Vote counting arguably falls under this definition, especially when considering the level of human knowledge required for interpreting voter intent.
Has the State of NH outsourced a non-delegatable governmental function by handing over vote counting control to a private corporation for almost 90% of its ballots?
The State of New Hampshire has in fact, arbitrarily and without practicing any significant oversight whatsoever, delegated this sensitive government function to a private corporation, Diebold Election Systems, and its affiliate, LHS Associates. Additionally, the State allows this private corporation to count NH votes in secret, using proprietary vote counting software hidden from public observation.
In so doing, the State has not only abrogated its fiduciary responsibilities to its citizens, but it has violated the state constitution, which mandates observable vote counting.
Using Power and Position to Favor Special Interests over NH Citizens
Article 32 of the New Hampshire Constitution guarantees observable vote counting as a mechanism for ensuring that our elected public servants receive the consent of the governed via open and honest elections administered under full citizen control and oversight:
[Art.] 32. [Biennial Meetings, How Warned, Governed, and Conducted; Return of Votes, etc.] The meetings for the choice of governor, council and senators, shall be warned by warrant from the selectmen, and governed by a moderator, who shall, in the presence of the selectmen (whose duty it shall be to attend) in open meeting, receive the votes of all the inhabitants of such towns and wards present, and qualified to vote for senators; and shall, in said meetings, in presence of the said selectmen, and of the town or city clerk, in said meetings, sort and count the said votes, and make a public declaration thereof, with the name of every person voted for, and the number of votes for each person; and the town or city clerk shall make a fair record of the same at large, in the town book, and shall make out a fair attested copy thereof, to be by him sealed up and directed to the secretary of state, within five days following the election, with a superscription expressing the purport there of.
The Secretary of State employs one full time Assistant Secretary of State who represents the state on the EAC Standards Board, a federal agency with oversight of the nation's election systems. Standards Board member responsibilities include staying up to date and commenting on current voting technologies. This same employee serves on several boards and committees whose sole purpose is research of voting technologies, including security, accuracy, and other related issues. In this capacity, at least one full time employee of the Department of State retains a high level of expertise and awareness of voting technology and the issues around it.
Despite their access to, and comprehensive review of, numerous scientific studies and documented evidence of the risks posed by Diebold optical scanner vote counting technology, the NH Department of State and Legislature have to date implemented no procedural checks and balances, no oversight on the technology or on the vendor providing and programming the technology.
In the past five years since the establishment of an active citizen watchdog group, the New Hampshire Department of State and the Legislature have habitually ignored or obstructed these citizens' efforts to bring sunshine to what should be public elections, but which are in fact, now privately controlled.
Examples of defensive and offensive tactics from NH public officials in recent years are described below.
- In 2004 the NH legislature, with the support of the Secretary of State, passed a bill redesigning the NH ballot. The law was written on the advice and consultancy of LHS Associates, Diebold Election Systems vendor for New England. LHS Associates advised the state that Diebold optical scanners were the only voting machine that could read the new ballot design. Additionally, LHS informed the state that the existing firmware in NH's Diebold equipment needed to be replaced with new firmware to read the ballots. The state paid for the replacement of ES&S equipment with Diebold for twenty five NH towns, as well as replacement firmware for every Diebold voting machine in the state. In other words, as a result of this particular legislation, New Hampshire taxpayers put a substantial sum of money into the pockets of LHS Associates.
- A public records request reveals that the initial cost proposal from LHS to conduct these transactions was $213,000 - $303,000, with the lower figure being for pre-2002 firmware and the higher figure being for post-2002 firmware.
- This initial proposal included $40,000 to provide Manchester and Nashua with new central tabulation software. This new software is the controversial Diebold GEMS software, another "error-prone" product broadly implicated in numerous election tabulation failures throughout the nation. It appears from the state responses to record requests that the state did not purchase the GEMS for Nashua and Manchester, although this has not been confirmed.
- In response to the same public records request, the Department of State provided one email indicating that the State agreed to purchase 15 used voting machines. In the end, the state was issued two invoices from LHS Associates: one for $124,555 for the purchase of 29 Diebold Accuvote machines, and another for $7,120 for the purchase of 178 firmware upgrades to existing Diebold machines.
- The end result of this legislation was the state conveyed at least $135,000 to the bank accounts of LHS Associates. But that's not all. Many experts believe that the new firmware now installed in all of NH voting machines is more fraud-friendly than the older version. And NH is now solidly a Diebold-only, 1.94W firmware, state.
- In March 2006 LHS Associates and the Department of State both ignored a comprehensive questionnaire submitted by citizens requesting information ranging from background checks of employees to security protocols to ensure the integrity of the electronic voting process.
- In March 2006 the Ballot Law Commission ignored citizen requests to have the questionnaire to LHS Associates completed before making any decisions to approve voting equipment.
- In March 2006 the Department of State and the Ballot Law Commission ignored several reports submitted to them by citizens, including the Black Box Voting Hursti Report, the CA VSTAAB report, and numerous other supporting information about Diebold equipment risks and vulnerabilities. It appeared only one Commissioner read the information, and he was the lone dissenter in the 2006 approval of 1.94W firmware.
- In March 2006, Secretary Gardner, when asked to testify to the Ballot Law Commission in its hearing to approve Diebold vote counting technology, steered the Commission towards approval by telling a decades-old story of a hand count gone bad in one Manchester ward and implying that machines were therefore necessary. Secretary Gardner did not offer any information regarding how the hand count could have been better managed under currently implemented management methods, and, despite the fact that he had been provided with numerous scientific reports and evidence, the Secretary was notably silent on the question before the committee, which was whether or not the Diebold technology was suitable for use in NH elections.
- Throughout 2006 the Secretary of State ignored numerous citizen requests to include protocols for parallel count on election night in the election procedure manual as a method for checking and balancing the secret machine vote counts.
- In the summer of 2007 the NH Ballot Law Commission ignored citizen requests to revisit their 2006 unconditional approval of Diebold voting technology, following California's decertification of the same technology.
- In the summer of 2007 the NH Legislature and Department of State heard and ignored expert testimony from internationally recognized computer security and election specialists, testifying to the problems with the Diebold voting technology in the state, and suggesting realistic solutions to deal with these problems.
- In December 2007 the NH Secretary of State ignored a formal request from the NH Fair Elections Committee to implement three simple procedures used by the State of Connecticut to provide oversight of the same technology used in New Hampshire elections.
The NH Constitution mandates open counting of votes. Our public officials take an oath to uphold the NH Constitution.
The New Hampshire Department of State and the NH Ballot Law Commission have publicly taken the position that it is up to the Legislature to impose better regulation of voting technology.
But it is fully within existing legal purview of the Ballot Law Commission itself to impose better regulation of this technology; the Commission requires no further guidance from the Legislature to act responsibly and to follow its own rules.
Additionally, although the Office of the Secretary of State has a habit of directing citizens to the Legislature, the Office of the Secretary of State has in fact consistently and persuasively used its position to testify in opposition to help kill all citizen-supported bills seeking to enhance public oversight and impose checks and balances over the private industry and technology now counting nearly 90% of New Hampshire ballots.
In February 2007 Deputy Secretary of State Dave Scanlan successfully argued before the House Election Law Committee to not pass HB136, a bill that would have made statutory the Ballot Law Commission's own rule for approving voting technology.
