Petition of Appeal, noted violations and weaknesses in NH recount cited below
Petition of Appeal to the Ballot Law Commission
c/o Office of the Secretary of State, William Gardner
Concord, New Hampshire 03301
by Albert Howard, Republican candidate for President of the United States
New Hampshire Primary Election of January 8th, 2008
Date: February 15, 2008
Petitioner: Albert Howard, Pro Se 710 Apple St. Ann Arbor, MI 48105-1750
Subject of Petition: Appeal of results of the Presidential Primary recount completed February 11, 2008; examination of contested ballots in that recount.
Relief Requested: That the Ballot Law Commission and the Secretary of State's office disclaim any opinion on the accuracy of the Presidential primary election AND the statewide Republican recount because checks and balances to maintain the integrity of the ballots and the total counts were either not followed, or not in place.
New Hampshire has the distinct honor of having the first Presidential primary in the country and has always been viewed as a model state because of its election system and methodology of holding elections in an open, transparent fashion. I, for one, thank you for keeping the tradition of being one of the few states in the country that still has a paper ballot for every person who votes. Your standards for transparency and support of the democratic process are admirable and much appreciated.
I ask that you view the following petition as an opportunity to improve your procedures and policies. The scrutiny of election observers has brought with it a chance to correct areas of vulnerabilities and potential breakdowns and holes in the system. As a candidate I am requesting you work with me and together we can open up meaningful dialogue to bring better procedures and amend areas that need attention based on my experience and in consultation with many experienced and dedicated election integrity advocates.
If this Commission chooses to follow through and act on my questions, requests and recommendations, I am certain it will make New Hampshire's electoral system even stronger and an even better leader for other states to follow.
This Petition is not about me. This Petition represents the requests of the people this Ballot Law Commission represents. Every person who voted in this Primary election wants to know that their vote was accepted and counted as cast. They want to have no doubt about the integrity of New Hampshire's election process.
I am asking for the opportunity to work with you, to initiate an open, meaningful dialogue regarding how we can bring further reform to an already good system. My goal is to walk away from this process with both sides feeling that meaningful agreement was reached for all parties. and that together we have identified and addressed the few weak spots.
New Hampshire has a long and proud election tradition. Transparency is a key component of this tradition and the remedy suggestions included in this Petition are intended to enhance that tradition.
Petitioner contends that the results of the statewide Republican recount are potentially invalid due to violation of various state election laws, procedures of the Ballot Law Commission, and written procedures governing the handling and securing of the ballots. Furthermore, discrepancies shown between the results of those ballots counted by hand versus those counted by Diebold optical scan counters (see Appendix 1), together with violations of HAVA requirements, indicate a high risk and opportunity for manipulation of ballots and vote totals, thereby invalidating the results of both the Primary election and the recount.
Examples of violations of statutes or procedures follows. The sequence, in accordance with that outlined in the statutes of the Ballot Law Commission, will be the violation, the remedy requested, and the citation of the appropriate statutes or regulations. Exhibits illustrating most of the violations will follow.
VIOLATION #1: Machine failures were handled improperly -- and possibly altered the outcome of the election.
Fact: Election Day problems with the Diebold Optical Scan machines clearly demonstrated that many of the machines malfunctioned during the Primary election. Do we have any way of knowing that the new memory cards had been examined and approved by the Ballot Law Commission (BLC) as required? Did local election officials allow illegal substitution of election devices that had not been examined and certified? Shouldn't these machines have been declared unfit for service as dictated by state law?
Town clerks have told Dori Smith, a journalist from Connecticut, that memory cards were "switched out" in some towns by LHS employees, counter to state election laws, calling into question the chain of custody of these critical "electronic ballot boxes".
Secretary of States MANUAL P. 34-35: The seal for the memory card should be replaced for each election when the newly programmed card is re-inserted into the machine for the pre-election testing of the card. The card should remain sealed until after the recount period ends following the election. The seal for the cover of the machine should only be broken by LHS when it services the machine. The cover must be resealed by the clerk when the LHS technician has completed any service work. Each time any of the two seals are broken and the machine is resealed it should be documented in the log.
Exhibit A documents the reports by LHS of (at least some of) the day's problems. A few examples are included below from reports received by LHS and forwarded to the Secretary of State's office.
Town of Manchester, two examples:
"solution listed (What happened here? This was the 3rd machine to be replaced that day in this location.)
Problem: P/U 3rd bad machine per John S."
"Problem: Machine taking ballots but counter not incrementing
Solution: Swap to spare machine to reburn a new card."
(What happened to the votes on the first machine and first memory card?
