Author: Barbara Simons
Arapahoe County Colorado was in the news the week with the Denver Post reporting that envelopes containing absentee ballots mailed to over 230,000 voters included “I Voted” stickers, which rubbed up against the ballot and in some cases left a faint, near-linear mark that appeared exactly where voters draw a line to select their candidates. The Secretary of State has issued a list of procedures to address the potential of un-readable ballots and because there is a software independent record of the voted, officials are confident that the problem can be resolved. Unfortunately not all potential problems with the Colorado’s voting technology can be resolved.
For polling place and early voting, Colorado uses Direct Recording Electronic (DRE) machines and paper based optical scan systems as well as at least two counties doing hand count of paper ballots. About 70% of ballots cast in Colorado are returned by mail. Some counties have only residual use of DRE to satisfy HAVA requirements, others collect substantial votes on DRE in precinct polling places. Some counties receive paper ballots at polling places but count them centrally by optical scan.
One of Colorado’s DRE counties (Jefferson) has received multiple waivers from the State’s requirement for a voter verified paper audit trail (VVPAT) and uses paperless ES&S iVotronic for polling place and early voting, while the other DRE counties have printers attached to their direct recording equipment. It is impossible to conduct a meaningful audit or recount of paperless DREs. While it is too late to replace or upgrade the machines in Jefferson County, they should be replaced with optical scan paper ballot systems as soon as possible.
DREs, which when new were never very reliable or secure are subject to various failures regardless of how old they are. It is highly likely that quite a few will fail. Also the electronic pollbooks that are used in early voting as well as at “vote-centers” are subject to failure and interruption of the internet connections required for their use. In 2010 the statewide internet access to the voter registration database became unavailable during the final 30 minutes of election day.
Recounts and Emergency Paper Ballots
Mandatory recounts in Colorado are triggered by only a 1/4 percent of ballots victory margin (or less in case of a more than 2 candidate race). C.R.S. 1-10.5-101 Recounts are conducted by machine if a ridiculously imprecise 50 ballot machine accuracy test is passed, or if the SOS in any case requires the recount to be conducted by machine. Of course recounts of all DRE are done without referring to paper regardless of the existence of VVPAT. I would be shocked if the SOS required the counting of VVPAT for a recount. The recount rules can be viewed here.
Paper backup at polling places or vote centers may be a problem in some counties where DRE are required to be used in place of any paper. I think there are relatively few of these counties. Many more counties have this policy of DRE voting only for early voting only. Counties typically do not care about lines for early voting. Colorado’s use of DRE for voting has precipitously dropped since 2007 and DRE voting is heading for the obscurity of HAVA compliance. I guess many counties prepare the DRE for early voting and election day, but no one votes on them. (this becomes a privacy problem by the way when one person votes on a DRE).
Colorado Election Code makes the following provision for substitute ballot (C.R.S. 1.5-411):
If the ballots to be furnished to any election judges are not delivered at the time and in the manner required in section 1-5-410 or if after delivery they are destroyed or stolen, it shall be the duty of the designated election official to cause other ballots to be prepared, as nearly in the form prescribed as practicable, with the words “substitute ballot” printed on each ballot. Upon receipt of the ballots thus prepared from the designated election official, accompanied by a statement under oath that the designated election official prepared and furnished the substitute ballots and that the original ballots have not been received or have been destroyed or stolen, the election judges shall cause the substitute ballots to be used at the election. If from any cause neither the official ballots nor the substitute ballots are ready in time to be distributed for the election or if the supply of ballots is exhausted before the polls are closed, unofficial ballots, printed or written, made as nearly as possible in the form of the official ballots, may be used until substitutes prepared by the designated election official can be printed and delivered.
It is the case that early voting or precinct voting could be performed only on DRE- with the above caveat. In most counties that were primarily voting on DRE, paper ballots are now made available, and the percentage of votes on DRE in Colorado has quickly dropped and will become negligible- partly because of mail-in popularity and partly because clerks have begun to offer paper ballots at the polls. There may be some exceptions where counties are voting entirely by DRE.
Another risk is that the state allows military and civilians living overseas to return a voted ballot via fax or over the internet via an email attachment. (C.R.S. 1-5.5-101) Ideally these methods would be available only in the special case where it would otherwise be unable to get the ballot to the polls on time. In addition, there is a law that created a pilot internet voting program for overseas military that is reportedly no longer a pilot project The program formerly funded by FVAP is now apparently being implemented statewide. This is unfortunate, since returning a voted ballot over the internet is incredibly insecure.
Note particularly the unfortunate phrase in the law “(f) Provide uninterrupted and reliable internet availability for the purpose of casting votes via the internet by the electors.” The return of voted ballots over the internet including as an email attachment should be prohibited for the foreseeable future. The use of a server to create the ballot on-line for the voter is equally or perhaps more insecure but is apparently being used in Colorado.
Post Election Audits
While Colorado has a 2005 law requiring random audits, few counties have ever conducted meaningful post-election audits. SOS rules require simply a post election logic and accuracy test to be performed using a sample of voted ballots where the ballots are counted by machine once more for the audit. Furthermore, it is impossible to conduct audits involving a reconciliation to a hand count on ballots created by the paperless DRE devices. A 2009 law C.R.S. 1-7-515 requires risk-limiting audits by 2014. Risk-limiting audits might when implemented statewide become a gold standard for audits. A countywide portion of such an audit was conducted in 2010, and might be continued in 2012.
