SaveYour Community from Voting Fraud
Pages from one rural Colorado county’s playbook
© Copyright 2012, Teresa L. Benns (This text may be downloaded or printed out for private reading, but it may not be uploaded to another Internet site or published, electronically or otherwise, without express written permission from the author.)
The election tempest that has been brewing for over a year now in this quiet little mountain town in Southern Colorado could be a harbinger of disputed races nationwide this year if electronic voting issues are not addressed.
That is what many election reform experts and bloggers fear, after watching the escalation of voting–device-generated errors for the past 20 years. Saguache County — best known for its climbing destinations, spiritual centers and farming and ranching operations — was an unlikely candidate for the kind of election intrigue everyone thought was confined to the big city, proving that if it could happen here, it could happen anywhere.
And wherever it might happen next, it will destroy the confidence of voters and call each succeeding election into question, just as it has in Saguache.
As one election judge commented, no one really wanted to believe that their own neighbors and friends, colleagues and fellow churchgoers were anything but honest and trustworthy, even if they disagree politically. The recent scandal in this closely-knit community has shattered forever the illusions that elections are run by the book and public officials are watching out for their friends and neighbors.
So what is the real story on the 2010 Saguache election that continues to perturb county residents? It’s an open question, and after all these months, many are still convinced there will never be any reliable answers.
But despite their distrust of the system, what Saguache County voters have done should inspire the rest of the country to address vote fraud and election irregularities with the same grit this farming and ranching community mustered up, even after a statewide grand jury failed to indict the county clerk and local law enforcement declined to file on dozens of alleged misdemeanors committed in the course of the election.
Is it possible that the clerk was demonized and the whole affair was a witch hunt, as the clerk and her supporters claim? It’s possible perhaps, but very unlikely. Especially when later statistics collected on a nationwide basis revealed in 2011 that among the other 49 states, Colorado ranks in the 67th percentile in integrity, earning a D+ overall rating.
And when it comes to public access to records and transparency, also the attention paid to ethical violations, Colorado scored an “F.” The investigative reporter’s committee scoring the states made it clear that, “The corruption risk is huge for state governments… Not a single state earned an A grade in the year-long investigation. Half the states earned D’s or F’s… Colorado is vulnerable to corruption,” (Center for Public Integrity survey report). And many believe it is already a huge problem in Saguache County.
So listen and learn from those of us who’ve been there. And don’t let them tell you that every-day citizens can’t successfully fight the powers that be.
Part I: Synopsis of Saguache election events
(The following has been excerpted from news articles and editorials that originally appeared from August 2010 to the present in the Center Post-Dispatch, Saguache County, Colorado.)
The primary preceding the election was problematic. One candidate, Democrat Tim Lovato requested a recount and both he and the Republican Party Chair filed a lengthy list of detailed complaints with the Colorado Secretary of State, (SOS). Some of the complaint items resurfaced in the general election, which was partly supervised by a roving SOS official.
In one of the complaints, Lovato mentioned that, “Ballots were kept in an unsealed ballot box, which was open at the top.” Saguache County Clerk Melinda Myers later denied that the primary ballots were unsecured, but several county voters had complained that ballot boxes and voting equipment were left untended and/or improperly sealed at various times during the Nov. 2 election and the events that followed. Video surveillance confirmed some of these reports.
While complaints from three other counties in the same general area were formally addressed prior to the 2010 general election, Saguache County complaints would not be addressed until December that year.
The General Election
On Nov. 2, Republican candidate for commissioner Steve Carlson and Republican Carla Gomez, running for the clerk’s office against Myers appeared to defeat Democrat Myers and her friend and fellow Democrat, Commissioner Linda Joseph. The following day Myers reported that the M650 optical scanner used to tabulate the election, manufactured by Election Systems and Software (ES&S) of Nebraska, had overwritten a certain set of ballots producing erroneous results.
After consulting the Colorado Secretary of State’s Office (SOS) and ES&S, Myers decided to retabulate the votes, meaning they were run once again through the optical scanner for tabulation. The public and press attended this retabulation, prefaced by a brief press conference where Myers announced that the entire process would be conducted “my way.” This second tabulation reversed the results, with both Myers and Joseph winning their races for clerk and commissioner, overturning the Republican wins.
Many residents called in and e-mailed objections to the SOS who then sent officials to Saguache Nov. 15-16 to review the retabulation. The reversal of the race did not change. The review only counted the number of ballot pages run through the scanner during the retabulation. Myers first succeeded in barring the press from the Nov. 15 a.m. segment of the ballot count, run on the M650 but relented when Colorado Press Association attorney Steve Zansberg and an SOS official objected to the exclusion of the press.
SOS officials did not count the actual votes on those ballots and they never addressed the breach of security by the clerk’s office in not following the rules governing conditions for use of the optical scanner or system software. They also failed to address the unannounced tallying of precincts using the M650 on Nov. 8, without judges or watchers present.
Nov. 8 precinct tally and players
One of those observing the Nov. 8 precinct count was a career politician, Bill McClure, recently dismissed from his position as town clerk in Center, Colorado but still serving as the Saguache County Planning Commission head today. Another observer at the Nov. 8 count was Democrat Party secretary and Assessor Jackie Stephens, whose re-election votes were being counted. Stephens ran unopposed in 2010, as she later pointed out.
Shortly after the Nov. 2, 2010 election, private individuals requested copies of the videotapes of the Nov. 2 election activities in the courthouse from the Saguache Sheriff’s Office. The Center Post-Dispatch also officially requested copies of the videotapes under the Colorado Open Records Act for Nov. 2-16.
Even though the Sheriff’s Office openly stated that the videos usually are retained for three weeks, and the requests were made on or before Nov. 5, Saguache Sheriff Mike Norris told the press and Aspen election advocate Marilyn Marks, who jumped in to help Saguache voters sort out their election, that the videos had been overwritten and could not be salvaged. Norris ran for re-election in 2010, and many had voiced surprise over the fact that he chose Bill McClure, a convicted felon on several counts including tax fraud, as his watcher.
Controversy also had surrounded Stephens prior to her election, as many county residents had complained to her office that their properties were either not on the tax rolls or had not been reappraised following improvements. In Oct. 2011, Stephens was ordered by the State of Colorado to reassess all residential properties in the county after it was learned that some county officials were not being assessed taxes.
Officials at the State Division of Taxation Office in Denver, recommended in 2012 that Saguache County Assessor Jackie Stephens be cited by the State Board of Equalization for “dereliction of duty… It is the conclusion of the division that there is sufficient evidence that the Saguache County Assessor has not diligently and correctly discovered and listed the new construction of improvements in the county or various municipal and special district jurisdictions for well over 15 years,” the report stated.
Officials recommended: “The Board of Equalization make a finding of dereliction of duty upon the Saguache County Assessor pursuant to §39-9-103(6), C.R.S… The assessor committed multiple class one misdemeanors by annually signing the abstract of assessment, under oath.” Stephens, however, was never charged and continues to serve as a consultant for the assessor’s office.
ES&S irregularities, Canvass activities
While ES&S technician Tim King explained the scanner malfunction that led to the Nov. 5 retabulation during the SOS review Nov. 15, the only way to verify his explanation was to perform a hand count and conduct a complete inventory of voted and unused ballots. But Myers prevented the Canvass Board and the press — the Denver Post and RealAspen, as well as the local paper, the Center Post-Dispatch — from verifying this explanation by conducting a ballot review.
Experts who later reviewed dozens of pages of ES&S system logs noted numerous irregularities and anomalies throughout the report. Compared to the same system logs in jurisdictions where the system was operating normally, there are extreme contrasts between the Saguache log and normal system logs. Average citizens would even be able to identify these contrasts, experts agree.
The audit by the Canvass Board produced the required abstract of votes, but Canvass Board members could not in good conscience certify the election owing to several mismatching vote tallies. Myers stepped in and claimed to certify the election, although certification according to Colorado law is reserved to the Canvass Board.
