Petition for SOS Declaratory Order€¦ · 28/02/2013 · Petition for SOS Declaratory Order Provisional Ballots Marilyn Marks 2.28.13 Hearing

Petition for SOS Declaratory OrderProvisional Ballots

Marilyn Marks2.28.13 Hearing

Purpose of Petition

“To immediately resolve uncertainty and controversy regarding Secretary of State’s guidelines prohibiting the exercise of rights of authorized watchers to witness and verify all information and to assist in the correction of discrepancies per CRS 1‐7‐108 (3).”

2/26/2013 Marilyn Marks 2

SOS Order Sought

• Affirm watchers’ rights to full access to provisional ballot processing and records.

• Withdraw Election Alert 2012‐5• Affirm that provisional ballot records are public records

• Tweak language of judges/watchers oaths.


HAVA clause at issue

States described in section 4(b) of the National Voter RegistrationAct of 1993 (42 U.S.C. 1973gg–2(b)) may meet the requirementsof this subsection using voter registration procedures establishedunder applicable State law. The appropriate State or local officialshall establish and maintain reasonable procedures necessary toprotect the security, confidentiality, and integrity of personalinformation collected, stored, or otherwise used by the free access system established under paragraph (5)(B). Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.


Source of Controversy

• Is the HAVA clause the issue?• Are there other obstacles to watcher access to provisionals?


SOS misinterpreted HAVA language

• “Under federal and state law, information about a provisional ballot must not be disclosed to anyone other than the voter who cast the ballot. Therefore, watchers may not know whether a specific voter’s provisional ballot was counted or not…. The computer screen and provisional ballot affidavits should be positioned in a way that it [sic] is only visible to the election judges or staff.” [emphasis added]


SOS’s HAVA interpretation leads to absurd results

• Appointed provisional ballot board members determine eligibility and count ballots without oversight.

• No one can verify the decisions or tabulations.• No party or watcher oversight.• Provisional voters become “confidential voters.”

• Provisional ballots become the fraud tool of choice.


Provisional Ballot Oversight

• Provisional ballots—significant numbers in CO.• Highest risk ballots require verifiability.• Provisional ballots should not have significant privacy concerns.

• Provisional ballots and applications are public records.

• Provisional ballot processing must be public process.


Elections must be transparent and verifiable to be democratic

The public must be able to see and authenticate these four essential steps for an election to be public, democratic, and valid: (1) Who can vote (2) Who did vote (3) The original count(4) Chain of custody Bev Harris,

Black Box Voting


Transparency and Verifiability of Provisionals

Transparency is of particular importance–High risk ballots.–Processes prone to error.–Processes lack uniform counting standards.

Public must have right to challenge voter eligibility/ineligibility determination.


63,000 Provisional Ballots• 36,000 in 2010. 63,000 in 2012.• Significant numbers. Can impact outcomes.

• No independent oversight or verification.• Lack of uniform processes among counties.

• 63,000 ballots should not be counted in the dark.


Colorado’s high provisional percentage

• Only 4 states had more provisional ballots in 2010. (CA, OH, AZ, MD)

• Approx. 26th in number of registered voters and 5th in provisional ballots cast.Provisionals are significant and merit

meaningful oversight. 2/26/2013 Marilyn Marks 12

Why Does CO Count in the Dark?

• If Colorado cannot reasonably count provisionals in sunshine, something is wrong with the process.

• Analyze process for failure points.• Default setting must be transparency and verifiability.


Why no provisional transparency?

• HAVA language?• CRS language? • Any other factors?


NVRA requires record to be public• Provisional ballot application is a voter registration form.

Public disclosure of voter registration activities (1)Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.2/26/2013 Marilyn Marks 15

Application is registration form


SOS Policy Manual—page 5

“To cast a provisional ballot, the elector must complete a Provisional Ballot Affidavit form. This form allows the elector to provide information about how and when he or she attempted to register to vote. The affidavit also serves as a registration application for future elections, even if the provisional ballot is not counted. Therefore, it should be processed in the same manner as any other registration application.”


Application is a public record

• HAVA and Colorado Statute do not trump National Voting Rights Act on public records.


Watchers ‐‐ Rights and Responsibilities to Oversee Provisional Processing

• Watchers may “witness and verify each step in the conduct of the election.”

• Watchers from all parties, unaffiliated and issue committees have rights to to verify eligibility and accuracy.

• Watchers must be allowed to verify. If there is private data disclosed, watchers can take oath.


Watchers’ rights

• CRS 1‐7‐108. Requirements of watchers. (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.


State Law Presumes a Transparent Process

• Provisional board appointed without required partisan balance of election judges. Balance not essential when process is public.

• Official board with official duties under statute. Must operate in public.

• Voters and watchers may challenge provisional voters. (Cannot do so without information.)

• Voter registration data is public.


Provisional Board is Public Body

Provisional board is a decision making body appointed by the DEO.“A board appointed by the designated election official shall count all verified provisional ballots in accordance with the procedure prescribed by the designated election official in accordance with this title and the election rules of the secretary of state.”


Provisional ballot processing must be open to public

• Commitment to transparency.• Provisional ballot board is not appointed by independent major parties, but by partisan DEO. (Unlike Canvass Board.)