Poll Access and The Canvas Boards
Colorado has recently been restricting poll watcher access to election activities even outside the polling place, but recently released guidelines for watching that ask election officials to give watchers adequate access. Colorado has also recently restricted the already very limited role of its citizen canvass boards, each of which operates only for county run elections and includes the county clerk and recorder as a member. Canvass boards have been restricted from gaining access to necessary information in Colorado even though they are asked to “certify” the election to the Secretary of State.
41.3 Duties of the Canvass Board
41.3.1 The canvass board must make its determinations by majority vote in accordance with section 1-10-101.5(3), C.R.S.
41.3.2 The canvass board’s duties are:
(a) Conduct the canvass in accordance with section 1-10.5-101, C.R.S., including:
i. Account and balance the election and certify the official abstract of votes;
ii. Reconcile the number of ballots counted to the number of ballots cast; and<
iii. Reconcile the number of ballots cast to the number of voters who voted by reviewing the reconciled detailed ballot logs and Statement of Ballots;
(b) Observe the post-election audit in accordance with section 1-7-514(4), C.R.S., and Election Rule 11.5.4;
(c) In coordination with the county clerk and recorder, investigate and report discrepancies found in the audit under section 1-7-514(2), C.R.S.; and
(d) Conduct any recount in accordance with section 1-10.5-107, C.R.S., and Election Rule 14. The canvass board’s role in conducting a recount includes selecting ballots for the random test, observing the recounting of ballots, and certifying the results.
41.3.3 If the board identifies a discrepancy in the Statement of Ballots, the Board may review the particular ballots at issue to identify, correct, and account for the error.
41.3.4 The canvass board may not perform duties typically reserved for election judges, including:
(a) Determining voter intent;
(b) evaluating voter eligibility; and
(c) Requesting new logs or reports that were not created to conduct the election.
Pre-Election Day Tabulation
Colorado has the earliest date upon which votes may be tabulated: 15 days prior to election day for mail-in and 10 days prior for early voting.
(b) Counting of the mail-in ballots may begin fifteen days prior to the election and shall continue until counting is completed.
(c) Counting of the early voters’ ballots may begin ten days prior to the election and shall continue until counting is completed.
Secrecy of the election results is provided for in SOS rule (and statute):
“(d) The election officials in charge of the mail-in and early voters’ 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.”
Note that election results may be known to election officials and watchers.
Interpreting Voter’s Marks
Colorado also has a mismatch between statute and rule on interpretation of voter marks. Rule basically requires the election judges to act like machines in determining voter intent. Here is statute:
1-7-309. Determination of improperly marked ballots
(1) Votes cast for an office to be filled or a ballot issue to be decided shall not be counted if an elector marks more names than there are persons to be elected to an office or if for any reason it is impossible to determine the elector’s choice of candidate or vote concerning the ballot issue.
(2) A defective or an incomplete cross mark on any ballot in a proper place shall be counted if no other cross mark appears on the ballot indicating an intention to vote for some other candidate or ballot issue.
(3) No ballot shall be counted unless it has the official endorsement required by section 1-7-302.
(4) Ballots not counted because of the election judges’ inability to determine the elector’s intent for all candidates and ballot issues shall be marked “defective” on the back, banded together and separated from the other ballots, returned to the ballot box, and preserved by the designated election official pursuant to section 1-7-801.
(5) When the election judges in any precinct discover in the counting of votes that the name of any write-in candidate voted for is misspelled or omitted in part, the vote for that candidate shall be counted if the writing meets the requirements of section 1-7-114 (1).
Here are relevant portions of the rule:
Rule 27. Rules Concerning Uniform Ballot Counting Standards
27.4.3 Vote on Optical Scan Ballots. A correctly voted optical scan ballot occurs when a voter, using a readable marker, fills in or connects the minimum number of target areas per race or ballot measure, not to exceed the maximum allowable votes per race or ballot measure, without extending the vote mark beyond the parameters of the instructions.
27.5 Uniform Counting Standards for DREs. A vote that is properly recorded, as specified by the voting instructions, on the voting device for an office or ballot measure shall be counted.
27.7 Determination of Voter Intent
27.7.1 If a voter uses a consistent alternate ballot marking method that deviates from the method specified by the voting instructions (such as circling or placing a check mark behind a candidate’s name or ballot response) and does not place an “X” , check or other appropriate mark in the target area(s), the voter will be considered to have voted for the appropriate candidates and or ballot responses and the ballot shall be duplicated; except that, if a voter marks any of his/her choices by placing an “X” , check or other appropriate mark in any target area on the voter’s ballot, only those choices where the target area has been marked shall be counted.
27.7.2 A ballot that has a mark correctly in the target area that partially extends into another target area shall be counted as a vote for the candidate or ballot response so marked.
27.7.3 When resolving an overvoted race, marks indicating the voter’s intent shall include, but not be limited to, circling the candidate’s name and strike-outs or corrections of choices.
Colorado also innovated the concept of the vote-center that requires electronic pollbooks to be in place to prevent multiple casting of ballots by the same individual. The law includes this noteworthy provision
(4) Each vote center used in a county shall have a secure electronic connection to the computerized registration book maintained by the county clerk and recorder permitting all voting information processed by any computer at a vote center to be immediately accessible to all other computers at all vote centers in the county. A county may not use vote centers in an election unless the secretary of state has certified that the secure electronic connection is sufficient to prevent any elector from voting more than once and to prevent unauthorized access to the computerized registration book. The secretary of state shall adopt rules in accordance with article 4 of title 24, C.R.S., establishing requirements for the equipment used at a vote center, including but not limited to requirements to test and backup the equipment used for the secure electronic connection to the computerized registration book and requirements that a vote center have a noncomputerized copy of the registration book or a copy of the elector registration records stored electronically at the vote center to be used in case of a system failure.