Watcher rules must comply with the law.

June 11, 2015

VIA EMAIL

Suzanne Staiert, Deputy Secretary of State Colorado Department of State

1700 Broadway

Denver, CO 80290

Suzanne.Staiert@SOS.STATE.CO.US

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, (Marilyn@AspenOffice.com) if you have questions. Thank you for your consideration of our comments.

Becky Mizel

Chair, Election Oversight Committee Colorado Republican Party  becky.mizel@gmail.com

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

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

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
303-499-9527
Al@AlKolwicz.net

Colorado's non-transparent and unverifiable election system won't cut it in '12

July 14, 2011                      

Mr. John Hickenlooper, Governor

Ms. Dianne Ray, Auditor

Mr. John Suthers, Attorney General

Mr. Walker Stapleton, Treasurer

Mr. Scott Gessler, Secretary of state

Mr. Scott Doyle, President of Colorado County Clerks Association

Mr. Brandon Shaffer, President of the Senate

Mr. Frank McNulty, Speaker of the House 

Dear Honorable Colorado Officials: 

We see dark clouds gathering over Colorado’s election systems.  Officials are not fulfilling their positions of public trust and are compromising the very foundation of our government – free and open elections. 

Time after time Colorado election officials have refused to produce for public analysis the data needed to detect election error and fraud.  Officials responsible for enforcement ignore, provide cover, explain away, or outright excuse material errors and violations committed by themselves, other officials, and vendors.

Inadvertently sometimes, but other times purposefully, public officials circumvent and weaken election statutes and rules, increase the likelihood of election error and fraud, and make it more and more difficult for the public to verify that the election outcomes are correct.  Also, rulemaking and complaint processing procedures have been established that are self-serving and altogether unfair to the public.

This letter intends to draw your personal attention to Colorado’s defective election systems.  We seek your leadership in setting a high priority agenda to devise and implement immediate and long term remedies.  As a key official you can speak out in behalf of the public and draw attention to the problems.  And you can recruit talent suitable to the task of addressing these problems.

This is urgent.  With the highly contested 2012 election season already underway, it is vital that changes needed to protect the integrity of this election be devised, implemented and enforced.  The stakes are high.  Emotions are high.  There is a risk that a “win whatever it takes attitude” will encourage voter intimidation, vote selling, voter impersonation and other inappropriate activity.

Most of you have successfully navigated the election system so you are likely to be “generally satisfied” with the process.   We, who have studied this system in detail for many years, are “strongly not satisfied”.

We are a multi-partisan group.  We do not collaborate on election contests.  Instead, we collaborate on oversight and improvement of the election process itself. 

We have served as canvass board members, election judges, and poll watchers.  We are highly knowledgeable active participants in: election rulemaking, election lawmaking, best election practices development, election complaint processing, post-election audit, election and open records litigation, and election system certification and testing.  As a group, we have considerable technical and election expertise.

 After more than a decade of work, we have observed a disturbing increase in the likelihood of a major election problem and a simultaneous decrease in the rights of citizens to verify election processes and results.  If enough people do not trust election outcomes, there is no telling what might happen.

Unless current trends are reversed, we anticipate a massive loss of public confidence in election results and government officials.

The upcoming 2012 General Election is expected to be vigorously fought and highly emotional.  Some see this election determining the fate of our nation.  The stakes are exceptionally high.  Requiring your immediate attention are at least the following issues:

1.       Restrictions on private meetings of officials (electronic and/or in-person) when public business is discussed as required by the Colorado Open Meetings law C.R.S. § 24-6-401 & 402.

2.       Disallowing the use of public funds for private meetings, lobbying, and promotion.

3.       Appointment of truly independent (non-conflict of interest) and technically competent bodies to create election rules and to judge election complaints.

4.       Appointment of truly independent (non-conflict of interest) bodies with the technical competence to monitor, report, and enforce government and public compliance with election statutes and rules.

5.       Establish, measure, and enforce compliance with precise, quantifiable standards for all election processes including , but not limited to:

ü  “timely public access to all election records and processes with the exception of the identity of which voter cast which ballot”,

ü  “strict compliance with the “anonymity” intent of Colorado Constitution Article VII, Section 8”,

ü   “enforceable standard for assessing substantial compliance’’,

ü  and, publicly-verifiable voting system certification, canvass, recount, audit, test, identity verification, eligibility verification, ballot control, voter intent, poll watching, open records, and records retention.

