New Hampshire Recount Update

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Feb 19, 2008, 12:41:30 PM2/19/08

Petition of Appeal to the Ballot Law Commission*

*c/o Office of the Secretary of State, William Gardner*

*State House*

*Concord, New Hampshire 03301*

by* Albert Howard, Republican candidate for President *

*of the United States*

*New Hampshire Primary Election of January 8th, 2008*

Date:* February 15, 2008
Petitioner:* Albert Howard, Pro Se
710 Apple St.
Ann Arbor, MI 48105-1750

*Subject of Petition:* Appeal of results of the Presidential Primary
recount completed February 11, 2008; examination of contested ballots in
that recount.
Relief Requested*: That the Ballot Law Commission and the Secretary of
State’s office disclaim any opinion on the accuracy of the Presidential
primary election AND the statewide Republican recount because checks and
balances to maintain the integrity of the ballots and the total counts
were either not followed, or not in place.
* *
New Hampshire has the distinct honor of having the first Presidential
primary in the country and has always been viewed as a model state
because of its election system and methodology of holding elections in
an open, transparent fashion. I, for one, thank you for keeping the
tradition of being one of the few states in the country that still has a
paper ballot for every person who votes. Your standards for transparency
and support of the democratic process are admirable and much appreciated.

I ask that you view the following petition as an opportunity to improve
your procedures and policies. The scrutiny of election observers has
brought with it a chance to correct areas of vulnerabilities and
potential breakdowns and holes in the system. As a candidate I am
requesting you work /with/ me and together we can open up meaningful
dialogue to bring better procedures and amend areas that need attention
based on my experience and in consultation with many experienced and
dedicated election integrity advocates.

If this Commission chooses to follow through and act on my questions,
requests and recommendations, I am certain it will make New Hampshire’s
electoral system even stronger and an even better leader for other
states to follow.

This Petition is not about me. This Petition represents the requests of
the people this Ballot Law Commission represents. Every person who voted
in this Primary election wants to know that their vote was accepted and
counted as cast. They want to have no doubt about the integrity of New
Hampshire’s election process.

I am asking for the opportunity to work with you, to initiate an open,
meaningful dialogue regarding how we can bring further reform to an
already good system. My goal is to walk away from this process with both
sides feeling that meaningful agreement was reached for all parties. and
that together we have identified and addressed the few weak spots.

New Hampshire has a long and proud election tradition. Transparency is a
key component of this tradition and the remedy suggestions included in
this Petition are intended to enhance that tradition.
Petitioner contends that the results of the statewide Republican recount
are potentially invalid* due to violation of various state election
laws, procedures of the Ballot Law Commission, and written procedures
governing the handling and securing of the ballots. Furthermore,
discrepancies shown between the results of those ballots counted by hand
versus those counted by Diebold optical scan counters (see Appendix 1),
together with violations of HAVA requirements, indicate a high risk and
opportunity for manipulation of ballots and vote totals, thereby
invalidating the results of both the Primary election and the recount.
Examples of violations of statutes or procedures follows. The sequence,
in accordance with that outlined in the statutes of the Ballot Law
Commission, will be the violation, the remedy requested, and the
citation of the appropriate statutes or regulations. Exhibits
illustrating most of the violations will follow.
*_VIOLATION #1_: Machine failures were handled improperly -- and
possibly altered the outcome of the election.*
*_Fact:_* Election Day problems with the Diebold Optical Scan machines
clearly demonstrated that many of the machines malfunctioned during the
Primary election. Do we have any way of knowing that the new memory
cards had been examined and approved by the Ballot Law Commission (BLC)
as required? Did local election officials allow illegal substitution of
election devices that had not been examined and certified? Shouldn’t
these machines have been declared unfit for service as dictated by state
Town clerks have told Dori Smith, a journalist from Connecticut, that
memory cards were “switched out” in some towns by LHS employees, counter
to state election laws, calling into question the chain of custody of
these critical “electronic ballot boxes”.

