RE: ERC Report Draft Insults Election Reform Activists

[Paul Walmsley <paul@xxxxxxxxxxx>]

On Wed, 15 Jun 2005, Paul Tiger - LPBC - Outreach wrote:

> That would be an audit, not a hand count. At the time it was unlawful to 
> perform an audit. The SoS gave the city a waiver to perform an audit in 
> a municipal election. She could have given BoCo a waiver for November, 
> but no one asked.
>
> At the time hand counts were lawful and audits were not. Things have
> changed.

All of this talk about whether audits are or were legal or not is really 
deceptive.  It ignores the reality that the Secretary of State issues 
waivers to counties to let clerks avoid the letter of election law 
whenever they find it convenient.

You quite point out that the state issued a waiver to Boulder County to do 
a hand audit in the municipal election.  It certainly wasn't the first 
time.  As readers of this list surely recall, the SoS also issued a waiver 
to let Boulder County use ballots with pre-printed serial numbers on them. 
This waiver had the distinction of waiving an article of the Colorado 
Constitution, rather than just a measly administrative election rule.

Furthermore, it certainly was not clear that audits were illegal under 
last year's election law.  Usually people who claim this rely on the 
section that stated that recounts must be done with the same process as 
the count.  But a "recount" is a statutory term of art -- if the audit 
procedure was incorporated into the original counting process, then it 
certainly wouldn't be a "recount."

I think that a more accurate description of the reason why a strong audit 
was not performed last year is that the County Clerk's office didn't want 
to do it, Hart InterCivic didn't want to do it, and the Secretary of 
State's office didn't want to do it, so it didn't happen.  And let's be 
realistic: why should they want to do it?  There's no upside for them. 
It's more work for them.  And if there was a discrepancy in the numbers or 
in the process -- which was certainly possible, with my experience with 
the Hart system -- then everyone in the process looks like a fool.

My sense is that all of the hot air last year about the supposed 
impermissibility of audits was just chaff around the reality that it was 
the last thing that the bureaucracy and the vendors wanted.

As an aside, it would be quite interesting to make a CORA request to the 
Secretary of State to find out how many of these waivers have been issued 
over the past few years -- and for which rules.


- Paul