EJF Newsletter —If Saguache Election Not Resolved, History Will Repeat Itself by Teresa L. Benns

Any sufficiently advanced technology is indistinguishable from magic. (Clarke's Third Law)

Arthur C. Clarke, "Profiles of The Future", 1961

English physicist & science fiction author (1917 - )


Saguache County, Colorado, is a small (2010 population 6,108) county in central Colorado, of whom roughly 2,500 are registered voters. The county clerk is the usual bureaucratic slug commonly found in small, out-of-the way places which invariably have far more government than they need.

After the Help America Vote Act (HAVA) was passed in 2002 some $4 billion dollars was made available to counties across the country. Those funds proved to be a real boon for voting equipment manufacturers who quickly produced a series of election disasters, notably involving Diebold and Direct Recording Electronic (DRE) voting machines, although other vendors and methods of counting votes electronically, e.g., optical scanners, produced the same level of junk equipment and scandals.

But technologically-illiterate county clerks across the country were wined, dined, and seduced by vendor's promises of magically producing virtually instant vote counts with these "new" and wonderful devices (see Clarke's Third Law). Plus the clerks were showered with all this "free" money with which to purchase these magical devices. Who could resist?

Of course the snake oil salesmen working for Diebold, ES&S, Hart Intercivic, and Sequoia didn't mention the expensive maintenance and updates needed and issues like certification for accuracy, durability, performance, etc. were sidestepped or feigned. Of course, when real testing was done the voting equipment failed on a wide range of issues, accuracy and reliability being at the forefront.

Among other problems in the rush to "modernize" elections with shiny new computer equipment, no cost/benefit analysis was ever done. Whether a county clerk had 100 or 1 million ballots to count made no difference, they all had to have the latest "magic" or be left behind with the time-tested 19th Century method of hand counting ballots at each precinct.

Crude estimates suggest counting ballots electronically might be cost effective if something over 50,000 ballots have to be tallied. Certainly it is not cost effective to tally just 2,500 ballots by machine. But cost effectiveness seldom means anything to a government bureaucrat, especially if manna from the feds is available, and the vendor promises the slug's life will be made easier. Saguache County Clerk Melinda Myers was no exception and eventually found a used ES&S M650 election system for which she had HAVA funds for about half the cost. A complacent county commission took the other half from unknowing citizens. Unfortunately, there was not enough money that could be quietly stolen from local citizens to also purchase the software without which the M650 is not certified for use in Colorado. Another disadvantage, often overlooked, is that with a central scanner like the ES&S M650 all ballots must be brought to the central office to be counted rather than doing the count in the precincts where the ballots are cast. That is a major security hole particularly for a county spread across the Rocky Mountains and sparsely populated.

Anyone who has had to give advanced electronic equipment to technology-challenged individuals can easily imagine what happened next. Teresa Benns, who reports for the Center Post-Dispatch, and now for the Equal Justice Foundation as well, has documented the disasters, arrogance, and incompetence surrounding modern Saguache County elections in the past year.


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If Saguache election not resolved, history will repeat itself

By Teresa L. Benns

September 11, 2011

Part I: Summary of 2010-11 election events in Saguache County, Colorado


The election tempest that has been brewing for the past year in this quiet little mountain town in Southern Colorado could be a harbinger of disputed races nationwide in 2012 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 can 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 disagreed 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.

Synopsis of Saguache election events


The August primary preceding the 2010 election was problematic. One candidate, Democrat Tim Lovato requested a recount and both he and Republican Party Chair Richard Drake filed complaints with the Colorado Secretary of State, (SOS). Some of the same complaint items resurfaced in the general election, which was partly supervised by a Secretary of State 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, elected in 2006,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 November 2, 2010, election and the events that followed. Video surveillance confirmed some of these reports.

On November 2 nd 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 on her own to retabulate the votes, meaning they were run once again through the optical scanner for tabulation without judges or watchers present. 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 emailed objections to the SOS who then sent officials to Saguache on November 15-16, 2010, to review the retabulation. The reversal of the race did not change. However, the review only counted the number of ballot pages run through the scanner during the retabulation.

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 counting of ballots using the ES&S M650 election system on November 8, 2010, without judges or watchers present.

While ES&S technician Tim King explained the scanner malfunction to the public on November 15 th , 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 Real Aspen, as well as the local paper, the Center Post-Dispatch — from verifying his 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. Even average citizens are able to identify these contrasts.

Canvass board refuses to certify the election


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 Secretary of State, one following the non-certification submitted on November 22, 2010, and another following a November 29 th recount of, and again their 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 by Clerk Myers.