Canvass Board members later submitted two sets of complaints to the SOS, one following the Nov. 22 non-certification and another following the Nov. 29 recount and non-certification of the two contested races. They later were accused of overstepping their authority by attempting to determine why vote tallies differed and in addressing a voter complaint that state statute clearly allowed them to address.
SOS issues report
On Dec. 10, the SOS issued an official report answering the primary complaints and violations observed by SOS officials during the Nov. 2 election. The report listed half a page of recommendations to remedy the problems observed and stated that Myers had committed several offenses violating Colorado state statutes and SOS rules. Additional training was recommended to correct the problem.
In public meetings Myers admitted she had never read the Title I requirements for conducting elections. It later was discovered that she had not obtained certification as required to conduct elections and did not properly instruct either election judges or Canvass Board members in their respective duties.
In January, 2011, several Saguache residents, also Marks, filed complaints with the Colorado 12th Judicial District, which were forwarded by district attorney David Mahonee to the state attorney general’s office. The case then went before a statewide grand jury.
In February, Marks filed a Colorado Open Records Act lawsuit against Myers for her failure to deliver election records for examination. In March, Sec. of State Scott Gessler requested delivery of the ballots for a hand count and Clerk Myers refused his request. Gessler sued Myers to procure the ballots and won his case in August 2011.
The grand jury found no fraud involved in the election process according to its report, issued in June. But it is believed that the jury did not review audit logs from either the M650 itself or its Unity system software, which shows highly suspicious lags and gaps, more exits than log-ons and several total erasures of counted ballots with re-entries of new numbers.
Although the SOS confirmed that Myers violated rules and statutes, she has never been charged for these offenses. While the grand jury report did not specifically “exonerate” Myers as she claims, neither did it hold her accountable, stating that her conduct is “substantially compliant” when compared with that of other clerks across the state. This statement in the grand jury report speaks directly to the State’s D+ rating in integrity, as it implies that the majority of county clerks in Colorado perform at a sub-standard level because the State fails to hold them to a higher standard.
Some speculate that the powerful Colorado County Clerk’s Association (CCCRA), SOS officials as well as Saguache County officials and possibly ES&S gave secret testimony in Myers’ favor. Many of those who were eyewitnesses to election events, among them elected officials, were never called to testify.
In July, a recall effort was launched against Clerk Myers to address the issues the grand jury failed to address.
Once Sec. Gessler won his right to review the ballots last August, a ballot review was set for Aug. 29-Sept. 1 in Saguache. But in the minds of many disgruntled voters, the hand count Gessler first promised county residents in March 2011 during a rare Town Hall appearance in Saguache left much to be desired.
Pt. II: Citizens weigh in
The majority of those participating in the hand count of the Saguache 2010 election Aug. 29-31are in agreement that key materials they needed to review in order to determine the cause of election irregularities were withheld from the public.
The count varied little from the initial totals released by the county following the SOS review of the retabulation and the subsequent recount. Most importantly, judges were not allowed to break mail-in ballots into precincts for a close examination or to count Precinct 5 votes as a separate group.
The SOS refused citizens participating as counting judges to perform the following:
- A separate count of all Prec. 5 (Crestone) votes, which Saguache County Clerk Melinda Myers and the SOS determined were overwritten on the M650 software Nov. 2.
- Reconciliation of the ballot inventory (ballots printed, issued, spoiled, mailed, duplicated, etc.)
- Reconciliation of the number of mail ballots to mail-in envelopes with known discrepancies.
- Resolution of incorrect decisions not made according to SOS rules to exclude votes on provisional ballots.
- Permission for judges to count the controversial Ambulance District race, which won by only one vote. There were numerous suspected ineligible voters who voted in this race and other questionable behavior was never explained.
- Production as requested by judges and others of the Nov. 2 unofficial results and precinct tallies.
- Complete examination and verified inclusion of the overvotes, which one Nov. 2, 2010 Republican judge stated earlier this year were not counted on election night.
Throughout the three-day count, several of the SOS officials who came to supervise were unavailable during much of the process. Two individuals worked supervising judges but the days were punctuated with many long breaks and frequent phone consults with other supervisors.
During the count two judges — a Republican and a Democrat — expressed disgust about the absolute “mess” they found when trying to sort through the ballots. One judge commented that it was a good indication the county needs another clerk.
On Tuesday, nearly all of the judges threatened to walk out when it became clear that many of the areas of concern in the races in question would not be reviewed. “If we don’t count Prec. 5 and look at that there is no use in doing it,” counting judge Ed Nielsen protested.
The judges decided to stay, however, to act as witnesses to what was taking place and further document ballot irregularities.
Toward the end of the review Wednesday Aug. 31, their perseverance paid off when over 30 apparently uncounted ballots were discovered that could have tipped the race to commissioner’s candidate Steve Carlson. Judges said the votes were only partially included in the reported results.
SOS officials appeared reluctant to allow a more in-depth investigation of what happened with the overvotes, taking the word of Jessica DuBoe, a Democrat counting judge for the Nov. 2 election, and longtime personal friend of Myers’, that they were counted. It appears that the votes were never completely reconciled with the final totals.
“I think we found the smoking gun,” judge John Baker said Wednesday when the overvotes were first examined. But later SOS elections official Wayne Munster announced that the ballots had been counted Nov. 2 and would not be added to the new count.
“They could never have reconciled those ballots to the final count,” judge Lisa Cyriacks said. Some judges left early Wednesday, frustrated that no headway could be made with SOS officials who consistently refused to allow the level of transparency promised citizens prior to conducting the review.
While officials were considering how to proceed with the overvotes, Saguache County Clerk Melinda Myers stormed into the review on the afternoon of Aug. 31 with deputy clerk Renee Hazard, a sheriff’s deputy in tow, waving what appeared to be a court order, announcing that she was seizing ballots from selected precincts.
SOS officials and a citizen volunteer asked to examine the contents of the envelope, but Myers refused. Later it was discovered that no new court order was ever issued. Apparently, Myers was waving the initial order by Judge Gonzalez that the ballots be turned over to Sec. Gessler.
Myers arrived while SOS officials were studying the overvotes. The confusion created by her arrival sent them running to phones for consults with upper level SOS officials.
During the hubbub, Myers confiscated the overvote envelopes from a judges' table. In the end, when the SOS gave their final report on the count and delivered totals, the overvotes were not included. Later, Marks followed Myers back to the Courthouse and, in a civil manner, challenged the ballot seizure, requesting an explanation. Myers threatened to have Marks arrested unless the demands ceased.
Concerned Saguache County voters object that until they are able to examine these problem areas, the “citizens review” is only just a meaningless sixth count of the election results that once again fails to address the fundamental flaws they have been protesting all along. “Where’s the transparency?” several observers wondered out loud at different times during the review. One Saguache woman called the entire process a “joke.”
These citizens continue to maintain that until the performance of the M650 voting device and its operation by Myers’ office during the election is thoroughly investigated by objective, qualified experts, their doubts cannot be dispelled.
Marks scans ballots
In August 2011, Saguache County Commissioners asked Judge Martin Gonzales whether Aspen election integrity advocate Marilyn Marks would be allowed to view the ballots. The answer was in the affirmative.
The first week of September, Marks began her ballot scan in the commissioner’s boardroom at the Saguache County Courthouse. Myers and Democrat counting judge Jessica Duboe, who operated the M650 for the Nov. 2 election, supervised her as she worked. Marks said the clerk was cooperative and she will be allowed to scan all but a few of the ballots.
Myers held out seven overseas ballots, 11 mail-in ballots and eight polling place ballots. Later Marks discovered that Myers had mixed in early voting ballots with mail-in ballots, an act some hold as illegal.
According to a Sept. 2011 press release, Sec. Gessler attributed the variance in results between the review and the county certified results for the hand review. During last year’s tabulation, the County Clerk failed to use the state’s voter intent guide to count votes. The review teams followed the state’s guide resulting in the difference.
