Wednesday, July 27, 2011

Colorado's non-transparent and unverifiable election system won't cut it in '12

July 14, 2011                      

Mr. John Hickenlooper, Governor
Ms. Dianne Ray, Auditor
Mr. John Suthers, Attorney General
Mr. Walker Stapleton, Treasurer
Mr. Scott Gessler, Secretary of state
Mr. Scott Doyle, President of Colorado County Clerks Association
Mr. Brandon Shaffer, President of the Senate
Mr. Frank McNulty, Speaker of the House 

Dear Honorable Colorado Officials: 

We see dark clouds gathering over Colorado’s election systems.  Officials are not fulfilling their positions of public trust and are compromising the very foundation of our government – free and open elections. 

Time after time Colorado election officials have refused to produce for public analysis the data needed to detect election error and fraud.  Officials responsible for enforcement ignore, provide cover, explain away, or outright excuse material errors and violations committed by themselves, other officials, and vendors.

Inadvertently sometimes, but other times purposefully, public officials circumvent and weaken election statutes and rules, increase the likelihood of election error and fraud, and make it more and more difficult for the public to verify that the election outcomes are correct.  Also, rulemaking and complaint processing procedures have been established that are self-serving and altogether unfair to the public.

This letter intends to draw your personal attention to Colorado’s defective election systems.  We seek your leadership in setting a high priority agenda to devise and implement immediate and long term remedies.  As a key official you can speak out in behalf of the public and draw attention to the problems.  And you can recruit talent suitable to the task of addressing these problems.

This is urgent.  With the highly contested 2012 election season already underway, it is vital that changes needed to protect the integrity of this election be devised, implemented and enforced.  The stakes are high.  Emotions are high.  There is a risk that a “win whatever it takes attitude” will encourage voter intimidation, vote selling, voter impersonation and other inappropriate activity.

Most of you have successfully navigated the election system so you are likely to be “generally satisfied” with the process.   We, who have studied this system in detail for many years, are “strongly not satisfied”.

We are a multi-partisan group.  We do not collaborate on election contests.  Instead, we collaborate on oversight and improvement of the election process itself. 

We have served as canvass board members, election judges, and poll watchers.  We are highly knowledgeable active participants in: election rulemaking, election lawmaking, best election practices development, election complaint processing, post-election audit, election and open records litigation, and election system certification and testing.  As a group, we have considerable technical and election expertise.

 After more than a decade of work, we have observed a disturbing increase in the likelihood of a major election problem and a simultaneous decrease in the rights of citizens to verify election processes and results.  If enough people do not trust election outcomes, there is no telling what might happen.

Unless current trends are reversed, we anticipate a massive loss of public confidence in election results and government officials.

The upcoming 2012 General Election is expected to be vigorously fought and highly emotional.  Some see this election determining the fate of our nation.  The stakes are exceptionally high.  Requiring your immediate attention are at least the following issues:

1.       Restrictions on private meetings of officials (electronic and/or in-person) when public business is discussed as required by the Colorado Open Meetings law C.R.S. § 24-6-401 & 402.

2.       Disallowing the use of public funds for private meetings, lobbying, and promotion.

3.       Appointment of truly independent (non-conflict of interest) and technically competent bodies to create election rules and to judge election complaints.

4.       Appointment of truly independent (non-conflict of interest) bodies with the technical competence to monitor, report, and enforce government and public compliance with election statutes and rules.

5.       Establish, measure, and enforce compliance with precise, quantifiable standards for all election processes including , but not limited to:

ü  “timely public access to all election records and processes with the exception of the identity of which voter cast which ballot”,

ü  “strict compliance with the “anonymity” intent of Colorado Constitution Article VII, Section 8”,

ü   “enforceable standard for assessing substantial compliance’’,

ü  and, publicly-verifiable voting system certification, canvass, recount, audit, test, identity verification, eligibility verification, ballot control, voter intent, poll watching, open records, and records retention.

When your contestant wins you accept the results.  But what if they lose and you don’t believe it?  
What better remedy than transparent election systems will enable the public to actually verify for themselves that election processes and results are fair and accurate?  And research potential system improvements?

The voters of Colorado desperately need your help.  We must not allow Colorado to be embarrassed in front of the nation by displaying on television our inferior non-transparent and unverifiable election systems. 

Can we count on you to adopt a high priority agenda to devise and implement immediate and long term remedies?  We would like to meet with you to provide details and to discuss potential solutions.

Al Kolwicz
for, Colorado Voter Group


This letter was published in the July 22, 2011 edition of the Colorado Statesman.

Sunday, July 24, 2011

2012 National Election Fiasco in Colorado?

The 2012 elections are big news, but the media are not reporting Colorado's potential role in a national election fiasco.

Those who understand election equipment and procedures warn that Colorado elections cannot withstand close scrutiny. We call for changes to prevent humiliation if the national press attempts to verify Colorado's election returns.

If Colorado were an "emerging democracy," the Carter Center would reject calls to monitor our elections because we fail to meet their minimum transparency standards.

