Thursday, April 26, 2007

CO Senate Bill 83- must protect election verifiability

To: Representatives
re. Senate Bill 83
(election statutes)

April 26 2007 v.3

From: Coloradoans for Voting Integrity (CFVI);
The Voting Integrity Project, Be The Change USA;
Honest Elections U.S.;
Citizens for Accurate Mail Ballot Election Results (CAMBER);
Democracy For Colorado (DFC)

(six pages attached with talking points for each issue, one per page)

Coloradoans for Voting Integrity (CFVI) a state-wide election advocacy group, and the other groups listed above have prepared a list of talking points on 4 critical elements of SB83 which impact the public in general and need correction now before the bill becomes law. We are looking for sponsors for amendments on these issues:

  • Verified paper audit trail should contain ballot issue submission clause not only number or letter
  • Vote center must have a functional local backup poll book for cases of network failures
  • ballot marking devices should be acceptable by statute to be certified
  • preserve accuracy and full records of audits

. and two provisions which have already been removed by House committee which removal is consistent with the public interest and should not be reversed on the house floor or in the conference committee…

  • polling place posting of results should be maintained
  • mandatory recount on close election should be maintained

These six are appended to this message. We hope members of the House can use this information and these arguments to support needed amendments to the SB-83 bill language in the floor debate on second reading. Please keep these pages in your file for SB083.

Please introduce and or support an amendment on second reading of SB083 to the following effect :

Require Voter Verified Paper Audit Trail (V-VPAT) to contain "name" of ballot issue

SECTION 2 (P. 4, LINES 15-21 of March 30 engrossed bill)


* voter can not be expected to remember the meaning of the number or letter of every issue and question on the ballot
* voter expected to verify meaning of "Amendment 39 Yes"
* submission clause is already used in statute, required on results printout from machine (which is itself usually a long narrow paper tape)
* V-VPAT is useless unless truly verified (except blind disabled voters can not verify on current DRE machines)

* may not be room for submission clause on paper tape (also may not be room for candidate name)
* voter may not care to, or be able to verify (which is the very reason not to use DRE machines and to return to paper ballots for all voters using optical scanners and BMDs)


Please introduce and or support an amendment on second reading of SB083 to the following effect :


(CRS 1-5-102.7- substitute language on p 18 line 5 of Mar 30 engrossed SB083)


* Denver's 2006 election failure caused huge disenfranchisement of eligible voters who left the poll sites without voting- possibly affecting outcome of election
* Denver election failure could have been avoided if registration data were available locally at each poll site, and Colorado statute and SOS rule would allow its use to verify voter eligibility at the poll site
* registration is now finalized 30 days prior to election, so data are easy to produce either on paper poll books, or on electronic storage for local use
* if any voter votes twice, their name will be forwarded to DA and criminal prosecution will follow, and every case will be recorded and likely reported to the public
* enfranchisement of many voters takes priority over prevention of the remote possibility of occasional duplicate voting
* depending on size of county, data may be kept on paper or electronic media

* registration book for a large county with vote centers is almost unprintable on paper poll books
* non networked local data for emergency means voter could vote twice in 2 different polling places
* registration lookup on paper may be difficult with a paper poll book



PRO ARGUMENTS (supporting re-inserting language to allow BMD certification):

(please amend to re-insert page 19 lines 9-23 of the 2nd engrossed version of the bill which were removed by amendment in House committee)

* two states, Colorado and Arkansas, prevent certification of BMD systems now in use
* BMDs are superior to DRE in aiding disabled- they provide full verification on a paper ballot
* BMD permit all voters to vote on paper, but DREs require electronic ballots and it is hard to verify electronic counts and may prevent voting on paper
* Disabled voters' lobby argues that they should vote in the same method as others, this argument can and has worked to disadvantage of all voters when DRE provides less transparency and accessibility for testing and auditing and recounting than paper ballots and BMD systems
* if a county chooses 100% DRE, voters have no right or ability to vote at polling place on paper
* if there is no right to vote on a paper ballot, polling can not be designed to avoid lines when crowds appear at the polls... but with paper ballots, distributed freely with proper procedures, lines can be avoided.
* casting of hand marked paper ballots with precinct optical scan often consists of a voter carrying a ballot in a secrecy sleeve to an election judge who sometimes removes the ballot and operates the optical scanner. This is no different from an election judge assisting the disabled voter to perform the same function. This comparison shows that the existing language does not differentially discriminate against the disabled, nor is it a violation of equal protection.