Following completion of the ballot review, Gessler and his staff issued a press release stating that they will continue to work closely with and guide the Saguache Clerk’s office through the 2011 election. Using the findings from the grand jury report and last year’s Secretary of State’s review, staff will monitor and provide regular consultations with the clerk’s office to ensure a smooth election.
To date the SOS has not responded to requests by Saguache County citizens that their office conduct a more thorough investigation of the election. Gessler and Elections Director Judd Choate have confirmed that the election was never certified, but offer no suggestions for addressing the issuance of a false certification by Myers.
Especially in light of the hand count, a good number of Saguache residents objected that until clear answers emerge concerning the performance of the M650 voting device and its operation by Myers’ office during the election, their doubts cannot be dispelled.
Some believe that Myers has been unfairly targeted and mistreated by the press. Others point out that her inability to explain the many inconsistencies in her behavior, her refusal to deliver the ballots and turn over public records, her penchant to do things “my way” and behind closed doors has cast suspicion on her behavior throughout the protracted election process and even long before the election began.
Part V: November 2011 election
Kolwicz files complaint with SOS for vote grouping to ID voters
Boulder Republican Al Kolwicz, a Colorado Voter Group trustee advocating for transparent and verifiable elections filed a complaint with Secretary of State Scott Gessler Oct. 17 alleging that some Colorado clerks are advocating a vote grouping system that could allow county election officials to trace mail-in ballots back to voters.
The complaint was based partly on an e-mail distributed by then Colorado County Clerk and Recorders Association (CCCRA) president and Larimer County Clerk Scott Doyle. Doyle sent the e-mail to constituents and legislators, warning of the dangers of ballots as public records following the recent appellate court ruling in Marilyn Marks’ case filed in the 2009 Aspen mayoral race that private citizens can view ballots. Aspen officials appealed the appellate court ruling and the Supreme Court now has agreed to hear the case.
In his complaint, Kolwicz states that without voter anonymity, “voters are exposed to intimidation that can suppress their freedom of choice. Suppressed votes in any Colorado county can nullify my vote in Boulder County.” Many Saguache County voters have complained of intimidation over the years in both county and municipal elections.
Kolwicz contends that clerks in some counties have followed Doyle’s advice and are grouping ballots in small, identifiable batches that would allow them to later match ballots to mail-in envelopes and names. Kolwicz points out that this practice is a violation of the Colorado State Constitution and accuses the SOS of failure to demand that Colorado clerks achieve substantial compliance.
“There has been no public efforts to document defects and seek remedies in order to comply with the requirement for anonymous votes/ballots,” Kolwicz told Gessler in the complaint. “Because Colorado Department of State is one of the accused, I and my colleagues wish to participate in the investigation of the complaint, and setting of the procedures for the public hearing.”
In an addendum to the complaint, Kolwicz further stated that Gessler has not properly certified voting systems and also has not made changes essential to guaranteeing voting integrity.
“Election system requirements are imprecisely specified; statutes and election rules are incomplete, ambiguous and contradictory,” Kolwicz wrote. “Compliance standards are ineffective. There is no accountability for monitoring, investigating and enforcing election laws. Colorado’s effort to certify election systems is not transparent and is woefully ineffective.”
Attached to the complaint were the e-mails sent by Doyle to state legislators, notifying them that he would be conducting a demonstration for The Denver Post to prove “that if voted ballots are considered open record, voter privacy can easily be compromised [utilizing] a minimal amount of data mining (election information that is already considered public record and the voted ballots).”
In a subsequent letter to the editor, Kolwicz wrote: “Government officials in some Colorado counties are boasting that they know which voted ballot is yours, according to reports that we have obtained. If confirmed, this blatant violation of voting rights must be prosecuted and those responsible held accountable. The reports we have reviewed come from Larimer County. Apparently, government officials there have designed their voting system so that insiders can know your votes. This is a violation of your constitutional rights. Those responsible should be held accountable.”
Denver Post columnist Vincent Carroll commented in an editorial Oct. 22 that, “The clerks' statement [that a recent appellate court ruling upholding voted ballots as open records “removes the curtains from our voting booths”] is either contemptible fear-mongering or an admission that they supervise a system that comprehensively thumbs its nose at the state constitution's mandate of anonymous ballots.
“Contrary to what the clerks imply, the guarantee of anonymous ballots wasn't designed to protect voters only from nosy friends, coworkers and spouses. It is supposed to protect us from nosy election officials, too,” Carroll wrote. “Either ballots are anonymous or they're not. If even one person can look at my ballot and deduce my identity using other public information, it's one too many.”
Vote regrouping issues in Saguache County
During a fall 2011 commissioners’ meeting, Myers suggested commissioners pass a precinct reconfiguration for the county that Republicans opposed because it would close some polling places and make others much smaller. This could have allowed Myers to claim such small districts could be easily identified and claim that votes from these districts could not be counted in the event of an election contest.
Republicans objected that the proposed precinct boundaries were not based on voter registration data, a violation of CRS 1-5-101 (2): “In counties that use paper ballots, the county clerk and recorder, subject to approval by the board of county commissioners, shall establish at least one precinct for every 600 active eligible electors, with boundaries that take into consideration municipal and school district boundary lines whenever possible.”
Republican Chairman Richard Drake told commissioners he had e-mails from Myers and GPS official Pete McGee confirming that voter registration data and the number of eligible voters was not taken into consideration in preparing these maps. “This is a violation of Colorado state law,” Drake said.
“The result is malapportionment, or unequal representation, which is broad, and systematic variance in the size of electoral constituencies resulting in disproportionate representation favoring one party over another,” Drake said in a letter addressed to commissioners in October. “In this instance we believe that this decision was made to favor the Democratic Party.”
Drake and Myers eventually agreed to try and work out problems with the precinct reconfiguration before approval by the BOCC, but Myers later prevailed and the reapportionment was put into effect. The redistricting created additional small precincts that the clerk’s office could claim are not able to be included in a vote count because such voters could be identified.
The system Doyle used to illustrate his point to The Denver Post may have been originally scheduled for trial use during the Saguache County election Tuesday. Watcher Lisa Cyriacks notified Kolwicz Tuesday that she had observed unopened ballots in sets of 25 being batched with a sequential list of “their” voters, and flagged in a way that could be used to identify who voted the ballots.
Kolwicz informed SOS official Michael Hagihara of the problem and was assured that opened ballots would all be combined before counting. Hagihara and his colleague Ben Schler were assigned to supervise the election Nov. 1.
Cyriacks said that on election day, ballots were eventually “shuffled” in the manner required to assure their anonymity. Although ballots at first were counted in groups of color-coded and numbered batches of 25 to run on the M650, the ES&S official said the M650 would not count such small groups of ballots.
SOS officials also said the small batches “wouldn’t work” and removed the identifying numbers, re-sorting the ballots into larger batches. Hagihara reportedly told Cyriacks that Myers was “upset” that they were destroying all her “work.” The batches then were increased to groups of 50 to 100 and were counted accordingly, as demonstrated by SOS official Ben Schler.
More canvass board problems
Clerk Myers showed no signs of relenting where transparency and proper procedure — not to mention common courtesy — was concerned during the 2011 election cycle.
Myers refused to seat Center School’s designated canvass board member Lisa Cyriacks on the board, objecting that Cyriacks was responsible for exceeding her authority as a canvass board member in 2010.
The Center School Board has selected an alternate, Ed Nielsen, to serve in Cyriack’s stead. As of press time it was not known if Myers would accept Nielsen, who also served as a canvass board member in 2010.
Earlier this month, Center School Board president Michael Lobato explained that Myers “wants us to pick someone else. After consultation with our lawyer and state level advisors it is our belief that she [Myers] has no right to do this.”
Lobato filed a complaint with the clerk’s office protesting Myers’ objections on these grounds, but Myers never replied. On Nov. 10, Center Consolidated Schools Superintendent George Welsh sent an e-mail to Myers requesting that she make a final decision about Cyriacks.
