What Can I Do?

People have been writing to me about their concerns and what can they do. Asking me to take a look at a particular contest they are suspicious of. I understand their concern, but I’m not able to look at more than a fraction of the primary results. I just don’t have the time and resources. Just as everyone who writes me has their own lives and limited resources.

Sadly, no true remedies are readily available. I’ll talk about what can be done, but whether the gain is worth the cost is going to be a subjective individual judgment. I suggest if you have concerns, start by looking into your local election office. Ask about their equipment and processes. Volunteering to serve as an election worker is an excellent idea for those who can spare the time. The pay isn’t great, but it’s not nothing for your time. You will be able to learn and observe a great deal about how the election is conducted.

From there, it’s up to you to decide if you are satisfied with the process. Do you feel confident in reported results? If not, you’ll have to ask your election officials to improve their processes. That isn’t easy. It likely won’t be cheap either. I can’t think of a more important public service than holding fair and honest elections. Other people have different priorities about such things.

Louisiana 2016 Presidential Primary

According to Verified Voting Lousiana (like South Carolina) votes on electronic machines without a paper trail. These are not verifiable in any meaningful way. They have been banned in other countries (like Ireland) They were used for this primary election LA. However, they do provide for allowing the results to be quickly placed on-line.

After my letter to Bernie, analyzing both R and D primaries for Oklahoma, I had some feedback suggesting I should contact Trump. While I’m not entirely comfortable doing so, please feel free to share this and the OK analysis with Trump supporters and/or pass it on to his campaign.

For the LA analysis, I have separated the election day and early voting ballots and graphed them separately against their respective total votes cast per precinct. As before, the graphs show the cumulative share of the vote each candidate acquires as the size of the precincts increase. If there is a visually obvious slant to the line, then it is NOT a random fluke; it shows that a relationship exists between the two variables, percent vote share and number of ballots cast per precinct. This is a consistent pattern with machine counted votes. While in OK and LA, these trends were not enough to change who won the election, they may have had an impact on the number of delegates each received.

There are major differences between the overall level of support for all candidates in the early ballots versus the election day ballots. Please keep in mind that the jumps in % vote share is NOT a sign of manipulation – at least not illegal manipulation. It is more appropriately interpreted as reflecting the impact of the campaigns and other news stories immediately prior to election day. For this analysis, only the slope of the line has significance.

2016 LA Rep. Pres. Primary
2016 LA Rep. Pres. Primary

For the Republicans: In the early voting Cruz, Rubio and Kasich all gain vote share with increasing votes cast, while Trump loses votes. The early votes are significantly different from the election day ballots though, with Rubio and Trump dropping sharply while Cruz and Kasich both go up.

2016 LA Dem. Pres. Primay
2016 LA Dem. Pres. Primay
For the Democrats: Other than Hillary being the clear favorite as opposed to Bernie, this chart mirrors the OK primary analysis. Hilary consistently wins a larger share of the votes as the precinct size increases.

Court Hearing on Feb 18th

I had asked people interested in supporting my efforts to attend. If we lost this hearing, there would be no trial next month. This proved to be a good idea, as we won a hollow victory and there will be no trial next month. But the support I received gives me and my lawyer motivation to keep fighting.

The first thing I noticed, even going into the building, was how crowded it was. There was a lengthy line just to go through security. Many of the people there to attend my hearing that afternoon, some of whom recognized me. I was even offered the opportunity to cut the line. I declined, but it does make me feel like a celebrity!

Protect Democracy Bumper Sticker 001 When we got off the elevators, the hallway to the courtroom was already full. People I had never met before gave me buttons that said “Show Me The Votes” and bumper stickers that said “Protect Democracy DEMAND A *PAPER* BALLOT”.

The courtroom was crowded. Even the jury box was full and extra chairs were brought in. Even so, some people were forced to stand. The judge came out and commented that there were more people there than in similar hearings for all of his previous 26 years combined. News reports said over 100 people attended. I even heard there were people outside unable to get into the courtroom.

Judge Lahey started the hearing by detailing my previous court actions of the case. I had been representing myself and filed the lawsuit based on the denial of an open records request. Prior to filing the lawsuit, I had requested a recount of all the ballot questions (only candidates can file a recount request for races), within the required time frame, and had been denied. I then filed the open records request which was also denied.

My lawyer shifted the basis for my lawsuit from an open records request to a recount request. In Kansas, ballots are specifically exempted from open records requests and these records were ruled to be ballots in the 2013 case I lost. Kansas law also states that the person requesting the recount is allowed to specify both the precincts they want recounted and the method of recounting.