When your contestant wins you accept the results.  But what if they lose and you don’t believe it?  

What better remedy than transparent election systems will enable the public to actually verify for themselves that election processes and results are fair and accurate?  And research potential system improvements?

The voters of Colorado desperately need your help.  We must not allow Colorado to be embarrassed in front of the nation by displaying on television our inferior non-transparent and unverifiable election systems. 

Can we count on you to adopt a high priority agenda to devise and implement immediate and long term remedies?  We would like to meet with you to provide details and to discuss potential solutions.

Al Kolwicz
for, Colorado Voter Group

This letter was published in the July 22, 2011 edition of the Colorado Statesman.

2012 National Election Fiasco in Colorado?

The 2012 elections are big news, but the media are not reporting Colorado's potential role in a national election fiasco.

Those who understand election equipment and procedures warn that Colorado elections cannot withstand close scrutiny. We call for changes to prevent humiliation if the national press attempts to verify Colorado's election returns.

If Colorado were an "emerging democracy," the Carter Center would reject calls to monitor our elections because we fail to meet their minimum transparency standards.

If a national contest is decided by Colorado's vote, as Bush/Gore was by Florida, press everywhere will severely criticize the "Wild West" elections in some Colorado counties.

Surely the most mistake-ridden election in recent Colorado history has received little attention, although it is Colorado's "canary in the coal mine" of elections. A statewide grand jury report declared that numerous irregularities are routine in Colorado and therefore not subject to legal remedies. Many problematic election activities not viewed as blatantly fraudulent are deemed "substantially compliant" and therefore free from enforcement.

Do the following examples from Saguache County's November 2010 election for governor, senator and local races satisfy you as "good enough for government work"?

After a bipartisan citizens' canvass board refused to certify election results due to irregularities, the clerk unilaterally issued a certificate of election renewing her own job.

Improperly purchased, uncertified, untested and unsecured voting equipment failed the post-election audit, yet its tabulations were deemed "official." A canvass board's reasonable attempt to hand count was blocked by the secretary of state, in favor of the suspect machine counts.

Surveillance videos of equipment operations were deleted after a reporter filed a Colorado Open Records Act request.

The election night results showed that two incumbents lost. The clerk then conducted an unsanctioned new tabulation three days later that returned the incumbents to power.

The clerk destroyed most election night paper records and refuses to release electronic copies of election data, claiming they are a manufacturer's proprietary records.

Secretary of state staff initially boasted that they verified the new revised tabulation. But, when shown they weren't present to verify the tabulations, they claimed that a new count had not actually occurred, despite proof to the contrary.

The clerk mailed unsolicited ballots to selected voters for a controversial tax measure. At least four ineligible voters were permitted to vote on the tax increase. The measure unofficially passed by one vote, although the canvas board would not confirm the questionable tabulation. Taxes were increased despite the obvious uncertainty.

When the secretary of state ordered a ballot review, the clerk refused. He then sued her and the court has yet to issue a decision. The clerk continues to refuse access by public, press and secretary of state to the records required to verify or contest the election.

The public and the press investigated the uncertain Bush/Gore ballot tallies. That will not happen in most Colorado counties where election officials are closing doors to citizen oversight.

Transparency advocates are waiting for the Court of Appeals to decide if Colorado's law on public access to anonymous ballots is as open as in other states. In the meantime, egregious election irregularities are officially "substantially compliant" in Colorado.

Contact your state officials and demand that they abandon subpar standards and shore up Colorado's election code. The nation's voters expect nothing less of Colorado.

Marilyn Marks, Unaffiliated, Aspen

Harvie Branscomb, Democrat, Carbondale

Al Kolwicz, Republican, Boulder

Submitted to the Denver Post for publication in the July 24, 2011 edition.

Trust, but verify

The Colorado County Clerks Association wants elections to be trusted but not publicly verified.

Exploiting a controversy surrounding Saguache County election records, the Association argued its case in a March 25th Denver Post guest editorial.

Disturbingly, most of the Association’s arguments are false and misleading – see “Protect the integrity of voters' ballots”.

