Request for AG Investigation, high overvoted ballot rate in Derry

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Apr 7, 2022, 12:22:45 PM4/7/22
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April 7, 2022 Posted by Deborah Sumner PS have also asked both the Senate and House Election Law Committees to request this investigation. Nothing happening as of today. See attached for overvote info for each of eight computers used.

From: Deborah Sumner 
Subject: Re: Request for Investigation, high overvoted ballot rate in Derry/absentee ballots statewide 
Date: February 7, 2022 at 11:35:59 AM EST
Cc: electionlaw <elect...@doj.nh.gov>, Jane....@doj.nh.gov, "Edwards, Anne" <Anne.E...@doj.nh.gov>, "ChongYen, Nicholas" <Nicholas...@doj.nh.gov>, "Matteson, Myles" <Myles.B....@doj.nh.gov>, "Tracy, Richard" <Richar...@doj.nh.gov>, David Scanlan <David....@SOS.NH.GOV>, Orville Fitch <Orvill...@sos.nh.gov>, usanh....@usdoj.gov,

Dear Mr. Formella,

Since this Dec. 2, 2020 request of Mr. MacDonald remains open, I ask you to initiate the investigation of Derry November 2020 ballots to see if all legal votes were counted (as law and duty require) and to ensure that three of the four known possibilities for election fraud with overvoted ballots did not occur. (See end for specifics, A, B and D.) 

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 (U.S, 1 1964)

“The right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box."  United States v. Mosley, 238 U.S. 383, 386 “[e]very voter's vote is entitled to be counted once. It must be correctly counted and reported.” Gray v. Sanders, 372 U.S. 368, 380 (U.S. 1963)

As you and Mr. Gardner noted in your Jan. 7, 2022 communication to Windham officials, “The moderator has a duty to accurately count all legally submitted ballots.” p. 3

My understanding is that 1) you can ask the FBI or county attorney to help investigate 2) Derry did NOT use a folding machine (found to contribute to the high overvote rate in Windham’s Nov. 2020 election).

Three citizens notified Mr. MacDonald in Sept. 2017 about known instances of the AccuVote misreading legal votes as overvotes (including fraud possibilities). He took no action. (Request should be in your files, sent Sept 9 by regular mail, Sept. 11 by email.)

I am copying Mr. Scanlan and Mr. Fitch, who I believe will support this request and would help your office with this investigation any way they can.

Please confirm that you will initiate this investigation and finalize it before Sept. 2022 (the end of the ballot retention period). The Derry Town Clerk is current ballot custodian. 

Thank you. Please don’t hesitate to contact me if you have any questions.

Respectfully,

Deborah Sumner
Jaffrey, NH 03452

copies: AG attorneys, David Scanlan, Bud Fitch, US Attorney for NH

PS As the Secretary of State knows and you should know, the pre-election testing only shows the computer is working properly when it’s tested. It can be programmed to operate differently during the election, there can be a software glitch or mechanical issue. For example, CT found the memory card battery lost power and affected the post-election hand counted audit results. Officials there pushed the vendor to design a new memory card. NH continues to use the one known to have the battery depletion problem.

Four KNOWN possibilities for fraud with overvotes using the AccuVote Optical Scan:
A. An attack could bypass the pre-election ballot testing and, during an election: turn off under-and-over vote notification. It could selectively disable over vote notification or selectively provide false over vote notification for favored or disfavored candidates. VSTAAB, 2006 http://nob.cs.ucdavis.edu/bishop/notes/2006-inter/2006-inter.ps
B. Someone with access to ballots could add a tiny spot of invisible/ultraviolet ink to the oval for the PREFERRED candidate. The voter wouldn’t notice it. If he/she voted for ANOTHER candidate, the scanner would read it as an over vote and be it would be invalidated. A vote for the PREFERRED candidate would likely be counted as valid. 
C. Prior to recounts, over vote marks could be added to ballots (also possible in locations not using the AccuVote). 
D. Voters might mark malicious patterns on the ballot that could trigger a dormant Trojan horse and cause a compromised computer to start cheating. (p. 71, Source Code Review of the Diebold Voting System

On Dec 22, 2021, at 9:47 AM, Deborah Sumner wrote: elect...@doj.nh.gov

As of this date, I have not received a status report, closure letter or any other communication re: this reported violation of law (RSA 659:64) and /requested investigation. If the AG’s office won’t take any action on this, please confirm that decision and give the reason why.