COUNTER ARGUMENT (supporting removal of existing SB83 "CASTING" language, which supplements the current statute)

* disabled deserve to "independently" and personally deposit their ballot into the ballot box or optical scanner, since this is what casting of a ballot consists of
* the existing statue was written to favor the DRE system; the disabled voter is able to electronically "cast" their ballot without assistance even though the blind can not verify their vote

Please introduce and or support an amendment with the following beneficial effects on post election audit:

AMENDMENT 044 on audits adopted by committee 4/24/07


(Concerning page 24 lines 9-18 of March 30 engrossed SB083)

A discussion on auditing will come to the floor of the House. The reality of auditing typically being performed is already chaotic and not technically sound. The amended bill now calls for 5% of the machines to be audited for two randomly selected races where also all of the races are now to be audited, but this statute does not sufficiently define what constitutes an audit. The amended bill also calls for an alternate audit method to be used by approval of the SOS. We recommend that additional language be applied to call for improved accuracy in this alternative audit. We also recommend that records be kept of the precise method of audit in each audit report, as well as a log of exceptions found, corrections made, and lessons learned. This new audit report created by the canvass board should be published with the audit numerical results on the SOS web site. This will permit access to enough information to be able to compare the success of two or more methods of audit, as well as to be able to evaluate the success of the audit qualitatively.

There is basically zero record-keeping of the existing audit under existing rules. The legislature should call for the SOS to require additional record-keeping and publishing of a description of the process taken by the canvass board in each district to supplement the already published simple numerical results of audits... to reveal the real situation with audits for future analysis. As canvass board members in different counties both Al Kolwicz and Harvie Branscomb have attempted to include notes with the audit results and these results have not been made public by the SOS.

We will never have a truly functional audit until the legislature and other people who care about election quality (other than the secretary of state and his office) can read what has transpired during the audits. It is very possible that human error could produce a "perfect" audit in the reconciliation process when election officials strive to cause the numbers to match. I have heard of this happening.

Please consider to bring an amendment for record keeping and publishing of the actual audit procedures and incremental results found including exceptions and recommended enhancements. (e.g. “first a mismatch was uncovered, then a human error was found and subsequently the hand count and machine tally were found to match”, etc.)... This would fit well with Chairman Weissman's idea of promoting a "pilot audit" in certain counties if they choose to do so. If the procedures taken and results of this pilot audit are not published, how useful will such a pilot be?

Also please support any amendment to the effect that any replacement audit should achieve statistical accuracy and significance greater than the audit it replaces.


Section 26 1-7-514(1)(a)(III), Colorado Revised Statutes, is amended to read:

(III) For an election taking place in a county on or after the date the county has satisfied the requirements of section 1-5-802, the audit shall be conducted for the purpose of comparing the manual tallies of the voter-verified paper records produced or employed by each voting device selected for such audit with the corresponding ballot tallies recorded directly by each such device IN THE ORIGINAL ELECTION TALLY.

(b) To the extent practicable, no voting device that is used for the random audit required by paragraph (a) of this subsection (1) shall be used for conducting the testing of voting devices for recount purposes required by section 1-10.5-102 (3) (a).

(2) (a) Upon completion of the audit required by subsection (1) of this section, if there is any discrepancy between the manual tallies, as specified in accordance with the requirements of subparagraph (II) or (III) of paragraph (a) of subsection (1) of this section, as applicable, of the voting device selected for the audit, and the corresponding tallies recorded by such devices, and the discrepancy is not able to be accounted for by voter error, the county clerk and recorder, in consultation with the canvass board of the county established pursuant to section 1-10-101, shall investigate the discrepancy and shall take such remedial action as necessary in accordance with its powers under this title.