The Association asserts that Secretary of State Scott Gessler has proposed an “unprecedented … review of ballots.” This is not true. The Secretary carried out a similar review after the November 2003 election in Garfield County. And in August 2010 election integrity advocates physically inspected and obtained photocopies of El Paso County election records (including ballots).

The Association repeatedly, and falsely, asserts that ballots are “private”. This assertion has no basis in law or in logic. Voters privately mark their ballots but once cast the ballots are anonymous and public.

There must be no way for anybody, including government officials and the voter themselves, to prove who cast which ballot.

Once cast, the anonymous ballots are required to be publicly, not privately, interpreted and counted to determine the election results.

The clerk’s Association claims that ballots are “sacred”. What does this even mean?

The Association asserts that ballots are “secretly cast”. That is false and the opposite of what the law requires. If ballots were secretly cast, there would be no way to prevent ineligible ballots.

The Association falsely asserts that Mr. Gessler would allow “cast ballots” to be transported anywhere. What has been discussed is that Saguache election officials provide suitable space for a team to carefully and openly inspect the election records.

Surely the clerks know that record custodians are required to facilitate public inspection of public records and to provide copies of these records?

Finally, the Association asserts that it is Colorado’s official keeper of election integrity. In fact, nothing can be further from the truth.

The Colorado County Clerks Association is a secret private group that circumvents Colorado’s Sunshine Laws, uses paid lobbyists, refuses public observers at their meetings, may be diverting public resources to their own needs, and develops government policy behind closed doors with no opportunity for public debate.

Mr. Gessler appears to be standing up for the rights of the public to verify public elections. If so, we applaud his efforts.
 
BACKGROUND


March 17, 2011
Gessler sues for access to Saguache ballots
http://www.denverpost.com/search/ci_17631528

March 17, 2011
Editorial: Saguache review is valid
http://www.denverpost.com/search/ci_17629283

March 25, 2011
Guest Commentary: Protect the integrity of voters' ballots
http://www.denverpost.com/search/ci_17694150

March 26, 2011
Carroll: Counting ballots in the dark
http://www.denverpost.com/search/ci_17702592

March 30, 2011
Guest Commentary: Gessler standing up for the public on ballots
http://www.denverpost.com/opinion/ci_17728021#ixzz1I5UlILxB

March 31, 2011
Trust, but verify.
Center Post-Dispatch

April 1, 2011
Trust, but verify – County Clerks Association, please take note
http://www.coloradostatesman.com/content/992704-trust-verify-%3F-county-clerks-association-please-take-note

Illegal 6-foot barrier blocks Colorado poll watchers

From: Al Kolwicz
Sent: Saturday, November 27, 2010 11:17 AM
To: 'Marilyn R Marks'; 'judd.choate@sos.state.co.us'

Subject: RE: Urgent Action Required to Lift Unfair 6 foot rule policies in Saguache

Marilyn, Judd,

It troubles me that an illegal 6-foot barrier is being referred to as a “six foot rule”.

In the first place, as we all know, there is no such rule.

In the second place, the 6-foot barrier is illegal. The illegal 6-foot barrier restricts poll watchers in a way that blocks poll watchers from exercising their rights under “C.R.S. 1-7-108(3) Each watcher shall have the right to maintain a list of eligible electors who have voted, to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results, to challenge ineligible electors, and to assist in the correction of discrepancies.”

I ask that you cease referring to the illegal 6-foot barrier as a “six foot rule” and suggest that you refer to the “6-foot barrier”, or “illegal 6-foot barrier”.

Al Kolwicz
Colorado Voter Group

We need your help!

We need your help!

The Colorado Attorney General’s office has issued an opinion (October 15th email below) that, if left unchallenged, would essentially shut down independent oversight of elections.

I encourage each of you to intensify your efforts to ensure that Colorado elections are independently verifiable by the public. If we fail, we are one step closer to widespread election fraud and error.

Remember that the Attorney General is the attorney for the Secretary of State – not the people’s Attorney General.

There are three sections below. Please take time to read thru them. Then share your ideas. We must act promptly.

