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

Election COMPLAINT

August 27, 2004

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


Dear Secretary Davidson:

We need your help.

The Boulder County Republican Party, in accordance with CRS 1-10-101, legally appointed Al Kolwicz to serve as the sole Republican member of the Boulder County Canvass Board.

The Boulder County Clerk, Linda Salas, has selected and retained Republican and Democratic temporary workers that she claims are members of the canvass board.

We have reviewed the Colorado statutes and believe that the Boulder County Republicans did in fact make their appointment within the legal requirements of the law. Further, we do not find any provision of law that would authorize the Clerk to override our legal appointment, or to make additional Republican canvass board appointments.

We ask for your immediate clarification of this matter. If you find that our interpretation of the law is correct please consider this letter as a formal election complaint.

Respectfully,



AI Kolwicz
Designated Canvass Board Member
Boulder County Republican Party

Cc: David Leeds, Chair, Boulder County Republican Party
Robert J. Corry, Jr., Esq., Law firm of Corry and Fellows, LLP

PRELIMINARY recommendations for improvement

The following recommendations are listed in no particular order, and are offered as suggestions to improve the process. They do not include recommendations by the other election officials.

1. The computer systems used for the 2004 primary election should not be used for the general election unless they are first design-reviewed, repaired and certified.
2. The procedures, forms, reports, and training used for the primary should not be used for the general election unless they are first repaired and tested.
3. The ballot cast by voters must be 100% anonymous (secret). The counting system may record a unique identification number on the ballots AFTER they are marked, made secret and cast.
4. All election records and computers must be secured before, during and after the election.
5. The canvass board should have immediate access to the raw election records, not just a “touched up” version of the data.
6. Election records should be made available to the canvass board in an electronic form suitable for importing into database and spreadsheet programs, and suitable for reviewing online.
7. The canvass should convene before Election Day, not ten days after.
8. Security procedures must be developed, tested and implemented before the November election. For example, computers were not functioning, software was loaded into the vote counting machine, and the Longmont facility was down, yet no record of these events was made available to the canvass board. Voting equipment is being operated by elections staff and by vendor personnel after the election, and there is no record of who is doing what or why. We are told that votes from the Longmont facility were transmitted by modem to the vote counting site, however, Logic and Accuracy Testers were assured that the votes were moved to the counting machine via MBB devices, and that no data communications or modems were involved.
9. The counting system must be revised to collect and report proof that votes on ballots are correctly interpreted and counted.
10. Forms, reports and training must be revised to use a common glossary. Currently different titles are used to identify the same thing, and near identical terms to identify different things.
11. There is a question as to whether the HART system is legally qualified, certified and tested. There must be proof that voting systems are unmodified copies of certified systems.
12. Logic & Accuracy testing must not use different procedures than the live election, and the testers should not be intimidated or removed for testing the system. When running the LAT, “under vote” decisions were made by people. However, during the live election, “under vote” decisions were made by the computer. This is an unacceptable change in procedure between the LAT and production work. We know of at least one class of ballot where the computer made an incorrect decision, and we do not know how many time this occurred. The LAT was blocked from testing the capability of the computer to consolidate votes from the seven stand-alone ballot scanning and interpretation computers. This is a fundamental function of the vote counting system and must be tested during the LAT.
13. Boulder County has not conducted a professional acceptance test of the new voting system. Such a test, including both computers and all procedures, must be completed before the system is used again. The County failed to fulfill its public duty to protect the election when it used this system in production before verifying that it works.
14. Boulder County must not deprive voters of a fair election.
15. Federal and State laws protecting the interpretation of votes must be honored, and the computer must not be used to circumvent this obligation. A formal description of what constitutes a countable vote must be negotiated and published. Steps must be taken to minimize the number of situations where a vote will be treated differently based on who or what counted or rejected it.
16. The election must be as open and transparent as permitted under the law.
17. Watchers and media observers must not be barred from any election process with the exception of when the voter marks their ballot. Before this, ballots are unmarked and there is no risk of a secret ballot violation. After this, the marked ballots are anonymous, and again there is no risk of a secret ballot violation.
18. The data needed by poll watchers, candidates, and the political parties must be provided when it is needed, not after it is approved by the Secretary of State.
19. Judges, staff, and watcher procedures and training must be revised significantly and all personnel must be re-trained.
20. We detected conditions that demonstrate that the voter registration system is insecure and inaccurate. It appears that the system cannot detect when a person registers to vote more than once. The system appears to lack data integrity controls – some of the records do not have an affiliation date, and this is needed for a Primary Election.
21. The voter registration file used for the actual election is not the same as the file provided to the Republican Party, dated July 16, 2004 and identified as: “”*** PRIMARY CLOSE DATABASE ***”
22. A formal chain of command must be published, and every person working on the election must be identified at all times by a tag that includes an easily readable number, a color code for the tasks the person is qualified and authorized to perform, and the person’s political party and name.
    

