By Bev Harris and Jim Keller
Human beings rely on one another for reality testing. Consensus is sometimes used to imply truth, but consensus is a dubious approach if a result is false.
Election results can become false through error, outside “hacking,” or inside manipulation. The Texas legislature addressed election fraud as a concern when it passed laws to require the printing and retention of zero and results tapes from polling places. The legislature also perceived inside manipulation as a possibility when it passed laws to require that observers be allowed to watch election workers as they conduct elections and prepare for and carry out recounts.
The election case below explores the letter of the law, as well as a sober reading of its enforcement. In Travis County, Texas, four corners have been pointing to and repeating each other’s assertions as if repetition makes them real. Election administrators, vendors, and sometimes the media and the courts have crafted remarkably similar statements.
But a candidate, Dr. Laura Pressley, has challenged these consensual violations of election law.
SHE’S FOUGHT FOR THE LAW. WILL THE LAW WIN?
Within the next few months, an important case will come to a decision by the Texas Supreme Court. Dr. Laura Pressley, a former candidate for Austin City Council, went to court in 2015 to address a dismantling of electronic voting safeguards, resulting in the first case targeting illegal electronic voting practices in Texas.
Pressley sued to de-certify the election of her opponent due to Travis County’s failure to keep or produce original records of the vote (serial numbers, zero tapes, ballot images, and results tapes,) as required by the Texas Constitution, the Texas Election Code and Administrative Code, respectively. Her case is progressing through the Texas court system. The Texas Supreme Court has reviewed Pressley’s election integrity Petition for Review. On June 9, 2017, in a positive move, the Court requested Casar file a formal response.
Laura Pressley (petitioner) v. Gregorio (Greg) Casar (Respondent), Texas Supreme Court case No. 17-0052, addresses the following three issues:
1. Can a ballot be counted if the ballot itself violates Texas Constitutional and statutory law?
2. Can the secretary of state waive mandatory laws enacted by the legislature that have criminal penalties for the violation thereof?
Testimony of Travis County Clerk Dana DeBeauvoir:
Q. You think the Secretary of State can tell you not to follow state law?
A. I know exactly that they can, yes.
3. Should a candidate be sanctioned (punished with fines) for asking the courts, for the first time, to clarify the issues above?
QUESTION 1. BALLOTS THAT VIOLATE TEXAS CONSTITUTIONAL LAW:
Both the Texas Election Code and the Texas Constitution require a unique number for each ballot. Can unnumbered ballots (or, in the case of electronic voting machines, unnumbered Cast Vote Records) be counted in a recount if the absence of a number creates an illegal ballot?
Ballot numbering, if done correctly, does not violate ballot privacy.
Unique ballot numbering is the primary way to account for all ballots, to ensure that no extra ballots were inserted, and that no duplicates are present. The numbering requirement helps to make sure that the ballots (or Cast Vote Records) are the real ones. Without unique identifiers for each ballot there is no way to know whether the electronic ballots counted in a recount are faked.
According to correspondence between e-voting manufacturer Hart InterCivic and the Texas Secretary of State’s office, Hart “does not and never has” numbered its electronic ballots.
Hart InterCivic, by failing to follow Texas constitutional and legislatively imposed election code requirements, did not actually meet Texas requirements for ballot numbering when submitting its system for certification, yet it was certified anyway. Hart’s actions have been troubling with regard to ballot numbering and Cast Vote Records:
1) In a previous litigation by the NAACP in 2011, the Texas Supreme Court ruled that Hart eSlate meets the Texas Constitutional provisions of numbering because “an eSlate numbers a ballot.” Pressley’s case clearly provides evidence that is not the case—Hart InterCivic eSlate Cast Vote Records are not numbered. So where did this misinformation come from? The Texas Supreme Court in 2011 relied, in part, upon incorrect representation when ruling against the NAACP.
2) For years, Hart officials represented to election officials that “in the event of a recount, ballot images exist so that paper ballot records can be counted one by one.” Relying on these representations, county election officials and county attorneys repeated these statements to the trial court and press. Yet, Pressley’s case provided evidence Hart’s eSlate Cast Vote Records are in fact unnumbered. And, according to Texas Constitution and Election Code, unnumbered Cast Vote Records don’t meet the legal requirement for numbering each ballot. Can unnumbered computer printouts representing each ballot be reliably counted one by one if there is no way to determine that each represents a unique vote?
3) As the Texas case was pending in the Appeals Court, in 2016, the Secretary of State e-mailed Hart and asked whether it numbers its Cast Vote Records anywhere on the document. Hart responded that it does not and never has numbered the ballots.
4) The Federal Election Assistance Commission Voluntary Guidelines from 2005, 2012 and 2015, define electronic voting system standards and those standards required a unique identifier for each ballot record. This is an accounting mechanism to ensure that each ballot can be properly accounted for. Hart’s eSlate system therefore appears to violate federal standards as well as Texas law.
The Texas Supreme Court has upheld in the past 120 years that paper and electronic ballots must be numbered. Thus it now comes before the Texas Supreme Court a case of first impression, the topic of electronically cast ballots: If unnumbered e-ballots are not legal ballots, is it legal to require a candidate to accept a recount based on unnumbered e-ballots?
QUESTION 2. CAN THE SECRETARY OF STATE WAIVE MANDATORY LAWS ENACTED BY THE LEGISLATURE?
Q. You think the Secretary of State can tell you not to follow state law?
A. I know exactly that they can, yes.
Pressley’s original election case highlighted irregularities, including use of corrupted memory cards (as shown in audit logs), obstruction of observers, more votes than voters, and missing ballot boxes. Yet, when Pressley tried to match up records, Travis County refused to give her some of the legally required documents.
