Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Wednesday, May 04, 2005

Concealing voting discrepancies prevented remedy

King County could have remedied the problem created by provisional ballots which were unlawfully inserted into the ballot boxes via the Accuvote machines at polling places during the last general election.

They could have done it before the deadline for certifying their official election returns on November 17.

But will the lawyers for the petitioners even think to bring out this fact at trial?

Had Logan’s gang followed the law, they would have treated the provisional ballots which were unlawfully put into the ballot boxes as ballots of questioned validity – and thus removed them from the ballot boxes and brought them to the canvassing board to decide the appropriate disposition.

Instead, Logan’s gang hid the problem. When their canvassing crew determined the magnitude of the discrepancy in each polling place, no effort was made to identify and remove those ballots, much less to bring the problem to the attention of the canvassing board.

In each precinct, his subordinates had identified with reasonable certainty the number of illegitimate ballots. All that was needed was to open the containers in which the ballots had been stored since the close of the polls, identify them, remove them, and refer them to the canvassing board.

Logan knows those ballots could have been identified before November 17.

At pages 135 – 136 of Logan’s deposition, he admitted that the provisional ballots would have been identifiable in most, if not all, cases.

Q. Okay. I’ll come back to that a little bit later. If a provisional ballot is placed in an Accuvote machine at a poll site, is it counted?

A. Yes, it is.

Q. Were there any differences in appearance between provisional ballots and other ballots in the November 2004 election?

A. The only – they are regular ballots issued from the regular ballot inventory at the poll site. The only thing that would potentially distinguish them is if the procedure would have been followed properly, they should have been folded or creased prior to being issued.

Q. Once they’ve been placed through the Accuvote machine, is there any way to identify a particular ballot as having been a provisional ballot?

A. Again, the only way you would be able to potentially identify that would be if it was folded or creased, but that alone would not – I don’t think that you could say for sure that someone else had not folded their ballot prior to putting it through the Accuvote. Nor if there was more than one, would you be able to differentiate which voter the ballot was associated with. Once it’s in the Accuvote it’s a secret ballot.

Q. Has anyone tried to go back and identify the number of folded [or] creased ballots?

A. We cannot access the ballots without a court order.


Of course, the relevant question is whether anyone tried to identify those creased ballots before November 17, so they could be removed from the vote count. Will the petitioners’ lawyers think of asking that question at trial?

It is clear from Logan’s answer that no bona fide attempt was made to identify those illegitimate ballots and remove them from the vote count.

If Logan’s gang had found the number of folded, creased ballots in each box that they expected to find based on the poll books and ballot accountability sheets, there would have been no reasonable doubt that they had found the ballots which must be removed and referred to the canvassing board.

Logan knows this, yet he still attempts to concoct implausible scenarios which might cast doubt. He imagines that some voters may have folded their regular ballots in the identical way that provisional ballots were folded by poll book judges to fit into envelopes.

It is conceivable that a search for ballots bearing the distinctive creases of provisional ballots which had been unlawfully cast would turn up an occasional ballot which had been folded in some way by a voter casting a regular ballot. We may never know, now that the ballots have been handled several times during the canvassing and two recounts. But this is beside the point, since Logan’s gang decided not to search before November 17 and instead decided to hide the problem.

Logan also suggests that no particular voter could have been identified as having inserted any particular folded, creased provisional ballot into an Accuvote machine at a polling place. But that is completely irrelevant. All those ballots should have been treated as being of questioned validity, so all should have been removed and referred to the canvassing board whether any particular voter could be identified as casting a particular ballot or not.

At page 140 of Logan’s deposition, after explaining why he didn’t follow the recommendation of the Citizens Oversight Committee to make provisional ballots visually distinct by printing them on paper of a different color, Logan was asked about another recommendation.

Q. The next recommendation listed on Page 48 of Exhibit 3, it says: Determine provisional ballots counted by poll machines during the canvass process and subtract from machine totals. Did you do that for the November 2004 general election?

A. We did not do that, and actually I don’t think [--] there is no means of doing that. As we discussed before, once that ballot is in the Accuvote, there is no way to identify it back to an individual voter. That’s just – that’s based on the requirement that we preserve the secrecy of the ballot, and so there is no way to identify that, which ballots to subtract. So this is not a recommendation that we would be able to comply with.

Even though Logan chose not to make provisional ballots visually identifiable by printing them on paper of a different color, he knew that they were identifiable anyway.

Logan has been around elections long enough to know that ballots of questioned validity cannot be included in the vote count until the question is resolved. The oversight committee knew it, and told him to remove such ballots from the count. He decided not to.

So what difference would it have made if Logan’s gang had honestly fulfilled their legal duties?

Instead of quibbling over how many of the illegitimate ballots included in the vote count may have been put there by registered voters who hadn’t cast another ballot already, none of those ballots would have been included.

Instead of arguing about ways to show which candidate received votes from ballots that were not legally cast, those votes wouldn’t be included in the count.

If Logan’s gang had followed the law, the Democrats might now be arguing that some number of those ballots ought to be included in the vote count – but they wouldn’t be able to identify which of the ballots were inserted into the Accuvote machines by eligible voters. And, if they couldn't identify which were cast by registered voters who hadn't already cast another ballot, they wouldn't be able to benefit from any of the votes on the provisional ballots that were unlawfully inserted into the Accuvote machines.

Was Logan’s gang smart enough to figure that out? Is that why they decided to cover up the problem and leave those ballots in the vote count?

Postscript 2:45 PM, May 7, 2005: In order to tabulate provisional ballots and produce a report which put the votes on them in the precincts in which the voters were registered to vote, most provisional ballots had to be "duplicated" onto ballots that were coded for the correct precincts. There was at least one precinct in which several provisional ballots were issued to voters whose names appeared on supplemental pages in the poll books but were not found by the poll book judge. So, there are possibly some provisional ballots that didn't have to be duplicated. For most of them, duplication would have been necessary. That means commingling regular ballots and provisional ballots during the manual recount may not have made it impossible to identify most of the provisional ballots which were unlawfully inserted into the Accuvote machines. The duplicate ballots that took the place of the folded provisional ballots would never have been folded. Unfortunately, there is no indication that the petitioners have even thought about asking the judge to attempt to remedy the situation as the canvassing board would have done -- if the discrepancy hadn't been concealed from the board, and if the board had treated all those ballots as ballots of questionable validity.

7 Comments:

Blogger chew_2 said...

micajah,

I haven't been following this for awhile. Just started reading again after Bridges' new decision.

Q: Is this alleged failure to separate out invalid provisional ballots from the accuvote machine grounds for an election contest, and if so could you describe why you think so?

May 05, 2005 12:45 PM  
Blogger Micajah said...

chew2,

I would argue that failing to remove those ballots and refer them to the canvassing board as ballots of questioned validity is grounds for contesting the election under RCW 29A.68.011(6).

It was, at least, error by Logan and his subordinates.

They compounded the error prior to the manual recount (or took another step in concealing the problem) by commingling provisional ballots and regular polling place ballots for each precinct. Now, there are regular polling place ballots, creased ballots that didn't belong among the regular ballots, and creased ballots which do belong in the vote count -- all mixed together in each precinct.

Having commingled them, it seems something like the "proportional analysis" argument would have to be used to make a rational decision about how those ballots affected the outcome. (Assuming that RCW 29A.68.070 requires something more than an error big enough to cause an erroneous declaration of the winner. Bridges said back in February that he thinks -.070 is the "ultimate" standard of proof for "misconduct," whether the petition relies on -.011 or -.020.)

Of course, if they had been removed and rejected prior to Nov. 17, we would know exactly how they affected the outcome. But concealing the problem from the canvassing board and commingling the ballots in December may make it impossible to remedy the situation as exactly as it could have been remedied in November.