In his e-mail Welsh wrote: “My Board of Education would like a final decision status on its appointment of Lisa Cyriacks as Center Schools' Saguache County Canvass Board representative. The Board believes the IGA it signed does not allow the Clerk the right to choose not to seat their assigned representative.
“Attached is a copy of the IGA and my Board would like to draw your attention to item 3 section D which states we (the district) have the right to appoint a member to the canvass board. The Board would appreciate a quick resolution to this matter.”
Myers responded to Welsh’s e-mail Nov. 12 with a copy to Saguache County Attorney Ben Gibbons. She pasted a copy of a complaint letter into the e-mail which she says she received from Sandra Hammond, co-chair of the Crestone Emergency Services District Formation Committee/DEO and Akia Tanara, co-chair of the Crestone Emergency Services District Formation Committee.
The complaint letter states: “We need a clear and timely resolution to our proposed district formation and therefore find it unacceptable to have Ms. Cyriacks canvassing our important ballot issue because of her actions in the 2010 election. The Grand Jury, in its investigation of the election found Ms. Cyriacks, as a member of the 2010 canvass board, overstepped her duties and disrupted the certification process.”
Cyriacks, a Baca Grande property owner, was an opponent of the fire district measure, which failed to gain funding from voters. Voters did, however, approve its creation as a district. The IGA signed with Center Schools by the county mentions no provision for objecting to any canvass board member the school district appoints.
The actual grand jury statement referenced by Hammond and Tanara reads: “The Grand Jury determined that the Canvass Board attempted to overstep their appointed function,” (emph. added). This does not single Cyriacks out nor does it state that the board actually did exceed their duties. And nowhere in the report does the grand jury state that Cyriacks “disrupted the certification process.”
“Several individuals signed the statement of non-certification, not just me,” Cyriacks objected. Current law on the process allows for non-certification of elections and the Secretary of State’s Office did issue an acceptance of the non-certification, despite the inference in the grand jury report that this is not the case. This document is available per CORA request from the Colorado SOS.
Cyriacks says she feels that she is a victim of the ambiguous laws currently governing the canvass process in Colorado, laws Sec. of State Scott Gessler worked to clarify prior to his election in 2010. While the law admits the legality of non-certification, it offers no provisions for what should be done in the event an election is not certified.
“The Center School Board views every election as an important one,” Center School Board President Michael Lobato said. “In choosing Lisa Cyriacks to represent us on the canvass boar we simply selected a person we believe is familiar with election rules, laws and processes.”
Entities such as school boards and special districts conducting elections have a right by law to appoint one or two members of their choosing to the canvass board. Myers, however, is allowed to appoint canvass board members for the Crestone fire district, according the IGA signed with the district.
Next, Center School Board nominated their alternate, Saguache real estate broker and Republican Ed Nielsen, who also was rejected by Myers. The same CrESD officials objected to Nielsen for similar reasons: he is a former 2010 canvass board member.
Item 3, section D of the IGA Myers signed with Center schools states that the district has the right to appoint a member to the canvass board. The IGA signed with Center Schools by the county mentions no provision for anyone objecting to any canvass board member the school district appoints. Myers, however, was allowed to appoint canvass board members for the CrESD, according the IGA signed with the district.
In response to an e-mail addressed to Center Schools Superintendent George Welsh, asking Myers who would be seated to represent Center, Myers replied:
“It is unfortunate that your board has chosen this path of confrontation. Coordinated elections are for the convenience of the voters and as a cost savings for Special Districts. As the coordinating election official for all the entities involved, it is my responsibility to conduct it and certify the results so the districts can move forward. The IGA is an agreement that outlines these duties and is meant to be a co-operative document among respectful parties. If your board feels they need to be in an adversarial position, we should have had this discussion before we entered into the IGA.”
Finally, without responding to Myers, Center sent in nominee number three, Mike S. Garcia, who was not immediately seated. Garcia was asked to wait until he could be “cleared” by Hazard with Myers.
“They never expected me to show up,” Garcia said. “They didn’t want to seat me, but here I am.” According to Garcia, Democrat counting judge Jessica Duboe, Myers longtime friend, appeared ready to serve as the replacement for Center’s appointee. While Garcia waited, Hazard answered Myers’ objections over the phone and eventually decided that because all Garcia’s paperwork was in order, he should be seated. Duboe was a counting judge during the 2010 General Election, participated in the Nov. 4 and Nov. 5 counts as well as the Nov. 15-16 counts and also assisted at other election events.
Part III: Recall election takes shape
Weary of the constant battles with Clerk Myers, in the summer of 2012 voters already had made their frustrations known by publicizing their campaign to recall the clerk. While the petition-signing phase of the recall in the fall of 2011 took a valiant effort on the part of those circulating the petitions — requiring that they basically cover the 1,000 square miles that make up the entire county — volunteers made the commitment and finished the job.
Below is a chronology of the recall.
- First recall petition draft finalized in June by the Recall Melinda Myers Committee.
- Recall proponents continued to meet regularly in June and July to strategize and finalize plans to present a recall petition to county officials.
- On Aug. 2, the petition to recall Melinda Myers was submitted to County Commissioners. Commissioners appointed County Treasurer Connie Trujillo as the Designated Election Official for the recall election.
- Recall volunteers began to collect signatures for the proposed election.
- Also about mid-September, those circulating recall petitions began to see they would achieve enough signatures to file for the recall election.
- Petitions were filed with DEO Trujillo Sept. 28.
- On Oct. 5, DEO Trujillo tells the Recall Committee that enough signatures have been gained to declare the petitions sufficient. El Paso County officials vet the signatures.
- On Oct. 18, former commissioner Bill McClure told commissioners he would be filing a protest contesting the sufficiency.
- A recall protest hearing was held by Trujillo on Oct. 28. Some signatures on the petitions later were rejected per McClure’s protest, but overall, the petitions were found to stand as sufficient.
- Candidates begin to gather petitions to run on the recall ticket and two candidates, Independent Patricia Jenkins and Republican Carla Gomez, whose race was overturned in the retabulation of the 2010 General Election, gain enough signatures to run.
- Clerk Myers fails to meet the deadline to place her 300-word statement on the ballot. She appeals to Saguache commissioners and El Paso County officials but is told the deadline has passed.
- The recall election is set for Jan. 24, 2012.
El Paso County Clerk’s Office trains election judges
The El Paso County Clerk’s Office, who trained local election judge volunteers in October 2011 at the county courthouse, was commended by several attending the training for doing a bang-up job of correcting past misconceptions about the role of election judges.
The instruction period took three and a half hours, with El Paso County trainers playing to a commissioner’s room packed with volunteers eager to learn how to assure voters a fair and honest election.
El Paso County Election Manager Liz Olson conducted the training. According to Olson’s biography on the El Paso County Clerk’s site, she has been with the Clerk and Recorder’s Office since 1996, working in several capacities for the Election Department including Election Services Coordinator and also as the Assistant Election Manager.
Olson holds the Certified Elections/Registration Administrator (CERA) designation from the nationally acclaimed Election Center and she has completed the State of Colorado Election Certification program.
Olson gave the presentation using two booklets distributed to volunteers. She carefully went over every possible scenario her listeners could think of in addition to those suggested in the training manuals.
If others are busy at the polls, for example, a floating judge can assist a voter. If a voter cannot get out of his/her car, two judges may go to the car to assist the voter in delivering his ballot. Two judges should always verify any questionable situation, officials added.
Anyone electioneering by making comments or wearing T-shirts, buttons, etc., may be asked to leave the polling place if they do not cease and desist. Those who appear to actually be telling voters who to vote for must be deterred and others may instruct the voter on their right to a free choice. Certain questions asked about candidate choices may be answered outside the 100-foot polling place limit but not within that limit.
Instances of electioneering and individuals instructing others about voting choices reportedly occurred in Crestone in 2010.
