As Colorado shapes up to be a swing state during the 2012 General Election, suggested changes to Secretary of State (SOS) rules governing election integrity and transparency could further endanger Coloradoans rights to an anonymous ballot and honest elections.
Those hoping for a fair election outcome in a crucial race for the White House will instead probably face relaxed security precautions for already compromised electronic voting devices. They could also be faced with a Colorado Open Records Act (CORA) blackout that would deny access to key election documents for nearly 90 days during the election cycle.
The CORA block would prevent poll watchers, media, and ordinary citizens from examining ballots, and would delay and restrict examination of logs, poll books, and other essential election information in the event of a disputed election. This even after Colorado Secretary of State Scott Gessler won a lawsuit in August 2011 against Saguache County Clerk Melinda Myers, with District Judge Martin Gonzales ruling that ballots are public records and Gessler as well as ordinary citizens have a right to request and inspect them.
Judge Gonzales' decision was later upheld by an appeals court decision granting Aspen election-integrity advocate Marilyn Marks the right to inspect and copy photocopies of ballots cast during her bid as a candidate for mayor of Aspen, Colorado, in 2009.
Despite these clear rulings by the courts, for the past several months the Colorado County Clerks and Recorder's Association (CCCRA) has been lobbying to obstruct CORA requests for ballots, most of them made by Marks, and has openly questioned the Colorado Appeals Court decision. Further, the City of Aspen has appealed the appellate ruling to the Colorado Supreme Court. In the clerk's opinion no one should actually be able to verify an election once they have "counted" the ballots, or rather their contractors and voting machines have produced numbers telling the citizenry who "won."
Even more worrisome to election integrity activists, however, is the claim by several CCCRA clerks who recently admitted that they know how to trace actual ballots back to the citizens who voted them and that this can be easily done given the right circumstances. It is thought by some involved in preserving election integrity that rules proposed by Sec. Gessler's staff December 7, 2011, in Denver represent a reversal of Gessler's previous stance that ballots are open records and an adoption of CCCRA's "sacred ballot" position. In short, citizens would not be able to see the ballots to verify the election results and county clerks and their cronies can often tell how you voted.
"When elections are conducted in a way that complies with the Constitution, it naturally follows that transparency and voter privacy will not be in conflict," Marks said. "It is very important that the press and the public be allowed to inspect ballots and verify that they are indeed untraceable and anonymous." Marks added that Saguache County Clerk Melinda Myers tried to batch ballots in the November election in a way that they would be traceable. Citizens watching the count objected, she pointed out, and the SOS officials supervising the election made Myers comply with the rules governing the batching.But SOS officials are rarely present to see the rules are followed.
In October Al Kolwicz, with the Colorado Voter Group, addressed CCCRA's claims that the ballots could be traced to voters with State legislators. He told them in an e-mail that it is essential for election integrity to correct any "deficiency in the voting system certification process [that] has allowed government officials to know how individual voters have voted."
Kolwicz also advised legislators that they need to investigate whether the clerks' behavior has violated the federal Help America Vote Act (HAVA) laws and determine, "What has been done with [any] illegal knowledge" they have obtained.
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 2006 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 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 December 8th 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."
Proposed Rule 52 changes would limit the application of CORA laws concerning the inspection of voted ballots, tracking reports, (including logs related to the ballot tabulation process, ballot batching, also audit logs from the statewide voter registration database) during a two-week time period before and after elections, "to prevent disruption of the county election offices" and ensure "election integrity."
No one would be able to submit or receive answers to CORA requests concerning ballots or the previously mentioned records. Requests during this period for records from a previous election could be accommodated only if the clerk felt it was not an imposition.
The County clerk would actually be instructed to deny inspection of specific ballots and tracking reports "to protect the integrity of the election records and voter secrecy." The rule changes do not define "voter secrecy," although several other definitions of terms used are contained in the proposed rule changes. Nor will any specific tracking reports be available for inspection that would identify "the batch, bundle, bin, tub, box or tray location of any specific ballot...to preserve voter secrecy."
The clerks would be empowered to review each and every ballot to determine whether they can be released under these rules. Of course they would be allowed to charge citizens for the time required for such examinations, likely in the thousands of dollars.
A long list of documents not to be released at all by clerks include: provisional ballots, certain mail-in ballots, undeliverable ballots, military/overseas ballots, ballots with markings, and 10 or fewer ballots from split precincts,
"I believe that any CORA limitations or expansions must be through legislation, not by rule, for administrative issues related to ballots and CORA," Marks said in her comments to the Secretary of State on the proposed rule changes.
Those conducting the citizens' count in Saguache County during the summer of 2011 were able to view many of these records and found a number of errors and discrepancies they believed might explain why and where the Saguache 2010 election went awry. Secretary of State (SOS) officials, however, would not allow them to pursue the investigation of these records.
The SOS also proposes lifting many of the security requirements now in place for voting equipment, including the need for video surveillance of the entire election process. Rules 43.3 through 43.8 would be struck entirely. These rules govern the clerks' requirements to file and revise when necessary their security plans.
Rule 43.8.1 would also be deleted, requiring tamper evident seals on containers storing cartridges and memory cards removed from voting machines. Several security requirements for DRE voting devices are eliminated. No watchers sworn under oath would be allowed to handle ballots. Two clerk's office employees or two election judges would be allowed to verify all seals without any citizen witnesses or supervision.
Continuous video would no longer be required, 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. Without continuous surveillance tampering becomes a trivial problem.
The Secretary of State would be required to randomly inspect, at his discretion, voting devices throughout the state in even-numbered years and maintenance records for the devices in odd-numbered years. Many feel this inspection should be made mandatory and more devices and records should be inspected.
If the proposals are implemented, county clerks would be allowed to investigate and sit as sole judge on breach of security incidents for which they have no training or experience, determine on his/her own what constitutes tampering, and based on that decide what, if anything should be reported to the SOS, let alone the public. Many other security measures now in place were also proposed for deletion.
"It is these 2008 security rules and conditions of use that the Secretary now proposes to relax or eliminate entirely," Hultin pointed out in the press release. "He [Gessler] offers no reason for this other than the self-serving and conclusory statement that he is considering 'possible amendments to the election rules in order to improve the administration of Colorado elections law.'"
Hultin said Gessler should be strengthening rules for conditions of use of dubious DRE voting systems and taking on more responsibility for overseeing "free, fair, secure, and safe elections in Colorado." The proposed changes to Rule 43 ignore existing security and eliminate many of the Secretary's duties, he noted, while relaxing and eliminating security measures for the convenience and ease of county clerks. "One can only speculate what is behind the proposed changes," Hultin concluded.
Saguache County encountered similar problems with the M650 voting device distributed by Elections System & Software in the November 2010 election. In 2007, the SOS only agreed upon the conditional use of this device contingent on strict security measures that, if followed, would greatly reduce or eliminate the possibility that the M650 could be manipulated or hacked. These possibilities are warned against in the M650 operating manual itself but were not followed by the clerk.
State legislators held a preliminary meeting in Denver December 13, 2011, to discuss the ballot controversy and related issues but did not arrive at any hard and fast decisions on how to address them, some of those attending the meeting said. CCCRA members plan to take the matter before lawmakers when the legislature convenes in January 2012.