Post-Election Audit Rule is out of compliance with the law

[Neal McBurnett <neal@xxxxxxxxxxxxxxxxx>]

The Post-Election Audits Rule, 11.5.4, from the Secretary of State is
out of compliance with the statutes, for the case of central-count
election machines.  This will affect nearly all counties, since there
is a large central-count component in most counties due to early,
absentee and mail-in voting.  Please call on the Secretary of State to
correct the rule, and work with your county elections official to make
sure they follow the intent of the law.

There are two legal issues:

 1) The rule does not implement an _audit_ of the _original
 tabulation_.  It calls instead for a _recount_, and is thus only
 another, weak, _test_ of a single machine.  The purpose of an audit
 is to ensure that the device worked during the actual counting
 process, not that it can be made to work afterwords.  The Logic and
 Accuracy Test already addresses testing.

 2) The rule does not call for a "specified percentage" of the ballots
 to be counted, as required by law.  Rather, it calls for a tally of a
 maximum of an absolute number of ballots: 100.  For all other
 equipment, the goal of the statute is to audit about one percent of
 the ballots.  Looking at only 100 ballots would be perhaps a tenth of
 a percent of a common turnout in Boulder - totally inadequate.

For precinct-count systems and DREs, the law and rule are consistent
in calling for a one percent manual tally, and for audits of actual
election results.  The rule for central count machines should call for
no less.

In particular, as recommended during testimony before the legislature
last spring, for the Hart Intercivic equipment the rule should select
a significant number of batches of votes, and a significant total
number of ballots, for manual tallies.  See this document for details:

 http://www.coloradovoter.net/moin.cgi/ManualCountAudit

Here is the relevant text from the statute:

 1-7-514 (1) (a) (I) ... where a central count voting device is in use
 in the county, the rules promulgated by the secretary pursuant to
 subsection (5) of this section shall require an audit of a specified
 percentage of ballots counted within the county.

and here is the relevant rule:

 11.5.4.4 For Optical Scanners used for the purpose of counting
 ballots in a Central Count/vote center environment as defined herein,
 the designated election official shall randomly select one (1)
 percent but not more than one hundred (100) ballots of all the
 ballots counted on the specific audited device. If the amount of
 ballots is less than one hundred (100) on the audited device, then
 all of the ballots will be manually verified. The public counter for
 that voting device shall be reset to zero, and the ballots shall be
 recounted on the voting device. A new report will be generated from
 the electronic count of the ballots and shall be manually
 verified. The ballots and a copy of the report shall be sealed in a
 separate container and secured with the remainder of the official
 election records for the election. The Secretary of State shall
 randomly select two races to be manually verified.

The solution to the first problem requires care during the original
vote counting process.  In order to preserve the principle of random
selection of the audited results, it is necessary to obtain tallies
for small batches of ballots.  During the audit, the elections
official then selects random batches, and compares manual tallies for
each batch.with the original machine tallies, as is done with other
types of equipment.

Hopefully the second problem can be fixed by just substituting the
word "less" for "more", and making sure the percentage refers to all
votes centrally counted:

 the designated election official shall randomly select one (1)
 percent but not _less_ than one hundred (100) ballots of all the
 ballots counted on _all the Central Count/vote center equipment_.

Neal McBurnett                 http://bcn.boulder.co.us/~neal/