(b) Upon receiving any written complaint from a registered elector from within the county containing credible evidence concerning a problem with a voting device, the canvass board along with the county clerk and recorder shall investigate the complaint and take such remedial action as necessary in accordance with its powers under this title. (but the canvass board has no such powers)

Section 26 1-7-514(2)(c), Colorado Revised Statutes, is amended to read:

(c) The CANVASS BOARD AND county clerk and recorder shall promptly report to the secretary of state A DESCRIPTION OF THE AUDIT PROCESS UNDERTAKEN INCLUDING ANY INITIAL, INTERIM, AND FINAL the results of any completed audit or investigation conducted pursuant to paragraph (a) or (b) of this subsection (2).

Section 26 1-7-514(3), Colorado Revised Statutes, is amended to read:

(3) The secretary of state shall post the REPORTS results of any completed audit or investigation conducted RECEIVED pursuant to the requirements of subsection (2) of this section on the official website of the department of state not later than twenty-four hours after receiving the results of the completed audit or investigation. The clerk and recorder of the affected county may timely post the results of the completed audit or investigation on the official website of the county. The secretary shall publish once in a newspaper of general circulation throughout the state notification to the public that the results have been posted on the department's website.

Change to end the polling place posting of the vote abstract

This section of SB-83 has been removed in committee on a vote, thanks. Please vote against any attempt to reinsert this damaging provision.

(This Section of SB-83 should be removed-Delete lines 26-27 on page 25 and lines 1-16 on page 26 of the 2nd engrossed bill)


* Precinct posting requires quick resolution of results at polling place, avoids delay of the reporting of election results, internet posting is neither immediate nor polling place specific
* quick posting helps prevent hiding of poll site errors and fraud
* precinct posting is usually a direct printout from the voting machine, not manipulated results
* without precinct posting, no motivation for the rules to call for or the machine to be designed to produce an immediate local results record on paper
* posting is an early warning system for results, and allows quick election problem follow up
* posting allows immediate election day comparison of similar results from different places
* posting is popular with voters and is expected in many counties especially rural areas,
* posting can be done with simple physical security and should be accompanied by a sign notifying site tenants of the 48 hour posting period
* for cross checking, posting should include under and over votes.
* new language in this section does not specify either time or place that poll results can be obtained
* without posting, clerks will likely wait until data is combined before release of results to the public
* data separated by polling place allows errors to be noticed earlier
* public has a right to have quick access to all vote counts and exceptions
* Central posting of results may be a long distance from rural poll site
* posting provides faster access to results... where otherwise we must wait for memory cards to be transported and uploaded at central tabulation center, manipulated and redistributed


* posting is inconvenient in certain locations such as without a glass door or window accessible to the public- abstract tapes could blow away
* posting is inconvenient in metro vote centers where so many precincts vote together and voting machine tapes are therefore long, cumbersome and take space
* some county clerks have programmed their voting machines to not produce the precinct abstract tapes

Waiver of Mandatory Election Recount

(This section of SB-83 has been removed in committee 4/24/07, thanks. Please vote against any reintroduction of this damaging provision):


* preserves status quo- provides some means for verifiability
* recount is for election accuracy, not losing candidate "sour grapes" or vanity
* recount involves needed extra attention to ballots by hand counting- (preferably NOT by machine counting unverifiable barcodes as currently permitted)
* use of recount is rare - elections are not often within 1/2% margin
* recount becomes unlikely if it is made optional but costly
* pressure on losing candidate to waive recount is inevitable
* pressure is likely on political and fiscal conservation arguments
* pressure will be self-asserted by the loser (not necessarily overt)
* recount should resolve unseen mistakes and overlooked ballots
* losing candidate does not have the right to make this a personal choice - it is the public's election
* benefit of recount is for all persons in Colorado, not merely the losing candidate

* recount is expensive and time consuming for county election officials


Additional notes by Harvie Branscomb, CFVI on the Ballot Marking Device issue and BMD advantages versus DRE (electronic voting and counting- Direct Record Electronic) April 25, 2007

1) CFVI is concerned that SB-83 will affect the public's future access to paper ballots at the polls because it does not sufficiently address ballot marking devices (BMD). These are electronic devices which permit any voter including many disabled to mark a standard paper ballot. In committee, a provision in SB-83 supporting BMD (Section 18 of the Corrected 2nd Engrossed SB-83 - pp.19, lines 11-23) was lost. The current Colorado statute [CRS Section 1-5-704 (1)(N)(I)] on HAVA compliant accessible voting systems has been the stated excuse used by prior Colorado SOS certification directors for blocking the state certification of ballot marking devices (BMD) in Colorado. The SOS office felt that they were bound to reject certification followng the restrictive statutory language concerning "casting of ballots" - however "casting" has not been statutorily defined.