DeBeauvoir’s position that the Texas Secretary of State can overwrite mandatory legislation is not unique. At one point in time, California county election officials asked then-Secretary of State Debra Bowen to void the legal requirement to print precinct results. However, Bowen refused to do so, responding that she did not have the authority to overrule the California legislature.
In Texas, DeBeauvoir issued a written directive to poll workers to ignore the Texas law requiring printing and saving of zero and results tapes based on a waiver letter from the Texas Secretary of State’s Election Director, Keith Ingram. Ingram’s office, under the color of law, instructed Pressley’s county, and other counties in Texas to ignore the printing of paper backup records of zero and results tapes designed to give accountability and credibility to e-voting election results.
Pressley asks the Texas Supreme court: “Do the Secretary of State’s Elections Division and county election officers have powers to suspend mandatory state election laws?
1. During the recount of the 2014 Pressley v. Casar city council race Pressley had assigned official recount poll watchers to monitor all recount activities, including retrieval, sorting and copying of the ballots to ensure integrity of the files. However, Pressley’s poll watchers were not permitted by Travis County Election Officer Michael Winn to monitor the retrieval, sorting and copying of Cast Vote Records that were cast on eSlate DREs.
2. In addition, required paper election results tapes from polling places were missing. During discovery, a written directive from Travis County Clerk Dana DeBeauvoir* was found which directed poll workers not to retain official paper precinct returns, despite the mandate contained in Tex. Election Code Sec. 66.022. Later, Texas Election Director Keith Ingram again “waived” the law requiring printing of zero tapes and polling place results tapes for the 2015 and 2016 general election and counties succumbed.
* Though a lower level court opinion cited Travis County Clerk DeBeauvoir’s membership on committees to emphasize her qualifications, it did not mention DeBeauvoir’s previous problems with audits. In her official capacity of Travis County Clerk, DeBeauvoir failed to balance several bank accounts, resulting in two separate critical audit reports. At one point, DeBeauvoir reported one bank account to contain almost $1 million more than it actually had. DeBeauvoir’s response was to claim that then-County Auditor Susan Spataro was engaged in a personal vendetta against her. When a national auditor’s review supported Spataro’s work, DeBeauvoir accused the national firm of failing to incorporate a review based on personalities. One of the national review team’s auditors replied, correctly, that reviews should center on paperwork, not people.
3. With regard to Tally computer corruption errors, the vendor, Hart InterCivic, had issued instructions and warnings against use of “corrupt memory cards,” specifically because they can corrupt or alter results. However, Travis County repeatedly inserted corrupted memory cards into the main Tally computer as Pressley’s election results were tabulated on election night.
(Use of corrupt memory cards was witnessed again in Travis County during the 2016 presidential primary by election observers; Travis County declined to take the actions recommended by the vendor to deal with memory card corruption errors. A further issue, though not before the court, is whether Travis County has been properly maintaining and updating its memory cards. According to Hart information on “Corrupt card” message, this can be caused by using memory cards that are past their shelf life and can cause corruption of election results. If Travis County has not replaced memory cards according to manufacturer recommendations, each new election is likely to increase in quantity of corrupt memory card errors.)
4. Although Pressley called Travis County and Secretary of State’s office officials attention to the absence of legally required numbering on Cast Vote Records during her recount, county and state officials overrode state mandated ballot requirements and ordered that the unnumbered records be recounted.
PUNISHMENT AND CHILLING EFFECT
QUESTION 3: SANCTIONS
The lower trial court dismissed Pressley’s election contest case and entered an order for monetary sanctions against Pressley for $40,000, and further awarded unsolicited, unbriefed anticipatory attorney’s fees, in the event Pressley sought an unsuccessful appeal to the Court of Appeals ($25,000) and Texas Supreme Court ($45,000).
But she did appeal the case in 2015, and gave oral arguments in April 2016. The Austin Third Court issued its ruling eight months later, after the 2016 General Election, on December 23, essentially Christmas Eve — a day that governments ‘take out the trash’ while no one is watching. The Austin Third Court upheld the lower court, and added $25,000 to Pressley’s punishment for bringing the case.
Not a single Texas election contest in the past 100 years has sustained punitive sanctions at the Appeals Court level. In cases where election practice conflicts with election law, a proper remedy is to file a lawsuit forcing clarification. Pressley’s case, if sanctions are upheld, would be the first case to address these two unresolved legal conflicts, and at the same time, the first time a candidate was sanctioned with punitive damages for bringing an election contest case through the Texas court system.
Dr. Pressley said, “Laws mean something. The expectation is for strict adherence to the rule of law in Texas elections.”
Elections are not simply the exercise of choice — the results impersonate our values — and only if legitimate, can liberate us. Checks and balances mandated by Texas election laws ought to be obeyed regardless of convenience. If the legal precedent set by the Austin appeals court is allowed to stand, it will remove the ability for voters and candidates to challenge questionable or bogus results – the very will of the People is on the line in this decision.
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Bev Harris is a writer and is the founder of Black Box Voting. She has researched and written about election transparency and computerized voting systems since 2002, and is currently writing a new book which documents and quantifies corruption in America. Harris was featured in the Emmy-nominated HBO documentary Hacking Democracy, and is the author of Black Box Voting: Ballot Tampering in the 21st Century, a book purchased by the White House Library and also reportedly found on Osama bin Laden’s bookshelf. Harris’s research has been covered in The New York Times, Vanity Fair, Time Magazine, CNN and several international publications.
James (Jim) Keller is a fifth generation Texan and member of the Maverick Family. Keller has been an active advocate for election transparency issues for many years. He is a professional photographer who holds four US patents for panoramic camera-related inventions and works managing investments, properties, and a cattle ranch.