any questions or need additional information, please do not hesitate to
contact me directly.
Sincerely,

Steve Pearson
Sr. Vice President, Certification
Enclosure
cc:

Kathy Rogers

ES&S