    Note: Some readers have requested I post the motions. I only have paper copies and they are rather lengthy for me to scan one page at a time on my home printer. My lawyer has graciously offered the use of his automatic scanning machine to create those files, so I will post them when I get that done next week.

The judge stated felt there were only two relevant and controverted facts, #20 & 22. Both were ‘facts’ claimed by the plaintiff in the motion for dismissal:

  • #20: RTAL are paper strips loaded in voting machines. Their function is to allow the voter to confirm his or her vote on any candidate or question by comparing his or her choice with the paper strip that is shown in a small portal or window in the voting machine itself. I disagree with this because that is not their only function. These records are used both to verify accuracy and for recounts in other states using this type of equipment. They were even used for a recount of a race in a 2006 election in Sedgwick County.
  • #22: The selections of individual voters can be determined if the time of the vote, the voting location and the machine used is known by a person making a request under KORA. RTAL could be used for this purpose. I disagree with this *fact* because while it is plausible theoretically, it was not actually possible for the specific polling station and election I requested. Therefore, it is not true with respect to my lawsuit.

    Mr. North, attorney for the plaintiff, made the first argument. He describes the RTAL (VVPAT) records. Then he both poses and answers the question “Why not allow it?” Because, he says, there are criminal prohibitions against doing so. That they have the contents of ballots and even if you can’t identify the individual who cast the ballot, that disclosure is still prohibited by law. The only exception is for contesting elections.

    The Judge asks why not? Mr. North says that recounts only get disclosed in election contests. The information is not subject to KORA claims and that mine was not a ‘real’ recount request. While it is correct that I was not seeking to overturn the election results, but to examine the RTAL records. I have made no secret of this motivation. I am willing to formally contest the election results in order to access those records. My motivation for doing so should not affect my right to contest the election.

    The judge apparently agrees with me on that because he then forces Mr. North to admit I have do have standing to get a recount of ballot questions regardless of my motivation for requesting it. Mr. North states that does not mean I can access RTAL records.

    Mr. North argues that they can’t do a recount using RTAL records because it would be a violation of open meetings law. He claims statute limits recounts to previous used method – optical scanners or manual hand-count. For election machines you can reuse memory cards or print out ballot images which are manually recounted. Neither of those options are acceptable to me.

    In fact, I find it seriously concerning that we don’t have a full paper trail, only the RTAL records, from which a ballot can be reconstructed. Anything stored electronically is useless in determining if the voting machines and scanning machines and their software instructions are providing us with accurate vote counts. RTALs are perfect, but they are the best we have in Sedgwick County and more than other places, like Johnson County and South Carolina.

    Mr. North discusses different interpretations of the law with a policy that specifically does not endorse use of RTAL records. He spins a hypothetical scenario that the RTAL can’t trump other methods for recount. His hypothetical involves a losing candidate who insists on a recount using RTAL and is afterward declared the winner. The previous winner but now loser then requests another recount using the original method and the count reverts back to the original numbers, making him the winner again. The loser then requests another recount using RTAL records. Mr. North claims this could go on indefinitely with no way to resolve the situation.

    I don’t know whether to conclude Mr. North doesn’t understand that when you get two different results, you have to do the work of understanding why they are different before coming to a conclusion of which is correct. You don’t just repeat the two processes ad infinitum; that’s stupid and wasteful. Or if he is unwilling to acknowledge that different results when comparing the RTAL to the electronic counts imply a compromised voting system that needs to be fixed.

    I found his argument horrifying because it amounts to deliberately sacrificing accuracy of the vote counts in favor of accepting the outcome of a rigged election in order to allow a winner to be declared. If there was an outcome altering discrepancy between the RTAL records and the electronic vote counts that cannot be resolved, either the RTAL records should be used as the more direct indication of voter intent or the election needs to be held again.

    Mr. North also asks the judge to dismiss for lack of jurisdiction because the time frame is too late for a recount. The judge questions that last argument. Finally, Mr. North says my credentials don’t matter a whit because no one is allowed to see those records ever. It’s against the law to allow it. That last is a lazy paraphrase, he was far more articulate about it. However, it captures the essence of what he said.

    My lawyer, Randy Rathbun, is up next. He starts by saying I’m a brilliant statistician but a horrible lawyer. He has changed my nature of my lawsuit from a KORA (Kansas Open Records Act) request to a recount request, admitting that these records are excluded from KORA. However, I properly requested a recount after the Nov. 2014 election and have a right to the use of RTAL to conduct a recount. I was improperly refused by the plaintiff.