Does "reburn a new card" mean the memory card could have been illegally reprogrammed?)
Town of Barnstead:
"Problem: Ballots rejecting a lot, even during test. They did not call (?)
Solution: Told them I would have someone bring a new machine. They said no It was working"
(What really happened here? Improper testing or a machine failing a test should have disqualified the machine from usage in an election. State statute VI. cites as a misdemeanor violation a person knowingly violating testing procedures and/or ignoring a machine failing testing.)
REMEDIAL ACTION REQUESTED: Some states have approved their equipment conditionally, so that investigations such as this would be paid by the vendor, in this case Diebold. As well, the New Hampshire statutes could be tightened so that, just as LHS must bear the cost of an invalid recount due to an employee's failure to properly program and test LHS' machines (RSA 656:42: V), LHS could as well be obliged to reimburse all costs related to investigation of their procedures. In the case of this Violation, it would mean that they would bear responsibility for investigating the accountability for every memory card
Their records and their doors must also be open to you for all testing, all maintenance, programming, bookkeeping, etc. The State, perhaps the Office of the Secretary of State or the BLC with the addition of a few citizen election activists should be welcome at all times to review/witness their work, their procedures, their books, etc.
An inquiry should be undertaken immediately for accountability of each memory card used in the Primary election, as well as the whereabouts and the sequence of events surrounding all memory cards used, including all delivered cards, all cards found to be problematic on Election Day, any substitute cards, "reburned" cards, and any unused cards delivered to the jurisdictions. Results of inquiry to be delivered to Petitioner.
I, as Petitioner, pursuant to RSA 656:42, request the opportunity to inspect the offices of LHS along with at least two computer technical experts of my choosing. (RSA 656:42, Section IV: Each person described in paragraph III shall designate, in writing, an agent for service of all process, including, but not limited to summonses, writs, orders, petitions, and subpoenas, and shall agree in writing that the Attorney General, in conjunction with any election investigation, may inspect its records, machines or other devices, and premises.)
I also request a full report of every visit by an LHS-related technician to a jurisdiction on January 8th, 2008 and ask that this report be compiled and examined as part of this inquiry. In the meantime, we are requesting that the Secretary of State consider sending out an order that all voting machines used in the State be impounded and vote totals NOT BE CLEARED until this formal inquiry is completed. I further request that no ballots or other election materials be destroyed prior to the 22 month waiting period as mandated by federal law. Several of the boxes of ballots received at the State Archive Building for the recount were marked: "Destroy November 2009" and these must be corrected to "2010." See Exhibit A.
656:41 Approval by Ballot Law Commission. The Ballot Law Commission shall act as a board to examine voting machines and devices for computerized casting and counting of ballots. ... Any voting machine or device that is altered must be re-approved before it is used in any election in this state. For the purposes of this section, a machine shall be considered altered if any mechanical or electronic part, hardware, software, or programming has been altered.
RSA 656:42 III. Any company, partnership, proprietorship, or other person, wherever located, which supplies, maintains, or programs voting machines which are used in elections in New Hampshire is subject to regulation by this state. (The following amendment to RSA 659:42 will take effect January 1, 2007)
RSA 659:42 Tampering with Voting Machines. Whoever shall tamper with or injure or attempt to injure any voting machine or device for the computerized casting and counting of ballots to be used or being used in an election or whoever shall prevent or attempt to prevent the correct operation of such machine or device or whoever shall tamper with software used in the casting or counting of ballots or design such software so as to cause incorrect tabulation of the ballots or any unauthorized person who shall make or have in his or her possession a key to a voting machine to be used or being used in an election shall be guilty of a class B felony if a natural person or guilty of a felony if any other person.
Secretary of State Manual page 34 - 35: The seal for the memory card should be replaced for each election when the newly programmed card is re-inserted into the machine for the pre-election testing of the card. The card should remain sealed until after the recount period ends following the election. The seal for the cover of the machine should only be broken by LHS when it services the machine. The cover must be resealed by the clerk when the LHS technician has completed any service work. Each time any of the two seals are broken and the machine is resealed it should be documented in the appropriate log.
Bal 604.02 Zeroing and Sealing Machines. (b) When a voting machine or device has been prepared for election, it shall be locked against voting and sealed and the keys shall be retained by the designated election officials. After the voting machine has been transferred to the polling place, it shall be the duty of the designated election official to provide protection against molestation, tampering or injury to the machines or devices.