If a national contest is decided by Colorado's vote, as Bush/Gore was by Florida, press everywhere will severely criticize the "Wild West" elections in some Colorado counties.

Surely the most mistake-ridden election in recent Colorado history has received little attention, although it is Colorado's "canary in the coal mine" of elections. A statewide grand jury report declared that numerous irregularities are routine in Colorado and therefore not subject to legal remedies. Many problematic election activities not viewed as blatantly fraudulent are deemed "substantially compliant" and therefore free from enforcement.

Do the following examples from Saguache County's November 2010 election for governor, senator and local races satisfy you as "good enough for government work"?

After a bipartisan citizens' canvass board refused to certify election results due to irregularities, the clerk unilaterally issued a certificate of election renewing her own job.

Improperly purchased, uncertified, untested and unsecured voting equipment failed the post-election audit, yet its tabulations were deemed "official." A canvass board's reasonable attempt to hand count was blocked by the secretary of state, in favor of the suspect machine counts.

Surveillance videos of equipment operations were deleted after a reporter filed a Colorado Open Records Act request.

The election night results showed that two incumbents lost. The clerk then conducted an unsanctioned new tabulation three days later that returned the incumbents to power.

The clerk destroyed most election night paper records and refuses to release electronic copies of election data, claiming they are a manufacturer's proprietary records.

Secretary of state staff initially boasted that they verified the new revised tabulation. But, when shown they weren't present to verify the tabulations, they claimed that a new count had not actually occurred, despite proof to the contrary.

The clerk mailed unsolicited ballots to selected voters for a controversial tax measure. At least four ineligible voters were permitted to vote on the tax increase. The measure unofficially passed by one vote, although the canvas board would not confirm the questionable tabulation. Taxes were increased despite the obvious uncertainty.

When the secretary of state ordered a ballot review, the clerk refused. He then sued her and the court has yet to issue a decision. The clerk continues to refuse access by public, press and secretary of state to the records required to verify or contest the election.

The public and the press investigated the uncertain Bush/Gore ballot tallies. That will not happen in most Colorado counties where election officials are closing doors to citizen oversight.

Transparency advocates are waiting for the Court of Appeals to decide if Colorado's law on public access to anonymous ballots is as open as in other states. In the meantime, egregious election irregularities are officially "substantially compliant" in Colorado.

Contact your state officials and demand that they abandon subpar standards and shore up Colorado's election code. The nation's voters expect nothing less of Colorado.

Marilyn Marks, Unaffiliated, Aspen
Harvie Branscomb, Democrat, Carbondale
Al Kolwicz, Republican, Boulder

Submitted to the Denver Post for publication in the July 24, 2011 edition.

Sunday, April 10, 2011

Trust, but verify

The Colorado County Clerks Association wants elections to be trusted but not publicly verified.

Exploiting a controversy surrounding Saguache County election records, the Association argued its case in a March 25th Denver Post guest editorial.

Disturbingly, most of the Association’s arguments are false and misleading – see “Protect the integrity of voters' ballots”.

The Association asserts that Secretary of State Scott Gessler has proposed an “unprecedented … review of ballots.” This is not true. The Secretary carried out a similar review after the November 2003 election in Garfield County. And in August 2010 election integrity advocates physically inspected and obtained photocopies of El Paso County election records (including ballots).

The Association repeatedly, and falsely, asserts that ballots are “private”. This assertion has no basis in law or in logic. Voters privately mark their ballots but once cast the ballots are anonymous and public.

There must be no way for anybody, including government officials and the voter themselves, to prove who cast which ballot.

Once cast, the anonymous ballots are required to be publicly, not privately, interpreted and counted to determine the election results.

The clerk’s Association claims that ballots are “sacred”. What does this even mean?

The Association asserts that ballots are “secretly cast”. That is false and the opposite of what the law requires. If ballots were secretly cast, there would be no way to prevent ineligible ballots.

The Association falsely asserts that Mr. Gessler would allow “cast ballots” to be transported anywhere. What has been discussed is that Saguache election officials provide suitable space for a team to carefully and openly inspect the election records.

Surely the clerks know that record custodians are required to facilitate public inspection of public records and to provide copies of these records?

Finally, the Association asserts that it is Colorado’s official keeper of election integrity. In fact, nothing can be further from the truth.

The Colorado County Clerks Association is a secret private group that circumvents Colorado’s Sunshine Laws, uses paid lobbyists, refuses public observers at their meetings, may be diverting public resources to their own needs, and develops government policy behind closed doors with no opportunity for public debate.

Mr. Gessler appears to be standing up for the rights of the public to verify public elections. If so, we applaud his efforts.
 
