Request 2 to Review Ballots for Nov. 2016 Contests
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Deborah Sumner
Jul 13, 2018, 10:21:55 AM7/13/18
to jaffre...@googlegroups.com
Since I received no response from the Jaffrey Select Board, I checked with the town manager on July 18. His response: "The Select Board heard your request at their meeting on July 9, 2018 and consented to take no action. The reason is to maintain compliance with State law. The Board appreciates your energy and wishes you well with your endeavor."
Here's the request that the select board and I discussed July 9, to make sure everything was okay with the last election. If it wasn't, wouldn't they want to know so they can prevent it from happening again?????
Attached chronology begins on p. 2. Also, see the evidence that shows this is an unfunded state mandate and state funds, not Jaffrey taxpayers, should pay to argue against election transparency and public accountability.
See July 10 follow up at end, with testimony re: over voted ballots attached.
To: Jaffrey Select Board (via email)
Re: Two requests 1) to review ballots for at least one contest in Nov. 2016 election. 2) If you deny this request, your assurance you will preserve the ballots beyond Sept. 8 until the legal suit has been decided. (That would mean I wouldn’t have to ask the court for a temporary restraining order.)
Basis for Request: NH Constitution, including. Part I, Art. 8, Art. 10, Art. 11 and Art. 22; Part II, Art. 5, 32, Art. 84 (your oath of office) and Art. 90; Chapter LXIII, esp. RSA 659:63, and RSA 42:1
US Constitution, Art. 2 and 4; First and Fourteenth Amendments, 42 U.S.C. § 1983.
Federal law requires preservation of ballots with federal contests for 22 months (52 U.S.C. § 20701) provides penalties for tampering or destruction (52 U.S.C. § 20702) and specifies U.S District Court as appropriate jurisdiction, if needed, to compel ballot custodian to produce those documents (52 U.S.C. § 20705).
Federal courts have recognized that the purpose of retention requirement is to protect the right to vote by facilitating investigation of illegal election practices. Kennedy v. Lynd, 306 F.2d 222 (5th Cir. 1962).
Current law, consistent with NH Constitution, requires that moderators oversee a publicly observable vote count so that any errors can be caught and corrected on election night. Current Jaffrey practice does not comply with that legal requirement.
Our constitution requires the moderator to “sort and count” votes in “open meeting” in the presence of the town clerk, selectmen and “all others who may take an interest in the election, and be able and willing to detect and expose any error, and obtain a correction of it immediately, when it can be most easily corrected.” Opinion of the Justices, 53 N.H. 640, 1873
"…we note that New Hampshire law enables public oversight of the vote counting process…For instance, RSA 659:63 requires that vote counting be conducted in public, so that the public may observe the counting process as it occurs.…state law incorporates public oversight into the vote counting process,” Deborah Sumner v. Secretary of State, 2016.
Known Vulnerability of Jaffrey’s Election System and Likelihood of Error:
1) Information given Selectboard previously (state officials have known this since at least 2006):
“Our demonstration vote-stealing applications can be generalized to steal votes on behalf of a particular party rather than a fixed candidate, to steal votes only in certain elections or only at certain dates or times, to steal votes only or preferentially from certain parties or candidates, to steal a fixed fraction of votes rather than trying to ensure a fixed percentage result, to randomize the percentage of votes stolen, and so on. Even if the attacker knows nothing about the candidates or parties, he may know that he wants to reduce the influence of voters in certain places. He can do this by creating malicious code that randomly switches a percentage of the votes, and installing that code only in those places. Any desired algorithm can be used to determine which votes to steal and to which candidate or candidates to transfer the stolen votes.”
2) 2016 court testimony of Poorvil Vora arguing why the Michigan presidential recount requested by Jill Stein should have been hand counted, not merely re-run through a scanner.
“A voter using an optical scanner marks a paper ballot and feeds it into the scanner. She does not know if it has read her votes correctly.
“…Logic and Accuracy testing (L&A testing) is intended to test for some of the above problems before the elections, but human error can result in the tests not being correctly completed and equipment malfunction can result in the equipment behaving differently on Election Day. Further, a competent attacker would have the system behave as expected when tested, and maliciously during the election.” (my emphasis added, information shared with Jaffrey officials previously).
3) Chronology (included separately and previously shared with Selectboard on Oct. 6, 2015 and Oct. 12, 2016 ) shows that election fraud probably occurred in Nov. 2010 election and no one can rule out the possibility individuals in state government and Jaffrey were involved. Because Jaffrey and state officials have taken no steps to prevent the possibility of this reoccurring, this represents an issue “Capable of repetition, yet evading review” (Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911).
Preventing public detection of fraud or significant error has never been named, by SoS, AG, court or legislature as a legitimate state interest for preventing public inspection of ballots. Deterring that possibility, and allowing detection if it does occur, is a legitimate town/public interest.
I would prefer that Jaffrey election officials had chosen to perform their legal duty to voters and candidates, But they haven’t. RSA 666:3 says it is illegal for anyone to interfere with election officials’ legal duty. (Can work with town attorney to argue for THAT as well.)
Citizens have both the responsibility and constitutional authority to provide oversight of our elections and government and make sure our rights, votes and elections are protected. NO branch of government has the authority to prevent me from doing my job.
On request can give you opinions from Ohio and Michigan Attorneys General verifying that there are no privacy reasons to exempt ballots and they are public records in those states. Also, see this link that shows Wyoming citizens performing this essential check and balance in that state’s election system.