Bal 606.04 Damaged Machines. In the event that any voting machine or device used i n any voting district during the time the polls are open, become damaged or disabled so as to render it inoperative in whole or in part, the election officials shall forthwith if possible, substitute a perfect machine for the damaged one. At the close of the polls, the votes shown on the counters of each machine shall be added together in ascertaining the results of the election. In the event that no other machine can be prepared forthwith for use at such election and the damaged one cannot be repaired in time, the provisions of RSA 658:35 shall apply.
VIOLATION # 2: Machine failures render equipment non-compliant with HAVA regulations.
Fact: HAVA requires that the error rate of machines used be no greater than one error in 500,000 ballot positions. In one of the most recent tests, at the University of Connecticut, the Diebold Precinct-Based Optical Scan Accuvote 1.94W system (AV OS), demonstrated a failure rate of roughly 3.4 %. This puts New Hampshire in an unfortunate situation and the integrity of its election results in question. I urge the Ballot Law Commission and the Secretary of State's office to seriously consider restoring elections utilizing 100% hand counted paper ballots. The fundamentals are in place for a meaningful and transparent election. The Diebold Optical Scan equipment you currently use is indeed problematic due to its proven vulnerabilities and inaccuracies. Diebold itself issued a Product Advisory Note about this machine on January 25, 2008 describing a known failure. click here
See Exhibit B for articles describing the serious vulnerabilities and high error rate for the Diebold Optical Scanner.
REMEDIAL ACTION REQUESTED: The very best thing New Hampshire could do is decertify the current equipment and find alterative means of vote counting. I strongly recommend hand counting all of the ballots. New Hampshire has established such an excellent system for community vote-counting, and the hand count method - especially the sort and stack method as was used for the recounts --that has time and time again proven to be the most accurate and by far the least costly method of counting citizens' votes.
HAVA 301(a)(5) references the rate in the VSS - FEC Voting System Standards: Error rates: The error rate of the voting system in counting ballots (determined by taking into account only those errors which are attributable to the voting system and not attributable to an act of the voter) shall comply with the error rate standards established under section 3.2.1 of the voting systems standards issued by the Federal Election Commission which are in effect on the date of the enactment of this Act. (HAVA is referencing the 2002 VVS.)
Section 3.2.1 of the 2002 VVS: Accuracy Requirements: Voting system accuracy addresses the accuracy of data for each of the individual ballot positions that could be selected by a voter, including the positions that are not selected. For a voting system, accuracy is defined as the ability of the system to capture, record, store, consolidate and report the specific selections and absence of selections, made by the voter for each ballot position without error. Required accuracy is defined in terms of an error rate that for testing purposes represents the maximum number of errors allowed while processing a specified volume of data. This rate is set at a sufficiently stringent level such that the likelihood of voting system errors affecting the outcome of an election is exceptionally remote even in the closest of elections. The error rate is defined using a convention that recognizes differences in how vote data is processed by different types of voting systems. Paper-based and DRE systems have different processing steps. Some differences also exist between precinct count and central count systems. Therefore, the acceptable error rate applies separately and distinctly to each of the following functions: a. For all paper-based systems: 1) Scanning ballot positions on paper ballots to detect selections for individual candidates and contests; (partial omission here) For each processing function indicated above, the system shall achieve a target error rate of no more than one in 10,000,000 ballot positions, with a maximum acceptable error rate in the test process of one in 500,000 ballot positions.
VIOLATION #3: The location of the memory cards post-election were reported "unknown".
Fact: According to election observers who spoke with Secretary Gardner during the recount, the location of memory cards used in the Primary Election on January 8th, 2008 was unknown. In conversations with observers he referenced the likelihood that town clerks/moderators had secured the cards but he was unaware of their exact location. Each memory card equates to an entire electronic ballot box. Ballots (which should include paper or electronic ballots) according to federal law must be preserved for 22 months following an election.
REMEDIAL ACTION: Since the memory cards are key to transparency, I request the State amend current procedures/statutes by creating a rigorous set of statutes regarding chain of custody for the memory cards, ballots and equipment as well as the memory card holders and workers, and further define how citizens can, in a timely manner, monitor the chain of custody and the content of said cards. I ask you to consider appropriate disciplinary actions, including felony or other charges to be filed against all persons whose responsibility it is to follow the laws pertaining to ballot retention but who failed to do so. One central location, through the Secretary of State, should be made responsible to account for all memory cards before, during, and after an election, and make those records available to the public in a timely manner if requested. CITATIONS: I believe this is an implicit responsibility. The security of the ballots is tantamount and it is understood that they should be safeguarded at all times. The memory cards, as has been stated elsewhere, are equivalent to a ballot box filled with ballots.
VIOLATION #4: The boxes of ballots were not picked up for the recounts by State Police.