BACKGROUND


March 17, 2011
Gessler sues for access to Saguache ballots
http://www.denverpost.com/search/ci_17631528

March 17, 2011
Editorial: Saguache review is valid
http://www.denverpost.com/search/ci_17629283

March 25, 2011
Guest Commentary: Protect the integrity of voters' ballots
http://www.denverpost.com/search/ci_17694150

March 26, 2011
Carroll: Counting ballots in the dark
http://www.denverpost.com/search/ci_17702592

March 30, 2011
Guest Commentary: Gessler standing up for the public on ballots
http://www.denverpost.com/opinion/ci_17728021#ixzz1I5UlILxB

March 31, 2011
Trust, but verify.
Center Post-Dispatch

April 1, 2011
Trust, but verify – County Clerks Association, please take note
http://www.coloradostatesman.com/content/992704-trust-verify-%3F-county-clerks-association-please-take-note

Saturday, November 27, 2010

Illegal 6-foot barrier blocks Colorado poll watchers

From: Al Kolwicz
Sent: Saturday, November 27, 2010 11:17 AM
To: 'Marilyn R Marks'; 'judd.choate@sos.state.co.us'

Subject: RE: Urgent Action Required to Lift Unfair 6 foot rule policies in Saguache

Marilyn, Judd,

It troubles me that an illegal 6-foot barrier is being referred to as a “six foot rule”.

In the first place, as we all know, there is no such rule.

In the second place, the 6-foot barrier is illegal. The illegal 6-foot barrier restricts poll watchers in a way that blocks poll watchers from exercising their rights under “C.R.S. 1-7-108(3) Each watcher shall have the right to maintain a list of eligible electors who have voted, to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results, to challenge ineligible electors, and to assist in the correction of discrepancies.”

I ask that you cease referring to the illegal 6-foot barrier as a “six foot rule” and suggest that you refer to the “6-foot barrier”, or “illegal 6-foot barrier”.

Al Kolwicz
Colorado Voter Group

Saturday, October 16, 2010

We need your help!

We need your help!

The Colorado Attorney General’s office has issued an opinion (October 15th email below) that, if left unchallenged, would essentially shut down independent oversight of elections.

I encourage each of you to intensify your efforts to ensure that Colorado elections are independently verifiable by the public. If we fail, we are one step closer to widespread election fraud and error.

Remember that the Attorney General is the attorney for the Secretary of State – not the people’s Attorney General.

There are three sections below. Please take time to read thru them. Then share your ideas. We must act promptly.

1. October 15th email from Attorney General’s office

2. My annotations to the AG’s email.

3. My notes regarding Colorado’s statutes and election rules
Al Kolwicz
Colorado Voter Group
http://www.coloradovotergroup.org/
http://coloradovotergroup.blogspot.com/






October 15th email from Attorney General’s office


From: Judd Choate [mailto:Judd.Choate@SOS.STATE.CO.US]
Sent: Friday, October 15, 2010 9:11 AM
To: Marilyn R Marks
Cc: attorney.general@state.co.us; Harvie Branscomb; Al Kolwicz; joseph richey
Subject: RE: opinion on poll watching

Here is what Maurice Knaizer, the Deputy Attorney General, sent me last night regarding the six foot rule. If you would prefer that he put this on a letterhead, I’m sure that can be accomplished.

Poll Watchers have asked whether they may witness activities of election officials involving voting equipment, voting booths and the ballot boxes within six feet of such equipment, booths and boxes when a voter is not present. The Department of State has concluded that watchers may not be permitted within six feet of the equipment, booths and ballot boxes even when a voter is not present.

Section 1-5-503 provides:

"The voting equipment or voting booths and the ballot box shall be situated in the polling place so as to be in plain view of the election officials and watchers. No person other than the election officials and those admitted for the purpose of voting shall be permitted within the immediate voting area, which shall be considered as within six feet of the voting equipment or voting booths and the ballot box, except by authority of election judges or the designated election official, and then only when necessary to keep order and enforce the law"

This section does not contain any temporal limitations It covers activities, such as casting of ballots, counting of ballots and recounts, that occur during the election process. It also covers all locations where equipment or ballot boxes may be placed while ballots are being cast or counted. If a ballot box is moved from one location in a polling place to another, the six foot buffer would apply to the second location. Ballots themselves are also covered because the primary purpose of this section is to protect the integrity of the ballot and preserve the secrecy of the ballot. Allowing persons other than designated election officials or their agents to come closer to the equipment, booths or ballot boxes increases the likelihood that a watcher with malevolent intent could corrupt the election process. Any potential disadvantage to the watcher is mitigated by the requirement that the equipment, booths and ballot boxes must be "in plain view."

For these reasons, I concur with the Secretary's interpretation.

Maurice Knaizer

Kolwicz annotations to the AG’s email.


1. The statement of the issue is ill-formed, and will result in a fuzzy response. It is sort of a “straw-man”. It restricts the issue to one that might be answered by 1-5-503. We have actually asked for much more transparency, and never asked to see what is happening in the immediate area of the voting booth or see the content of non-anonymous ballots.

