Update on CO Lawsuit & Other Matters from CFVI

["Robert Mcgrath" <mcgrath_mcnally@xxxxxxx>]

Dear Members of the Boulder-based Citizens for Verifiable Voting, and the 
Arvada Peace & Justice Commission:

I wanted to bring you up to speed on developments since my meeting with 
Jared Polis a week ago.  At that time we discussed filing a preliminary 
injunction to halt the use of DRE machines and to ask for a legal remedy of 
a 1% manual recount of all machine counts (both DREs and optical scans) to 
ensure accuracy in counting.  The halting of the use of DRE's was to force 
the use of voter verified paper ballots -- whether hand counted (preferably) 
or optically scanned (with the 1% audit).

Some of you may know Jared Polis as the Director of the CO State Bd of 
Education, but he is also a wealthy entrepreneur who sponsors worthy causes 
either through his own foudation or on his own.   After meeting with him, he 
has agreed to help with funding of a lawsuit if it can be won.

Based upon some discussions with an influential lawyer in the election law 
field in Colorado, it was determined that our best bet for pursuit of the 
above action was through a different lawyer in Denver.  This lawyer has 
studied the case law over the past week, and has been in consultation with 
the Legal Director of the Electronic Frontier Foundation, a national 
clearinghouse for lawyers around the country who are fighting the use of 
unverifiable voting technology.

Below is a summary of what has then occurred and the various steps we are 
contemplating at this time.  CFVI continues to meet regularly in Lakewood on 
Tuesday evenings, while the Rocky Mt. Peace & Justice Center is convening a 
similar meeting of our concerns on Wednesday evenings in Boulder.  Carolyn 
Bininski, the Director at RMPJ Center, is convening the Boulder group and 
has launched several education campaigns towards both the county election 
officials in the state as well as towards the 270 state candidates for 
office this November.   She continues to look for volunteers to help with 
many projects.

There are two upcoming events that need your support, as well. One is a 
movie screening of the film, Trouble in Paradise, which covers the past 4 
years in Florida and shows how disenfranchisement continues to be aproblem 
even with the advent of the use of DRE machines.  I will be hosting this 
event at the Arvada United Methodist Church on Sunday evening, Sept. 26th at 
7 p.m. at 68th and Carr Street (church Tel. no. 303-421-5135) and we will 
also screen a brief comedy sketch on DRE machines taken from the Daily Show 
with Jon Stewart.  We will discuss strategies people can adopt to protect 
their vote in this year's election.

The other upcoming event is a rally planned for Wed. Sept. 29th, on the West 
steps of the State Capitol.  I would like to see us invite someone like 
David Dill or Bev Harris as a guest speaker for this event.  Carolyn can 
provide more details on th is event.

Here is the overview of our status and what projects we may possibly still 
consider (with the needed participation of many many more people):

CFVI (Coloradoans for Voting Integrity) has hit a roadblock in its efforts 
to file a preliminary injunction against the use of unauditable voting 
processes (DRE's and non-audited optical scanners) in the general election 
this November.

Our attorney has advised that the lack of Colorado-based facts, and the lack 
of identifiable plaintiffs who can prove standing to sue (likelihood of 
sustainable harm), combined with our late timing in bringing such a suit to 
the court system (we're months too late to the party), will likely prevent 
our success in even filing a motion, let alone scheduling a trial.  Courts 
will be loathe to halt an election process this close to the election 
without demonstrable cause.

In our case, demonstrating cause is difficult due to the unobservable source 
code, the lack of enough instances of doubtful voting experiences (we're 
looking for patterns here, not one or two instances of reported problems), 
and any other tangible displays of imminent harm to the voting process.  Any 
of our existing arguments over unauditability, the risk of tampering, and 
the invisibility of the vote recording and tabulation functions have all 
been tried in other states and have been struck down in preliminary trials.  
The Maryland case and the Florida case are two prime examples that used 
logic similar to what our attorney was recommending as our legal strategy -- 
i.e., inconsistent counting standards equals unequal protection under the 
law and an abridgement of one's right to due process (Art. 14 of the U.S. 
Constitution).

Martha, the attorney, was quite apologetic and very willing to go back to 
work for us should we uncover new CO-based facts.  Our lack of a plaintiff 
can be overcome and addressed but the lack of facts equals lack of a case.  
I believe she is acting properly and ethically in advising us (and Jared 
Polis, our financial sponsor) in this regard.

The ONLY hope I hold out for new facts to emerge prior to the general 
election is collecting the logged complaints filed with each county election 
commission based upon the primary last month.  Claudia Kuhns is pursuing 
this with another attorney under the Freedom of Information Act.