    His argument is that nothing in the law that prohibits the use of RTAL in recounts. They are used in recounts elsewhere and they have been used in Sedgwick County previously. He cited a case from 1968. He said this court has the power to force the election commissioner to follow the law.

    Then the judge questions him about the Kansas Open Records Act. Randy agrees that I am not entitled to look at the ballots under the open records act but that they can be looked at during a recount. The judge asks him why doesn’t Judge Vining’s ruling stand? Randy responds, but apparently not convincingly because this was the part we lost on.

    After Randy is finished, Mr. North is given the opportunity for rebuttal. He claims that ballots are not part of the open records even in recounts. The judge asks him, can he (the judge) order a recount? Mr. North argues that he cannot. He doesn’t think judge has jurisdiction and cites a case from the Grant administration. At one point, the judge mentioned that it might be worth doing in order to give voters more confidence in the results. Mr. North denigrated the idea of doing so for such reasons.

    He ends his oration with the claim that Kansas does not require use of RTAL records in recounts. It’s true that Kansas, unlike some other states, does not. I don’t see why that’s pertinent because Kansas law does not forbid it either.

    Then there is a recess while the judge studies the cases cited and makes his determination. I am able to meet a few people in the halls. I am overwhelmed, not just by the numbers, but by the ardor of my supporters. They have the same level of caring that I do about whether or not our votes are being counted accurately and are grateful to me for trying to bring transparency to vote counting.

    When the judge returns, he commends both lawyers for well written briefs. He disagrees with the defendant comments regarding my request for a recount. He scolds Mr. North for suggesting that the defendant can ignore her responsibility to provide a recount and then dismiss my suit with the claim that the time frame for conducting recounts has passed. I have the right to sue for a recount.

    However, he finds that my request is the same issue as previous lawsuit. The defendant’s argument of “Collateral Estoppel” holds; I will not be permitted access to RTAL records. So I can go to trial to get a recount, but the trial is limited to a recount of ballot questions and he won’t allow access to RTAL records even if I win permission to do a recount.

    I don’t really understand this ruling. Randy has to explain it to me more than once. My final understanding is this: I am allowed to go to trial because my request for a recount using the RTAL records was improperly denied, but even if I win at trial, I would not be allowed to force a recount of the RTAL records, thus negating the purpose of my lawsuit. The reason for this denial is that I asked to see those records for a previous election in my previous lawsuit and lost. This reasoning makes no sense to me, but I’m admittedly a terrible lawyer.

    Randy has promised to file an appeal. The appeal process will take approximately a year. The trial next month is cancelled. He will also request the judge order that the 2014 RTAL records not be destroyed prior to this case being resolved.

  • Lawsuit developments and musings

    For those not aware, I have dropped Kris Kobach from my lawsuit at his request.  He claims that he has no jurisdiction over these records.  So, turns out we don’t  need his permission nor does his objection have any bearing on the case.

    I had a brief meeting with my lawyer earlier this week (23rd).  He’s planning to depose Ms. Lehman, our elections commissioner, and Ms. Gritz, the deputy elections commissioner. I asked if I could be there.  He told me my presence was required.  The hearing is set for Dec 17th.

    He had a few questions for me about the details of the information I want and my previous efforts to obtain it.  I had filed for a recount in a timely manner after the Nov. 2014 election.  I was denied access to the records I am seeking in this lawsuit.  Specifically, Ms. Gritz wrote me on Nov 13th, 2014:

    “Your request for a recount does not entitle you to an “audit” of the RTAL tapes, as they are and were not used in the tabulation of votes.  A recount is simply repeating the process that produced the original election results in order to determine if the ballots were counted and the totals tabulated correctly.  The use of such tapes would not re-create the actual tabulation process as conducted on November 4, as Sedgwick County did not and does not use or rely on the RTAL tapes for tabulation. “

    I had a few questions for him.  What responsibilities does the county election office have regarding public meetings and public preferences on the recommendations for the purchase of new voting systems?  His answer was succinct: None.  Disappointing but good to know I suppose.

    But Ms. Gritz, deputy elections commissioner, was more encouraging.  I was picking up some records from her office earlier today (copies of the registration books for a voting station from last November’s election) and she mentioned my interest regarding the RFP.  There will be a public demonstration of the vendors with the county commissioners in attendance for the RFP.  She’ll email me when it is arranged.  I’ll plan on showing up.  Anybody else interested?

