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.

===========

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.

=========

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

Do you want to win this election? Stop lost votes!

There are two distinct types of poll watching: (1) get out the votes, and (2) stop lost votes. Simply getting your voters to the polls will not win an election. It is also necessary to organize the oversight needed to make sure that ALL of the votes that you get are accurately counted, and NONE of your opponent’s votes come from errors or fraud.

Errors can be (1) simple mistakes or they can be (2) arbitrary interpretations of potentially ambiguous situations or (3) arbitrary actions taken when there is a choice. An ambiguous signature can be accepted by an election official – if the signature is of a voter who is of the same affiliation as the person making the judgment. The same signature can be rejected if it is for a voter of the opposite party. Rules for voter ID can be strictly or loosely enforced to fit the interests of the judge. And the judge might not even know that this is what they are doing. There are many examples of where these situations come up in an election. Only by keeping your eyes and ears on the election processes can these lost votes be prevented.

The first thing to know is that most County Clerks and their elections manager are seeking a different objective than are the voters and the candidates. They want a smooth election that requires minimum time and effort, and that lays no blame at their feet. They are shielded by the Secretary of state, the Attorney General, and the courts. They hire temporary workers who do exactly as they are told – who exercise NO independent judgment. They also hire and train the judges who also do exactly what they are told and exercise ALMOST NO independent judgment. The officials work to hide problems and bury complaints and complainers. The officials want everything done in secret.

Voters, candidates, and issue committees (at least the honest ones) want en election whose outcome they can trust. This requires that the election be secure, accurate and verifiable. These people want everything done in the open.

Many election contestants are vaguely familiar with the role of the poll watchers who work in the precinct. These watchers are appointed by the contestants and have traditionally served to GET OUT THE VOTE. Voter ID requirements, as well as early, absentee and provisional voting and late voter-registration file updates create a situation inside the precincts where things can go wrong. Votes can be lost or overridden. A knowing set of eyes and ears can challenge and prevent these losses. Even one or two votes at each of hundreds of polling places add up.

Most election contestants are not familiar with the other role of the poll watcher – STOP LOST VOTES. Colorado law has created several mechanisms for independent oversight. All of them should be used to the benefit of the Party and the Candidates and Issue Committees. These mechanisms must be staffed with trained and skilled workers. If the party and/or contestants fail to appoint people to serve, then either (1) the clerk will appoint someone to fill the position (bad) or (2) the position will be left unfilled (bad).

It is possible to prevent the loss of hundreds, perhaps thousands of votes by effective central poll watching. The key positions are canvass board, logic and accuracy test, and centralized-election- processes. A summary of each follows:

1. Canvass board – appointed by each major political county party. Duties are prescribed by law and are to verify that the number of ballots counted does not exceed the number of ballots cast, and to verify the accuracy of the (count) abstract of votes. The canvass board is in charge of any recount. Canvass members require knowledge of the law, the county election system, and basic auditing techniques. In the case of a recount the members must know (or learn quickly) a lot about the various ballots and the Colorado statutes.
2. Logic and Accuracy Test – appointed by each major political county party. Create test ballots and calculate the number of votes, under votes, and over votes for each race/candidate. Approve the vote counting system – after verifying that it works correctly. This is tricky and requires technical know-how.
3. Centralized-election-process poll watchers – these folks are appointed by the county parties and by the individual candidates and issue races. There can be a lot of watchers, and there are awkward rules that must be followed. The clerks will attempt to be difficult. There are many processes that take place in multiple places over a period of about six weeks. Somebody should to be “watching” everything all of the time. Multiple processes can be going on at the same time.
   