Secretary of States MANUAL P. 34-35: The seal for the memory card should
be replaced for each election when the newly programmed card is
re-inserted into the machine for the pre-election testing of the card.
The card should remain sealed until after the recount period ends
following the election. The seal for the cover of the machine should
only be broken by LHS when it services the machine. The cover must be
resealed by the clerk when the LHS technician has completed any service
work. Each time any of the two seals are broken and the machine is
resealed it should be documented in the log.
Exhibit A documents the reports by LHS of (at least some of) the day’s
problems. A few examples are included below from reports received by LHS
and forwarded to the Secretary of State’s office.
_Town of Manchester, two examples:_
“solution listed (What happened here? This was the 3^rd machine to be
replaced that day in this location.)
Problem: P/U 3^rd bad machine per John S.”
“Problem: Machine taking ballots but counter not incrementing
Solution: Swap to spare machine to reburn a new card.”
(What happened to the votes on the first machine and first memory card?
Does “reburn a new card” mean the memory card could have been illegally
_Town of Barnstead:_
“Problem: Ballots rejecting a lot, even during test. They did not call (?)
Solution: Told them I would have someone bring a new machine. They said
no – It was working”
(What really happened here? Improper testing or a machine failing a test
should have disqualified the machine from usage in an election. State
statute VI. cites as a misdemeanor violation a person knowingly
violating testing procedures and/or ignoring a machine failing testing.)* *
REMEDIAL ACTION REQUESTED_: * Some states have approved their equipment
conditionally, so that investigations such as this would be paid by the
vendor, in this case Diebold. As well, the New Hampshire statutes could
be tightened so that, just as LHS must bear the cost of an invalid
recount due to an employee’s failure to properly program and test LHS’
machines (RSA 656:42: V), LHS could as well be obliged to reimburse all
costs related to investigation of their procedures. In the case of this
Violation, it would mean that they would bear responsibility for
investigating the accountability for every memory card
Their records and their doors must also be open to you for all testing,
all maintenance, programming, bookkeeping, etc. The State, perhaps the
Office of the Secretary of State or the BLC with the addition of a few
citizen election activists should be welcome at all times to
review/witness their work, their procedures, their books, etc.
An inquiry should be undertaken immediately for accountability of each
memory card used in the Primary election, as well as the whereabouts and
the sequence of events surrounding all memory cards used, including all
delivered cards, all cards found to be problematic on Election Day, any
substitute cards, “reburned” cards, and any unused cards delivered to
the jurisdictions. Results of inquiry to be delivered to Petitioner.
I, as Petitioner, pursuant to RSA 656:42, request the opportunity to
inspect the offices of LHS along with at least two computer technical
experts of my choosing.* * (RSA 656:42, Section IV: Each person
described in paragraph III shall designate, in writing, an agent for
service of all process, including, but not limited to summonses, writs,
orders, petitions, and subpoenas, and shall agree in writing that the
Attorney General, in conjunction with any election investigation, may
inspect its records, machines or other devices, and premises.)
I also request* *a full report of every visit by an LHS-related
technician to a jurisdiction on January 8^th , 2008 and ask that this
report be compiled and examined as part of this inquiry.
In the meantime, we are requesting that the Secretary of State consider
sending out an order that all voting machines used in the State be
impounded and vote totals NOT BE CLEARED until this formal inquiry is
I further request that no ballots or other election materials be
destroyed prior to the 22 month waiting period as mandated by federal
law. Several of the boxes of ballots received at the State Archive
Building for the recount were marked: “Destroy November* 2009*” and
these must be corrected to “2010.”
See Exhibit A.
CITATIONS:_ *656:41 Approval by Ballot Law Commission. The Ballot Law
Commission shall act as a board to examine voting machines and devices
for computerized casting and counting of ballots. … *Any voting machine
or device that is altered must be re-approved before it is used in any
election in this state. For the purposes of this section, a machine
shall be considered altered if any mechanical or electronic part,
hardware, software, or programming has been altered.*
RSA 656:42 III. Any company, partnership, proprietorship, or other
person, wherever located, which supplies, maintains, or programs voting
machines which are used in elections in New Hampshire is subject to
regulation by this state.
(The following amendment to RSA 659:42 will take effect January 1, 2007)
RSA 659:42 Tampering with Voting Machines. Whoever shall tamper with or
injure or attempt to injure any voting machine or device for the
computerized casting and counting of ballots to be used or being used in
an election or whoever shall prevent or attempt to prevent the correct
operation of such machine or device /or whoever shall tamper with
software used in the casting or counting of ballots or design such
software so as to cause incorrect tabulation of the ballots /or any
unauthorized person who shall make or have in his /or her /possession a
key to a voting machine to be used or being used in an election shall be
guilty of a class B felony if a natural person or guilty of a felony if
