Colorado election system is out of control

No matter how bad things seem, it only takes a short visit to the Secretary of State’s office to discover that things are really far worse than they first appeared.

The Rules Change meeting gave each speaker 5 minutes – not even enough time to list the names of the problems. About 200 letters and e-mails were submitted regarding the proposed changes. The proposed revised rules are at http://www.sos.state.co.us/pubs/rule_making/proposed_election_rules9-30-04.pdf

The hearing gave the Secretary of State the opportunity to drop another bomb. She is going to allow people to vote AFTER Election Day. This is outrageous.

Our September 27 objections and our September 30 supplemental objections are below.

The Colorado election system is out of control.

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September 27, 2004

We just discovered that the Secretary of State is making election rules changes on September 30th.

Some of the planned modifications are objectionable. For example, the proposed rules authorize voting by FAX machine (rule 25).

1. In our quick reading of the Statutes, we found no Colorado Statute authorizing voting by FAX machine.
2. The rule does not address the federal statement, “Faxing may be an option, but the ballot must be mailed as well.” How does this work with a recount?

Some of these rules are inadequate. For example the rules for RECOUNT:

1. The proposed recount rule (14.3) does not start the recount at the raw cast ballots (including absentee and provisional envelopes). This means that ballot qualification errors will not be detected.
2. The proposed recount rules (14.4.4) appear to transfer the statutory authority for conducting the recount from the canvass board to the Secretary of State.
3. The proposed recount rules (14.5.4) require that paper ballots be RE-counted in groups of 25 (GOOD) but the rules do not require that the original count be done in batches of 25 (BAD). The consequence is that there is no way to verify batch counts.
4. The proposed recount rule (14.5.5) for how counts are recorded is incomplete and inadequate.
5. The proposed recount rule (14.7) for re-counting optically scanned ballots does not require that the votes counted for each ballot image be verifiable against the original ballot.
6. The proposed recount of Ballot Now equipment does not require a verifiable vote record, and does not prescribe statistical sampling.
7. The rules for recount of Direct Record Electronic voting equipment are missing.

And the rules for WATCHERS:

1. Fail to provide process-specifications and process-training for watchers.
2. Fail to require that all processes be identified, and that a schedule of operation for every process be published in advance of the election.
3. Fail to address the rights of watchers to actually read what is happening.
4. Fail to permit multiple watchers for the same candidate as long as the watchers are observing different processes.
5. Fails to require that all electronic data be instantly available to watchers – such as electronic poll books and vote interpretation records and electronic voter registration books.
6. Fails to require that all election workers be identified with a badge containing very legible badge identification of their role, who they represent, and their name/number.

Some rules are missing:

1. There is no rule requiring that the version of each piece of equipment and software (including operating system, PROM, and utility applications) be verifiable.
2. There is no rule requiring that the certification documentation be available.
3. There are no rules regarding the operation of the canvass board.
4. There are no rules regarding the conduct of the Logic and Accuracy Test.
5. There are no rules describing what happens when an error/deviation is detected – for example absentee ballots that were erroneously not counted.
6. There is no rule creating an independent oversight of issues where the Secretary of State or a County Clerk is the subject of the complaint.

September 30th is an inappropriate time for the Secretary of state to be conducting a rulemaking hearing on a 100 page document. Is it intended that these changes would be retroactive to the November 2004 election?

What process will be used to reconcile the differences between the proposed changes and the problems and omissions that we have outlined above?

Thank you for your prompt reply.

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September 30, 2004

This is a supplement to our September 27th objection to the proposed Election Rules.

1. The Rules do not prohibit the use of non-secret ballots. As you know, Boulder County is requiring voters to vote using a non secret ballot. This violates the Colorado Constitution, Article VII, Section 8, and several Colorado statutes. We believe it is the duty of the Secretary of State to promulgate rules that follow the law. These rules do not do so. Please make revisions to secure voter’s right to vote using a secret ballot.

2. At your suggestion, we have reviewed C.R.S. 1-8-103.5(2a), and found the following:

(2) (a) The eligible elector may return the voted ballot to the designated or coordinated election official by electronic transfer. In order to be counted, the returned ballot shall be received in the office of the designated or coordinated election official by 7 p.m. on election day. Once the ballot is received by the designated or coordinated election official, a bipartisan team of judges shall duplicate the ballot, and the ballot shall be counted as all other absentee ballots. Duplicating judges shall not reveal how the elector has cast his or her ballot.

The term “electronic transfer” was meant to mean “secure electronic transfer” as in the transfer of cash using encrypted telecommunications within the banking industry. As you know, the plan for Internet voting, to which this paragraph originally applied, was cancelled because it was not secure.

It was never intended that the term would refer to totally insecure FAX transfers of voted ballots. Using your liberal interpretation, a touch-tone telephone application would be permitted, and I think you know that this is not true.

The Boulder County ballot is said to be 11” X 17”. Many FAX machines do not accommodate this form-factor.

Rule 25 must not permit the transmission of voted absentee ballots using insecure FAX transmission.

3. We are extremely distressed to hear you announce that you intend to count votes on absentee ballots cast after Election Day but received before 10 days after Election Day. Was this disclosed in the draft rules?

Post-election-day voting must not be permitted because it would open a new opportunity for fraud. Qualified voters could obtain an absentee ballot and hold it until Election Day has passed. They can then sell this ballot to the highest bidder. Bidders would know whether it is worth buying, because the preliminary election results would have been announced before the bidder commits funds.

Colorado law is designed to ensure that no voter has the opportunity to know the preliminary results of an election before the voter casts their ballot. Your proposed rule would violate the letter and spirit of the law.

One possible way to remedy the problem would be to delay counting all ballots until after the last day that a ballot can be legally cast.

We hope that you will take these and our earlier comments seriously. We are very concerned that Colorado’s election system is out of control.

Al Kolwicz
Executive Director