Poll Watchers have asked whether they may witness activities of election officials involving voting equipment, voting booths and the ballot boxes within six feet of such equipment, booths and boxes when a voter is not present. The Department of State has concluded that watchers may not be permitted within six feet of the equipment, booths and ballot boxes even when a voter is not present.
2. The citation, by Knaizer, of 1-5-503 is faulty in that it refers only to the polling place, and not to all of the other election activities. Also, it is clear to me that the intent is to protect the privacy of the voter and the anonymity of the ballot. Once the ballot is cast it must be, by constitution and statute, anonymous.

Section 1-5-503 provides:

"The voting equipment or voting booths and the ballot box shall be situated in the polling place so as to be in plain view of the election officials and watchers. No person other than the election officials and those admitted for the purpose of voting shall be permitted within the immediate voting area, which shall be considered as within six feet of the voting equipment or voting booths and the ballot box, except by authority of election judges or the designated election official, and then only when necessary to keep order and enforce the law"
3. Knaizer conveniently eliminates all of the other, many, statutes and election rules related to this topic. I have scraped many of these in the synopsis below.

4. Knaizer then goes on and creates, on his own initiative, an extensive expansion of the written law.

This section does not contain any temporal limitations It covers activities, such as casting of ballots, counting of ballots and recounts, that occur during the election process. It also covers all locations where equipment or ballot boxes may be placed while ballots are being cast or counted. If a ballot box is moved from one location in a polling place to another, the six foot buffer would apply to the second location. Ballots themselves are also covered because the primary purpose of this section is to protect the integrity of the ballot and preserve the secrecy of the ballot. Allowing persons other than designated election officials or their agents to come closer to the equipment, booths or ballot boxes increases the likelihood that a watcher with malevolent intent could corrupt the election process. Any potential disadvantage to the watcher is mitigated by the requirement that the equipment, booths and ballot boxes must be "in plain view."
It appears to me that Mr. Knaizer’s response is political rather than legal, and should be challenged immediately.


Kolwicz notes regarding Colorado’s statutes and election rules.

The reason that watchers need to get within 6 feet of computer screens, cast ballots, and various other election information is so that watchers, who are trying to accomplish their statutory rights, can actually “see” and “hear” what is going on. We have no interest in seeing the computer screens or the issued-but-uncast ballot seen by the elector as he marks, verifies, and casts an anonymous ballot.

I have clipped pertinent sections of our statutes and rules below. Any reasonable reading will conclude that watchers are expected to have access to election data including who is voting, how the votes on a ballot are interpreted, and how the votes on a ballot are counted.

The public depends on independent oversight (watchers) because watchers can discover errors that might otherwise get missed or covered up, and to prevent official misdeeds. It is not difficult to understand that there are often measures on the ballot that affect the jobs and pay of government officials. (Officials often have “a horse in the race”.) In Colorado counties, election officials can choose their own people for mail-in, early, and provisional ballot processing, and for all vote counting. In many cases these people are government employees. Sometimes key processes of the election are performed by sub-contractors, some of which may be offsite, or even out of state.

With the exception of voter privacy issues outlined above, watchers need both real-time access to the data in every election process, including anonymous cast ballots, and post election access to all election data computer files.

We trust the officials, but, since they are human, and to obtain certainty, we must verify.

Al


1-1-104. Definitions. (51) "Watcher" means an eligible elector other than a candidate on the ballot who has been selected by a political party chairperson on behalf of the political party, by a party candidate at a primary election, by an unaffiliated candidate at a general, congressional vacancy, or nonpartisan election, or by a person designated by either the opponents or the proponents in the case of a ballot issue or ballot question.

1-7-108. Requirements of watchers. (1) Watchers shall take an oath administered by one of the election judges that they are eligible electors, that their name has been submitted to the designated election official as a watcher for this election, and that they will not in any manner make known to anyone the result of counting votes until the polls have closed.

(2) Neither candidates nor members of their immediate families by blood or marriage to the second degree may be poll watchers for that candidate.

(3) Each watcher shall have the right to maintain a list of eligible electors who have voted, to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results, to challenge ineligible electors, and to assist in the correction of discrepancies.

1-7-307. Method of counting paper ballots. (4) All persons, except election judges and watchers, shall be excluded from the place where the ballot counting is being held until the count has been completed.

1-7-507. Electronic vote-counting - procedure. (1) All proceedings at the counting centers shall be under the direction of the designated election official and the representatives of the political parties, if a partisan election, or watchers, if a nonpartisan election. No persons, except those authorized for the purpose, shall touch any ballot, ballot card, "prom" or other electronic device, or return.

1-7.5-107.5. Counting mail ballots. The election officials at the mail ballot counting place may receive and prepare mail ballots delivered and turned over to them by the designated election official for tabulation. Counting of the mail ballots may begin fifteen days prior to the election and continue until counting is completed. The election official in charge of the mail ballot counting place shall take all precautions necessary to ensure the secrecy of the counting procedures, and no information concerning the count shall be released by the election officials or watchers until after 7 p.m. on election day.