Colorado is one of only two or three states in the U.S. that have not election-certified Ballot Marking Devices (Arkansas is another). This denial of certification of BMD systems has severely affected the Colorado voter's access to paper ballots. In turn, this has forced county clerks, in trying to be HAVA compliant, to buy DRE machine systems. The counties could have purchased Ballot Marking Devices to supplement their existing paper ballot optical scanners to satisfy federal HAVA requirements for disabled voter access (as has happened in counties in most other states).

Counties like Eagle, Douglas, Routt and others, decided that while taking the federal HAVA money, they could try to go to 100% DRE machine voting. However, this has proved to be much less than desirable... leaving disgruntled would-be voters abandoning the poll sites because of long lines (CFVI has the names of voters who abandoned in Eagle County). This "fleeing voter" problem, resulting from long lines, also occurred in Denver, Routt and Montrose counties - these counties are all now on the SOS "election watch" list for 2008. This would not have happened with Ballot Marking Device systems, since the voters could have chosen voter-marked paper ballots if the BMD machines malfunctioned. The lack of or misuse of a paper ballot alternative system created problems in many Colorado counties in 2006. We simply do not know how many counties were affected and by how much.

County Clerks, like in Eagle County, argue they are saving the time it would take to train election judges on two voting systems, but in reality the extra cost of the DRE machines (capital cost, maintenance, testing and future software upgrades) surely far outweighs any possible extra cost of election judge training for two parallel election technologies at the polls.

The language which has recently been removed from the SB-83 bill was meant to ensure that BMD systems could be SOS certified. The use of a BMD paper ballot system would have allowed both disabled and non-specific voters to use the same paper ballots and optical scanner equipment.

The argument that some disabled advocates (but not all) are making about "independent" unassisted voting, makes little sense when the DRE machine alternative allows very few disabled voters to actually verify their ballot choices as marked on the DRE screen. This seems clearly more problematic than the inability for some small number of the disabled voters to personally carry, or visually verify that an election judge carried their voted, secrecy-sleeved ballot from the Ballot Marking Device machine to the counting device or ballot box. All voters choosing to use the BMD system would cast their ballot in the same manner - there would be no equal protection issues with the BMD systems.

Paper ballots vs. DRE

The unnecessary switch from paper ballots to DRE (direct record electronic voting ) machines involves several disadvantages:

1) extreme increase in testing time and decrease in test accuracy during pre-election Logic and Accuracy Testing, required by statute.

2) reduced accessibility to ballots for election officials to recount the votes

3) much higher cost per voter with these DRE systems (not even calculating future upgrade and maintenance costs of these machines)

4) complex election judge retraining and extra machine security required per SOS rules

5) the possibility that voters can not have their vote intention correctly interpreted by the touch screen (or similar) interface, and are too embarrassed to report this to the poll site election judges (this is indicated in part by totally blank electronic ballots- a statistic which should be recorded and published)

6) the impossibility of quickly creating new DRE voting stations at a poll site as necessitated by high turnout and long lines. This is easy to accomplish with paper ballot based systems.

Coloradoans for Voting Integrity (CFVI) hope you will seriously consider our 6 major points about SB-83 and most importantly seriously consider finding BMD language to motivate the SOS and election machine manufacturers to bring Ballot Marking Device paper ballot systems to Colorado. The national federal legislative trend is towards a return to paper ballots, and Colorado needs to re-emphasize the advantages of paper ballots at Colorado polling places - for both the disabled voting community and for all Colorado voters.

Respectfully submitted,

Cary Lacklen, CFVI

Harvie Branscomb, CFVI

Margit Johansson, CFVI

Claudia Kuhns, The Public Integrity Project, Be The Change, USA

Jeff Cook, Honest Elections U.S.

Al Kolwicz, Citizens for Accurate Mail Ballot Results

Joe Richey, Democracy For Colorado

No comments: