When is a recount a sham?

By November 25, 2016 OBSERVATION 2 Comments
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Recounts provide a peaceful dispute mechanism to help ensure that elections will be free and fair and equal to all. But the mere act of having a recount is not what helps elections be free and fair. The recount must be accountable to the public and fully transparent.

A recount doesn’t need a smoking gun, and never needs to be apologized for. Done correctly, recounts add validity to elections.

There is a great deal at stake in any recount. Observers should not make assumptions that every recount is honest, or that every statement made by public officials is true. The purpose of observation is authentication, and this responsibility should be taken seriously.

See also: About Recounts – http://blackboxvoting.org/about-recounts

SYMPTOMS OF A SHAM RECOUNT

1) Is there activity during off-hours in the facility where ballots are kept? This indicates that ballots may be being adjusted to match the reported count. Typically ballots are kept in county election facilities; sometimes in an elections warehouse located in some obscure place. In New England ballots are housed by municipalities. In a controversial election observers should drive by ballot facilities at night and on weekends as soon as you know there will be a recount, before it begins, to see whether cars are in the parking lot or the lights are on inside the facility. Take a video camera and videotape license plates, especially any cars with out-of-state plates, and any personnel you see coming and going, as well as any activity you can see inside the facility.

Examples: In New Hampshire’s 2008 presidential primary election, I drove to the elections office in Londonderry the weekend before the recount, around 11 p.m. I didn’t expect to see anyone there and was surprised to note that the parking area and building lights, normally on all night, had been turned out. Three cars were parked near the entrance to the elections office and lights inside were on.

Sham explanations: In a more bizarre situation, I went to the state archive building with election integrity advocate Paddy Shaffer. We asked about ballot delivery timelines and procedures, and were told that observers would not be permitted, and no cameras would be allowed in the area, because it might “violate the HIPAA rights” of local hospital residents who might be going for a stroll in the area. First, the ballots were originally scheduled to be delivered at night. Second, it was 14 degrees and the area was surrounded by 10 feet of snow, an odd choice for hospital patients to take a night time walk. Third, the hospital, nearly a mile away, was a secured-access state hospital housing mentally ill criminals. Shaffer advocated forcefully for the right to observe and videotape ballot chain of custody and eventually prevailed, at which point they decided not to deliver the ballots that night.

2) Is observation meaningful? That is, can public observers see and document the marks on each ballot?

Example: A contentious Pima County, Arizona election in 2006 resulted in litigation, culminating later in an offer to recount the ballots. However, the count was set up such that observers were unable to observe the marks on the ballot, and could only observe “the process” (people walking about in a room, moving boxes, handling papers).

All recounts should be conducted in “public meeting” — which means with public notice as to time and place, and permitting any person to conduct meaningful observation, which must include the ability to actually see that the marks on the ballot correspond to the verbal count. Observers should use a video camera with good audio and a zoom lens.

3) Does the recount examine the marks on voter-authenticated paper ballots, or is it merely a retabulation of computer results?

A retabulation of what’s in the computer is like going to the bank and asking them to copy your bank statement so you can compare it to the one you looked at online. Of course it will match. A real recount compares the original documents (voter-authenticated paper ballots) to computer-reported results.

Sometimes, even with paper ballots, they still don’t hand count them. Hand counted recounts are far superior to machine retabulations. If your state does not permit hand counts and requires retabulation only, here is a workaround to improve the odds that a machine count will handle the ballots honestly: Before feeding ballots into the scanner, in full public view, sort into a stack for each candidate, calling each name out loud as ballots are sorted. Then feed each candidate’s ballot stack through scanners in separate batches. Allow observers to videotape and capture audio to provide documentation of human reading of each ballot. By reviewing the videotape a human count can be recreated.

4) Honest recounts should not let ballot counters see the desired result. They should not be able to check whether the count they are doing matches a predetermined result.

Examples: In Ohio in 2004, observers noticed that the target result was posted on the wall in the recount room. In a New Hampshire 2008 recount, an elections official was walking around the room, occasionally pulling a results slip out of his pocket, then leaning down to whisper to recount personnel.

The official count of every precinct should be published on a government Web site before the recount begins, but should not be visible to recount personnel as they are recounting. No one should be pulling anything out of their pocket, have writing on their arm, or be able to see posted results for what they are supposed to be recounting.

5) The recount must demonstrate an intact ballot chain of custody. Observers must be able to have a meaningful way to inspect ballot boxes, seals, ballot transport, and ballot storage (for example, through surveillance camera footage).

Examples: During the 2008 New Hampshire primary election recount, Black Box Voting arranged for six observers to document chain of custody. We observed ballots being offloaded from the transport truck with boxes open; also, Manchester Ward 5 ballots arrived in the Ward 6 box and vice versa; the “seals” were made with low tack on-again off-again adhesive like Post-it notes; and on one occasion ballots for over a dozen jurisdictions were deliberately left in an unlocked, unsecured room overnight while other personnel were in the building.