Board could not verify numbers of ballots cast and counted

Progress day-4

The canvass board was not provided with a count of ballots cast.

One Republican and two Democratic temporary workers and I attempted to tabulate the count of ballots cast for each of the three elections, Republican, Democratic and Libertarian.

The canvass board and the temporary workers failed to tabulate the count of ballots cast, as described below.

Number of ballots cast

Earlier attempts to determine the number of ballots cast by counting precinct sign-in slips failed. Sign-in slips do not accurately record the party affiliation and precinct of the voter.

Earlier attempts to determine the number of ballots cast by inspecting the signatures in the registration book failed. The registration book does not indicate to which party an unaffiliated voter affiliates. Further, the registration book does not indicate which ballot (REP, DEM, or LIB) the voter was issued.

Boulder County did not maintain a poll book, so there is no easy to use, verifiable source for the number of ballots cast.

• CRS 1-1-104 (27) "Pollbook" means the list of eligible electors to whom ballots are delivered or who are permitted to enter a voting machine for the purpose of casting their votes at an election conducted under this code.
  
• CRS 1-7-109 (1) The election judges shall keep a pollbook which shall contain one column headed "names of voters" and one column headed "number on ballot". The name and the number on the ballot of each eligible elector voting shall be entered successively under the appropriate headings in the pollbook.
  
• CRS 1-8-108 The designated election official shall keep a list of names and precinct numbers of eligible electors applying for absentee ballots, together with the date on which each application was made, the date on which the absentee ballot was sent, and the date on which each absentee ballot was returned. If an absentee ballot is not returned or if it is rejected and not counted, that fact shall be noted on the list. The list is open to public inspection under proper regulations.

We are told that the Secretary of State waived some aspects of these laws for Boulder County.

To determine the number of ballots cast, we chose to find out for each election:

1. How many ballots were printed?
2. How many ballots were unused, replaced, or duplicated?
3. How many absentee ballots were mailed to electors but not returned to the clerk?
4. How many ballots (net) were cast by the voter, but were not qualified to be counted?

From these facts, the number of ballots cast might be calculated by the formula:

BALLOTS CAST = (1) – (2) – (3)

This formula is helpful because it is based on verifiable facts -- printed ballots, ballots that cannot have been cast, and absentee ballots that were verifiably sent and not returned to the clerk. All remaining ballots must have been cast and must now be in locked ballot boxes or rejected ballot stacks.

No printed-ballot control

There is no report that consolidates the number of ballots printed by election, precinct, and voting method. Such a compilation is needed to help verify that votes are counted in the correct places.

To make forward progress, we attempted to calculate/estimate the number of ballots printed for each party’s election, but we discovered that data was either missing, not verifiable, or not in a form that can be used for the canvass.

In addition, we discovered serious functional and security problems with the HART ballot printing system. Multiple ballots were printed with the identical serial number.

Separate logs of ballots printed are not linked together so it is not possible to determine if any are missing, and the log entries do not identify what type of ballot is printed (party, style, precinct, etc.). There is no summary report showing the number of ballots printed by type. The ballot numbering and tracking system is not secure or verifiable.

We also discovered a security problem with the administrative system. Some judges were directed to issue sample ballots when the stock of real ballots ran out. We are told that these sample ballots were duplicated and counted, but there is no provision for tracking the effect of these sample ballots on the accounting system.

In addition, the HART system does not provide a verifiable report of ballots that were withdrawn from the inventory. Some ballots that were printed for use in early voting were counted with the precinct ballots. Voters who applied to vote in the Republican Primary appear to have been given a ballot for the Democratic primary, or a ballot for a different precinct.

Apparent violation of Colorado statutes and constitution

Ballots used in the election were pre-printed in batches for use in precincts, and printed on demand for use in early voting. It is unclear if ballots were printed on demand or pre-printed in batches for absentee voting.