1-8-109. Watchers at mail-in polling places. Any political party, candidate, or proponents or opponents of a ballot issue entitled to have watchers at polling places shall each have the right to maintain one watcher in the office of the designated election official and mail-in polling places during the period in which mail-in ballots may be applied for or received.

1-8-206. Watchers at early voters' polling places. Any political party, candidate, or proponents or opponents of a ballot issue entitled to have watchers at polling places shall each have the right to maintain one watcher at the early voters' polling place during the casting and counting of early voters' ballots.

1-8-208. Manner of early voting. (1) An eligible elector who receives an early voters' ballot may cast the ballot in the early voters' polling place, as provided in this part 2. Ballot boxes for early voting shall be locked and sealed each night with a numbered seal under the supervision of the election judges or watchers, and the keys shall remain in the possession of the designated election official until transferred to the supply judge for the mail-in and early voters' counting place for preparation for counting and tabulating pursuant to section 1-8-303. When a seal is broken, the designated election official and a person who shall not be of the same political party as the designated election official shall record the number of the seal and maintain the seal along with an explanation of the reasons for breaking the seal.

1-9-201. Right to vote may be challenged. (1) (a) A person's right to vote at a polling place or in an election may be challenged.

(b) If a person whose right to vote is challenged refuses to answer the questions asked or sign the challenge form in accordance with section 1-9-203 or take the oath pursuant to section 1-9-204, the person shall be offered a provisional ballot. If the person casts a provisional ballot, the election judge shall attach the challenge form to the provisional ballot envelope and indicate "Challenge" on the provisional ballot envelope.

(2) An election judge shall challenge any person intending to vote who the judge believes is not an eligible elector. In addition, challenges may be made by watchers or any eligible elector of the precinct.

(3) A challenge at a polling place shall be made in the presence of the person whose right to vote is challenged.

1-10-101. Canvass board for partisan elections - appointment, fees, oaths. (1) (a) At least fifteen days before any primary, general, congressional vacancy, or special legislative election, the county chairpersons of each of the two major political parties in each county shall certify to the county clerk and recorder, in the manner prescribed by such clerk and recorder, the appointment of one or more registered electors to serve as a member of the county canvass board. The appointees, together with the county clerk and recorder, constitute the county canvass board. Each minor political party whose candidate is on the ballot and each unaffiliated candidate whose name is on the ballot in such election may designate, in the manner prescribed by such clerk and recorder, one watcher to observe the work of the county canvass board.



1-10.5-102. Recounts for congressional, state, and district offices, state ballot questions, and state ballot issues. (1) If the secretary of state determines that a recount is required for the office of United States senator, representative in congress, any state office or district office of state concern, any state ballot question, or any state ballot issue certified for the ballot by the secretary of state, the secretary of state shall order a complete recount of all the votes cast for that office, state ballot question, or state ballot issue no later than the twenty-fifth day after the election.

(2) The secretary of state shall notify the county clerk and recorder of each county involved by registered mail and facsimile transmission of a public recount to be conducted in the county at a place prescribed by the secretary of state. The recount shall be completed no later than the thirtieth day after any election. The secretary of state shall promulgate and provide each county clerk and recorder with the necessary rules and regulations to conduct the recount in a fair, impartial, and uniform manner, including provisions for watchers during the recount. Any rule or regulation concerning the conduct of a recount shall take into account the type of voting system and equipment used by the county in which the recount is to be conducted.

1-13-702. Interfering with watcher. Any person who intentionally interferes with any watcher while he is discharging his duties set forth in section 1-7-108 (3) is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

1-13-712. Disclosing or identifying vote. (1) Except as provided in section 1-7-108, no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting.

(2) No person shall endeavor to induce any voter to show how he marked his ballot.

(3) No election official, watcher, or person shall reveal to any other person the name of any candidate for whom a voter has voted or communicate to another his opinion, belief, or impression as to how or for whom a voter has voted.

(4) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

1-13-718. Release of information concerning count. Any election official, watcher, or other person who releases information concerning the count of ballots cast at precinct polling places or of mail-in voters' ballots prior to 7 p.m. on the day of the election is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.
ELECTION RULES
8.7 What Watchers May Observe. Duly appointed Watchers may observe polling place voting, early voting and the processing and counting of precinct, provisional, mail, and mail-in ballots. For mail ballot elections, or mail-in ballot processing, watchers may be present at each stage of the election including the receiving and bundling of the ballots received by the designated election official. Watchers may be present during provisional ballot processing but may not have access to confidential voter information.

8.8 Limitations of Watchers. Duly appointed Watchers may observe election judges but may not interrupt or disrupt the processing, verification and counting of any ballots or any other stage of the election. Watchers may track the names of electors who have cast ballots by utilizing their previously obtained lists, but may not write down any ballot numbers or any other identifying information about the electors. Watchers may not handle the poll books, official signature cards, ballots, mail ballot envelopes, mail-in ballot envelopes or provisional ballot envelopes, voting or counting machines or machine components. Watchers shall not interfere with the orderly process and conduct of any election, including ballot issuance, receiving of ballots, voting or counting of the ballots. Watchers may not be allowed to interact with election officials or election judges, except that each designated election official shall name at least one individual in each precinct polling place or election location to whom Watchers may direct questions or from whom watchers may seek requested information.