Fact. A van driven by two state employees, followed by a state trooper, drove around to pick up boxes of ballots at the various jurisdictions throughout the state. Their transport in a van driven by two state employees is not the same as the ballots being in the custody of the State Police. Election observers following the vans observed them speeding at 85 and 90 mph in 55 mph zones; speeding through school zones with school zone lights flashing; going 45 and 50 mph in 25 and 35mph residential areas, and making obvious and successful attempts to "lose" the citizen observers. The observers were left to wonder what was being done with the unsecured ballots inside the van and during the times after the van successfully "lost" their vehicles.
See Exhibit C.
REMEDIAL ACTION: I request that in the future that state police do transport the boxes. If one additional state employee rides with the trooper to carry the boxes, the statute should direct him to be in sight of said trooper at all times, including when the vehicle is in motion. When the vehicle is traveling all troopers and/or trooper and other state employees must be in passenger seats, separated from the boxes of ballots. This will prevent any appearance of possible ballot tampering while the ballots are being transported. CITATIONS: 660:5 - Conduct of Recount. If directed by the secretary of state, the state police shall collect all ballots requested from the town or city clerks having custody of them and shall deliver them to the public facility designated by the secretary of state.
VIOLATION #5: Ballots were not stored and transported in boxes provided by the Secretary of State's office.
Fact: Boxes arrived at the State Archive Building for the recount in non-uniform boxes, with various methods of taping, many not properly sealed. One jurisdiction sent their ballots in bundles wrapped in newspaper. Others came wrapped in brown paper. Some boxes came with no tape. Many ballots were returned in the same boxes in which they were received from the printer/Secretary of State's office, but this led to some ambiguity about when and by whom openings in the boxes had been made.
See Exhibit D.
REMEDIAL ACTIONS REQUESTED: In the future, the boxes for transport of the ballots from the municipalities following an election, will in fact be different from the ones in which the ballots were delivered to the jurisdictions, to prevent any ambiguity about former openings in the boxes. The boxes should have no 'clutter' on them; and the boxes should be new, never used prior and be devoid of any writing other than instructions found in State Statutes (The New Hampshire government may take as many measures as possible to be frugal and mindful of expenditure of taxpayer money, but the additional boxes in this case would be a very small expenditure in the broad scheme of things and would go a long way to allay/prevent any suspicions, as well as to ensure security.) I am also requesting that the seals used on the boxes be of a more permanent nature where any unauthorized entry can be easily detected. In all future elections, I am requesting that the Office of the Secretary of State f ollow the statutes and procedures more closely regarding the conduct of elections. I also ask that greater scrutiny be paid by the Attorney General to all election and election recount operations. I would request that disciplinary consequences be mandated and enforced by the Secretary of State's office for any future violations of any current regulations, of any remedial measures requested in this Petition of Appeal, or other future regulations.
659:95 Sealing and Certifying Ballots. I. Immediately after the ballots cast at a state election have been tabulated and the result has been announced and the return has been made, the moderator or the moderator's designee, in the presence of the selectmen or their designee, shall place the cast, cancelled and uncase ballots, including such ballots from any additional polling places, and further including the successfully challenged absentee ballots still contained in their envelopes, in the containers provided by the secretary of state as required by RSA 659:97 and shall seal such container with the sealer provided by the secretary of state as required by RSA 659:97. The moderator or the moderator's designee shall then enter in the appropriate blanks on such sealer on each container the number of cast, cancelled and uncast ballots in such container and shall endorse in the appropriate place on such sealer a certificate in substance as follows: Enclosed are the ballots from the state election in the town of (or in ward____ in the city of ) held on ________, 200__ required by law to be preserved. The moderator and the selectmen or their designees shall sign their names in the appropriate blanks on the sealer.
659:97 Secretary of State to Prepare Containers, Sealers. The secretary of state shall, before any state election, prepare and distribute to each town and ward clerk containers to be used for preserving ballots and sealers to seal each such container. He shall prepare special containers and sealers to be used for preserving any special and separate ballots for questions to voters and shall prescribe the form of any endorsement blank printed upon the sealers provided that the blank is in substance consistent with the provisions of RSA 659:95.
VIOLATION #6: Many ballot boxes were not properly sealed, and what were referred to as "seals" would not safeguard the ballots from tampering.
Fact. "Seals" meant to secure the boxes were in fact "labels"; they did not stick securely to the boxes, could be easily removed and re-attached, and left no evidence of having been removed and reattached from the box on which they'd been placed. As such they were not "seals" to the boxes; in order for the ballots to be secure, real tape was needed to bind the boxes. Many ballot boxes were delivered to the State Archive Building for recounting with tops not secured and with slits in them large enough for a hand to fit through.
