HAVA complaint filed against Saguache County Clerk

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by Matie Belle Lakish

A Help America Vote Act (HAVA) complaint has been filed against the Saguache County Clerk and Recorder’s office in relation to the November 2012 election. Lisa Cyriacks, local voting activist, and Marilyn Marks, from the Citizen’s Center, an Aspen area resident, have filed the complaint with the Colorado Secretary of State (SOS).

Representatives of the SOS office visited the county to conduct an inquiry, but have not yet issued a report. County Clerk Carla Gomez said she would prefer to refrain from comment on the complaint until the report is issued, at which time she would be happy to share the results of the inquiry. According to Andrew Cole of the Secretary of State’s office, “We are currently investigating the claims made in the HAVA complaint. Because it is currently under investigation, I can’t make a comment one way or the other to the validity of the claims.” (referenced in a Center Post Dispatch article).

The issue of immediate concern is an inaccuracy in the election results posted by the clerk in three races. The race for the state congressional seat sought by Sal Pace provided the clue to Cyriacks, who, through a Colorado Open Records Act (CORA) request, examined the tapes from the Election Systems and Software (ES&S) M100 model Precinct Optical Scanner used to count the ballots following the November 1, 2012 election. The complaint was filed after examination of M-100 machine tapes from November 6 and November 14 showed apparent discrepancies in the vote tabulation.

According to Cyriacks, she noticed that Democrat Sal Pace had about 300 votes fewer than would be expected from the predominantly Democratic Precinct 5 (Baca). In most other races in the precinct, Democratic candidates garnered over 500 votes. Sal Pace, however, showed only about 239 votes. The difference was not made up by votes for the Republican candidate, Scott Tipton. Wondering why there was such a discrepancy, Cyriacks requested to look at the tapes generated by the M100 vote counting machine, and discovered that the votes had not been accurately recorded in the abstract that Clerk Gomez filed.

The Canvass Board, made up of citizen representatives from the major political parties, meets after an election to examine the results and certify the election. Its task is to reconcile ballots cast in the election and to determine that 1) the number of ballots counted does not exceed the number of ballots cast, 2) confirm that the number of ballots cast does not exceed the number of registered electors, and 3) certify the Abstract of Votes Cast and transmit the data to the Secretary of State.

Since the Canvass Board had already met and certified the election when Cyriacks discovered the error, she says that the Canvass Board had to meet again to re-certify new results based on the Secretary of State staff’s investigation.  Reportedly, no notice that the canvass board would be reconvening was posted publicly.

According to Cyriacks, however, her main concern is not so much with Saguache County’s election results as it is with the Secretary of State. According to an email from Cyriacks, because of HAVA, the SOS is required to use complete certified voting systems that produce a verifiable election count. “The election in Saguache has become the proving ground for making the case that elections in Colorado are not run according to the requirements under HAVA.”

She says, “The Help America Vote Act is a key piece of federal law in standardizing 1) how elections are tabulated and 2) how the results are reported. The SOS, as the chief election official in the state, is required to uphold these standards in all elections under his purview and (to see) that all ‘voting systems’ comply with these standards.”

In describing how HAVA works, Cyriacks says: “HAVA mandates that all states and localities upgrade many aspects of their election procedures, including their voting machines, registration processes and poll worker training. The specifics of implementation have been left up to each state, which allows for varying interpretations of the federal law.

“HAVA uses the term ‘voting system’ which many interpret to mean machines, but could also apply to a manual hand count system. The point is that whatever system is used by whichever official it must meet a standardized set of requirements in tabulation and reporting.”

The combination of components used in the disputed 2012 election included a touchscreen voting system (DRE) using one kind of vote tallying system, the ES&S M100, and an Excel spreadsheet. The SOS’s office sent staff members to Saguache County prior to the November election to go over local systems to be sure they would be in compliance with the SOS’s requirements. The representative met with citizens and reporters at that time, and said they would be helping Saguache County with the November election.

Cyriacks says,  “According to standards set by the SOS, ‘all [software] systems’ must be able to produce ‘a consolidated printed report of the results for each contest of all votes cast’ for each election.” She contends that the Excel Spreadsheet used for the 2012 election does not meet that criterion.

According to Cyriacks, “Saguache has become a proving ground because the system used: did not produce an audit trail verifying that all the votes cast in the election were counted; errors in the tabulation occurred resulting in reporting of inaccurate results (this was verified by the SOS investigation); the combination of machines used in the Saguache election did not (meet) the certification requirements of HAVA or the SOS rules. This combination violated a voter’s right to privacy in the use of the DRE’s (touchscreen computers).

“The SOS, as the chief election official in Colorado, is required to ensure all elections under his jurisdiction conform with the requirements of HAVA, including Saguache.”

Voters must await the outcome of the Secretary of State’s investigation to know more details from the County Clerk’s perspective. It is clearly a difficult balance to run elections according to new HAVA guidelines while adhering to budget constraints in small rural counties.

Another review of the ballots will take place on February 1 at the Saguache County Courthouse.

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