Because so many provisional ballots were issued in 2010, trainers went over the procedures carefully to prepare judges. A voter may attempt to fill out only three ballots in the event the others were misplaced, ruined or mismarked. Judges ere advised to check with the designated election official to make sure that provisional ballots are not issued when it is unnecessary.
Ballots leaving the polls to be counted are to be sealed with tight, full-sized seals. In 2010 tape seals were used for many applications. While tape seals will still cover some ballot box slots, every time any of the seals are removed and replaced they must be initialed.
Some attendees from Center compared the instructions issued in the training to the lax practices during the 2008 municipal election in Center. One attendee told Olson that previous judges had never received such comprehensive training and other former election volunteers in the room agreed.
“We want to be able to track every ballot and who touched it,” El Paso County Clerk and Recorder Wayne Williams told those at the training. “ He emphasized that all ballots must be protected so that officials can then retrace “every ballot process” and counting procedure.
He also cautioned judges to “make sure your colleagues are doing what they are supposed to do.”
Myers goes down
Those waiting at the Fourth Street Diner the evening of Jan. 24, past gathering place for recall meetings were surprised when watcher Steve Carlson rang in at 8 p.m. with unofficial election results, hours ahead of the return time for past results.
Carlson reported that voters had resoundingly decided to reject Myers in favor of 2010 Republican candidate for county clerk, Carla Gomez. Gomez was unseated in a “retabulation” Nov. 5, 2010 following the discovery of a malfunction in the computer-assisted election tabulation equipment.
Although the 2010 race involved far more candidates and ballot questions, the hand count of Tuesday's race was conducted little by little as votes were delivered to the courthouse from the precincts throughout the day. This helped speed up final tallies. The unofficial results were reported by precinct for the first time since 2006:
YES to recall
NO to recall
As can be seen above, former County Clerk Melinda Myers garnered only 453 votes or 32 percent of ballots cast in the election. Most of the yes votes came from precinct five in Crestone.
"Saguache County made history tonight in taking back their elections and their government," recall organizer Lisa Cyriacks commented Tuesday evening. "Eyes around the nation were watching with interest to see how this small rural county turned out for hand counted paper ballots."
Cyriacks, who spoke to election judges as they left the courthouse at 8:30 p.m. said the judges reported that it went smoothly; they felt a real sense of community. “One judge said she felt honored to have participated in a democratic process based on the principles this nation was founded on. Another judge stated that the level of professionalism and the training was head and shoulders above any other election she had worked.”
An unofficial review of the demographics show that more than 50 percent of the votes were cast by Democrats, Cyriacks pointed out, with the balance almost evenly divided between Republicans and unaffiliated voters. On election night there were 31 provisional ballots still outstanding. Overseas votes and some mail-in ballots were not included in the totals.
“Based on the numbers, I think the will of the voters is clear,” new County Clerk Carla Gomez said. “I believe in the message voters sent; I understand it and I get it.” She said that her goal is to “listen to the people and serve the people efficiently and respectfully.” Gomez also commented that, “The courthouse building and all its contents belong to the people; whoever works in that building works for the people.”
During her campaign, Gomez promised voters she would work to mandate the audio recording of county commissioner meetings and would rid the county of the M650 voting device.
Gomez already was planning her entry into the Clerk's position following the win. She asked that voters exercise “patience and understanding” during what she anticipates will be a hectic transition period.
Before stepping foot into the Clerk’s office, Gomez was accompanied by County Co-administrators Wendi Maez and Lyn Zimmer-Lambert who went through the office with her, inventorying equipment, including all computers and any other items used to perform the duties of the office.
Prior to the meeting, Gomez requested that Maez and Lambert bring copies of the clerk's budget, policies, lists of accounts and any other materials dealing with the administration of those duties. “I appreciate their willingness to accommodate and assist me as I prepare to begin this task,” she said. “I need to be comfortable walking in there for the first time but after that, it's down to business.”
Gomez was sworn in on Feb. 3.
Pt. VI: Saguache electronic voting scandal a national threat
History of electronic voting devices
On her Blackbox Voting website, Bev Harris documented in 2007 that the rush to acquire electronic voting machines began in earnest when the Help America Vote Act (HAVA) passed in 2002, making millions of federal dollars available to purchase new voting equipment.
“No one knew that some of the programmers for voting computers would turn out to be convicted embezzlers…That the main sponsor of the HAVA bill -- Rep. Bob Ney -- would end up going to jail on corruption charges…that the federal testing labs, Ciber and Wyle, weren't doing their jobs and their overseers — NASED and now the EAC — failed to check their work.”
And who lobbied for HAVA? The ACLU, the American Bar Association, the AFL-CIO and George Soros’ Open Society, to name a few, as well as ES&S and other voting machine companies. As Harris notes, the bill was passed with the best of intentions, but its fruits have been bitter.
Myers had been dealing with the SOS on a regular basis long before the county’s election woes began in November, so already had an established rapport with then Sec. of State Bernie Buescher. She publicly backed Buescher’s push for mail-in only ballot elections in her “Clerk’s Corner” column in 2008 and later took delivery of the M650, purchased partly with HAVA funds in Oct. 2010.
Buescher, however, lost his re-election bid Nov. 2 to Scott Gessler, despite the campaign contributions he received from the Secretary of State Project, funded in part by Soros and organized by the leftist group MovOn.org. Shortly before the statewide grand jury convened to consider the Saguache election, (along with other issues), Buescher was appointed deputy attorney general for the State Services Section of Attorney General John Suther’s office.
When asked if Buescher’s position would compromise the grand jury investigation, the AG’s office responded that Buescher would not be involved with the Saguache investigation.
Soros is the former business partner of Maurice Strong, who initially funded the Manitou Foundation in Crestone that sponsored many of the spiritual centers in northern Saguache County. Myers’ friend, Commissioner Joseph sits on the board of the Manitou Foundation. Recently rumors of scandals among the spiritual centers there have fueled speculation that religious overtones originating in Crestone may have contributed to the underlying political unrest that preceded the 2010 election.
Crestone, situated in northern Saguache County is the location of Precinct 5, Myers’ precinct. This is where the “overwritten” votes were cast that changed the election and catapulted Myers and Joseph into office. And the way the SOS and Myers handled the problem reportedly encountered with the M650 differed little from the way similar problems were handled in Wisconsin.
As in Saguache, Wisconsin authorities also denied open records act requests, making it difficult to identify the true source of the problem and verify times and dates of any difficulties. And as happened with the Nov. 15-16 SOS review of Myers’ “retabulation,” there was no real human review of the ballots, only a repetitive mechanical review.
“In many Wisconsin counties and towns the recount consists of simply feeding the ballots back through the machines whose memory cards have been reprogrammed in secret by the vendors!” (Jonathan Simon, Election Defense Alliance). “The majority of votes cast in Wisconsin are on hand-marked paper ballots, but are then scanned by oft-failed and easily-manipulated electronic tabulating optical-scan computers made by companies like Diebold, ES&S, and Sequoia without being checked for accuracy by human beings…The Wisconsin Attorney General…issued an official letter acknowledging EDA's critical open-records requests and presenting the dubious legal grounds for their blanket denial.”
While Myers used her “sacred ballot’ stance as a defense against Gessler in her attempt to prevent a hand count of the ballots, Minnesota and Illinois were posting voted ballots online. And Massachusetts and Alaska were allowing a full press review of their ballots as Myers fought to keep the media from observing the Nov. 15 review of her retabulation.
According to Myers, she had no idea prior to her purchase of the M650 that there were problems with the voting device, even though these problems and the conditions necessary to remedy them has been posted on the SOS website for over two years and also were covered in the press. Myers stated publicly that she conducted considerable research before deciding to purchase the M650, used primarily to count votes in large municipalities.
But a cursory search under ES&S on Google brings up a host of links pointing to problems with the company’s equipment even predating any problems in Colorado.