1. October 15th email from Attorney General’s office

2. My annotations to the AG’s email.

3. My notes regarding Colorado’s statutes and election rules

Al Kolwicz
Colorado Voter Group
http://www.coloradovotergroup.org/
http://coloradovotergroup.blogspot.com/






October 15th email from Attorney General’s office


From: Judd Choate [mailto:Judd.Choate@SOS.STATE.CO.US]
Sent: Friday, October 15, 2010 9:11 AM
To: Marilyn R Marks
Cc: attorney.general@state.co.us; Harvie Branscomb; Al Kolwicz; joseph richey
Subject: RE: opinion on poll watching

Here is what Maurice Knaizer, the Deputy Attorney General, sent me last night regarding the six foot rule. If you would prefer that he put this on a letterhead, I’m sure that can be accomplished.

Poll Watchers have asked whether they may witness activities of election officials involving voting equipment, voting booths and the ballot boxes within six feet of such equipment, booths and boxes when a voter is not present. The Department of State has concluded that watchers may not be permitted within six feet of the equipment, booths and ballot boxes even when a voter is not present.

Section 1-5-503 provides:

"The voting equipment or voting booths and the ballot box shall be situated in the polling place so as to be in plain view of the election officials and watchers. No person other than the election officials and those admitted for the purpose of voting shall be permitted within the immediate voting area, which shall be considered as within six feet of the voting equipment or voting booths and the ballot box, except by authority of election judges or the designated election official, and then only when necessary to keep order and enforce the law"

This section does not contain any temporal limitations It covers activities, such as casting of ballots, counting of ballots and recounts, that occur during the election process. It also covers all locations where equipment or ballot boxes may be placed while ballots are being cast or counted. If a ballot box is moved from one location in a polling place to another, the six foot buffer would apply to the second location. Ballots themselves are also covered because the primary purpose of this section is to protect the integrity of the ballot and preserve the secrecy of the ballot. Allowing persons other than designated election officials or their agents to come closer to the equipment, booths or ballot boxes increases the likelihood that a watcher with malevolent intent could corrupt the election process. Any potential disadvantage to the watcher is mitigated by the requirement that the equipment, booths and ballot boxes must be "in plain view."

For these reasons, I concur with the Secretary's interpretation.

Maurice Knaizer

Kolwicz annotations to the AG’s email.


1. The statement of the issue is ill-formed, and will result in a fuzzy response. It is sort of a “straw-man”. It restricts the issue to one that might be answered by 1-5-503. We have actually asked for much more transparency, and never asked to see what is happening in the immediate area of the voting booth or see the content of non-anonymous ballots.

Poll Watchers have asked whether they may witness activities of election officials involving voting equipment, voting booths and the ballot boxes within six feet of such equipment, booths and boxes when a voter is not present. The Department of State has concluded that watchers may not be permitted within six feet of the equipment, booths and ballot boxes even when a voter is not present.

2. The citation, by Knaizer, of 1-5-503 is faulty in that it refers only to the polling place, and not to all of the other election activities. Also, it is clear to me that the intent is to protect the privacy of the voter and the anonymity of the ballot. Once the ballot is cast it must be, by constitution and statute, anonymous.

Section 1-5-503 provides:

"The voting equipment or voting booths and the ballot box shall be situated in the polling place so as to be in plain view of the election officials and watchers. No person other than the election officials and those admitted for the purpose of voting shall be permitted within the immediate voting area, which shall be considered as within six feet of the voting equipment or voting booths and the ballot box, except by authority of election judges or the designated election official, and then only when necessary to keep order and enforce the law"

3. Knaizer conveniently eliminates all of the other, many, statutes and election rules related to this topic. I have scraped many of these in the synopsis below.

4. Knaizer then goes on and creates, on his own initiative, an extensive expansion of the written law.

This section does not contain any temporal limitations It covers activities, such as casting of ballots, counting of ballots and recounts, that occur during the election process. It also covers all locations where equipment or ballot boxes may be placed while ballots are being cast or counted. If a ballot box is moved from one location in a polling place to another, the six foot buffer would apply to the second location. Ballots themselves are also covered because the primary purpose of this section is to protect the integrity of the ballot and preserve the secrecy of the ballot. Allowing persons other than designated election officials or their agents to come closer to the equipment, booths or ballot boxes increases the likelihood that a watcher with malevolent intent could corrupt the election process. Any potential disadvantage to the watcher is mitigated by the requirement that the equipment, booths and ballot boxes must be "in plain view."