Thank you

Deborah Sumner (contact info below)

December 2, 2020 (sent by regular mail, emailed Dec. 3)

Gordon J. MacDonald, Attorney General
NH Department of Justice
33 Capitol St.
Concord, NH 03301

Re: Request for Investigation, high overvoted ballot rate in Derry/absentee ballots statewide

Dear Mr. MacDonald,

1) We ask you to use your authority under RSA 656:42 IV to investigate an alarmingly high overvoted ballot rate in Derry for the November 2020 election. Derry reported a total of 6,428 absentee ballots of 18,100 ballots cast. Some would be overseas ballots and others tallied by hand. 

Enclosed is information from the eight computers used.  Computer one tabulated ONLY absentee ballots (572 over voted ballots, 14.2%); other absentee ballots were counted by other computers, with a 4.7% overvoted ballot rate when totals are combined (848 ballots).  Computer 5 also showed a high overvoted ballot rate, 5.8%.

You should be able to confirm the numbers with the town clerk.

In November 2018, Derry mostly tallied its absentee ballots on one computer, with an estimated 5% overvoted ballot rate for that computer. 

2) Are absentee ballots statewide showing a significantly higher voter disenfranchisement rate than election-day ballots?

3) If so, why? What are your recommendations for decreasing these numbers?

As we told you in September 2017, folds in absentee ballots may be misread as overvotes, there are many instances of computers misreading valid votes as overvotes and there are fraud possibilities. One can be targeted to absentee ballots where the voter’s party affiliation is known.

Since then, we have been doing some checks of overvoted ballots in various towns, but prior to this discovery, the highest was 2.5% in Jaffrey in the Nov. 2012 election.

NH doesn’t require reporting of overvotes and neither law nor the SoS requires local officials to print that information for the general election. (Only 2 of Nashua’s 9 wards had the requested overvote information available, 143 overvoted ballots of 10,702, 1.3%). It is impossible to know why or how many NH voters are being disenfranchised compared with other states or if certain races are impacted more.

Both Vermont and Massachusetts program their computers to notify election-day voters of a computer-read overvote or completely blank ballot so they can choose to request a replacement ballot and have their votes counted. NH doesn’t.

VT reports overvotes for each contest and each locality, as you can see here. 


 Overvote rate for President on election night was 278 of 370,968 ballots cast, .075%.

MA has recently completed its 3% post-election audit and found a total of 7 overvotes for all races counted on election night (100,349 ballots/over vote rate of .007%). Additional overvotes found in the audit (68 total for ALL races) were mostly attributed to 73 ballots not counted on election night.



In NH, we are finding overvoted ballot rates almost always exceed 1%. Ballots may contain more than one error, thus disenfranchising voters for more than a single contest. 

All three states had more absentee ballots this past election, but we see significant overvote voter disenfranchisement only in NH.

We ask that any review of Derry ballots be a transparent, public process and that your findings include recommendations to policy makers, election officials and or the Ballot Law Commission, which makes rules for the use of computers in NH. RSA 659:64 requires that NH enfranchises as many voters as possible. Appeal of McDonough, 149 N.H.105, 112 (2003).

Thank you. Please let us know if you have any questions.

Sincerely,

Deborah Sumner           Barbara Glassman             Gerhard Bedding
Jaffrey, NH                      Nashua, NH                         Keene, NH 

Copies: Derry Town Moderator, Ballot Law Commission, ACLU-NH, DOJ attorneys-Anne Edwards, Jane Young, Nicholas Chong Yen
Gen Elec Overvotes - Derry.xlsx
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