One blog reports that, “Associated Press (AP) reporter Jessica Fargen wrote in June 2000, ‘Venezuela's president and the head of the nation's election board accused ES&S of trying to destabilize the country's electoral process. In the United States, four states have reported problems with equipment supplied by the company. Faulty ES&S machines used in Hawaii's 1998 elections forced that state's first-ever recount,’" (CommonDreams.org).
Complaints and threatened lawsuits against the company dating back to 2004 are listed at www.voteraction.org. Among these complaints are several for breach of contract and delivery of uncertified systems, also unfair business practices. “On November 17, 2007, the City and County of San Francisco sued ES&S for breach of contract, fraud, negligent misrepresentation, and violations of [the] California Elections Code…for selling and servicing voting systems to the city and county that were not certified by California. On Jan. 22, 2008, the City of San Francisco announced $3.5 million settlement with ES&S.”
Like many other county clerks nationwide, Myers purchased the M650 in 2010 in order to spend HAVA grant funds or forfeit them to the federal government in December. The rash of contested elections across the country in 2010 can be credited in part to voting equipment purchased with HAVA funds, and 2010 was not a general election year.
If another recession is in store for America, a repeat of the Bush-Gore debacle in 2000 could be the final shove that sends this country over the edge of the cliff. As the Huron (Michigan) Daily Tribune put it: “Voting is the single most important responsibility of a citizen. If people feel disenfranchised, our democracy will rapidly crumble.”
“In 2005, the Commission on Federal Election Reform, led by former President Jimmy Carter” issued a report. “The report said: ‘The best way to maintain ballot integrity is to investigate all credible allegations of electoral fraud and otherwise prevent fraud before it can affect an election,” (Tom Spencer of Coral Gables, Fla., vice chair for the Republican National Lawyers Association; Salt Lake Tribune editorial).
As EDA director Simon wrote recently: “Study after study — from Princeton, to Johns Hopkins, to NYU’s Brennan Center, to the California Secretary of State’s office, to the GAO itself — conclude that this counting process is obscenely vulnerable to insider manipulation and outsider hacking. So have many studies examining computerized voting abroad — which is why countries such as Germany, Ireland, and Holland have begun turning back to human counted ballots. There is consensus verging on unanimity among the experts,” (http://wisconsinwave.org/news/edaopenletter).
America should follow suit. But the reality is as Simon sees it: “We reform in the wake of calamity, not in anticipation of it.”
What Voters Should Know
Dangers of the M650
In the final analysis, the controversy centers on voting equipment and its vulnerability to manipulation by it operators and those in close proximity of its location As early as 1992 the dangers were recognized as follows: “The concept is clear, simple, and it works. Computerized voting gives the power of selection, without fear of discovery, to whomever controls the computer,” (VoteScam authors James and Kenneth Collier, both now deceased, as quoted by Lynn Landes in 2002).
In the case of Saguache, the M650’s vulnerability to precisely the type of error that was discovered on Nov. 3 was never addressed by the grand jury and has not been recognized by the SOS as a potential cause of the election derailment. In fact in agreeing to conduct the hand review, SOS officials specifically excluded the possibility that they would investigate “anything to do with the M650/Unity system [or] any signs of tampering or ballot substitution,” on the grounds that these are “unanswerable questions.”
The Best Practices and Visioning Commission, setting policy for the SOS announced recently that ES&S is being considered as sole vendor contractors for the state.
In the ES&S conditions for use, the manual notes that the error Myers said resulted in an overwriting of certain ballots was one of several possible “attack scenarios” that could be used to falsify M650 results. From the manual: “An attacker can force this integer overﬂow by specifying a large number of precincts in the election deﬁnition ﬁle, allowing him to write arbitrary data onto the heap (the amount of data is limited only by the storage capacity of the zip disk)…
“The M650 [also] accepts forged ballots made of commodity paper in a variety of weights.” (This is very similar to what happened with the M650 in the Saguache election. A double batch of precincts was allegedly loaded onto the machine causing it to overwrite previous results.)
Several past election cycles have proven that electronic voting results are unreliable and unverifiable. And the experiences of municipalities and counties nationwide over this time period have time and again demonstrated that what happened in obscure little Saguache was only a repeat of what is happening on both a statewide and national level.
While some mention was made in mid-summer during a Saguache County commissioner’s meeting that an order had been placed for a new M650 voting machine, information about the machine was not forthcoming until only recently.
County Clerk Melinda Myers made the decision to buy the machine after conducting “extensive research on what was available and reliable that would best suit Saguache County,” (Myers to the Saguache BOCC Nov. 16). “Saguache County had $33,000 in federal Help America Vote Act (HAVA) funds the Secretary of State was holding to be used to purchase electronic voting equipment, which had to be spent by Dec. 31, 2010 or they would revert back to the federal government.”
During the Canvass Board meeting last Friday, Myers also indicated that some of this money was used to purchase other voting machines.
In the meeting, Myers did not mention the fact that the M650 machine she purchased from Election Systems and Software cost approximately $58,000, and this for a machine still using outdated zip disk drives and in need of constant supervision to be operated legally. The amount needed to purchase the machine exceeded the total available from HAVA by $22,000-24,000.
During the Nov. 16 BOCC meeting, Commissioner Mike Spearman did comment that the amount in excess of HAVA came from “the general fund.” This means that taxpayers footed the bill for $22,000-24,000 to purchase a machine that has a history of malfunctions and security issues.
In the Colorado Statesman some years back, Zach Zaslow wrote: “[HAVA’s] …most fundamental push is to bring the nation’s voting machines up to par — with the implicit goal of ensuring that no state, county, or precinct will have to revisit the Florida 2000 nightmare…HAVA means that by 2004 voting machines in each of the nation’s more than 187,000 precincts must be able to prevent a number of common voter errors. The goal is to lessen the chances that a ballot will incorrectly express a voter’s wishes.”
So how has Saguache County and other counties nationwide complied with HAVA when the electronic voting machines they have purchased are overpriced, subject to malfunction and fraught with security issues?
SOS decertifies M650
In 2008, former Secretary of State Mike Coffman was forced to decertify a number of election machines to satisfy strict limitations imposed by state law and in answer to a court order from a 2006 lawsuit by voting activists, challenging the machines as inaccurate.
California and Ohio no longer use the machines because of problems they encountered with their accuracy. According to a recent article in OpEdNews, Germany and Ireland learned their voting machine lessons long ago and have not used the machines for years. An October 2010 segment of Dan Rather reports on the dangers of electronic voting opens with a scene showing how a voting machine in Europe could be hacked in under a minute.
Today, Germany votes only by pen and paper, the report said.
Coffman later recertified all the machines in Colorado with the permission of lawmakers, who said he could reopen the process, explore different remedies and seek advice from county clerks. They also passed a bill allowing Coffman to look into security fixes for the machines.
Among the machines Coffman initially decertified then recertified was the M650.
In a report issued in 2007 by EVEREST: Evaluation and Validation of Election-Related Equipment, Standards and Testing on the M650 and other decertified machines, numerous and disturbing problems concerning possible compromise of votes when using the M650 are listed. Some of these are enumerated below.
Under performance deficiencies:
- Due to failures in performance, counties shall allow extra time for downloads and uploads of memory card devices.This may impact programming, testing and use of the system on election night.
- Counties shall ensure trusted staff is properly trained on this issue and accommodating the allowable time required for programming memory devices.
Then this alarming information is related under the section on Attack Scenarios:
“Prerequisites: Any person with knowledge of these three ﬁle names and approximately three minutes of unmonitored access to the M650 can replace all software on the machine with malware…The M650 checks only for the existence of the three ﬁles and performs no integrity or authenticity checks. Hence, any person with physical access to the machine can load new software onto the M650, either on, before, or after the election. As is also the case with the M100 (see Section 7.3.3), both ﬁrmware and ballot deﬁnitions are loaded through the same medium (in this case, the zip disk drive). By surreptitiously inserting malicious ﬁrmware onto a ballot deﬁnition disk, a corrupted Unity system could carry out this attack.
