The Clarkson Curse – Never seen this happen before!

I recently received the following email from my lawyer’s para:

Randy asked me to send you the attached order from the Court of Appeals requiring supplemental briefing. He said to tell you this has never happened to him before.
Order for Supplemental Briefing

We Clarksons, or at least the branch I belong to, have a long-running family joke about a family curse. The key words are something like “This has never happened before” being uttered to us by professionals, usually involved with major repairs. This time, it’s extra work for no pay for my attorney, Randy Rathbun. I want to thank him for his continued efforts on this case. I’d have given it up before now if he weren’t there.

My reading of this order – keeping in mind that I am, in Randy’s opinion, a terrible lawyer – is that they are looking for an excuse to call it a moot question and boot it off their agenda as not worth their time. I’ve no idea how this will play out, but I trust Mr. Rathbun to do his best. Thanks for your continued interest and support.

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?



    News on the lawsuit: I have a lawyer and a discovery hearing date

    I’ve been out of town with little access to the Internet and high demands on my time and attention for most of the past three weeks. I’ve finally returned and have no more traveling planned.

    I’ve got some news regarding my lawsuit for access to voting records.

    I have a lawyer and a discovery hearing!

    I was able to discuss my case with several lawyers over the past few months. My thanks to everyone who has offered their support. Randy Rathbun of Depew Gillen Rathbun & McInteer, LC offered his services pro bono. He had a number of admirable qualities, but the one most important to me was his attitude that my goal of getting access to those records was attainable. He’s also a local attorney and a fellow Sedgwick County voter.

    His only stipulation – that I let him have control of the legal case. That is, I had to let him make the decisions regarding his area of expertise rather than trying to run the show myself. Not an easy choice for me and I mulled it over both before and after putting on a 3-day seminar in South Korea last week. I try not to be a control freak, but apparently, people do perceive me that way sometimes. Anyway, I’ve agreed to that condition and look forward to working with him on this case.

    I was able to speak with the Sedgwick County Courthouse regarding scheduling of a discovery hearing. It’s to be at 1:00 October 19th. My understanding is that this is a short hearing to determine the amount of time needed in order to schedule a trial. I don’t know more than that, but I’m grateful to have legal counsel arranged before this occurs.

    Thank you Randy!

    Kobach says NO!

    This is my assessment of Kobach’s response to my lawsuit seeking voting machine records. I’ll be writing about Tabitha Lehman’s response in a separate post.

    Paragraphs 1 through 8 seem to be a litany of complaints about how I done the law stuff wrong. I have no clue how to respond to those. Thankfully, with all the publicity I’ve received, I have had some offers of free legal advice. I will be taking people up on those offers of help.

    Paragraph 9 is a claim that he has no authority to direct Tabitha Lehman, his co-defendant, in regard to either control of or access to those records. Since both he and Ms. Lehman are in agreement about that aspect, and if the judge concurs, I have no objection to dismissing Mr. Kobach as a defendant to this lawsuit although I am a little puzzled as to why, as SOS, he would have no jurisdiction over these records.

    I’m also puzzled about why, if that is the case, he didn’t respond with a motion to dismiss him as defendant? That’s what Mr. Schmidt, our attorney general, did when I originally filed this case on Feb 2nd naming him as the defendant. I was grateful the judge was willing to allow me to refile with a different defendant. Unfortunately, neither the judge nor the opposing counsel could tell me who was the proper defendant. I was advised by a lawyer sympathetic to my case to file against both Kobach and Lehman, hopefully hitting the correct target with one of them. Apparently correct defendant is Tabitha Lehman, so even if I fail with this case, I’ve learned that much.

    Paragraph 10 discusses K.S.A. 25-2422. Note the final clause of the first sentence “except as ordered by a court of competent jurisdiction“. I presume the Sedgwick County Court is the court with proper jurisdiction. This law is why I have been forced to file suit. If this court sees fit to grant me access to those records, then the law allows it. It is not a crime for me to see them.

    Paragraph 11 references my previous lawsuit, in 2013, to gain access to these records for the 2010 election for precinct 208.

    Paragraph 12 Kobach claims that this case is the same and therefore, the same outcome is already determined. I hope the judge will consider this lawsuit materially different with respect to the main reason given for denial of my previous case. The judge declined my petition in 2013 citing concern about voter privacy, because if any citizen could gain access to the records of any specific precinct, it could potentially be used to compromise the privacy of the voting booth.

    This case is different because I am asking for permission to study a random sample of voting stations, not a specific precinct. Ms. Lehman is welcome to provide the seed to generate the random sample thereby guaranteeing the sample could not be determined in advance. This will preserve voter privacy.

    I am asking the judge to grant me, with my academic and professional credentials, access to these records to conduct a study without setting a precedent of the records being available to anyone who asks for any reason. The judge can, of course, set appropriate criteria for the access in order to maintain the security and integrity of those records. I can work with Ms. Lehman and her staff to minimize the cost and disruption to her office if this access is allowed.

    Paragraphs 13 through 15 comprise another litany of complaints about how I done the law stuff wrong. He’s likely right about all or most of the legal technicalities. Hopefully, I can get a lawyer to look this stuff over and help me respond correctly.

    Then at the bottom, “WHEREFORE, answering Defendant Secretary of State pray that the court deny the relief requested, that he have costs herein, and such other and further relief as deemed just and reasonable in the premises.”

    As I read this, Kris Kobach is saying, “No, don’t let her see those records and please let me bill her for the trouble she’s caused me.” He is a sweetheart, ain’t he!