   a. Master ballot preparation
   b. Central ballot control
   c. Voter registration
   d. Absentee voting
   ... i. Absentee ballot application and fulfillment including post office
   ... ii. Absentee ballot qualification including voter ID and signature verification
   ... iii. Absentee ballot poll book administration
   ... iv. Absentee ballot opening, verification of correct ballot, and batching
   e. Early voting
   ... i. Early ballot voter authentication, eligibility verification, and ballot issuance
   ... ii. Early ballot poll book administration
   f. Emergency ballot application and issuance
   g. Provisional voting
   ... i. Provisional ballot qualification including voter eligibility authentication, signature verification, and proper forms completion
   ... ii. Provisional ballot opening, verification of correct ballot, and batching
   ... iii. Provisional ballot poll book administration
   h. Duplication board
   i. Vote interpretation and counting
   ... i. Precinct ballot
   ... ii. Early ballot
   ... iii. Absentee ballot
   ... iv. Provisional ballot
   ... v. Emergency ballot
   ... vi. Duplicated ballot
   j. Consolidated reporting
   
   Getting out your vote is not enough. You must also work to staff the independent oversight positions with skilled people. Watchers can make sure that every voter you bring to the polls will have their vote accurately counted and that no ineligible votes will override one of your good votes.
   
   Remember, to overcome an overridden vote requires that you get out TWO votes – your original vote (that was overridden) and the replacement vote you need to win the race.
   
   Al Kolwicz
   CAMBER
   Citizens for Accurate Mail Ballot Election Results
   2867 Tincup Circle
   Boulder, CO 80305
   303-494-1540
   AlKolwicz@qwest.net
   www.users.qwest.net/~alkolwicz
   http://coloradovoter.blogspot.com

Use a provisional ballot instead of a DRE

Pete Klammer and I have had extensive offline discussions on the topic of provisional vs. absentee ballots for DRE voting situations.

Pete has definitely convinced me that voters in DRE situations should use a provisional ballot instead of a DRE. We verified with the Secretary of State that voters have this right (see below).

Pete has done an excellent job of analysis, and his arguments are solid. He plans to publish them for all to see.


Al Kolwicz
CAMBER
Citizens for Accurate Mail Ballot Election Results

----------------------------------------------------------------------------
From: Bill Compton [mailto:Bill.Compton@SOS.STATE.CO.US]
Sent: Tuesday, September 21, 2004 7:39 AM
To: alkolwicz@qwest.net
Cc: Public Administration
Subject: RE: Please confirm

Dear Mr. Kolwicz:

This is to confirm that an eligible elector who does not present ID at an early or precinct voting place is legally entitled under both state and federal law to vote a provisional ballot.

Bill Compton
Director of Elections

GOP appeals its rejected election complaint

NEWS RELEASE

The Boulder County Clerk dismissed the legally appointed Republican representative from the canvass board and appointed her own “Republican representatives”.

The Boulder County Republican party filed a complaint with the Secretary of State, August 27th. The Secretary of State rejected the election complaint, September 9th.

Boulder County Republicans filed a formal appeal of the Secretary of State’s ruling. The Republican Party does not believe that the law permits county clerks to unilaterally dismiss legally appointed political party representatives. The canvass board is a part of the checks and balances which are intended to protect elections from error and fraud. Members are appointed by each of the major political parties to ensure independent verification of election results.

Boulder County Republicans had a similar problem with Boulder County in 2002.

Al Kolwicz, the dismissed canvass board member said, “The Secretary of State's office is collaborating with the Boulder County Clerk to deprive voters of trustworthy elections.”

In part, the appeal says, “It cannot be permitted for county clerks to arbitrarily “replace” a legally appointed canvass board member because the canvass board member properly refuses to cover up missing election data and falsify a report. What has happened here is wrong, and those responsible must be removed from positions where they can do further harm to the people.”

Appeal of rejected election complaint

September 17, 2004

Ms. Donetta Davidson BY FAX: 303-869-4861
Secretary of State
1560 Broadway, Suite 200
Denver, CO 80202

REFS:

Our election complaint, dated August 27, 2004
Rejection of complaint, dated September 9, 2004
Our disapproval of the Boulder County Canvass, dated August 25, 2004
Our proposal on rules, materials and methodology, dated August 20, 2004

Dear Secretary Davidson:

We believe that Mr. Compton is incorrect in his letter of September 9, 2004.