“Impact: An attacker who can forge a ﬁrmware update disk can take total control over the M650. This includes the ability to learn election results, change results, mimic the behavior of an uncompromised M650 (to avoid detection), thwart future attempts to load new ﬁrmware (while reporting success to the operator), and/or cause the M650 to become inoperable until its internal storage can be reimaged using separate and uncompromised hardware.
“An attacker can force this integer overﬂow by specifying a large number of precincts in the election deﬁnition ﬁle, allowing him to write arbitrary data onto the heap (the amount of data is limited only by the storage capacity of the zip disk)…The M650 [also] accepts forged ballots made of commodity paper in a variety of weights.” (As mentioned above, this is very similar to what happened with the M650 in the Saguache election. A double batch of precincts was allegedly loaded onto the machine causing it to overwrite previous results.)
“Prerequisites: The M650 is a batch scanner used primarily to scan mail-in (absentee) ballots. To be scanned, forgeries must be mailed to the appropriate office in ofﬁcial election envelopes (which, of course, may also be forged).
“Impact: A motivated forger can produce paper ballots that visually appear legitimate and that are accepted by the M650.”
The Unity Election Report Manager software used with the M650 also has its own set of issues. Again from the Everest Report:
“No single component of the ES&S system is more important to the integrity of election results than the central Unity election management system. Unity is a complex software suite, consisting of many components that share a common database. Securing a county’s Unity system therefore depends on each of its components and on the computing platforms on which it runs.
“Because Unity (at least as used in Ohio) apparently runs only in a single, secure location in each county, with presumably only trusted staff permitted access to the computers, attack vectors involving unauthorized direct physical access by poll workers, voters or others are a less signiﬁcant threat.”
“Because the voting system operates in a non-restricted system configuration containing open file system access to locate, copy, open and overwrite without detection, election vote content database files outside of election management system application by third-party tools, counties will be required to modify their physical environmental conditions.”
The precautions for using the M650 following its recertification by the SOS take up an entire page and six different SOS rules. Another two pages or precautions are required for operation of the Unity Software on election night.
These include complicated instructions to back up M650 data and Unity Software, and involves the use of media seals, chain of custody documents, extensive copying of memory cards, a backup of the master database, increased election night audits, additional testing for electronic and paper ballots and a written log/audit of any changes made to component of the system.
Video surveillance of the election process in Saguache for Nov. 2-5 clearly shows that none of the many security precautions required by the SOS for the M650 were taken by election staff or the clerk’s office from Nov. 2 on. The machine and software were used on Nov. 2-3, election night and early morning; briefly on Nov. 4, and again on Nov. 5, both prior to and during the unprecedented “retabulation.”
Touch-screen voting device controls could be removed
On Dec. 8, 2011, Sec. Gessler proposed sweeping changes to state rules that would eliminate the security requirements for touch-screen devices, a requirement that initially was enacted by court order.
Wheeler, Trigg and O’Donnell LLP (WTO) attorneys Paul Hultin and Matt Johnson are representing the nonpartisan group of Colorado voters challenging the proposed amendments to county security requirements for DREs (touch screen voting devices) pro bono. Election Rule 43 regarding DREs, now up for revision, was first adopted pursuant to a court order in Conroy v. Dennis, a pro bono case that a WTO trial team led by Hultin tried and won in Denver District Court in 2006.
According to a WTO press release, in Conroy the firm established that the Secretary of State’s Office had not complied with its own regulations and procedures for testing and certifying the security and reliability of DREs that were proven to be easily subject to tampering. The trial court ordered that stringent county security measures be adopted to protect the integrity of the 2006 election. These security measures were adopted and became Election Rule 43.
“Electronic voting continues to be under assault across America,” Hultin said in the press release Dec. 8 following the meeting. “Any changes to Colorado election rules should require greater security, not weaker security policies suggested by the proposed changes. The preliminary draft to election rule 43 will make Colorado elections less secure, less uniform and less transparent to the point that the proposed changes invite voting fraud.”
Ballots battle moves to State Legislature
The last week of September, 2011, the Colorado Court of Appeals ruled in favor of ballots and ballot copies as public documents and ordered the City of Aspen to turn over 2,544 photo images of the ballots to a former candidate, only to have that decision stayed for the time being.
Aspen mayoral candidate and election integrity advocate Marilyn Marks filed the case against the Aspen city clerk in 2009 after losing the mayor’s race under circumstances similar to those that occurred last year in Saguache County.
An official statement issued by the Colorado County Clerk and Recorders Association (CCCRA) in early December 2011 said the decision “removed the curtain from our voting booths” and would “expose voters…to public review and intimidation.” In response to their statement, a Denver Post editorial writer criticized CCCRA’s comments, requesting that clerks bring “some facts and rigorous analysis to the table.” Since the Court of Appeals ruled, its decision has been successfully used as a launch pad for CCCRA complaints and objections concerning voting secrecy.
After lobbying Sec. Gessler for months and demonstrating that clerks could tell who voted ballots by reading computer generated marks made on ballots, Gessler proposed changes to SOS election rules Dec. 8, which previously allowed CORA access to ballots, suggesting access be delayed for a month or longer, amounting to a CORA blackout. The time period that ballots would not be available would place them out of reach at precisely the time most crucial to determining whether ballots have been mishandled and a recount is necessary. Computer room access would be denied to both watchers and media observers.
The new rules had already seen a test run by Saguache County Clerk Melinda Myers in late September 2011. In an e-mail answer to a CORA request for election information, Myers wrote: “We have numerous election deadlines bearing down on us as well as other office tasks, and are having trouble making time to address them all, due the large work load and numerous CORA requests about this and past elections.
“I have therefore decided to adopt an office policy…that defers answering CORA requests starting 45 days before an election until 20 days after. At that time they will all be addressed.”
Myers contended that office policy adopted by the county supersedes state and federal law concerning CORA requests. Many of the difficulties encountered in reporting the facts surrounding the 2010 election resulted from the inability of press and private individuals to obtain copies of important election documents necessary to present a complete picture of the problems plaguing the election.
Continuous video also would no longer be required in the new SOS rules, meaning even motion-activated surveillance such as was used in Saguache during the 2010 General Election would be permitted. Initially continuous video was mandated because of the drawbacks to other types of recordings.
Under the proposed changes, county clerks would be allowed to investigate and sit as sole judge on breach of security incidents, determine on his/her own what constitutes tampering, and based on this decide what, if anything should be reported to the SOS. Many other security measures now in place also were proposed for deletion.
After receiving some major pushback from the attorneys and election integrity advocates, the rules were laid aside. They surfaced later in December as the template for legislation now before the State Legislature.
HB 155 — State legislators propose CORA blackout during elections
Despite concerns voiced by election activists, a Senate committee passed a bi-partisan bill March 15 that will black out Colorado elections, preventing reporters and concerned citizens from viewing voted ballots and election records during the two–month election cycle.
Saguache County residents Lisa Cyriacks and Teresa Benns testified against passage of the bill at the hearing, conducted by the Senate’s State, Veterans & Military Affairs Committee. Election integrity activists Marilyn Marks of Pitkin County, Harvie Branscomb of Eagle County, Joe Richey and Mary Eberle of Boulder County, Kathleen Curry of Gunnison County and others also testified against the bill.
State Senator Rollie Heath, sponsor of the bill, opened the hearing by explaining that HB 155 would “allow clerks to do their job by staying CORA during the certification and recount period.” Ballots could be reviewed once the election is certified.
Sen. White, co-sponsor of the bill commented, “We need to protect anonymity. The coming election is very important and Colorado will be in the spotlight.” Because this is an election year, the bill should be passed in timely fashion, she indicated.
Sec. of State Scott Gessler said he supported the bill because it would protect the need for anonymity and prevent Colorado Open Records Act (CORA) cases from clogging the courts. While Colorado county clerks and others insisted the bill is necessary to guarantee anonymity, opponents argue that the way to do this is not to enact a CORA blackout but to limit ballot styles, issue ballots without traceable electronic markings and shuffle ballots regularly.