• Provisional ballot board is official board with statutory and delegated duties. Must meet in public under Colo. Sunshine Law.

• No reason to count “in the dark. “• Public meeting required in most states.


Case law supports disclosure

• Project Vote v Long (4th Circuit 2012) HAVA therefore protects the right to the secret ballot, and does not pertain to the voter registration procedures governed by the NVRA. In addition, HAVA explicitly states that "nothing in this [Act] may be construed . . . to supersede, restrict, or limit the application of . . . The National Voter Registration Act." Id. § 15545(a). Thus, by its own terms, HAVA cannot restrict or limit the application of the NVRA’s public disclosure requirement.


Project Vote v Long (4th Circuit)

“It is self‐evident that disclosure will assist the identification of both error and fraud in the preparation and maintenance of voterrolls. State officials labor under a duty of accountability to the public in ensuring that voter lists include eligible voters and exclude ineligible ones in the most accurate manner possible.Without such transparency, public confidence in the essential workings of democracy will suffer.”


Mah v Shawnee Cty. Comm.

“Thus, § 15482(a)(5)(B) [HAVA] does not protect the names of the voters who cast provisional ballots.”

12.26.12 Kansas Case


Voter Privacy –Similar to mail ballot • Judges should not be able to connect voter and ballot.

• Ballots can be processed with secrecy sleeves.• If identifiable ballot cannot be avoided, application should require a waiver of right to secret ballot.

• Transparency and verifiability cannot be subordinated to voter privacy.


Fair Disclosure to Provisional Voters

• Disclose that many races may not be counted.–4,371 such ballots. (AFS)

• Require secret ballot waiver if privacy is to be compromised.


Oversight will increase accuracy and uniform counting

County Total Accept AOK ADB AAB AFS

Denver 9,440 2,686 2,296 4,197 0El Paso 8,454 681 138 4,318 1,695Jefferson 6,457 2,207 77 2,222 1,050Arapahoe 5,807 545 74 3,767 100Adams 3,641 380 2 2,206 35Larimer 2,747 244 0 2,172 15Weld 2,662 76 0 2,109 8Boulder 2,657 310 135 1,406 399Douglas 2,527 372 26 1,368 85Pueblo 2,239 118 297 1,043 491


Reconsider AFS Law/Rules

• AFS rules are punitive in many cases.• Violates voters’ rights, and likely unconstitutional.

• At a minimum, ‐‐ unfair.• Consider waiver by voter if law not changed. • Inconsistent application, creating equal protection issues.


Accountability requires information

• “Elections constitute the bedrock of democracy and the public’s interest in the purity of such elections is of paramount importance. If we cannot hold our election officials accountable for the way in which they conduct our elections, then we risk the franchise itself. And we cannot hold our election officials accountable if we do not have the information upon which to evaluate their actions. “Practical Political Consulting, Inc. v. Secretary of State, 789 N.W.2d 178, 193 (Mich. App. 2010).


SOS’s HAVA interpretation leads to absurd results

• Appointed provisional ballot board members determine eligibility and count ballots without oversight.

• No one can verify the decisions and counts.• No party or watcher oversight.• Provisional voters become “confidential voters.”

• Provisional ballots become the fraud tool of choice.


SOS Order Sought

• Affirming that watchers must have full access to provisional ballot processing and records.

• Withdraw Election Alert 2012‐5• Affirm that provisional ballot records are public records

• Tweak language of judges/watchers oaths.


Summary

• Provisional ballot counting must be public process and subject to watcher oversight.

• Provisional ballots/applications are public records.

• Tweak judge and watcher oath to include non‐disclosure of private voter data.

• Require fair disclosures to provisional voters


Supplemental slides


Provisional Board‐‐‐Public Body

• (a) "Local public body" means any board, committee, commission, authority, or other advisory, policymaking, rule‐making, or formally constituted body of any political subdivision of the state and any public or private entity to which a political subdivision, or an official thereof, has delegated a governmental decision‐making function but does not include persons on the administrative staff of the local public body.


• OHIO—Nov 2 2012 From SOS The board members themselves determine the validity of each provisional ballot by majority vote at a properly noticed public meeting.• PA‐§ 4. County Board of Elections.(a) Notice. Before the date of the election, the county board of elections should generally notify all interested parties and the public of the date, time and place at which the county board of elections will convene to canvass and count provisional ballots. The notice should be published by the county board of elections in at least one newspaper of general circulation within the county.


State HAVA provision at Issue• 13‐111.• CRS 1‐8.5‐111. Information system. For any election held

on or after January 1, 2004, in which a provisional ballot is cast, the county clerk and recorder or designated election official shall establish a system allowing an elector who cast a provisional ballot to discover whether the ballot was counted and, if the ballot was not counted, the reason the ballot was not counted. The system shall provide access to this information at no cost to the voter by toll‐free telephone call, internet web site, or other suitable medium, in accordance with the federal "Help America Vote Act of 2002", Pub.L. 107‐252. Information about a provisional ballot shall be disclosed only to the voter who cast the

• ballot.


Documents

Petition for SOS Declaratory Order€¦ · 28/02/2013 · Petition for SOS Declaratory Order Provisional Ballots Marilyn Marks 2.28.13 Hearing