Friday, May 14, 2010

Pollbook 101

To Aspen Election Commission
 
I have clipped some sections from Title 1, and created a paper demonstration of how a pollbook works.


If you follow these procedures you should be on firm ground. You will have anonymous ballots and be able to consider release of same to the public. If you start afresh, I suggest that you use a public forum to do so, because of side effects that you might not personally know about. Off-hand I am unaware of anything in Title 31 that would prevent you from adopting these recommendations.

I believe that there is an advantage to maintaining a pollbook as a sequential list of the electors who were issued ballots.

Each row of the list should contain the row number, the name/voter_ID of the elector, and the serial number on the ballot stub that was issued to the elector. Space needs to be provided for issuing replacement ballots (up to three).

• When a person is determined to be an eligible elector they are admitted to the voting area.

• When a ballot is issued, the row is completed by the issuing judge.

• Before the ballot is cast, the stub containing the serial number, is removed and retained as an election record.

• When the ballot box is opened, the ballots are shuffled.

• Before the ballots are copied, a new unique identifier is recorded on the original ballot. This identifier will appear in any copies and can be used to (a) specifically identify the original ballot, and (2) appear as a field in Cast Vote Records.

This procedure preserves the data needed to audit the election AND it strictly preserves voter privacy by using an anonymous ballot.

The sequential pollbook has advantages:

1. It supports the needs of GOTV pollwatchers. Electronic pollbooks do not. Use of the registration list as a pollbook requires that the pollwatcher flip through the registration list to locate “their” voters.

2. In larger counties, or vote centers, or other multi-precinct polling locations, it reduces the amount of searching by pollwatchers for “their voters”. Presently pollwatchers are limited.

3. It supports the needs of election officials (including the canvass board) to promptly audit the election. One can tell immediately how many voters voted (for example), and how many ballots were issued.

4. It facilitates preparation and verification of vote history records that record which electors voted using which voting method.

Imagine the following pollbook.

See how easy it is to know how many ballots are supposed to be in the Ballot Box.

Also, this makes it easy to determine the number of spoiled and unused ballots.

The use of ballot stubs does not require that the ballots be issued in sequence number order.

Some counties do have voters sign the registration book. But, this is inconvenient for both the poll watchers and the officials. And, it is error prone to count the voters – especially when one considers the provisional, emergency, etc. special cases. Some electors names are not in the registration book.

Polling Location ABC Ballot Styles: S01 S02

Voter..Name...................ID............1stBallot#....2ndBallot#....3rdBallot#....LastBallot#

1 ........Mike LaBonte..... 70851........S01-0001

2 ........Marilyn Marks..... 8020156...S01-0002...S01-0005

3 ........Harvie Branscomb.643201....S01-0003

4 ........Al Kolwicz ...........5572463 ..S01-0004

5........ Elizabeth Milas.....20744432 .S02-0001

6.........Bob Leatherman ..8012247... S01-0006

7 ........Ward Hauenstein 77443322...S02-0002


Following is a selective set of items from the CRS. I think that it nearly supports my recommendation for maintaining sequential list for a pollbook.

The “post-cast” ballot shuffling and numbering recommendation is something that is not directly required in current law, but would help. To my knowledge, there is nothing in Title 1 that would disallow either. Shuffling would help achieve the required anonymity, so I think that it would survive debate. Post-cast numbering would help achieve a more vigorous post election audit, so I think that it would survive debate.



Selections from TITLE 1 C.R.S.

1-1-104. Definitions.

(27) "Pollbook" means the list of eligible electors who are permitted to vote at a polling place or by mail ballot in an election conducted under this code.

(36) "Registration book" means the original elector registration records for each county retained and stored by one of the following methods:

(a) On registration records by precinct in bound books arranged alphabetically for all active and all inactive registrations with all withdrawn and canceled registrations kept in separate bound books or on film; or

(b) On film and computer with access to the registration records available both alphabetically and by precinct. The system shall have the capability to print out active and inactive registration records, to retain the voting history for each active and inactive registration by surname, and to film completed voter signature forms by precinct for each election. Computer lists of registration records shall be furnished for use at the precinct polling places on election days.

1-7-109. Judges to keep pollbooks. (1) The election judges shall keep a pollbook which shall contain one column headed "names of voters" and one column headed "number on ballot". The name and the number on the ballot of each eligible elector voting shall be entered successively under the appropriate headings in the pollbook.

1-7-302. Electors given only one ballot. Election judges shall give to each eligible elector a single ballot, which shall be separated from the stub by tearing or cutting along the perforated or dotted line. The election judge having charge of the ballots shall endorse his or her initials on the duplicate stub.

Another election judge shall enter the date and the number of the ballot on the registration record of the eligible elector before delivering the ballot to the eligible elector. The election judge having charge of the pollbook shall write the name of the eligible elector and the number of the ballot on the pollbook.