The ballots pre-printed in batches did not contain a removable stub, as required by statute. The quantity of ballots printed on demand cannot be reconciled, as required by statute.

• CRS 1-5-407 (1.6) No ballot stub is required for a ballot produced on demand, so long as the quantity of ballots produced for the election can be reconciled by the ballot processing method used by the voting system. Such ballots may contain printed and distinguishing marks, so long as secrecy in voting is protected.

In addition, the use of ballots with non-removable serial numbers appears to violate Article VII, Section 8 of the Colorado Constitution. Secrecy in voting cannot be protected due to the “printed and distinguishing marks” called serial numbers.

Number of ballots counted

The number of ballots counted is printed on a report by the HART system. We were provided with an early version of the report, but never saw the final.

We know that there is a difference between the version of the report that we examined and the final version because at 2:45 PM the clerk announced that some additional ballots had been discovered, and had to be counted for the final report. I am unaware of any request for a Republican Party representative to observe the count.

Abstract of votes

There was no document identified as “abstract of votes”. A high level summary report and a more detailed report were offered as what might be the abstract of votes.

• CRS 1-1-104 (1) "Abstract of votes cast" means a certified record of the results in each election for candidates for any office, ballot issue, or ballot question that the county clerk and recorder certified for the ballot.

The two reports do not contain the data needed to verify that votes are counted correctly.

• Over and under votes are not reported, so it is not possible to verify that every vote is counted.
  
• There is no way to verify that a counted vote has been counted for the correct candidate and in the correct precinct.

To certify the abstract of votes, data must be available to verify that every vote is counted and that every vote is counted correctly.

Republicans ask Clerk to repair damage

Ms. Linda Salas
Boulder County Clerk
1750 33rd St.Boulder, CO 80303

August 26, 2004

Dear Ms. Salas,

Today’s Colorado Daily contains the following statement:

“According to Halicki, a number of Democrat and Republican members of the canvass board signed the report, but Al Kolwicz, Republican Party appointee, refused to sign.”

As you were legally informed, the Boulder County Republican Party legally appointed Al Kolwicz as the only Republican member of the canvass board. Temporary workers selected and paid by the clerk’s office do not represent the Boulder County Republican Party and are not authorized to sign the canvass report for the Republican Party.

If you know of a legal provision that empowers you to pick your own Republican members of the canvass board, please identify this provision.

Otherwise, please take necessary steps to repair any damage that you have caused by incorrectly asserting that “a number of Republican members of the canvass board signed the report.”

Sincerely,



Al Kolwicz
Republican Representative to the Boulder County Canvass Board

cc: Donetta Davidson, Secretary of State
Paul Danish, Boulder County Commissioners, Chair
David Leeds, Boulder County Republicans, Chair
Bill Eckert, Boulder County Republicans, Vice Chair
Robert J. Corry, Jr., Esq., Law firm of Corry and Fellows, LLP

Republicans decline to sign

Ms. Linda Salas By FAX: (303) 413-7750
Boulder County Clerk
1750 33rd St.Boulder, CO 80303

August 25, 2004

Dear Ms. Salas,

As of the time you set for the Boulder County Canvass Board to reach a decision, 3:00 PM today, August 25, 2004, the board has not been provided with the following election data:

1. Numbers of BALLOTS COUNTED
2. Numbers of BALLOTS CAST
3. Final copy of the ABSTRACT OF VOTES
   

Despite a sincere and rigorous effort to discover them, I do not know the final numbers of ballots counted or even a close approximation to the number of ballots cast. Since I cannot compare the two numbers I cannot “confirm that the number of ballots counted in the election does not exceed the number of ballots cast in the election.”

At 2:45 PM, I was told that a final abstract of votes would be printed, but I never saw it. Since I have not verified the final abstract of votes I cannot “certify the abstract of votes.”

Even if I had been provided the final abstract of votes at a reasonable time, I know that there are data missing from the system that I would need to certify that the votes were correctly counted.

Therefore, the Boulder County Republican Party declines to approve the Canvass.

Sincerely,



Al Kolwicz
Republican Representative to the Boulder County Canvass Board

cc: Donetta Davidson, Secretary of State
Paul Danish, Boulder County Commissioners, Chair
David Leeds, Boulder County Republicans, Chair
Bill Eckert, Boulder County Republicans, Vice Chair
Robert J. Corry, Jr., Esq., Law firm of Corry and Fellows, LLP