The acts of the Secretary of State in withholding information and presenting 
false statements to our state legislators in order to get HB 1227 passed 
this year are legally valuable facts, but they alone do not constitute 
pertinent reasons to halt the use of machines or to add manual count 
capacities to this year's election.  They DO probably constitute actionable 
information to use in any contemplated future actions against her actions on 
behalf of that office.    We may also be able to leverage these actions as 
justification for our CO legislators to pursue more aggressive legislation 
in the next session to remedy the faults with our current system.

The argument that we have a legal or constitutional right to have our votes 
counted accurately unfortunately is not legally specified and does not 
exist, according to Martha.   There is a presumption that one would not 
engage in voting unless one would expect to have one's vote be counted 
accurately, but in today's legal climate it would take a friendly judge and 
venue to build such a legal precedent.

What this means is that we are faced with a different set of choices at this 
point.

We cannot prevent the use of these machines in any legal manner.  At this 
point it would take an Act of God or some criminal mischief to halt their 
use, and we are not advocating either.

We are left with several possible avenues:

BEFORE THE ELECTION:

WE CAN CONTINUE TO APPEAL TO THE COUNTY ELECTION OFFICIALS.  Carolyn 
Bininski and Margit Johanssen, along with Laurie Bretz, are activating a 
campaign to hand deliver the Project Myth Busters to every county election 
official in Colorado, along with copies of printouts from the NY Times (How 
to Hack an Election), copies of advisories from Voters Unite about 
identified software glitches with ES&S machines, copies of information about 
known security flaws in Diebold central tabulators, and other printouts of 
identified voting machine problems from VerifiedVoting.org.  These packets 
also contained a cover letter in which I point out that the County Clerks do 
have the power to offer multiple voting styles at their polling place, 
according to the Election Rules on the Secretary of State's own website 
(meaning they could opt to offer paper ballots as a choice to voters who do 
not wish to cast their votes on machines).  They delivered 10 such packets 
last week during a meeting in Arapahoe County of Denver metro counties, and 
we are hoping to locate someone to deliver more of these packets at another 
meeting in Alamosa County next week.  In addition, Margit was given the 
opportunity to address the group and share our concerns.  I have included 
her comments about this experience at the end of this e-mail.

It is tempting to try to locate another attorney to still try to file an 
injunction at this late date (Monday would be the last date before the 
deadline to protest the certification of the ballots expires).  Cary Lacklen 
and Paul Walmsley have shared some thoughts below on this.

WE CAN OFFER TO PAY FOR THE PRINTING OF PAPER BALLOTS FOR THOSE COUNTIES 
USING DRE MACHINES.  I do not know whether this would have to occur on 
Monday in order to serve as a protest to the certification of use of 
machines by the Secretary of State.  We would either need to have assurances 
from Jared Polis or some other identifiable source of funds for this, as 
well as a reasonable cost estimate of this expense.   I have heard estimates 
of 40 cents a printed ballot or as little as 4 cents.  If anyone is 
interested in this approach, please reply and let me know whether you would 
be willing to identify this cost.    While this could effectively answer our 
concerns, it may be rejected out of hand by Donetta Davidson, to whom such 
an appeal would need to be made.  Also, we would need to identify whether 
enough optical scanners exist for counting of additional paper ballots, or 
whether we would need to mobilize a massive volunteer recruitment effort to 
identify hand counters for these paper ballots.

WE CAN CREATE AND EXECUTE A CAMPAIGN ADVOCATING PEOPLE VOTE ON ABSENTEE 
BALLOTS, ALONG WITH AN EDUCATION CAMPAIGN ON THE PROPER WAY TO MAKE YOUR 
ABSENTEE BALLOT BE COUNTED.  This is risky, since absentee ballots are 
subject to a higher level of scrutiny and to insider tampering to prevent 
their inclusion in counts.  But it at least provides the mechanism for 
performing recounts should final counts be in question.  If counts are 
extremely narrow, political and public pressure, in addition to legal 
action, could be brought to bear to force the Secretary of State to engage 
in manual recounts to overcome Colorado's archaic law of identical 
count/recount methods.

