This morning, State House Representative Brad Tschida (HD-97) sent a letter to Montana Secretary of State Christi Jacobsen asking her to immediately inform all Montana county election administrators that they may be violating state and federal laws regarding data retention requirements. Tschida’s letter was also addressed to Montana State Elections Director Dana Corson.

Tschida warned that by performing election software updates without taking necessary data backups or “forensic images” of the machine’s state before upgrades are performed, Federal records retention requirements are likely being violated. “In effect, information related to elections is being erased and replaced,” Tschida stated.

I have been made aware that voting software companies like Dominion, ES&S, Smartmatic and others, are conducting periodic software updates on their machines. What these updates are doing is erasing former code and replacing it with new code. In effect, information related to elections is being erased and replaced, in violation of federal and state law. I saw an actual sequence of code that showed an update which allowed parties to access the software within the machine by “de-hardening” the code. The programmers conducting the assessment indicated that this action was highly unusual and suspect.

Brad Tschida (HD-97) letter to Secretary of State. August 13, 2021.

Tschida is making reference to Federal Law USC §20701 that states that data and records related to federal elections must be kept for at least 22 months. Violation of record retention requirements is punishable with fines and imprisonment.

According to Montana Secretary of State Records Retention Schedule, all network audit log related technology records must also be stored for a total of 5 years (2 years in office, 3 years in storage). This could include network connectivity logs on county election facility network routers or in election management servers.

Montana uses ES&S voting machines in most counties including Missoula County. A year ago to date, the federal Election Assistance Commission rebuked ES&S for claiming that ES&S voting machines that include “embedded modems” were sanctioned and certified by the EAS, according to Politico.

To comply with Federal Law, Tschida noted that a data backup of the machine using a “forensic image” to preserve the machine’s state prior to update would be required to ensure that changes to election operations and records could be verified and maintained for public records and routine auditing.

I requested that Austin [James, Secretary of State Chief Legal Counsel] have you immediately send out instructions to ALL county elections officials to either not allow these periodic “updates” or, in the event they wish to allow them, to do 2 very critical things.

The first, and less important, is to back up the information and the software, so that a comparison with the updated information can be conducted.

The second step, and the most critical, is that the counties using voting machines capture a “Forensic Image” of the software prior to updates. Since most election’s folks are probably no more computer savvy than I am, they may not know how to capture a “forensic image”, and may not know of anyone who can do this for them. There is also the likelihood that they may attempt to have this done, with the result being that the attempt is unsuccessful, despite their best efforts to do it right. Thus, it would be much safer to have the counties forego any updates, to preserve the current code in the machines.

Brad Tschida (HD-97) letter to Secretary of State. August 13, 2021.

Six Montana legislators, including Tschida, attended a cyber security conference on election integrity organized by Mike Lindell this week. The conference featured cyber security experts, election data analysts, and testimony from election workers and administrators regarding cyber security infrastructure related to US elections.

At the conference on Wednesday, Theresa Manzella (SD-44) called for a special session of the Montana Legislature to, “write the legislation, and the election process and the audit process” needed to perform a forensic audit of Montana elections. Thursday morning, Bob Phelan (HD-36) joined Manzella’s call to convene a special session.

Tschida’s letter closed with a warning that delaying notifications to county elections administrators regarding election software updates could result in the loss of critical election records and open elections administrators to potential civil or criminal charges.

“A delay in sending out this message to elections’ officials, by even 1 day, may very well result in the loss of information that is required to be maintained and preserved, under state and federal law. Therefore, I strongly encourage you to send this message out today to all county elections officials, so that no one involved in elections in Montana may run afoul of election laws, potentially putting themselves in the path of civil or criminal charges,” Tschida closed his letter.