any other person.
*Secretary of State Manual page 34 - 35*: The seal for the memory card
should be replaced for each election when the newly programmed card is
re-inserted into the machine for the pre-election testing of the card.
The card should remain sealed until after the recount period ends
following the election. The seal for the cover of the machine should
only be broken by LHS when it services the machine. The cover must be
resealed by the clerk when the LHS technician has completed any service
work. Each time any of the two seals are broken and the machine is
resealed it should be documented in the appropriate log.
Bal 604.02 _Zeroing and Sealing Machines_. (b) When a voting machine or
device has been prepared for election, it shall be locked against voting
and sealed and the keys shall be retained by the designated election
officials. After the voting machine has been transferred to the polling
place, it shall be the duty of the designated election official to
provide protection against molestation, tampering or injury to the
machines or devices.
Bal 606.04 _Damaged Machines_. In the event that any voting machine or
device used in any voting district during the time the polls are open,
become damaged or disabled so as to render it inoperative in whole or in
part, the election officials shall forthwith if possible, substitute a
perfect machine for the damaged one. At the close of the polls, the
votes shown on the counters of each machine shall be added together in
ascertaining the results of the election. In the event that no other
machine can be prepared forthwith for use at such election and the
damaged one cannot be repaired in time, the provisions of RSA 658:35
shall apply.
VIOLATION # 2_: Machine failures render equipment non-compliant with
HAVA regulations.*
*_Fact:_* HAVA requires that the error rate of machines used be _no
greater than_ one error in 500,000 ballot positions. In one of the most
recent tests, at the University of Connecticut, the Diebold
Precinct-Based Optical Scan Accuvote 1.94W system (AV OS), demonstrated
a failure rate of roughly 3.4 %. This puts New Hampshire in an
unfortunate situation and the integrity of its election results in
question. I urge the Ballot Law Commission and the Secretary of State’s
office to seriously consider restoring elections utilizing 100% hand
counted paper ballots. The fundamentals are in place for a meaningful
and transparent election. The Diebold Optical Scan equipment you
currently use is indeed problematic due to its proven vulnerabilities
and inaccuracies.
Diebold itself issued a Product Advisory Note about this machine on
January 25, 2008 describing a known failure.
See Exhibit B for articles describing the serious vulnerabilities and
high error rate for the Diebold Optical Scanner.
REMEDIAL ACTION REQUESTED_*: The very best thing New Hampshire could do
is decertify the current equipment and find alterative means of vote
counting. I strongly recommend hand counting all of the ballots. New
Hampshire has established such an excellent system for community
vote-counting, and the hand count method - especially the sort and stack
method as was used for the recounts --that has time and time again
proven to be the most accurate and by far the least costly method of
counting citizens’ votes.
CITATIONS_: *HAVA 301(a)(5) references the rate in the VSS - FEC Voting
System Standards:
Error rates: The error rate of the voting system in counting ballots
(determined by taking into account only those errors which are
attributable to the voting system and not attributable to an act of the
voter) shall comply with the error rate standards established under
section 3.2.1 of the voting systems standards issued by the Federal
Election Commission which are in effect on the date of the enactment of
this Act. [HAVA is referencing the 2002 VVS.]
Section 3.2.1 of the 2002 VVS: Accuracy Requirements:
Voting system accuracy addresses the accuracy of data for each of the
individual ballot positions that could be selected by a voter, including
the positions that are not selected. For a voting system, accuracy is
defined as the ability of the system to capture, record, store,
consolidate and report the specific selections and absence of
selections, made by the voter for each ballot position without error.
Required accuracy is defined in terms of an error rate that for testing
purposes represents the maximum number of errors allowed while
processing a specified volume of data. This rate is set at a
sufficiently stringent level such that the likelihood of voting system
errors affecting the outcome of an election is exceptionally remote even
in the closest of elections.
The error rate is defined using a convention that recognizes differences
in how vote data is processed by different types of voting systems.
Paper-based and DRE systems have different processing steps. Some
differences also exist between precinct count and central count systems.
Therefore, the acceptable error rate applies separately and distinctly
to each of the following functions:
a. For all paper-based systems:
1) Scanning ballot positions on paper ballots to detect selections for
individual candidates and contests;
(partial omission here)
For each processing function indicated above, the system shall achieve a
target error rate of *no more than one in 10,000,000 ballot positions,
with a* *maximum acceptable error rate in the test process of one in
500,000 ballot positions*.
VIOLATION #3_: The location of the memory cards post-election were
reported “unknown”.*
*_Fact:_* According to election observers who spoke with Secretary
Gardner during the recount, the location of memory cards used in the
Primary Election on January 8^th , 2008 was unknown. In conversations
with observers he referenced the likelihood that town clerks/moderators