It appears to me that Mr. Knaizer’s response is political rather than legal, and should be challenged immediately.


Kolwicz notes regarding Colorado’s statutes and election rules.

The reason that watchers need to get within 6 feet of computer screens, cast ballots, and various other election information is so that watchers, who are trying to accomplish their statutory rights, can actually “see” and “hear” what is going on. We have no interest in seeing the computer screens or the issued-but-uncast ballot seen by the elector as he marks, verifies, and casts an anonymous ballot.

I have clipped pertinent sections of our statutes and rules below. Any reasonable reading will conclude that watchers are expected to have access to election data including who is voting, how the votes on a ballot are interpreted, and how the votes on a ballot are counted.

The public depends on independent oversight (watchers) because watchers can discover errors that might otherwise get missed or covered up, and to prevent official misdeeds. It is not difficult to understand that there are often measures on the ballot that affect the jobs and pay of government officials. (Officials often have “a horse in the race”.) In Colorado counties, election officials can choose their own people for mail-in, early, and provisional ballot processing, and for all vote counting. In many cases these people are government employees. Sometimes key processes of the election are performed by sub-contractors, some of which may be offsite, or even out of state.

With the exception of voter privacy issues outlined above, watchers need both real-time access to the data in every election process, including anonymous cast ballots, and post election access to all election data computer files.

We trust the officials, but, since they are human, and to obtain certainty, we must verify.

Al


1-1-104. Definitions. (51) "Watcher" means an eligible elector other than a candidate on the ballot who has been selected by a political party chairperson on behalf of the political party, by a party candidate at a primary election, by an unaffiliated candidate at a general, congressional vacancy, or nonpartisan election, or by a person designated by either the opponents or the proponents in the case of a ballot issue or ballot question.

1-7-108. Requirements of watchers. (1) Watchers shall take an oath administered by one of the election judges that they are eligible electors, that their name has been submitted to the designated election official as a watcher for this election, and that they will not in any manner make known to anyone the result of counting votes until the polls have closed.

(2) Neither candidates nor members of their immediate families by blood or marriage to the second degree may be poll watchers for that candidate.

(3) Each watcher shall have the right to maintain a list of eligible electors who have voted, to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results, to challenge ineligible electors, and to assist in the correction of discrepancies.

1-7-307. Method of counting paper ballots. (4) All persons, except election judges and watchers, shall be excluded from the place where the ballot counting is being held until the count has been completed.

1-7-507. Electronic vote-counting - procedure. (1) All proceedings at the counting centers shall be under the direction of the designated election official and the representatives of the political parties, if a partisan election, or watchers, if a nonpartisan election. No persons, except those authorized for the purpose, shall touch any ballot, ballot card, "prom" or other electronic device, or return.

1-7.5-107.5. Counting mail ballots. The election officials at the mail ballot counting place may receive and prepare mail ballots delivered and turned over to them by the designated election official for tabulation. Counting of the mail ballots may begin fifteen days prior to the election and continue until counting is completed. The election official in charge of the mail ballot counting place shall take all precautions necessary to ensure the secrecy of the counting procedures, and no information concerning the count shall be released by the election officials or watchers until after 7 p.m. on election day.

1-8-109. Watchers at mail-in polling places. Any political party, candidate, or proponents or opponents of a ballot issue entitled to have watchers at polling places shall each have the right to maintain one watcher in the office of the designated election official and mail-in polling places during the period in which mail-in ballots may be applied for or received.

1-8-206. Watchers at early voters' polling places. Any political party, candidate, or proponents or opponents of a ballot issue entitled to have watchers at polling places shall each have the right to maintain one watcher at the early voters' polling place during the casting and counting of early voters' ballots.

1-8-208. Manner of early voting. (1) An eligible elector who receives an early voters' ballot may cast the ballot in the early voters' polling place, as provided in this part 2. Ballot boxes for early voting shall be locked and sealed each night with a numbered seal under the supervision of the election judges or watchers, and the keys shall remain in the possession of the designated election official until transferred to the supply judge for the mail-in and early voters' counting place for preparation for counting and tabulating pursuant to section 1-8-303. When a seal is broken, the designated election official and a person who shall not be of the same political party as the designated election official shall record the number of the seal and maintain the seal along with an explanation of the reasons for breaking the seal.