    My lawyer asked me two questions:

    If I could only audit one precinct* which one would it be?  I tried to emphasize that any randomly chosen voting station would do.  He pressed me for a specific one.  I chose Countryside on impulse because it was my polling station.

    I have since dithered over my answer. I worked there during the Nov 2014 election, showing up before the polls opened and not leaving again until after the machinery had finished all of its computations and printing.   I know for a fact that an audit will not show a 100% agreement because I personally reported one machine problem (tape not moving forward). That machine was taken out of operation until it was repaired.   At least a few – perhaps several – votes were not recorded legibly as a result.  An audit will only reveal how many votes were illegible.

    And voter privacy might be an issue with that choice, as I was there.  But it seems to me it would be less of an issue that the simple lack of voter privacy in the way the machines were set up.  The privacy screens were a joke as we walked back and forth escorting other voters to an open machine.

    In the end, I don’t know if it would be better to select a different station for either of those reasons, but the impulse that led me to name Countryside was authentic.  If I could only do one, that was my first choice.  If they are concerned about privacy, they can personally input the seed value for a randomly selected station.

    Am I now or have I ever been a registered Democrat?  No.  I was registered Republican for more than two decades.  After I moved to my current home (1985) and subsequently voted in a primary, I was registered that way.  I resigned from that party after they shut down the government in 2013.  That was the last straw. I was no longer willing to tolerate and remain associated with the party, even if it was in name only.  I was a R.I.N.O. long before the name was articulated.  I liked it and embraced that name.  I always imagined a purple rhino as the symbol for R.I.N.O.’s.

    I do not understand the repercussions of the different answers to the second question.  I assume that there are assumptions made with respect to that but I don’t even know what would be considered the obvious choice.  I’ve spent my life up until now avoiding politics because I am so bad at storing and accessing that sort of information in my head.   I get the impression that if I had been a registered democrat, it would somehow reduce my chances of success.  Why would that would have an impact?  Democrat, Republican, it doesn’t matter.  We all want our votes counted accurately.  Could any of my readers enlighten me?

    I expect access to these records to be arranged to keep the chain of custody of these records secure.  I expect it to be expensive for that reason.  My lawyer tells me that we can ask about the costs of various aspects of conducting an audit and get estimates of the costs involved during the deposition.

    Although I feel strongly that any citizen should be able to request permission and perform an audit if they are willing to pay the costs involved, I established with my lawsuit in 2013 that that is not the case.  This time, I’m hoping that my credentials and a desire to produce scholarly work as a result shall be sufficient to grant my request for access.

    *One voting station actually. A voting station, not a precinct, is the smallest sampling unit possible. Does anyone else care about these technical details?



    New voting machines for Kansas Counties

    The following appeared as an editorial in The Wichita Eagle.

    Sedgwick, Shawnee, Johnson and Wyandotte counties recently issued a poorly worded request for proposals for a new voting system. As a result, the new system on which we vote beginning in 2017 could be just as resistant to independent monitoring – and just as vulnerable to hacking – as the machines on which we vote now.

    But such a catastrophe need not result if voters demand a new voting system that:

    ▪ Allows voters to mark paper ballots.

    ▪ Counts votes using open-source software.

    ▪ And allows postelection audits to verify election results.

    These are not unreasonable requirements. Many localities, including the state of New Mexico and Douglas County here in Kansas, use paper ballots.

    But it’s a different story in counties such as Sedgwick that use turn-of-the-century touch-screen electronic voting machines. The audit of 2014 election results that I am trying to do here will be difficult and expensive – assuming the courts allow me to proceed. Even if I gain access to the paper tapes on which votes are recorded in Sedgwick County, I might not be able to detect rigging of individual machines.

    That’s true, in part, because the software that runs Sedgwick County’s current voting machines is proprietary – owned by the machines’ manufacturer and not accessible to researchers. This is morally wrong. Audits should be routine after every election. These should be conducted by independent auditors.

    The three requirements listed above are all necessary for votes to be transparently counted and for election results to be verified and audited. If any of the requirements is compromised, election results are susceptible to undetectable tampering, as appears to be the case in Sedgwick County now.

    The four counties’ request for proposals may not require paper ballots, open-source software and independent auditing, but it also doesn’t preclude them. Therefore, I propose a letter campaign regarding the RFP to Sedgwick County, which is acting as the lead agent for this contract. Voters from all four counties should insist that their public servants adopt a new voting system that is transparent and accountable.

    Readers who share these concerns should express them to: Kimberly Evans, purchasing agent, Sedgwick County Division of Finance, Purchasing Office, 525 N. Main, Suite 823, Wichita, KS 67203.