Some states examine voting system software, in particular the source code that provides instructions to the voting system hardware--and keep a copy in escrow--as part of that state's requirements for certification of the voting system.

Voting systems are often modified and updated. A state may require escrow to help provide a framework for ensuring that the state-approved version of a system is the one being used in actual elections locally. A prohibition on unauthorized versions of voting system software may not prevent their use, but it should provide a legal guideline which vendors – and local jurisdictions – must follow.

Such requirements vary from state to state; the requirements may not be contained in statute but instead in rules promulgated by the chief election official. For example, California's former Secretary of State was able to task the voting systems technology advisory board with review of a particular voting system component because of a rule he established that voting system vendors must escrow source code not only with a third-party escrow facility but also with the Secretary of State.

Some states establish that the software must be disclosed in certain circumstances. The conditions for such disclosure vary. In most cases, this means the state is required, or reserves the right, to examine the software to try to determine if it functions as the vendor has represented. Although the vendor must still provide the code in order to accomplish this, it is not the same as an escrow provision. For example, a state that requires disclosure of the software for the purposes of initial testing for certification may just leave it at that, and not require re-testing for every modification. In such cases, local jurisdictions could well be using different versions of the system software than that which was originally tested and approved, and no “approved version” would be escrowed.

States for which we have found escrow (or related) provisions include: Arizona, California, Colorado, Florida, Georgia, Illinois, Indiana, Minnesota, Missouri, New York, North Carolina, Texas, Utah, Wisconsin and Washington. Please see the attached PDF document "Escrow Provisions" for details and links.