1-9-201. Right to vote may be challenged. (1) (a) A person's right to vote at a polling place or in an election may be challenged.

(b) If a person whose right to vote is challenged refuses to answer the questions asked or sign the challenge form in accordance with section 1-9-203 or take the oath pursuant to section 1-9-204, the person shall be offered a provisional ballot. If the person casts a provisional ballot, the election judge shall attach the challenge form to the provisional ballot envelope and indicate "Challenge" on the provisional ballot envelope.

(2) An election judge shall challenge any person intending to vote who the judge believes is not an eligible elector. In addition, challenges may be made by watchers or any eligible elector of the precinct.

(3) A challenge at a polling place shall be made in the presence of the person whose right to vote is challenged.

1-10-101. Canvass board for partisan elections - appointment, fees, oaths. (1) (a) At least fifteen days before any primary, general, congressional vacancy, or special legislative election, the county chairpersons of each of the two major political parties in each county shall certify to the county clerk and recorder, in the manner prescribed by such clerk and recorder, the appointment of one or more registered electors to serve as a member of the county canvass board. The appointees, together with the county clerk and recorder, constitute the county canvass board. Each minor political party whose candidate is on the ballot and each unaffiliated candidate whose name is on the ballot in such election may designate, in the manner prescribed by such clerk and recorder, one watcher to observe the work of the county canvass board.



1-10.5-102. Recounts for congressional, state, and district offices, state ballot questions, and state ballot issues. (1) If the secretary of state determines that a recount is required for the office of United States senator, representative in congress, any state office or district office of state concern, any state ballot question, or any state ballot issue certified for the ballot by the secretary of state, the secretary of state shall order a complete recount of all the votes cast for that office, state ballot question, or state ballot issue no later than the twenty-fifth day after the election.

(2) The secretary of state shall notify the county clerk and recorder of each county involved by registered mail and facsimile transmission of a public recount to be conducted in the county at a place prescribed by the secretary of state. The recount shall be completed no later than the thirtieth day after any election. The secretary of state shall promulgate and provide each county clerk and recorder with the necessary rules and regulations to conduct the recount in a fair, impartial, and uniform manner, including provisions for watchers during the recount. Any rule or regulation concerning the conduct of a recount shall take into account the type of voting system and equipment used by the county in which the recount is to be conducted.

1-13-702. Interfering with watcher. Any person who intentionally interferes with any watcher while he is discharging his duties set forth in section 1-7-108 (3) is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

1-13-712. Disclosing or identifying vote. (1) Except as provided in section 1-7-108, no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting.

(2) No person shall endeavor to induce any voter to show how he marked his ballot.

(3) No election official, watcher, or person shall reveal to any other person the name of any candidate for whom a voter has voted or communicate to another his opinion, belief, or impression as to how or for whom a voter has voted.

(4) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

1-13-718. Release of information concerning count. Any election official, watcher, or other person who releases information concerning the count of ballots cast at precinct polling places or of mail-in voters' ballots prior to 7 p.m. on the day of the election is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.
ELECTION RULES
8.7 What Watchers May Observe. Duly appointed Watchers may observe polling place voting, early voting and the processing and counting of precinct, provisional, mail, and mail-in ballots. For mail ballot elections, or mail-in ballot processing, watchers may be present at each stage of the election including the receiving and bundling of the ballots received by the designated election official. Watchers may be present during provisional ballot processing but may not have access to confidential voter information.

8.8 Limitations of Watchers. Duly appointed Watchers may observe election judges but may not interrupt or disrupt the processing, verification and counting of any ballots or any other stage of the election. Watchers may track the names of electors who have cast ballots by utilizing their previously obtained lists, but may not write down any ballot numbers or any other identifying information about the electors. Watchers may not handle the poll books, official signature cards, ballots, mail ballot envelopes, mail-in ballot envelopes or provisional ballot envelopes, voting or counting machines or machine components. Watchers shall not interfere with the orderly process and conduct of any election, including ballot issuance, receiving of ballots, voting or counting of the ballots. Watchers may not be allowed to interact with election officials or election judges, except that each designated election official shall name at least one individual in each precinct polling place or election location to whom Watchers may direct questions or from whom watchers may seek requested information.