To
Election Watcher Advisory Panel for delivery prior to Friday June 12 meeting
From
Harvie Branscomb
6/11/2015
These
briefings to the panel are becoming increasingly difficult to write but are
becoming increasingly important. It has become apparent that a majority of this
panel is not going to defend the existing statutory right of watchers to
witness and verify all steps in the conduct of an election and participate in
the correction of discrepancies. Only very few on the panel have addressed a
widespread lack of watching in Colorado after election processing was
increasingly centralized and mechanized. Watching remains largely focused on
VSPCs that more closely resemble the precinct polling place where almost all
watching once took place. The agenda for the panel is apparently being driven
by the SOS office to who the eventual advice will be given. It may be that more
independence is needed by this panel to provide complete and meaningful advice.
By
far the greatest need is for watching to be facilitated and encouraged and
appreciated at central count facilities. But in addition there are likely
hidden steps in the conduct of the election such as the assignment of election
judges, the ballot print and fulfillment process, the LAT, envelope intake and
cure processes. These are examples of activities that are not frequently
conducted by election judges. Entire days may go by in a county during the
election process prior to certification when election judges are not brought
in, yet watching surely must be made possible if not expected.
Watching
for partisan challenge of eligibility (or defense against that) is only one
function of watching yet it is the one that could be too often focused on in
our committee discussions. I suspect that many members of the committee are
unfamiliar with the quantity of election process errors and omissions that are
being discovered through recent instances of watching. In my case it is a rare
election watching experience when I do not witness an error that can be
corrected once I notify about it. Election quality is visibly enhanced by the
participation of watchers who are focused on election integrity. Opportunities
for this kind of watching to take place must not be curtailed by the work of
this panel.
Watching
is not a pre-scheduled activity like election judging. Watching is an
opportunity for various interests in the election to bring eyes but not hands
to bear to see the process being performed, to check the integrity of ballot
chain of custody, to verify that ballots are prepared and sent properly, to
check that post election process is fully and properly executed and to verify
if election judge decisions are responsible. Watchers collect information and
provide input in the form of information that can but does not have to be used
to correct discrepancies and errors. They do not act as a substitute for
election judges. On the other hand and more importantly, election judges cannot
function as a substitute for watchers.
I
am capable of reporting many instances of errors in elections that I discovered
while watching. Unfortunately the format and size of panel does not give me
much time to provide such examples. The panel does apparently appreciate
examples like my description of watching at the Health Care Facility. But my
example was only used to curtail potential future watching. In one instance
another example was used to lead the panel astray. The implication that
watching negatively affected the desire of a Garfield printer to accommodate
watchers seemed incomplete. I checked with Jean Alberico and confirmed that she
is talking about a reaction to an event where I was present at the printer in
Glenwood Springs in a court ordered discovery process. This was not watching
and I see no reason why the printer would react negatively to watchers as a
result.
However
it is clear that private entities have a right to exclude persons from their
facilities. It appears to me that if a crucial function that belongs to an
election is to occur at a private facility then the relevant portions of that
facility must be open to oversight that law provides for. This example ought
not serve as an explanation for why watchers should be excluded from the
printing process. (Not at all.)
I
perceive from the expressions and votes thus far that this panel has a majority
of members who appear to expect that election quality will follow simply from
trust of election officials. But if we as a panel advise the Secretary based on
this expectation the result of our work will naturally breed public distrust as
well as less than optimal elections. Only when elections officials encourage
watching and other forms of public involvement will meaningful trust be built.
Our role as I see it is to advise in a way that will help those officials to
move in that direction whenever possible.
Under
current clerk discretion, election judges may be assigned to certain statutory
steps in the conduct of elections and not others. And county staff may be
delegated to become deputy clerks and or election judges. This delegation
itself is not a transparent process and there is no easy means for a member of
the public or a watcher to learn who is and who is not an election judge. If
watchers are to be approved by election officials and only given access when
election judges are present watchers may easily be prevented from witnessing
and verifying all meaningful steps in the conduct of an election. Instead of
requesting that they be trusted, officials should be requesting and
facilitating verification. Our panel seems to be taking the approach that by
structurally limiting watching or giving officials the tools to make obstacles
to watching we will return to trust in our officials. This will not work.
Here
are some of the major points that I maintain will provide for adequate
constructive watching and that I will promote for inclusion in our panel report
even if it represents a minority viewpoint:
1)
Watchers must be allowed adequate access to all steps in the conduct of the
election – but this does not imply that there must always be facilitation for
all possible watchers that could be legally allowed. A broad definition of what
constitutes “steps” is essential.
2)
Watchers should have access to a means for correcting discrepancies that allows
timely input and feedback about the result and preferably a means to witness
the process of correction.
3)
All “steps” cannot be listed in a manner to be all inclusive or prescriptive.
Steps depend on many variations in process. The definition of steps must remain
flexible to apply to the instance. Specific facilitation of specific activities
can be beneficial to the watching function.
4)
Watching is limited to collecting and sharing information to be used to correct
process immediately, or for a HAVA complaint or an election contest or for
other legal remedial measures – watching does not and must not imply
participation in the election judge function of decision-making. Training of
watchers and judges can be helpful to achieve this important distinction.
5)
Unlike election judging, watching does not require a balance of interests. This
is because watching is primarily a passive information gathering function.
Because one party does not field as many watchers should not prescribe a
maximum to be allowed for another party.
6)
Space is not to be an apriori determinant of the maximum accommodation for
watching although in real time decisions will have to be made to curtail
accommodation when space becomes limited. There may be minimums set that a
county must at some point accommodate, but existing choices and uses of
facilities are not to be the driver for for maximum opportunities for watching.
7)
Means to communicate in order to collect adequate information for watcher
purposes must be made available either at the time the information is being
used or afterwards, but before an irrevocable step is taken in the election
process pursuant to the decision. This will be better facilitated if there is
DEO discretion to make a policy where watchers may make inquiries of limited
scope to election judges, staff and vendors who may be present.
8)
Means to communicate for the purposes of correcting discrepancies must be
provided in a form that is both timely and accountable. Eligibility challenge
must be facilitated with appropriate forms and processes including a way for a
watcher to follow up on the resulting process.
9)
Watchers must be able to establish their credentials at the location to be
watched without requiring prior interaction with another election official
elsewhere. If this necessitates carrying documentation showing eligibility
proof and authority of the authorizing entity as well as the actual
authorization signed by that entity and oath signed by the watcher, then those
are the documents that should be required- but none requiring approval by the
DEO.
I
will be editing these points and adding to them during the next few weeks. I
encourage an email discussion over these points and others as long as the email
is provided to the entire panel. Thanks very much!
Harvie Branscomb 4:04 PM
Thursday June 11