1. There was never a vacancy that permitted the Boulder County Clerk to make a vacancy appointment. In fact the Boulder County Republican Party explicitly “declined to approve the Canvass.”
   
2. The Republican representative was not asked to participate in the canvass to “certify the abstract of votes cast.” In fact the Republican representative was legally appointed according to statute, and the duties are described below:
   
   Duties of the canvass board. CRS 1-10-101.5.
   The canvass board shall reconcile the ballots cast in an election to confirm that the number of ballots counted in that election does not exceed the number of ballots cast in that election.
   
   The canvass board also shall certify the abstract of votes cast in any election.
   .
   
3. The Republican representative did not “refuse to sign off” because the “canvass was not being conducted according to [his] demands.” In fact the Republican representative “declined to approve” the canvass because the data needed to perform the duty of the canvass board was not provided, and because data needed to certify the abstract of votes are missing.
   
4. There is no basis under law that would authorize a county clerk to create a vacancy because a canvass board member, while performing CRS 1-10-101.5 duties, identifies problems with the election records and refuses to approve the canvass. In fact, the Boulder County Republican Party, the voters of Boulder County, and our system of representative government have been harmed by the action of the clerk.
   
5. It is not true that “reconciling the number of ballots cast in an election ... may, by necessity, be done at a later date.” In fact there is no such provision in the law.
   
6. It is true that the county executive committee refused to accede to the demands of the clerk to replace the official Republican representative. The executive committee concluded that the representative was properly performing his duty.
   
7. It is not true that [in order to get the canvass approved] “the county clerk and recorder [had] no alternative but to appoint another person to the canvass board pursuant to C.R.S. 1-10-101(1)(b).” In fact it was and remains the duty of the county clerk to produce a verifiable count of the ballots counted and a verifiable count of the number of ballots cast, and to produce the records needed to verify that the votes reported in the abstract of votes were correctly counted.

We disagree strongly with your assertion that “the Boulder County Clerk and Recorder acted correctly pursuant to state law, therefore, we consider the matter resolved.”

This matter is by no means resolved. As you have read above, the basis for your conclusion is entirely false. We demand a thorough investigation of this matter, and prefer that a mutually agreed to third party conduct the investigation.

It is our understanding that the duty of the Secretary of State is to oversee elections in order to ensure election integrity. We believe that the Secretary of State does not have the legal authority to cover up egregious actions and wrongdoing by local county clerks.

It cannot be permitted for county clerks to arbitrarily “replace” a legally appointed canvass broad member because the canvass board member properly refuses to cover up missing election data and falsify a report. What has happened here is wrong, and those responsible must be removed from positions where they can do further harm to the people.

Respectfully,


AI Kolwicz
Designated Canvass Board Member
Boulder County Republican Party

cc:
David Leeds, Chair, Boulder County Republican Party
Ted Halaby, Chair, Colorado Republican Party
Scott Russell, Political Director, Colorado Republican Party
Robert J. Corry, Jr., Esq., Law firm of Corry and Fellows, LLP

"No," to mail-ballot-only election

Dear Boulder City Council,

We hope that you will carefully review the City’s past experience with mail-ballot-only elections. You will find that the City has documented that mail ballot elections are much more expensive than traditional precinct voting elections.

With a little effort, you will also find that mail ballot elections are not secure, not accurate, not anonymous, and not verifiable. In other words mail-ballot-only elections are not suitable for conducting public elections.

More than 60 percent of Boulder County voters recently voted against Amendment 28 which would have mandated the exclusive use of mail ballot elections. The people do not trust voting by mail ballot. Voters understand that in a traditional precinct voting election they are allowed to choose to vote early or vote by absentee ballot – at their own discretion.