Conclusion:
NH state government has failed to protect voting rights guaranteed in the US and NH constitutions (our “highest” laws), leaving the state open to a federal lawsuit. That is its choice.
Please choose to honor your oath of office, do what ‘s right for Jaffrey and say yes to this request so we can work out the details. I would be glad to work with the town attorney to formulate a solid legal reason for you to comply.
If you say no, please state your reasons in writing by July 16 and say whether you will voluntarily preserve ballots beyond Sept. 8 if a lawsuit is filed before then.
I will attend the July 9 meeting in case you have any questions and provide you with evidence that the 2016 court decision relied on what is now provably inaccurate information. The 2003 ballot exemption was an unfunded state mandate and you should be able to ask the state to defend this action. I think we can agree that Jaffrey taxpayers should not have to pay an attorney to argue against election transparency and public accountability.
You can check out this link to see why I feel this action is necessary.
Deborah Sumner
address/phone
copy: ———, Esquire , Jaffrey Town Manager, Moderator and Town Clerk
DEMOCRACY and CONCEALED VOTE COUNTING—WE CAN’T HAVE BOTH!
“Trust but verify must be the guiding principle behind every critical step in a democratic election.” Eva Waskell, “The Privatization of Our Democracy,” 2010
Sent July 10, 2018
Dear Jaffrey Select Board,
Thank you for talking with me last night. A few points of clarification:
1) Frank, you and I were both at the March 2003 town meeting when Jaffrey voters chose to purchase the AccuVote. I remember expressed concerns about the 2000 election in Florida and YOUR assurance this wasn’t at all like the machines that had problems in that election. (Neither you nor I knew at that time that the AccuVote was used in Florida and did have problems.) I also believe you said something to the effect, “If we ever have questions, we can always look at the ballots.” That seemed to address the concern so that even skeptics like me voted to purchase the computer. Do you recall saying that? From March until June 2003, that was true. Ballots were considered public records, although state policy at the time would have probably required a court order. That was true in other states, including Vermont, until the court granted access because they saw no reason to deny them. No court order has been required in those states since. Citizens file public records requests and work out the details with the ballot custodian. Since Jaffrey Select Board’s and citizens’ understanding in March 2003 was that the ballots would be available for inspection, we can argue that our understanding pre-empted the May 2003 ballot exemption amendment that removed ballots from public inspection.
2) Recounts. Call the public inspection anything you choose, but the ONLY way the reported results for any contest would be changed is through a candidate-requested recount within the statutory requirements. States that allow public access allow it after election results have been finalized and in no case does the discovery of any significant discrepancy change the election outcomes. It may however, prompt some action. In Wisconsin, for example, one computer was decertified after citizens discovered a high error rate.
3) Jaffrey’s high over vote rate. Please see my Sept. 6, 2016 communication with Jaffrey officials (and previous communications re: over votes.) I wrote: “As you may know, Secretary of State Gardner, as ballot custodian, refused my request to review Jaffrey ballots cast in Nov. 2012 to find out why 71 (2.5% of those cast) contained over votes.
“I don’t understand why he wouldn’t he want to know if computer error or fraud caused those lost votes in Jaffrey (and probably in other computer count locations as well).
“FYI, hand count towns in NH and AccuVote towns in other states that follow federal law and return over voted ballots to voters for possible correction, don’t have many of them.”
Please see attached for my Jan. 2018 testimony that attempted to fix the problem legislatively. I have since contacted the US attorney for NH and the question of NH’s compliance with federal HAVA law is currently being investigated by the US Department of Justice. I don’t know how Mr. Gardner’s decision to hide the possibility of election fraud with over voted ballots looks to the USDOJ. I do know how it looks to me and other ordinary citizens.
4) March 13, 2017 minutes. Don and Frank have continued to insist that the pre-election ballot testing ensures accurate election night counts and I have continued to provide evidence that it only shows the computer is working properly when it is being tested. Like with the VW emissions scandal, it can work differently during an actual election when it is switched from “test” to “election” mode. Don continued to use the handcount of a selectman’s race as all the evidence he needed to believe the computer counts accurately.
I don’t recall Cush giving an answer to the question. Frank and Don said no.
Here’s testimony to the state advisory group from a computer expert who explained why recounts alone were not sufficient to deter a determined hacker.
http://sos.nh.gov/ballotcountdev.aspx (See Oct. 30, 2009 minutes.)
Dr. Andrew Appel, Chair, Princeton University Computer Science Department said: ”It would be possible to make a machine cheat by writing a computer program so that, on election day, between 10 am and 5 pm, it cheats by adding votes to the wrong column. The voter would not see anything amiss. It will not cheat on non-election days and/or during pre-election testing. The software program could be loaded into the voting machine at the factory or in the field." p. 2
Appel “explained if you consistently have recounts for the same offices, e.g. senate, representative, sheriff, city council, etc., the cheaters would know which races to stay away from, or they already know the percentage margin to exceed in order to avoid a recount. The cheaters could then ensure their candidate wins by a respectable margin, enough to avoid a recount.” p. 4
5) If anyone wants to talk further, please feel free to contact me.
Debbie Sumner
phone number
copies: —— Esquire, town manager, town clerk and town moderator
Attachments:
1. Chronology
2. Evidence of unfunded state mandate
3. My testimony re: over voted ballots
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