had secured the cards but he was unaware of their exact location. Each
memory card equates to an entire electronic ballot box. Ballots (which
should include paper or electronic ballots) according to federal law
must be preserved for 22 months following an election.
REMEDIAL ACTION:_* Since the memory cards are key to transparency, I
request the State amend current procedures/statutes by creating a
rigorous set of statutes regarding chain of custody for the memory
cards, ballots and equipment as well as the memory card holders and
workers, and further define how citizens can, in a timely manner,
monitor the chain of custody and the content of said cards.
I ask you to consider appropriate disciplinary actions, including felony
or other charges to be filed against all persons whose responsibility it
is to follow the laws pertaining to ballot retention but who failed to
do so.
One central location, through the Secretary of State, should be made
responsible to account for all memory cards before, during, and after an
election, and make those records available to the public in a timely
manner if requested.
CITATIONS_: *I believe this is an implicit responsibility. The security
of the ballots is tantamount and it is understood that they should be
safeguarded at all times. The memory cards, as has been stated
elsewhere, are equivalent to a ballot box filled with ballots.
VIOLATION #4:_ The boxes of ballots were not picked up for the recounts
by State Police. *
*_Fact_*_._ A van driven by two state employees, /followed by/ a state
trooper, drove around to pick up boxes of ballots at the various
jurisdictions throughout the state. Their transport in a van driven by
two state employees /is not the same as/ the ballots being in the
custody of the State Police. Election observers following the vans
observed them speeding at 85 and 90 mph in 55 mph zones; speeding
through school zones with school zone lights flashing; going 45 and 50
mph in 25 and 35mph residential areas, and making obvious and successful
attempts to “lose” the citizen observers. The observers were left to
wonder what was being done with the unsecured ballots inside the van and
during the times after the van successfully “lost” their vehicles.
See Exhibit C.
REMEDIAL ACTION_*: I request that in the future that state police do
transport the boxes. If one additional state employee rides with the
trooper to carry the boxes, the statute should direct him to be in sight
of said trooper at all times, including when the vehicle is in motion.
When the vehicle is traveling all troopers and/or trooper and other
state employees must be in passenger seats, separated from the boxes of
ballots. This will prevent any appearance of possible ballot tampering
while the ballots are being transported.
CITATIONS:_* 660:5 - Conduct of Recount. If directed by the secretary of
state, *the state police shall* *collect all ballots* requested from the
town or city clerks having custody of them and shall deliver them to the
public facility designated by the secretary of state.
*_VIOLATION #5_: Ballots were not stored and transported in boxes
provided by the Secretary of State’s office.*
*_Fact:_* Boxes arrived at the State Archive Building for the recount in
non-uniform boxes, with various methods of taping, many not properly
sealed. One jurisdiction sent their ballots in bundles wrapped in
newspaper. Others came wrapped in brown paper. Some boxes came with no
tape. Many ballots were returned in the same boxes in which they were
received from the printer/Secretary of State’s office, but this led to
some ambiguity about when and by whom openings in the boxes had been made.
See Exhibit D.
REMEDIAL ACTIONS REQUESTED_*_:_. In the future, the boxes for transport
of the ballots from the municipalities following an election, will in
fact be different from the ones in which the ballots were delivered to
the jurisdictions, to prevent any ambiguity about former openings in the
boxes. The boxes should have no ‘clutter’ on them; and the boxes should
be new, never used prior and be devoid of any writing other than
instructions found in State Statutes (The New Hampshire government may
take as many measures as possible to be frugal and mindful of
expenditure of taxpayer money, but the additional boxes in this case
would be a very small expenditure in the broad scheme of things and
would go a long way to allay/prevent any suspicions, as well as to
ensure security.) I am also requesting that the seals used on the boxes
be of a more permanent nature where any unauthorized entry can be easily
In all future elections, I am requesting that the Office of the
Secretary of State follow the statutes and procedures more closely
regarding the conduct of elections.
I also ask that greater scrutiny be paid by the Attorney General to all
election and election recount operations.
I would request that disciplinary consequences be mandated and enforced
by the Secretary of State’s office for any future violations of any
current regulations, of any remedial measures requested in this Petition
of Appeal, or other future regulations.
CITATIONS_: *659:95 Sealing and Certifying Ballots. I. Immediately after
the ballots cast at a state election have been tabulated and the result
has been announced and the return has been made, the moderator or the
moderator's designee, in the presence of the selectmen or their
designee, shall place the cast, cancelled and uncase ballots, including
such ballots from any additional polling places, and further including
the successfully challenged absentee ballots still contained in their
envelopes, in the* containers provided by the secretary of state as
required by RSA 659:97 *and shall seal such container with the sealer
provided by the secretary of state as required by RSA 659:97. The