Boulder voters should not be forced to vote using the defective mail-ballot-only voting system that is not secure, accurate, anonymous and verifiable, and that costs more than precinct voting, and deprives voters of their choice of which method works for them.

Elections are not about cost or convenience to election officials. They are about trustworthy results. Trustworthy results require that elections be secure, accurate, anonymous, and verifiable.

I am among the many voters who do not trust mail ballot elections. The following article from Today’s NY Times contains some thought to contemplate. There are many more.

While it is true that Council has the power to force voters to vote using mail ballots, we hope that you will not exercise this power.

Give us an election that we can trust.

Election Complaint filed against HART

Colorado Secretary of State Donetta Davidson:

This is a formal complaint against the HART InterCivic electronic vote-tabulating equipment and the HART InterCivic election administration equipment.

1. The equipment appears to not be certified, CRS 1-5-601.5, CRS 1-5-614, CRS 1-5-615, and see attachments.
2. The equipment relies on ballot serial numbers that violate protections given by the Colorado Constitution, Article VII, Section 8, CRS 1-5-407(7), and CRS 1-5-615(1)(a).
3. The equipment fails to count votes correctly, CRS 1-5-615(1)(l).
4. The equipment fails to legally treat defective and incomplete marks, CRS 1-7-508(2).
5. The equipment contains software which enables it to use different rules for tabulating votes during the Logic & Accuracy Test from the rules used to tabulate votes during the election.
6. The equipment fails to save and produce the records necessary to audit the system, CRS 1-5-615(1)(p).
7. The equipment fails to provide a secure and verifiable means to reconcile the quantity of ballots produced for the election by the ballot processing method used by the voting system, CRS 1-5-407(1.6).
8. Although we have not seen your records, we are concerned that software failures were not reported to the Secretary of State, 1-5-621(2).

In an effort to expedite a resolution of these matters, I briefly discussed the issue with Drew Durham and he recommended that I submit a formal complaint. We understand that you will investigate this complaint, CRS 1-5-621. Because this complaint is of highly technical matters, and because Secretary of State’s personnel are involved in some of the problems, we recommend appointment of a mutually agreeable third party to conduct the investigation. We are prepared to discuss details in a fair and open investigation.

Because of the nature of the problems identified above, we ask that you, as Secretary of State, immediately order Boulder County to not use ballots containing non-removable serial numbers, and to not use the HART InterCivic equipment for vote-tabulation or election administration.

Yours,


Al Kolwicz
Elections Representative, Boulder County Republican Party
Eligible Elector, Boulder County, Colorado
Executive Director, CAMBER

cc:

David Leeds, Chair, Boulder County Republican Party
Bill Eckert, Vice chair, Boulder County Republican Party
Robert J. Corry, Jr., Esq., Law firm of Corry and Fellows, LLP
Drew Durham, Colorado HAVA Director

REFERENCES:

1. Follow up communications, September 10, 2004
2. Follow up communications, September 7, 2004
3. Follow up communications, September 3, 2004
4. Follow up communications, August 31, 2004
5. REQUEST procedures to consider revocation of certification, Kolwicz to Davidson, August 27, 004
6. REQUEST procedures to consider revocation of certification, Kolwicz to Davidson, August 26, 004
7. Potential certification problem with HART InterCivic in Colorado, Kolwicz to Davidson, August 10, 2004
8. Certification Notice, Kolwicz to Davidson, August 10, 2004
9. HART Certification Analysis, Kolwicz to Davidson, August 10, 2004

Election watchdog won't face charges

Prosecutors say they don't have a good case against Kolwicz

Under pressure from election officials to charge a legally appointed election-equipment test-designer with interfering with government officials, the Boulder County District Attorney decided there is no case to prosecute.

Click to read the story http://www.dailycamera.com/bdc/election/article/0,1713,BDC_16316_3167194,00.html