WE CAN ENGAGE IN A FUNDRAISING CAMPAIGN to afford paid advertising.  We have 
been quite unsuccessful in obtaining fair coverage of our concerns and 
issues in Colorado.  We have reached the point where we need to reach out 
and build coalitions that can together provide the funding for paid 
advertising, including billboards, printed signs for placement at voting 
locations, buttons, newspaper ads, radio PSA's, or even T-shirts for our 
members to wear on election day and during early voting.  WE would need a 
sub-group to quickly identify themes (Don't Let the Computer Eat Your Vote 
-- Choose Paper Absentee Ballots This Election) to warn voters approaching 
early or walk-in voting locations in DRE counties to NOT use the DRE's but 
to leave and ask for an absentee ballot instead.  The Rocky Mt. Peace & 
Justice Center's Board has voted to adopt CFVI as a special Project that 
enables us to solicit funds via the Internet and offer donors a tax-exempt 
benefit for their donations.  We need to make this happen this week to begin 
raising funds for the above uses.  Monty, we need you and Carolyn to connect 
on how to word this and link these services to both of our websites, and 
then I will approach the various national organizations who have Colorado 
members who could support us (True Majority, Working Assets, Democracy for 
Colorado, Common Cause, MoveOn).

WE CAN ACTIVELY PURSUE THE MEDIA TO COVER OUR ISSUES.  So far we have 
reacted to the media with interviews or letters to the editor.  We can ask 
for meetings with editorial boards, columnists, or other publications to 
make our issues known.  We can ask the producers of the Daily Show for 
permission to make copies of the 6 minute segment with Jon Stewart about how 
the Maryland Red Team was able to hack into their DRE's in 5 minutes, switch 
election results, and leave without leaving a trace of their remote 
intrusion.  If given, we should replicate this tape and distribute it widely 
and ask permission to have the various national groups create a short movie 
that is distributed by national or Colorado-based email campaign.  If 
nothing else, we should make copies of this tape and take it with us to 
meetings with various candidates, county political parties, editors, and 
other public gatherings, in order to quickly and humorously illustrate the 
scope of the problem.  I would like to screen this video next Tuesday night 
so people can see what we are talking about.

WE CAN APPROACH THE POLITICAL CANDIDATES TO JOIN WITH US IN PUBLICIZING THIS 
ISSUE.  We have already sent out such a letter and packet of information to 
270 such political candidates for offices in Colorado yesterday.  We will 
need volunteers to follow up these letters with phone calls about this 
issue, so that the candidates -- the people most directly affected by these 
non-transparent processes -- can raise public awareness and join with us in 
a pledge for trustworthy elections.  We ought to be calling these candidates 
to join in signing a pledge for trustworthy elections at our rally on 
September 29th.

WE CAN HOLD RALLIES AND NOTIFY THE PRESS.   The next rally will be September 
29th on the West steps of the State Capitol.  We should consider inviting 
Bev Harris, David Dill or others to town for this rally and to stage a set 
of press interviews with celebrities, in the hope that we might finally get 
some decent press coverage for our issues.  Now that KGNU and Air America 
are airing on the Denver airwaves, we may be able to ask them for press 
coverage of our issues.  We should consider holding press conferences, 
staging rallies, holding public signings of the Trustworthy Elections 
Pledge.

WE SHOULD MAKE OUR U.S. REPRESENTATIVES ACCOUNTABLE  by camping out on our 
various U.S. Congressional representatives doorsteps until they meet with us 
to address our need for them to either support HR 2239 (which at this late 
date of implementation would force all U.S. counties to revert to entirely 
paper-based voting in 2004) or the Emergency Voting Measure that says the 
same thing.  This federal legislation would override any Colorado practices.

WE SHOULD PREPARE TO MOBILIZE OUR HOTLINE AND LEARN ABOUT HOW TO OBTAIN 
QUICK ACCESS TO COMPLAINTS FILED WITH VARIOUS ELECTION JURISDICTIONS (COUNTY 
OFFICIALS AND HOW TO OBTAIN THEM).  WE SHOULD PREPARE A PRESS STRATEGY TO 
PUBLICIZE OUR HOTLINE MORE WIDELY AND MORE IN ADVANCE THAN WE DID DURING THE 
PRIMARY.  We should provide this information to all of the political 
candidates (all parties) so that they are all aware of what to look for when 
voting, and should post all of this on our website.

WE SHOULD CONSIDER HIRING AN EXIT POLL FIRM.  We have already run up against 
the specter of unobservable problems and anecdotal problems, which do not 
help us in court.  I have obtained an estimate of roughly $40,000 for such a 
poll to take place in various targeted precincts where DRE machines are in 
use.   While it may not be conclusive, it would be an additional piece of 
data that could show discrepancies between announced results and poll 
results, which could provide the level of suspicion to cause a need for 
recounts.  If results are within the poll's margin of error (sometimes as 
high as 5%) then it may not be conclusive evidence.  But if the poll 
indicates one candidate winning by a substantial margin and the announced 
results show the opposite, it would indeed be newsworthy -- especially if it 
was conducted by an impartial group and not by any candidate.