Enough invalid ballots allowed to remain in the vote count to change the outcome. Cannot tell exactly who won, since the ballots cannot now be distinguished from other creased ballots that do belong in the count. Isn't that similar to the situation in one of the supreme court cases involving altered ballots?

May 05, 2005 2:13 PM  
Blogger Nathan said...

The fact that a ballot was folded and creased would not in itself be enough to identify it as a provisional. In fact, a provisional ballot that went through the accuvote might very well not have been creased at all.

As far as I understand it, the provisional ballots are only folded and placed into an envelope after they've been filled out by the voter. Nothing really would've prevented them from placing it in the accuvote before folding it. Likewise there's no rule against folding non-provisional ballots, so someone might have folded a perfectly legitimate ballot before placing it in the machine.

Trying to determine which ballots were provisionals on that basis would've been a worse nightmare than the hanging chad fiasco in Florida.

No, once the provisionals went into the machine, the damage was done.

May 06, 2005 6:40 PM  
Blogger Micajah said...

Nathan,

Stick to the facts and consider them all together.

Of course a fold or crease wouldn't by itself identify a ballot as a provisional ballot. That's why I didn't say so.

Read the whole thing.

The folding was done by poll workers before handing the ballot to the voters.

The folding was to make the ballot fit into the envelope, not to make an origami figure or just to fold it in any random fashion. The folding to fit an envelope would be distinctive. The wrinkle made by a sloppy voter wouldn't be the same.

Finally, note especially that the canvassing crew knew to the exact number how many provisional ballots they expected to find in the ballot box for each precinct.

Now, really Nathan, if you expected to find 11 ballots with the distinctive creases caused by folding them to fit into an envelope -- and you found 11 ballots, no more and no less -- wouldn't you admit you found the ballots that had to be removed from the box?

May 07, 2005 9:16 AM  
Blogger Nathan said...

Micajah,

The folding should have been done by poll workers prior to issuing the ballot. I couldn't say whether or not this occured in King County, but I suspect that it did not. I know that in at least one precinct in Pierce County the folding was done after the ballot was already filled out.

As for the possibility of making "distinctive" creases on accident: experience has taught me that if something can be done it will be done. Murphey's a real pain that way. What would you do if you were supposed to have 11 provisional ballots in the machine and you found 15 with creases that could've been made by folding it to fit the envelope?

I'm not trying to excuse Logan and his crew here--those provisional ballots never should've made it into the machine in the first place--but once they were there, I think they would've been harder to track down than you seem to think.

May 07, 2005 9:41 PM  
Blogger Micajah said...

Nathan,

You seem to be arguing that an effort to identify the ballots which were unlawfully inserted into the ballot boxes via the Accuvote machines may not always have resulted in a perfectly obvious set of observable facts, therefore no effort should have been made to identify them.

The "what ifs" should be handled by the canvassing board if and when they arise.

When the canvassing crew's examination of poll books and ballot accountability sheets demonstrated that a certain number of ballots were in the box in excess of the number of regular ballots that ought to be there, and demonstrated that missing provisional ballots were the likely explanation (rather than poll workers' stuffing of the ballot box), an examination of the ballots to try to identify and remove the folded, creased ballots ought to have been done.

The possibility that not all discrepancies could be readily resolved by examining the ballots is not a reason to avoid examining them at all.

The ballots which could be identified needed to be removed and referred to the canvassing board as ballots of questionable validity, so the board could decide what to do with them.

May 08, 2005 9:54 AM  
Blogger Josef said...

Nice work, here.

I like the plain-spoken way in which you explained the situation.

I, too think King County "Tush" needs to be kicked here and hope you support the King County Councilman Reagan Dunn resolution of "no-confidence" in Dean Logan. I believe that we need to keep this resolution allive and beating in the blogosphere :-).

Keep telling people about it until we get a vote, basically.

June 04, 2005 10:27 AM  

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