1-7-305. Counting by counting judges.

(3) When an exchange of ballot boxes is made as described in subsection (2) of this section, the receiving judges shall sign and furnish to the counting judges a statement showing the number of ballots that are to be found in each ballot box as indicated by the pollbooks. The counting judges shall then count ballots in the manner prescribed in section 1-7-307.

1-7-307. Method of counting paper ballots. (1) The election judges shall first count the number of ballots in the box. If the ballots are found to exceed the number of names entered on each of the pollbooks, the election judges shall then examine the official endorsements. If, in the unanimous opinion of the judges, any of the ballots in excess of the number on the pollbooks are deemed not to bear the proper official endorsement, they shall be put into a separate pile and into a separate record, and a return of the votes in those ballots shall be made under the heading "excess ballots". When the ballots and the pollbooks agree, the judges shall proceed to count the votes.

1-7-502. Elector given only one ballot or ballot card. An election judge shall give to each eligible elector only one ballot or ballot card, which shall be removed from the package by tearing it along the perforated line below the stub. The election judge having charge of the pollbook shall write the name of the eligible elector and the number of the ballot or ballot card upon the pollbook.

1-7-505. Close of polls - count and seals in electronic voting.

(2) In precincts in which voting is on a ballot or ballot card, election judges shall prepare a return in
duplicate showing the number of eligible electors, as indicated by the pollbook, who have voted in the
precinct, the number of official ballots or ballot cards received, and the number of spoiled and unused
ballots or ballot cards returned. The original copy of the return shall be deposited in the metal or durable plastic transfer box, along with all voted and spoiled ballots. The transfer box shall then be sealed in such a way as to prevent tampering with the box or its contents. The designated election official shall provide a numbered seal. The duplicate copy of the return shall be mailed at the nearest post office or post-office box to the designated election official by an election judge other than the one who delivers the transfer box to the designated counting center. For partisan elections, two election judges of different political affiliations, as provided in section 1-6-109.5, shall deliver the sealed transfer box to the counting center designated by the county clerk and recorder.

Tuesday, May 04, 2010

Aspen - Both transparency and trustworthy elections are required. There can be no tradeoff.

May 4, 2009


TO:  Aspen Independent Election Commissioners

Dear Commissioners Hauenstein and Leatherman

I am writing in regard to tomorrow’s Election Commission meeting. Please permit me to first introduce myself. I have lived and worked in Colorado since 1966. For more than a decade, I have worked to improve Colorado’s election system. I am a Trustee and co-founder of Colorado Voter Group. I have served on multiple Boulder County Canvass Boards and voting equipment test boards. I have actively participated in Colorado’s equipment certification process, and contributed to the development of election rules, and have testified numerous times before state and local governmental bodies. I have testified in court as an expert witness on election system matters. I have closely monitored with much interest Aspen’s May 2009 election and its follow on activities. I have worked closely with Nick Koumoutseas of TrueBallot, the vendor whose system was used in the election. I have had a private demonstration of the TrueBallot system including a description of the database tables and macros, and the software used to capture, interpret and correct votes. I have also explored the software used to calculate the selection of the winners. In addition, I have analyzed the database and strings, as well as the first-pass vote interpretations published by Aspen. I have studied Title 31 and have in-depth knowledge of Title 1, the Colorado Election Rules, and Colorado Constitution Article VII Section 8.

My interest in the May 2009 election is due to the ranked choice methodology used for the election. The Colorado legislature has instructed the Secretary of State to prepare a report of Colorado IRV experience by February 2011. As of now, it appears that Aspen’s will be the only Colorado IRV election completed before the report deadline. I hope that by detailed analysis of this election we can make a significant contribution to the Secretary of State’s report to the legislature. We expect this report to significantly influence future legislation.

Clean government does not just happen. The public needs protection from potentially tyrannical governments. Therefore, protection must be independent of government. It must work to serve public, not government, interests. The Aspen Election Commission should strive to become such a protector. You have statutory authority, and your tools are transparency and trustworthy elections.

Transparency means that public information is public and affordable. Government has the power, but not the right, to withhold or destroy information that might undermine its power. The Commission can and should facilitate the public’s access to all non-private election-related information.

A trustworthy election is one that can be independently verified. Voters are supposed to exercise power over government through elections. However, once elected, officials wield an awesome power that can be turned against the public. Officials, through appointments and laws, can hide and misrepresent information and events. And, unmonitored, officials can rig elections in order to pick the winners. The Commission can and should do all in its power to give people access to the all of the information needed to independently verify elections.

In 1946, Coloradoans voted for a constitutional amendment to reject the “trust government” approach. (See attached report, 1946 Ballot Issue No. 1.) Until then, Colorado ballots were voter-identifiable; each ballot was linked to a specific voter. Now, cast ballots must be anonymous – that is, there must be no way for anybody (including government, election judges, even the voters themselves) to be able to determine who voted which ballot. The 1945 amendment also requires voting in private – that is, there must be no way for anybody other than the voter to see what choices the voter is marking on their ballot.

