Friday, June 12, 2015

Watcher rules must comply with the law.

June 11, 2015


Suzanne Staiert, Deputy Secretary of State Colorado Department of State
1700 Broadway
Denver, CO 80290

Re: Watcher Advisory Panel, June 12 meeting public comment Dear Deputy Secretary Staiert:
We are writing on behalf of the Election Oversight Committee of the Colorado Republican Party regarding election watcher activities in general, and specifically the critical importance of transparency and oversight of the signature verification process for mail ballots. We request that this public comment be delivered to all members of the Panel in advance of the June 12 meeting.

As the panel considers the importance of election oversight by authorized watchers, we request that the panel member reference the policy statement provided by the Colorado Republican Party supporting the principle currently in statute of watchers’ rights to “witness and verify each step in the conduct of the election, and to assist in the correction of discrepancies.” The party statement of dated May 14, 2015 is attached.

The right to verify and assist in the correction of discrepancies is essential in the signature verification process. In mail ballot elections, signatures are the only means of validating the voters’ identity. The opportunity for fraud and abuse is rampant in mail ballot elections, and acknowledged by most election security experts, regardless of party affiliation. Voters and watchers’ ability to challenge eligibility is not and should not be limited, regardless of the number or type of ballots  challenged. Watchers must be able to challenge any mail ballot voter’s signature— not merely a sample selected or restricted by election officials. By restricting watchers to inspection of only a sample of signatures or review the work of up to four separate signature verification stations simultaneously, the statutory rights of the watcher to “witness and verify EACH step in the conduct of the election,” and “assist in the correction of discrepancies,” or challenge mail ballot voters are improperly infringed.

Therefore, any constraints on the practical ability of the watchers to verify or challenge any signature they select (without foregoing their rights to review other signatures being simultaneously processed), are improper and conflict with statutory watchers’ rights.

We fully recognize the need of election officials to be able to effectively and efficiently count ballots. However, we also believe that fully complying with the law concerning the ability of watchers to verify and challenge signatures does not conflict with the ability of election officials to perform their job properly. Developing a system or procedures in advance of elections to accommodate the watchers and their ability to perform their duties should alleviate many concerns that election officials may have concerning watcher involvement.

I think we all can agree that election fairness and transparency are top priorities. It is essential that all candidates, issue committees and their supporters, regardless of political affiliation, be permitted to have equal access to challenge ineligible voters and incorrect decisions by election judges. Without full rights of all watchers to challenge the decisions of bi-­‐partisan election judges, the election lacks fairness and transparency.

We are pleased to offer our comments, and appreciate the opportunity to do so to inform the work of the Watcher Advisory Panel. Please contact me or Marilyn Marks, Secretary of the Election Oversight Committee, ( if you have questions. Thank you for your consideration of our comments.

Becky Mizel
Chair, Election Oversight Committee Colorado Republican Party

cc: The Honorable Wayne Williams, Colorado Secretary of State (via email) Steve House, Chair Colorado Republican Party (via email)
  Derrick Wilburn, Vice-­‐Chair Colorado Republican Party (via email)
Committee members: Al Kolwicz, Marilyn Marks, Ellyn Hilliard (to be confirmed), Marc Zarlengo. Legislative Liaison, -­‐Charles Heatherly (via email)

  Steven Ward, Dept of State, Elections Division

Watchers' critical role in election integrity is under institutional threat.

To Election Watcher Advisory Panel for delivery prior to Friday June 12 meeting
From Harvie Branscomb
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

Signature Verification doesn't work, Watching doesn't make it work.

June 11, 2015
Dear Deputy Secretary Staiert:

To our knowledge, there has been no official effort on the part of Colorado government to ensure the purity of elections that allow for remote voting. Yet, it is our understanding that the government is responsible for establishing laws, rules, and standards for accomplishing same. We are deeply concerned that government has not stepped up to fulfill this most vital role.

The watcher advisory panel has apparently accepted as a given that signature verification is a substantially compliant fulfillment of the requirements that every eligible elector is given the opportunity to vote, and that only eligible electors are allowed to vote. It is apparently accepted that watching election judges perform signature verification procedure is a substantially compliant fulfillment of the opportunity for watchers to verify every step in the election process. We believe that these are faulty assumptions that must be defended.

In the interest of brevity, we will not recite the many details supporting this assertion. But we will identify a few of the controls to remind committee members of the requirements that are implemented for in-person voting. The controls are designed to ensure that:

·       ·        Electors are protected from electioneering while voting
·       Electors are protected from intimidation –private voting booth, anonymous ballot, etc.
·       The identity of the person claiming to be a particular registered voter is verified before admittance to the polling location
·       The eligibility of the elector to receive, mark, and cast a ballot in each of the relevant contests is verified before the ballot is placed into the ballot box.
·       A rigid chain of ballot custody ensures that only the eligible elector can receive, mark, and cast their ballot, and once cast the chain continues until the ballots are archived.
·       Votes are anonymous – without exception.
·       The ballot box is protected from vote that were sold or traded  
·       Etc., etc., etc.

Watchers in a polling place are able to verify, challenge, participate in resolution, etc.  Watchers in remote voting are generally not.

With regard to the signature process itself, it is fatally flawed. It is not tested, it is inadequately measured, it is not transparent, and it is inadequately watched.

An example flaw is the unfair imbalance between the treatment of rejected and accepted signatures.  Rejected signature are subjected to an elaborate process to ensure against false rejects.  Accepted signatures are not subjected to an equivalent process.  Yet a false accept has the same negative consequence as a false reject -- an eligible voter is disenfranchised.

We have offered suggestions for improvement (not a total cure), but government appears to be uninterested. Several techniques should be evaluated, and considered for adoption. All will improve, but not cure the abilities to effectively perform watcher duties.

1.     The signature verification process must be tested.  To do so, the entire subsystem including signature verification training, typical signature verification judge, actual signature verification processes (including interactions with other processes) and full transparency including operator identified time stamped transaction logs.  The test data must be fabricated for the test, otherwise there is no practical way to know the correct decision on each signature, and it is not likely that the variations would include all of the know ways to produce fraudulent signatures.

2.     The signature verification process requires a means to conduct near-time in addition to real-time watching.  In near-time watching, the logs and signatures created by the real-time process will be available to watchers for a reasonable period of time before each real-time-batch is released to the next process (certainly before envelopes are opened).

3.     The signature verification process requires a rule to require that each signature processed be verified by a second, absolutely independent election judge (or team).  The go/nogo decisions of each team will be independently compared (probably automatically by processing their logs), and any discrepancies will reported and treated in a uniform manner. It is vital that there be no communication between the first and second pass – this would spoil the independent nature of the process. It is vital that the second pass be completed before an envelope is released to be opened.

Signature verification is a totally inadequate method for achieving the requirements of a pure election (see above).  Watchers, and election judges are unable to perform their duties when Colorado’s remote voting methods are employed. The proposals above do not correct these problems, but do make for an improvement to the Colorado’s existing signature verification methods.

We ask that you immediately adopt the three techniques outlined above.  Number 1 will reduce the uncertainty surrounding the integrity of the signature verification methods.  Number 2 will expand the ability of watchers to perform their duties.  Number 3 will increase the quality of the signature verification process, reduce voter disenfranchisement, and increase transparency related to signature verification, and improve watcher access and effectiveness.
We are available to discuss these recommendations.

Will you please have this distributed to committee members?  Thank you.

Al Kolwicz

Colorado Voter Group
2867 Tincup Circle
Boulder, CO 80305