State and County Election Boards must preserve and produce Digital Ballot Images, which can detect alteration of the paper ballots

Related discussion of Bush v. Kerry recount and Wasserman-Schultz v. Canova recount

Updated January 26, 2018

1. Most have heard that our electronic-based voting system is unacceptably vulnerable to foreign and domestic hackers.

2. Many have heard that using paper ballots in conjunction with our voting machines will improve the integrity of our elections because the paper ballots can be hand counted at a later date to verify the machine tally.

3. But few have heard about the problems that have plagued recounts, especially those involving high profile races like Bush v. Kerry in 2004 and Wasserman-Schultz v. Canova in 2016. That is the purpose of this article:

  • To show that, as soon as the public loses sight of those paper, rules and perhaps even laws intended to guard the integrity of our elections will be broken.
  • To show the importance of addressing this chain-of-custody problem by, at a minimum, implementing legislation that requires preservation of voting machine ballot images, an important auditing tool that can help determine if paper ballots have been altered for a recount.
  • To show that we should investigate the viability of conducting hand counted elections (like most western democracies have done to address security concerns), rather than assuming our insecurable voting machines can be “secured” through post-election recounts.

4. Here is a link to a report by the Government Publishing Office titled “COUNTING ELECTORAL VOTES — JOINT SESSION OF THE HOUSE AND SENATE HELD PURSUANT TO THE PROVISIONS OF SENATE CONCURRENT RESOLUTION 1 (HOUSE OF
REPRESENTATIVES — JANUARY 6, 2005).” https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm

5. The GPO report is cited throughout this article. It addresses the many disturbing problems with the recount in Ohio after the 2004 election.

6. According to that report, Psephos Corporation supplied the infamous butterfly ballot used in Palm Beach County, Florida, in the 2000 presidential election. https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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7. Todd Rapp is the president of Psephos.

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8. After the 2000 election, the Rapp family sold replica butterfly ballots as souvenirs. https://www.dailykos.com/stories/2004/12/25/81931/ …

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9. The Rapp family also controls a company called “Triad.” Triad’s president, Brett Rapp, has been a “consistent contributor to Republican causes.”

https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

10. Triad and its affiliates were “the leading suppliers of voting machines involved in the counting of paper ballots and punch cards in the critical states of Ohio and Florida [during the 2004 election].” https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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11. According to the GPO report, Triad “essentially admitted that it engaged in a course of behavior during the [Ohio 2004] recount in numerous counties to provide ‘cheat sheets’ to those counting the ballots.” https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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12. The report further stated that the Hocking County Elections Director had “firsthand knowledge that Barbian [Triad] advised election officials how to manipulate voting machinery to ensure that a preliminary hand recount matched the machine count.” https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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13. Moreover, although not described explicitly as “misconduct,” the Directors of the Election Boards in two Ohio Counties stated that Triad had remote access to the computer used in the recount! https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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14. In Monroe County, when the 3% test hand count did not match the machine count, a Triad repairman reportedly brought a new machine. That one matched the hand count. https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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15. In Harrison County, Triad (rather than county election officials) “handled all ballots during the machine recount and performed all tabulation functions.” https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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16. Meanwhile, the Board in Harrison County (during the Ohio 2004 recount) kept the voted paper ballots “in a room open to direct public access” and had “placed voted ballots in unsealed transfer cases stored in an old wooden cabinet…” https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

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17. Many counties during the Ohio recount pre-selected the precincts to be recounted, rather than selecting them at random as required by law. https://harpers.org/archive/2005/08/none-dare-call-it-stolen/4/ …_____

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18. In two counties, “ballots were marked or altered, apparently to ensure that the hand recount would equal the machine count.” http://www.motherjones.com/media/2005/11/recounting-ohio/# …

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19. In addition, Triad altered voting machine tabulators before the recount. https://www.gpo.gov/fdsys/pkg/CREC-2005-01-06/html/CREC-2005-01-06-pt1-PgH84-6.htm …

https://harpers.org/archive/2005/08/none-dare-call-it-stolen/4/

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20. Rep. John Conyersthe one recently forced to resign based on revelations of sexual misconduct — “called on the FBI to impound vote-tabulating computers in at least one county, stating that Triad’s conduct was “‘inappropriate and likely illegal election tampering.” https://www.wired.com/2004/12/ohio-recount-stirs-trouble/