Election integrity advocate Marks noted that the language “interested parties” in the bill is discriminatory and likely unconstitutional. She pointed out that the “interested party” restrictions “disenfranchise many of the formerly involved recount participants under Rule 14,” which currently allows members of the press to inspect ballots. The bill as proposed would not include the press as “interested parties.”
While some reports portray the bill as a step forward in protecting voter anonymity, others point out that this is not the case. County clerks and recorders, they say, are the ones who really benefit from the bill, and have lobbied for its introduction to avoid the extra work involved in filing CORA requests. Ultimately the fate of Colorado ballots will now rest with the clerks should the bill pass.
Another bill now before the house would allow ballots to be posted on the Internet immediately after being voted on election night and a second bill would make more information from on-going litigation available to the public.
Saguache County lessons can help improve elections
The many problems later uncovered in the Saguache County election on Nov. 2, 2010 and beyond can become lessons for other counties on how not to conduct an election, proving a silver lining can be found in the blackest of clouds.
In their official report issued in December 2010, the Secretary of State’s Office (SOS) confirmed that Saguache County Clerk Melinda Myers violated SOS rules in November and during the primary in conducting these elections. As the election story evolved, voters discovered that records were missing, a precinct count had been run without Republican watchers present, a secret vote review had been conducted, and that the M650 electronic voting machine that the SOS recertified, only if certain security precautions, was never properly secured.
Later Clerk Myers attempted to erase electronic files containing election results from a laptop computer on loan to the county from ES&S for the 2010 General Election, but it is not known if this attempt was entirely successful or what records remain.
Ballot boxes also were unsecured following the election and unauthorized persons were allowed near the ballots. Videotapes, which the SOS says must be kept from September through December in election years, were actually overwritten. Only videos of election areas from Nov. 2-5 were preserved. (While this requirement may be dispensed with in Colorado, other states should see that it is mandated.)
But from the midst of all these violations, lessons emerge. And these lessons can help others learn how to protect their vote, the only thing they possess that can guarantee their rights and personal freedoms. Below is a brief list of recommendations, taken from election laws, SOS rules, and fair election practices.
- Don’t bother with the expense of purchasing (often outdated or obsolete) ballot counters such as the M650, a machine Saguache County paid some $58,000 for in 2010. Hand counts in most rural (Colorado) counties are sufficient and two counties in Colorado still count votes completely by hand. While federal HAVA funds were used for the M650 purchase, some $22-24,000 in taxpayers’ funds was appropriated to finance the machine, which is expensive both to maintain and to operate. Already one of the poorest counties in Colorado, Saguache Commissioners warned county residents in 2009 that once federal stimulus money was exhausted, the county’s budget would revert to barebones, and shortfalls were expected.
- Any mistakes made in previous elections should be carefully corrected and election laws and Secretary of State’s Office rules scrupulously followed. Saguache County went into the Nov. 2 election with two lists of complaints filed against the county clerk’s office for its conduct of the primary election. The complaints were field by a Democrat candidate who lost the primary and also by the Republican Party Chair. Clerk Myers, herself a clerk’s candidate in the race, refused to reply to the complaints until after the general election and was not ordered to reply by the SOS. As a result, many of these same mistakes bled over into the Nov. 2 election.
- Intensive training and continual education of clerk’s office staff, especially where computer supported electronic voting machines are in use is the only preventative that will assure an accurate and secure election. And even then, this will not guard against machine malfunction. Additional training of counting and precinct judges also is in order whenever electronic voting machines are in use because a host of additional and often tedious security measures for once-decertified equipment is required by the SOS as conditions for recertification. These measures are not necessary when ballots are filled out by hand and hand counting occurs.
- Election staff, judges and watchers should individually inform themselves of both the election laws and the Secretary of State’s Office rules, which have the force of law. The rules that govern the use of electronic voting machines require far greater vigilance and continual supervision by well-trained election and counting judges. This can become expensive for rural counties where budgets often are strained already and enough volunteers are not always forthcoming.
- Rules governing bi-partisan supervision of all election activities should be strictly enforced, with the individual parties, not the county clerk as currently permitted, appointing their own designees for this task. Any security violations are required to be reported to the SOS immediately, which is why judges and watchers must educate themselves. Complaints concerning the election also should be filed promptly by anyone who observes that the election laws and SOS rules have not been followed. Judges and watchers are encouraged to police and correct each other and to report violations.
- Vigilance by the judges is essential to ensure that all ballot boxes are properly sealed and locked, that no one unauthorized person is allowed near the ballots, especially during the counting process, that ballots are handled properly in every respect and that only an individual whose integrity cannot be questioned be entrusted with the keys to these ballot boxes.
- By law, “‘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. Neither candidates nor members of their immediate families by blood or marriage to the second degree may be poll watchers for that candidate.
“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.” Watchers have many more rights and duties, and the laws governing these should be studied carefully by all who wish to serve as watchers.
- Voter privacy must be safeguarded and close attention paid to the signing of the voter logs. Only bi-partisan judges, and in certain cases law enforcement, are allowed to deliver ballots to the courthouse. HAVA laws, violated during the Saguache election per the SOS report, must be strictly observed.
- On election night, great care must be taken to perform the counting properly and methodically, and includes implementing the security remedies prescribed for the M650 when it was decertified. In the security remedies, operators are instructed to “upload memory cards and print totals reports to match…If the reports match, the public is ensured that the totals from the polling place match the totals from the county server.” Batches should consist of 50 or more ballots and should be shuffled on a regular basis.
In printing totals for the Saguache election, some say precinct numbers were printed but not distributed while the clerk’s office says these totals were not printed until the next morning. Until unofficial results are at least posted with a precinct breakout, the SOS indicates there can be no real confidence in any given election.
- Members of the canvass board are generally appointed by the two parties and by special districts that may have had measures on the ballot for the election. The county clerk also may appoint deputized clerks to assist in the canvass. Rules set by the SOS require the Canvass Board to reconcile the number of ballots counted to the number of voters who actually voted in the election. The ballots cast should be less than or equal to the number of people who voted. The board also should reconcile detailed ballot logs and Statement of Ballot forms.
SOS rules state that “If there are discrepancies in the audit, the canvass board or the designated election official’s deputized clerks shall: manually verify the results as many times as necessary to confirm that there is no discrepancy in the manual count; 188.8.131.52.2 Second, take any additional steps as necessary to check for voter error, which shall include but not be limited to: over-votes, stray marks on the ballot, or other voter intent indicia.” The Canvass Board has the power to launch investigations into any discrepancies that may appear in the audited election results.
- It would be wise for every town, every county to form a multi-partisan citizens oversight committee for elections as well other government functions. As the Declaration of Independence states, this government must be of the people, by the people and [it must work] for the people, not for the benefit of a few.
There is much talk about the effectiveness of grassroots organizations in fighting for transparency and honesty in local government, but few real-life examples. If Saguache County voters, even though by nature diverse in their beliefs and culture, impoverished and spread sparsely along mountain ranges and across ranch lands, can work together to make a difference there is really no excuse why voters in any county in the nation couldn’t band together and do the same. Every group starts with a few people and grows from there. It builds by telling neighbors, friends, the media and anyone who will listen what’s really going on. The fight in Saguache County continues because the price of freedom is eternal eternal vigilance. But it began with a few people demanding answers and not settling for less than the truth. It can begin in your town or county, with you.
About the Author
Since 1979 Teresa L. Benns has written numerous articles and published e-books on religious topics. For the past 25 years she also has worked as an award-winning community newspaper reporter in Texas and Colorado. In 2011 she and her editor won the coveted Service to the First Amendment Award at the annual Colorado Press Association convention for exposing the violation of open meeting laws in Saguache County. In 2014, Benns received the Colorado Freedom of Information Coalition’s Jean Otto Friend of Freedom Award for “her sustained coverage and courageous fight for government transparency.”