In a Detroit mayoral recount, dozens of absentee ballot boxes arrived in boxes with the top sealed but the easy-to-open bottom of the box unsealed.

6) Ballots should not be sorted or handled by election personnel or anyone else prior to public recount. If ballots arrive for recount “presorted” this is a compelling indication that ballot tampering may have taken place, and certainly indicates a chain of custody breach.

Examples: In Cuyahoga County during the 2004 presidential recount, a random sample of precincts was to be selected for recount. When ballots were brought out, they had been pre-sorted. Upon questioning, election workers admitted that they had not randomly chosen the precincts and that they had counted the ballots before the recount. Because observer Kathleen Wynne documented their statements on videotape, two election workers were ultimately convicted of tampering with the recount and sentenced to a 18 months in jail.

In Stanislaus County, California prior to the 2012 Riverbank mayoral recount of Virginia Madueño, registrar of elections Lee Lundrigan admitted to allowing her staff to “recount,” unobserved, Madueño’s ballots. See end notes for a transcript of the interview with Lundrigan about this private count, which Madueño was neither notified of nor invited to.1

7) Without disrupting the process, there must be a way to arrange for a second look or closer review of any ballots containing irregularities.

Example: In New Hampshire’s 2008 presidential primary recount, a series of ballots were observed with identical vote marks, each with a little “tail” on the filled in oval, as if someone slipped with a pen. That 20-or-so ballots with this identical anomaly seemed unusual, as if the ballots may have been produced on a copy machine. When observers asked to pause the count to look at the oddity again, it was refused. When observers requested to inspect ballots later under right-to-know law, they were denied because New Hampshire had quietly crafted an exclusion, exempting ballots from its right-to-know laws.

8) Public inspection of ballots must be facilitated through inclusion of ballots in freedom of information laws. Some states have passed legislation to exclude ballots from public right-to-know. Recounts must proceed reasonably expeditiously, but a more detailed ballot review can be important in order to learn more later.

Example: A set of 2008 primary New Hampshire recount ballots was observed through a window at night while a (daytime) recount was in progress. Several ballot boxes were open and five cans of acetone (an ink solvent) were under the table next to the ballots. Election workers quickly turned out the light when they realized they were being videotaped. Yes, just stood in there in the dark. Curious, Bev Harris and Susan Pynchon visited a nearby hardware store the next morning. Exactly five cans of acetone, of the same brand and size seen under the table, were missing from the shelf.  A ballot inspection would have enabled a determination as to whether a solvent was used (there are test kits for that). But by blocking ballot inspections from its freedom of information laws, New Hampshire’s recount process enables ballots to be altered.

9) Duplicate ballots: Sometimes ballots can’t be read by the machine because they are torn, stained with coffee spills, or otherwise machine-unreadable. These ballots are typically “duplicated” — that is, remade by election workers. In a recount, the original ballot, not the duplicate or remade ballot, should be counted. Duplicate ballots must be properly accounted for and should not be mixed into the main ballot pool.

10) If the purpose of the recount is to evaluate whether computers counts may have been manipulated, there will be attempts to cover it up. Observers should watch for cover-up behaviors and symptoms just as carefully as they watch the count.

Never. Assume. Anything.

NOTES:

  1. Interview with Lee Lundrigan, Registrar of Voters for Stanislaus County, April 3, 2013

    Bev Harris – Notes from telephone conversation with Lee Lundrigan
    When I asked Lee Lundrigan if she hand counted Virginia Madueño’s ballots, she said yes, she did

    LL: “Some of our races are fairly tight. It’s a small county. When we have candidates very close, and calling us a lot, we know they may have more of an interest than other candidates. If we are within a close amount we will sit down and we’ll hand count it. We inspect every ballot.

    BH: Do you do a public notice ?

    LL: No. Do we tell the candidate in advance that we’re going to hand count? No.

    BH: Did you do the hand count before the certification or after?

    LL: Of course it’s before.

    BH: so it’s part of the canvassing process?

    LL: Every thing that happens is done pursuant to election code or government code or administrative code.

    LL: It was not a recount. A recount has to be requested. You’re focusing a bit much on what the papers wrote. This is just something we’re doing to double check our own numbers. This is not a recount.

    BH: When do you do the hand count?

    LL:  We’ve already completed all the canvassing; When we’re done with everything just before we certify we will take a look at those and just review them. We’ll sit down and take out piles of them, separate them out and count them. All we are doing is sitting down and doing a quick review.

    BH: And this happens prior to certification. Who was present?

    LL: I don’t remember. My staff.

    BH: How many staff members?

    LL: It would have been more than five, probably less than 15. I’m concerned what is your angle. It sounds like you are trying to write that we did something wrong.

    BH: What procedures are followed?

    LL: There is not a procedure – how would you doublecheck? The whole office is present anybody could have been there. We’ve done it for years.

    BH: Do you let the candidate know you are doing it?

    LL: No. It’s not like I call em in and do it in front of them.

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