On December 10, 2010, the Colorado Secretary of State issued an official report addressing the primary complaints and the violations observed by the SOS official during the November 2 nd 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 Clerk Myers admitted she had never read the Colorado Title I statutory requirements for conducting elections in the four years since she was elected. It was also later 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.

Case taken to grand jury


In January several Saguache residents and an election integrity advocate from Pitkin County, Marilyn Marks, filed complaints with the Colorado 12 th Judicial District, which were forwarded by the district attorney handling Saguache cases to the state attorney general's office. The case then went before a statewide grand jury.

The grand jury found no fraud involved in the election process according to a report issued in June 2011. But it is believed that the grand 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 Clerk 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.

Some speculate that the powerful Colorado County Clerk's Association (CCCA, for example see You Will Vote The Way We Tell You To Vote, Verstehen!), SOS officials as well as Saguache officials, and possibly ES&S, gave secret testimony in Myers' favor. In July 2011 a recall effort was launched against Myers.

Lawsuits filed against Saguache clerk by citizen and Colorado Secretary of State


In a letter to Aspen vote integrity advocate Marilyn Marks in January, following Marks repeated requests to examine the ballots and other election materials, Myers wrote:

"As you have been informed in your past attempts to inspect ballots, due to the sensitive nature of election materials I can not allow you access." She then cited C.R.S. 24-72-204(6)(a): 'When an official custodian of a public record believes that the disclosure of such content would do substantial injury to the public interest, such official may withhold the records and apply for review by the District Court.'

In my opinion, the release of documents that are confidential would create distrust of the election process by the voters of Saguache County, whom I am obligated to protect, and cause injury to the overall public interest."

In February 2011 Marilyn Marks filed a Colorado Open Records Act lawsuit against Myers for her failure to deliver election records for examination under Colorado's Open Records Act.Following Secretary of State Scott Gessler's announcement in March that his office would conduct a citizen's review of the ballots, Myers e-mailed Gessler refusing to deliver the Saguache ballots without a court order. Gessler immediately filed an injunction in Saguache District Court seeking custody of the ballots and eventually won his case, but not without a fight from Myers and the Colorado County Clerks Association headed by Scott Doyle. who filed an amicus brief on Myers' behalf with the court.On August 12, 2011, Saguache District Judge Martin Gonzales ordered Clerk Melinda Myers to turn over the ballots to Secretary Gessler and also ruled that ballots are public documents.

Marks continues to battle with ES&S officials to require their testimony in order to bring her case to court. Recently she has been challenged once again by Clerk Myers in her quest to do an independent review of the election results, despite a court decision to produce all the ballots.

Frustrating conclusion to citizens' review


To date the SOS has not responded to requests by Saguache County citizens that their office conduct an even more thorough investigation of the election. The SOS issued a press release on the review August 31, 2011, stating that, "The tally confirmed the winners in the races for county commissioner, county clerk and recorder and the At-Large University of Colorado Regent though procedural differences resulted in a small variance in the vote count. 'This review provided unprecedented access to the ballots,'" Gessler said."

However, 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. And Saguache County citizens are disappointed in the lack of transparency during the review.

Many believe that the conditions imposed on the recent August 29-31, 2011, citizens review supervised by the SOS defeated the entire purpose of a hand count, because the suspected errors in key areas remain unexamined. Judges were not allowed to compare the initial precinct breakout from the unofficial results November 2 to the new totals, a major issue when ballots are not counted in the precincts and, instead, transported to a central location insecurely.

Questions also remain concerning the Northern Saguache Ambulance District race, declared off limits by Secretary Gessler in the plan the SOS put out ahead of time for conducting the review. Citizen requests to do such a review were ignored.

While some held out hope that the SOS review would renew voter confidence, the hand count results varied little from the initial totals released by the county following the SOS review of the retabulation and the subsequent recount. Most importantly, citizen judges were not allowed to break mail-in ballots into precincts for a close examination or to count Precinct 5 votes as separate group.

Saguache County residents 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. They continue to maintain that until the performance of the ES&S M650 voting device and its operation by Myers' office during the election is thoroughly investigated by objective, qualified experts, their doubts cannot be dispelled.

Ballots go uncounted and are then seized by clerk


Toward the end of the review on August 31 st , over 30 apparently uncounted ballots were discovered that could have tipped the race to Carlson, but were never included in the reported results. SOS officials appeared reluctant to allow a more in-depth investigation of whether they were truly counted and the votes were never reconciled with the final totals.

Incredibly, following the three-day court-sanctioned public review August 29-31, 2011, by the Secretary of State, Clerk Myers seized 200ballots from certain precincts — purportedly by order of Saguache District Judge Martin Gonzales and confiscated the folder containing over 30 uncounted overvotes.