WE SHOULD DETERMINE WHETHER IT IS POSSIBLE TO EXPOSE THE METHODS BY WHICH 
THE INDEPENDENT TESTING AUTHORITIES (ITA'S) CERTIFY ELECTION EQUIPMENT.  Bev 
Harris may be willing to assist us in this regard, since she has addressed 
this topic in her book.  Two of the 3 companies who perform this function 
are in Denver, so we are a natural location to pursue this action.  
Suggestions are welcome on this front.   We may need to approach someone 
like Paula Woodward of 9 News to do a scoop on this to help get media 
coverage.

ACTIONS FOR AFTER THE ELECTION:

WE SHOULD PREPARE FOR OUR LEGAL FIGHT TO HAPPEN AS A CHALLENGE TO THE 
ELECTION RESULTS, SINCE CURRENT LACK OF FACTS DOES NOT PROVIDE THE BASIS FOR 
A LEGAL CHALLENGE AND NO HARMED PLAINTIFF CAN YET BE IDENTIFIED.  This is 
what the legal experts from Electronic Frontier Foundation and our own 
attorney Martha are telling us.  It is only after the damage happens that we 
will be able to fight via the courts.  Unfortunately, we will be viewed as 
spoilers rather than as concerned citizens, so we must maintain our 
non-partisanship in every action in order to not give anyone any reason to 
cast us as acting in a partisan manner.

WE SHOULD BE PREPARING TO OBTAIN ANY EVIDENCE DURING THE ELECTION AND 
POST-ELECTION (COPIES OF DRE TAPES, ETC.) TO PROVIDE AS PART OF OUR LEGAL 
CHALLENGE.  This means collecting data such as logs of incident reports 
related to DRE's or optical scanners, asking for citizens to report on any 
suspicious activities, encouraging photos of any suspicious activities, 
including DRE vendor reps and any suspicious activities inside or outside 
the polls.  We may need to define poll watching tips and spread these to 
various campaigns so that they know what to look for in absentee ballot 
counting especially, since this is an area where insider fraud could most 
likely occur.   We should be asking for copies of Logic and Accuracy test 
results and optical scan tests, in order to keep our election officials 
accountable for these tests.   We should be learning whether any modem or 
other wireless transmissions of vote totals will be occurring this year.  We 
should be identifying whether any central tabulators will be used (see 
blackboxvoting.org or votersunite.org for details on these functions) and 
ask what kind of testing is done of these programs.

I am open to any and all other advice on what alternatives we can consider.  
We should probably be lining up candidates to be ready to be part of a 
challenge to the vote counting machines after the election if they are not 
willing to be a plaintiff at this point.   If they are confident of the 
integrity of our election system, then they should have no problem making 
such a commitment at this time.

Here are other's comments:

Margit's Comments:
Deb Adams and I took packets of information and a letter to county clerks 
assembled at the Arapahoe County Administration Building, and gave 14 of 
them to Priscilla in the election office.  (There were only 10 County Clerks 
at the meeting, probably because this area of the state has large counties.) 
The packets had 13 pages of the much longer â??Myth Breakers for Election 
Officialsâ??, a five-page â??Summary of the Problem with Electronic 
Votingâ?? from verifiedvoting.org, the three-page Part 1 on the Diebold GEMS 
central tabulator (which I added to the original list of items), three pages 
of â??Urgent Information for Election Officialsâ??, CFVIâ??s page with the 
map of machine failures, an editorial from the NY Times, and a three-page 
introductory letter from Bob McGrath.  (I got blue folders with two pockets 
for the handouts, and wished we had a card with CFVI on it to stick in the 
place for a card.)
   We asked whether we might hang around until the meeting adjourned in 
case people wanted to ask us questions.  Priscilla went upstairs to ask the 
clerks, came down and said that at 1:45 if they had concluded business, we 
could go up and speak with them.  (Adjournment was at 2PM) So we waited 
around for a half hour or so, then were invited up.
   The chair of the meeting, Robert C. â??Bobâ?? Balink of El Paso County 
welcomed us, and said we could have a few minutes.  I said we were asking 
for their support in having transparent elections in 2004.  I knew that the 
Secretary of State had not wanted to make changes until there were 
standards, and that HAVA was late in getting started, but that 2004 was a 
critical election, and emergency measures should be enacted.  Attaching 
printers for VVPBâ??s to DREâ??s was probably not feasible, but we were 
suggesting that counties with DREâ??s have paper ballots for this election.  
If they did not want to do a complete handcount, they could do a 1% random 
handcounted sample and if this diverged from the machine count, then a 100% 
paper ballot recount could be done.  (I think I mentioned optical scans with 
this too.) Linda Salas said the sampling idea had been rejected by the 
Secretary of State for Boulder.  I read off what Bob had quoted in the 
letter about counties having the choice to allow more than one system, and 
she said that that wouldn't cover the 1% sampling, but I don't see why it 
wouldn't.
   The county clerks told us that their machines were not at risk for fraud 
because they were thoroughly tested ahead of time.  The clerk from Arapahoe 
County said they had had DREâ??s for 20 years and never had any problems.  I 
said that they wouldnâ??t have known if something was wrong because there 
was no way to tell.  They do not admit that it is possible to commit fraud 
that gets past their testing.  I said that it was very easy, and that 
although not a techie myself, I was convinced by the referendum saying 
voter-verified paper ballots were necessary signed by over 1,700 computer 
scientists.  (It's actually at around 2000 now.) At that point, one man said 
that he knew some computer scientists and implied they didnâ??t know very 
much.  (This is a variation of what Halicki said to me -- that he knew 
professors he didn't think too much of.)  Another said that there were 
computer experts working for the voting machine companies too. I said it 
recently came out that the testing for the gambling industry was much better 
than that for elections.
   I said we realized that testing was very important, but that so was the 
problem with vulnerability of machines to tampering.  They said they 
didnâ??t allow access to machines, and when I mentioned software codes, they 
said that was all handled in testing.  They thought that by guarding the 
machines, they were doing all that needed to be done.  But they assured us 
that they wanted fair elections too.  Oh, and the Arapahoe County clerk said 
that paper ballots would be enormously expensive.
   Later in the parking lot, we spoke with Linda Salas, who said that the 
big counties probably didnâ??t have enough optical scan machines to use for 
counting all paper ballots, and that it was probably too late to rent them.
   So they were completely resistent, not that I expected anything else.  
Still, since they have probably been worked over for years by the voting 
machine companies, I think it is good to establish civil face-to-face 
contact.  I am very tempted to send them a little more material, if I can 
think of introducing it politely enough.  (I'll have to do a couple of 
drafts to accomplish that!)  We're waiting for the chair of the other 
meeting to return on Monday to find out about that trip.  I realized we 
should see how many of those counties have what machines.  There might not 
be too many with DRE's, and we'd have to adjust our spiel slightly, if 
that's the case.  Carolyn left a message for the chair asking for 30 minutes 
for us to make a presentation.  (It's a two-day get-together.)




Cary Lacklen's coments:
>   ... if EFF and Cindy Cohen, who have in the courts in other
> states,believe that there is insufficient evidence or lack of adequate
> plaintiffs to proceed with a Colorado law suit at this time, then you can 
> be
> sure that a Colorado District Judge would give the law suit short shift if
> it was filed.  We need to proceed with the attorneys who are in place at
> this time, and respect their advice.
>     The law suit may be more "ripe" for litigtation, if there are problems
> in the upcoming general election.  That is not much solace if we lose
> Colorado and/or the national election races, but it may be the reality of
> the present situation.  If there are problems that affect either of the
> major political parties, there will be plenty of money and legal resources
> for a lot of litigation.  Sometimes you have to wait for the "injury", even
> of a constitutional nature,  before you can go to court. The recent 
> Maryland
> court ruling does not bode well for success in a Colorado courtroom, but it
> just may have been a bad court venue or a bad judge.
>     This issue may end up being more of a "political" question, with a
> political solution, than one with a judicial remedy.  Political 
> organization
> and pressure may be more useful that lawyers and law suits.  Most judges in
> Colorado are more conservative than Mark Grueskin or the general population
> of Colorado.  Those with the power decide history.  We need to use the 
> power
> that we have - the general public will be outraged if the election is again
> compromised by machine errrors.

Paul's comments:
I would suggest asking for exit polling in the DRE counties, plus
post-election legal support to bring lawsuits similar to Bob Wexler's in
Florida, after the election.

As far as the pre-election legal stuff goes, since we've got onlytwo
months to go - even before any arguments are heard - my guess is the
courts are going to be loathe to order election officials to change
anything.

But if the exit polling doesn't match the results, or if there are any
machine problems with the DREs, a post-election lawsuit might have a real
shot at going somewhere.  A federal equal-protection action would be a lot
more powerful if exit polling showed that urban DRE voters may have been
disenfranchised in a non-auditable way.