Anonymous ballots and private voting are now the law in Colorado. Creating information that could have been used to connect voters and ballots is now illegal. Information that can be used to prove how a person voted must never be created.

Voter-identifiable ballots could be used to support directed product marketing, fundraising, and electioneering activities. Anonymous ballots and private voting are our protections against intimidation and vote selling. Government employers with access to voter-identifiable ballots can punish employees that do not vote as told. Officials can leak or even sell this information to others who can similarly punish those who do not vote as told. Jobs, promotions and raises can be withheld. Contracts can be withheld or even withdrawn. Housing opportunities or permits can be denied. A market for vote selling is created. Buyers can verify, or plausibly threaten to verify, that “what they bought is what they got”.

Aspen officials have admittedly violated the law. They created and operated an election system that does not provide for anonymous ballots.

1. Their violation is now being exploited by these same officials in their efforts to justify their refusal to produce election records in response to an open records request.

2. There is no public effort underway to enforce the anonymous ballot requirement for future elections.

3. There is no public effort underway to identify and hold accountable those responsible for the violation.
To restore voter confidence in Aspen elections, I recommend that the Commission:

1. Using your legal authority, assert your independence and your intent to represent the public.

2. Define, adopt, and implement a policy of strict compliance with requirements for open election records including, but not limited to, copies of: (a) pollbooks, (b) ballots, and (c) the interpretation of the votes on each ballot.

3. Define, adopt, and implement a policy of strict compliance with requirements for anonymous ballots, private voting, open election records, and trustworthy elections.

4. Reproduce and shuffle copies of the May 2009 ballots and make these PDF files or photocopies available for open records requests.

5. If there are ballots that you believe contain voter-identifiable information, (a) create a team that includes someone who is free from government influence, (b) swear the team as election judges, and (c) instruct them to make anonymous replacement ballots by hand-duplicating these ballots before they are copied.

6. Refer the officials suspected of the anonymous ballot violation to law enforcement.
Both transparency and trustworthy elections are required. There can be no tradeoff.

Good things happen when election records cannot be used to determine a voter’s votes. Copies of pollbooks and ballots can be published for public inspection, as can the interpretation of each and every vote on each and every ballot. The public can verify for itself that the correct ballots were included in the count, and that each vote was correctly interpreted and counted. Although not a complete verification that an election is trustworthy, it is a very important first step.

I am available to discuss these matters with you more fully. And I most sincerely hope that you will accept these recommendations.

Yours truly,


Al Kolwicz

Trustee, Colorado Voter Group


1946 BALLOT ISSUE NO. 1 – Referred

The right to vote using an anonymous ballot was created by the people of Colorado when they adopted a referred amendment to the Colorado Constitution. A brief history follows.

Article VII, Sec. 8 of the 1876 Constitution says:
All elections by the people shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number be recorded by the election officers on the list of voters opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to enquire or disclose how any elector shall have voted. In all cases of contested elections, the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law.
On November 7, 1946, an election was held in which there was a contest to adopt an amendment to the Colorado Constitution. As follows:

1946 BALLOT ISSUE NO. 1 – Referred

TITLE - Amendment to Article VII of the Constitution of the State of Colorado providing for secret ballots
The Rocky Mountain News opposed the amendment in its editorial of November 2, 1946, saying:

Reject the Amendments

Both the proposed amendments referred to the people by the last General Assembly are dangerous and should be voted down.

Amendment No. 1 rules out the use of numbered ballots. The aim is to protect the secrecy of the ballot. If adopted, however, this proposal would make virtually impossible the tracing of ballots and would prevent the investigation of election frauds, such as is now underway in Kansas city. The disadvantages would far outweigh the advantages.

According to a report, Legislative Council Staff to Interim Committee on Judiciary, August 11, 1977, the 1946 Amendment No. 1 was passed by the following vote:

FOR 118,470 (56%)
AGAINST 92,203 (44%)
TOTAL 210,673

The Secret Ballot Amendment was put into law by the 1947 General Assembly:

HB47-0248 – ELECTIONS – Amends present statutes to provide for putting into effect the amendment to the constitution of the state providing for a secret ballot. April 22, 1947. (From Digest of Senate and House Bills Enacted by the 36th General Assembly of the State of Colorado (1947 Regular Session - http://www.state.co.us/gov_dir/leg_dir/olls/PDF/digest1947.pdf )
I have not researched the Denver Post or news articles before November 1946. Nor have I researched the actual language of the General Assembly in 1946 that adopted the referred measure or 1947 that adopted HB47-0248. These documents are available at CU Norlin and the Legislative Council.

There is no ambiguity in what Article VII Sec. 8 means. Prior to November 1946 ballots were given serial numbers. After November 1946 ballots were not permitted to have serial numbers or other marks that could be used to identify the voter of a ballot. Colorado voters clearly knew what they were doing when they changed the constitution.