Accompanied by a Saguache County Sheriff's deputy, Myers stormed into the review with deputy clerk Renee Hazard waving the "court order." Later it was discovered that no new order was ever issued, and the order she produced was simply the initial decision by Gonzales filed in Gessler's favor. SOS officials returned the ballots to Myers without making a determination on her right to remove the precinct results, indicating that they could not control what she did once they were in her possession.

Later it was discovered that Myers had mixed in early voting ballots with mail-in ballots, an act some believe is illegal. While eventually Myers allowed Marks to count all but 20 "identifiable" votes, many discrepancies noted by judges during the citizens review remain unaddressed by the SOS. In the plan SOS officials submitted prior to the review, they stated that any irregularities discovered during the review would be investigated.

Voting device malfunction not addressed


Some believe that Myers has been unfairly demonized and is the subject of a witch-hunt. Others point out that the many inconsistencies in her behavior tell the real story. Some of these inconsistencies include her refusal to deliver the ballots and turn over public records, the recent seizure of ballots without authorization and her penchant to do things "my way" and behind closed doors. All these behaviors have cast suspicion on her motivation throughout the protracted election process and have prompted the issuance of recall petitions now circulating un an attempt to remove her from office.

But in the final analysis, the controversy centers on electronic voting equipment and its vulnerability to misapplication or manipulation by it operators and those in close proximity of its location. As early as 1992 the dangers were recognized: "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 November 3, 2010, 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.


Part II: Saguache electronic voting contagion could go viral in 2012


As election integrity activist Bev Harris documented in 2007, the rush to acquire electronic voting machines began in earnest when the Help America Vote Act (HAVA) passed in 2002, making billions 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, disabled voters, (many of whom were duped into believing this would benefit them overall), the AFL-CIO and George Soros' Open Society, to name a few, as well as ES&S, Diebold, and other voting machine companies. As Harris notes, the bill was passed with the best of intentions, but its fruits have been bitter indeed.

Clerk Myers had been dealing with the Secretary of State on a regular basis long before the county's election woes began in November 2010, so she already had an established rapport with then Secretary 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 ES&S M650, purchased partly with HAVA funds in October 2010.

Secretary Buescher, however, lost his re-election bid November 2, 2010, despite the campaign funding 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 in the game of musical chairs we've come to expect with politicos.

When asked if Buescher's position would compromise the grand jury investigation, the Attorney Generals office responded that Buescher would not be involved with the Saguache investigation.

But the problems go deeper. Soros is the former business partner of Maurice Strong, who initially funded the Manitou Foundation in Crestone, Colorado, that sponsored many of the spiritual centers in northern Saguache County. Myers' friend, Commissioner Joseph sits on the board of the Manitou Foundation.

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 after the recount reversed the election results. And the way the SOS and Myers handled the problem reportedly encountered with the ES&S M650 differed little from the way similar problems were handled in Wisconsin. One might even hark back to Lyndon Johnson's 1948 U.S. Senate race that was won by 202 ballots that had curiously been cast in alphabetical order just at the close of polling, and all of whom were later found to have been dead on Election Day.

As in Saguache, Wisconsin authorities open records act requests were also denied, making it difficult to identify the true source of the problems, and verify times and dates of any difficulties. And as happened with the November 15-16, 2010, by then Secretary of State Buescher's review of Myers' "retabulation," there was no real human review of the ballots, only a repetitive mechanical review.

As is standard practice with most recounts where electronic vote counting is used, "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 Secretary 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 November 15, 2010, review of her retabulation.

According to Myers, she had no idea prior to her purchase of the ES&S M650 election system 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. 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.

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 in Colorado dating back to 2005 have been tabulated by the Equal Justice Foundation. 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 January 22, 2008, the City of San Francisco announced $3.5 million settlement with ES&S." But can one count the value of an election in dollars?

Like many other county clerks nationwide, Myers purchased the ES&S 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.

With a continuing recession a repeat of the Bush-Gore debacle in 2000 could be the final shove that sends this country over the edge of the election-integrity 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 Election Defense Alliance Director Jonathan D. 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,"

America should follow suit. But the reality is as Simon sees it: "We reform in the wake of calamity, not in anticipation of it."

Teresa Benns

Del Norte, Colorado



| EJF Home | More newsletters | Get EJF newsletter | Find Help | Join the EJF | Comments? |

Issues The Equal Justice Foundation Deals With

| Civilization | Families and Marriage | Domestic Violence | Domestic Violence Against Men in Colorado | Emerson story |

| Prohibition & War On Drugs | Vote Fraud & Election Issues |