moderator or the moderator's designee shall then enter in the
appropriate blanks on such sealer on each container the number of cast,
cancelled and uncast ballots in such container and shall endorse in the
appropriate place on such sealer a certificate in substance as follows:
Enclosed are the ballots from the state election in the town of (or in
ward____ in the city of ) held on ________, 200___ _required by law to
be preserved. The moderator and the selectmen or their designees shall
sign their names in the appropriate blanks on the sealer.
*659:97* Secretary of State to Prepare Containers, Sealers. The
*secretary of state shall*, *before any state election, prepare and
distribute to each town and ward clerk containers to be used for
preserving ballots *and sealers to seal each such container. *He shall
prepare special containers *and sealers *to be used for preserving any
special and separate ballots for questions to voters* and shall
prescribe the form of any endorsement blank printed upon the sealers
provided that the blank is in substance consistent with the provisions
of RSA 659:95.
VIOLATION #6_: Many ballot boxes were not properly sealed, and what were
referred to as “seals” would not safeguard the ballots from tampering.*
*_Fact_.* “Seals” meant to secure the boxes were in fact “labels”; they
did not stick securely to the boxes, could be easily removed and
re-attached, and left no evidence of having been removed and reattached
from the box on which they’d been placed. As such they were not “seals”
to the boxes; in order for the ballots to be secure, real tape was
needed to bind the boxes. Many ballot boxes were delivered to the State
Archive Building for recounting with tops not secured and with slits in
them large enough for a hand to fit through.
See Exhibit E.
REMEDIAL ACTION REQUESTED_*_:_. In all future elections, the Office of
the Secretary of State would clearly regulate for the cities and towns
the appropriate means of securing all boxes of ballots.
The seals ordered in the future must indeed be seals that seal the boxes
in an unequivocally secure manner; if such seals are removed from any
box prior to the time of any recount, it must be easily apparent to all
In any future recounts where boxes are found not to comply, the entire
election would be deemed invalid.
CITATIONS: _*659:95 Sealing and Certifying Ballots, cited above
659:97* *Secretary of State to Prepare Containers, Sealers. *The
secretary of state shall, before any state election, prepare and
distribute to each town and ward clerk *containers to be used for
preserving ballots* *and *sealers to seal each such container. He shall
prepare *special containers* *and *sealers to be used for preserving any
special and separate ballots for questions to voters. The secretary of
state shall prescribe the size and form of such *containers* *and
*sealers *and shall prescribe the form of any endorsement blank printed
upon the sealers provided that the blank is in substance consistent with
the provisions of RSA 659:95.
VIOLATION #7:_ The uncounted ballots were not always kept overnight in
the security of the “ballot vault.” *
*_Fact_*. At least on the night of the recount January 17 (and possibly
other nights as well) boxes of uncounted ballots were not stored in the
“vault” in the State Archive Building, but rather in the “counting
room”, which is not a secure room. Election observers heard Secretary
Gardner claiming that the room was secure because he put one of the
easily-removable and easily-restick-able “seals” (see #6 above) across
each of the double door entries to the room.
See Exhibit F.
REMEDIAL ACTION REQUESTED_*_: _New Hampshire could indeed lead the
nation as an example of chain of custody security. Much is already in
place. I ask you to consider adding some statutes that cover every
aspect of the “chain of custody” of the ballots, such that* *every stage
of the “chain of custody” is explicitly spelled out by future statute.
These statutes would in turn be distributed to every office employee of
the Secretary of State, to every city and town clerk and selectperson,
to the state police, and to every other person involved in said chain of
Such future regulations must be complied with to the fullest degree.
We recommend that you consider adding penalties and charges for any
violations to every chain of custody statute.
I feel it is important and critical to any democratic election that
every step of the chain of custody of ballots, software, hardware and
voting equipment be open to citizen scrutiny and observation. I am
hopeful that you would also consider requiring all election officials to
keep a log of every time any employee or outside companies such as LHS
work on and/or make any changes to any aspect of the system. Ideally,
cameras should be set up to be on the ballot boxes at all times and
broadcast election day events live over the internet for citizens to
oversee. (This could be extended to include the counting procedures as
Such a system -- and New Hampshire has much of it already in place --
would exemplify a secure chain of custody of ballots and of all related
election materials that must be protected.
The security of the ballots is tantamount and it is understood that they
should be safeguarded at all times.
VIOLATION #8:_* *Ballots were not always delivered in an open and public
*_Fact_*. On many days of the recount, ballots were delivered after the
recount had ended for the day, after dark, when most of the employees
were gone from the building, and their delivery was not witnessed by any
member of the public or citizen monitors.
See Exhibit G.
REMEDIAL ACTION REQUESTED_*_:_ Same as # 7 above.
*_CITATIONS_*_._ Same as # 7 above.
In the process of analyzing the recount and election procedures, I have
identified the following two items as “ weaknesses” in current procedure:

1. The candidate in a recount cannot get access to *all* the different
categories of ballots: . Cast 2. Spoiled 3 Blank, 4. Uncast.

It's critical for the integrity of the process that the candidate be ale
to acct for the total number of all ballots in each category

Remedy: Either we have to adjust the recount procedure so that the
uncast ballots are NOT excempt from Right to Know requests, OR have the
Right to Know requests for all of these categories of ballots honored
immediately upon submission of request.
2. There are inconsistencies in the execution of some election and
recount protocols.
We would like to be able to examine the actions and responsibilities of
each Assistant and Deputy Secretary of State in order to determine which
party is responsible for each step of the election and recount process.

*To reiterate: *Petitioner is proud to be an American when witnessing
the organized, orderly, open and communal vote-counting process as
executed in New Hampshire. Unfortunately, I also observed some gaps in
ballot security and understand the vulnerabilities of the machines used
in vote tabulation. I submit this petition with the desire and the
belief that with a little attention and a few statutes addressing such
things as ballot security and chain of custody, we can close those gaps.
New Hampshire will be first in the nation to hold its Presidential
Primary and it will be first in the nation in this century to have
elections with observability, accountability, checks and balances, and
real transparency.
The Ballot Law Commission’s rules places the burden of proof on the
Petitioner for any and all complaints and allegations. Yet, it is
impossible to completely fulfill the “burden of proof” obligation when
the State refuses to provide me in a timely fashion with requested
election data through the “Right to Know” law, and without giving me
sufficient time to review the requested data /prior/ to filing this
petition within the three day period as required by law.
I am therefore requesting that the Secretary of State provide me with
copies of all the data I have requested (on January 14, 2008 and
February 1, 2008) from him and from LHS through the New Hampshire “Right
to Know”; that I be given 14 days to review this data once received; and
that I be allowed to re-file this petition if I so desire and to add
additional violations and/or Exhibits if applicable.
As required by RSA 665:6, I am filing these Complaints today, February
15, 2008.
Signed and attested to by Albert Howard

Below is the video link.

Informant: John Calvert


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