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21. “Doug Jones, Iowa’s chief examiner of voting equipment and a computer scientist at the University of Iowa who has been a leading critic of electronic voting machines, said the matter was less likely a case of election tampering than poor election procedures and oversight.” https://www.wired.com/2004/12/ohio-recount-stirs-trouble/

22. Triad’s president (of the “butterfly ballot” family) admitted that Triad made changes to tabulators in all 41 counties before the recount-but insisted the changes were necessary so that the recount would only display the presidential race. http://www.votersunite.org/info/evenaremotechance.htm …

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23. As noted by Jones, however, “ even if no one tampered with votes, the fact that someone had unsupervised access to tabulating equipment before the recount was a breach of security procedures and might even violate Ohio election law.” https://www.wired.com/2004/12/ohio-recount-stirs-trouble/

24. And Mr. Rapp’s explanation as to the tabulator alterations does not explain why Triad provided “cheat sheets” and advised election officials how to manipulate voting machinery to ensure that a preliminary hand recount matched the machine count. Nor does it explain why Triad replaced a tabulator that didn’t match the hand count or why it had remote access to the election computers.

25. Here is a link to the final Conyers report, which discusses the many irregularities during the 2004 election and recount. Everyone should read it to understand the obstacles we face in relying on post-election recounts or audits to secure our insecurable voting machines. http://www.votescam.org/tags/conyers_report

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26. In the end, two Ohio officials were indicted with respect to the Ohio 2004 recount. http://bradblog.com/?p=1781

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27. A Cleveland news report later confirmed that “two election board workers were convicted of illegally rigging the 2004 presidential election recount so they could avoid a more thorough review of the votes.” https://www.sandiegoreader.com/news/2015/jan/04/stringers-vote-swinger-michael-vu/#

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28. But it does not appear that Triad ever faced criminal charges for its conduct relating to the 2004 recount.

29. Instead, the whistle blower who told the media about that conduct was fired.

http://www.bradblog.com/?p=1524

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30. Lest anyone think the chain-of-custody problem is limited to Republicans, please read this article about the destruction of paper ballots from the Democratic primary election between Debbie Wasserman Schultz and Canova. https://www.politico.com/states/florida/story/2017/12/15/experts-browards-elections-chief-broke-law-in-destroying-ballots-150258

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31. All of these chain-of-custody problems occurred when the public lost sight of the paper ballots. The same types of problems could easily occur with post-election audits — including Risk Limiting Audits, which contemplate transporting all ballots to a central location for counting the next day or later — unless we take measures to prevent them.

32. One of the best measures to protect the chain-of-custody happens to be simple: enacting legislation requiring states to preserve and publicly post the digital ballot images generated by the voting machines. Those images are automatically produced by most optical scanners in use today. Unlike the paper ballots themselves, it would not be logistically difficult for states to produce the digital images in response to public records requests.

33. The images are important because they can show if the paper ballots have been altered or destroyed between the election and any post-election audit or recount. As we saw in 2004 and 2016, this is not a silly or hypothetical concern.

34. The images are also helpful because they would provide a relatively simple mechanism for citizen recounts.

35. Sadly, legislation is necessary to protect the digital images from destruction. In the recent Alabama special election, Secretary of State John Merrill went out of his way — all the way to the Alabama Supreme Court — to give county election officials permission to destroy the images. http://thehill.com/homenews/campaign/364430-alabama-supreme-court-stays-order-to-preserve-voting-records-in-senate

36. Ohio Secretary of State John Husted did essentially the same thing before the 2016 election. (I’ve been told the article below incorrectly implies that the audit function can be turned “off.” In fact, the ballot images are automatically created no matter what you do. The only issue is whether the images are preserved. Like Merrill in Alabama, Husted in Ohio saw to it that they were not.) https://columbusfreepress.com/article/did-gop-strip-flip-2016-selection

37. For more information about digital ballot images and how they can help protect the chain-of-custody of paper ballots, please watch this video by election integrity advocate John Brakey. https://www.youtube.com/watch?v=5wrxNYaFOvA&feature=youtu.be

38. It’s time to get real about the “details” and address the chain of custody problem with post-election audits or recounts. At a minimum, we must demand hand marked paper ballots PLUS robust post-election hand audits PLUS ballot image preservation and publication laws.

Written by

Attorney and Election Integrity Advocate #ProtectOurVotes #PaperBallotsNow @jennycohn1

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