See Exhibit E.
REMEDIAL ACTION REQUESTED:. In all future elections, the Office of the Secretary of State would clearly regulate for the cities and towns the appropriate means of securing all boxes of ballots. The seals ordered in the future must indeed be seals that seal the boxes in an unequivocally secure manner; if such seals are removed from any box prior to the time of any recount, it must be easily apparent to all observers. In any future recounts where boxes are found not to comply, the entire election would be deemed invalid.
CITATIONS: 659:95 Sealing and Certifying Ballots, cited above 659:97 Secretary of State to Prepare Containers, Sealers. The secretary of state shall, before any state election, prepare and distribute to each town and ward clerk containers to be used for preserving ballots and sealers to seal each such container. He shall prepare special containers and sealers to be used for preserving any special and separate ballots for questions to voters. The secretary of state shall prescribe the size and form of such containers and sealers and shall prescribe the form of any endorsement blank printed upon the sealers provided that the blank is in substance consistent with the provisions of RSA 659:95.
VIOLATION #7: The uncounted ballots were not always kept overnight in the security of the "ballot vault."
Fact. At least on the night of the recount January 17 (and possibly other nights as well) boxes of uncounted ballots were not stored in the "vault" in the State Archive Building, but rather in the "counting room", which is not a secure room. Election observers heard Secretary Gardner claiming that the room was secure because he put one of the easily-removable and easily-restick-able "seals" (see #6 above) across each of the double door entries to the room. See Exhibit F.
REMEDIAL ACTION REQUESTED: New Hampshire could indeed lead the nation as an example of chain of custody security. Much is already in place. I ask you to consider adding some statutes that cover every aspect of the "chain of custody" of the ballots, such that every stage of the "chain of custody" is explicitly spelled out by future statute. These statutes would in turn be distributed to every office employee of the Secretary of State, to every city and town clerk and selectperson, to the state police, and to every other person involved in said chain of custody. Such future regulations must be complied with to the fullest degree. We recommend that you consider adding penalties and charges for any violations to every chain of custody statute. I feel it is important and critical to any democratic election that every step of the chain of custody of ballots, software, hardware and voting equipment be open to citizen scrutiny and observation. I am hopeful that you would also consider requiring all election officials to keep a log of every time any employee or outside companies such as LHS work on and/or make any changes to any aspect of the system. Ideally, cameras should be set up to be on the ballot boxes at all times and broadcast election day events live over the internet for citizens to oversee. (This could be extended to include the counting procedures as well.) Such a system -- and New Hampshire has much of it already in place -- would exemplify a secure chain of custody of ballots and of all related election materials that must be protected. The security of the ballots is tantamount and it is understood that they should be safeguarded at all times.
VIOLATION #8: Ballots were not always delivered in an open and public manner.
Fact. On many days of the recount, ballots were delivered after the recount had ended for the day, after dark, when most of the employees were gone from the building, and their delivery was not witnessed by any member of the public or citizen monitors.
See Exhibit G.
REMEDIAL ACTION REQUESTED: Same as # 7 above.
CITATIONS. Same as # 7 above.
WEAKNESSES IDENTIFIED: In the process of analyzing the recount and election procedures, I have identified the following two items as " weaknesses" in current procedure:
1. The candidate in a recount cannot get access to all the different categories of ballots: Cast,. Spoiled, Blank, Uncast.It's critical for the integrity of the process that the candidate be ale to acct for the total number of all ballots in each category
Remedy: Either we have to adjust the recount procedure so that the uncast ballots are NOT excempt from Right to Know requests, OR have the Right to Know requests for all of these categories of ballots honored immediately upon submission of request.
2. There are inconsistencies in the execution of some election and recount protocols. We would like to be able to examine the actions and responsibilities of each Assistant and Deputy Secretary of State in order to determine which party is responsible for each step of the election and recount process. To reiterate: Petitioner is proud to be an American when witnessing the organized, orderly, open and communal vote-counting process as executed in New Hampshire. Unfortunately, I also observed some gaps in ballot security and understand the vulnerabilities of the machines used in vote tabulation. I submit this petition with the desire and the belief that with a little attention and a few statutes addressing such things as ballot security and chain of custody, we can close those gaps. New Hampshire will be first in the nation to hold its Presidential Primary and it will be first in the nation in this century to have elections with observability, accountability, checks and balances, and real transparency.
The Ballot Law Commission's rules places the burden of proof on the Petitioner for any and all complaints and allegations. Yet, it is impossible to completely fulfill the "burden of proof" obligation when the State refuses to provide me in a timely fashion with requested election data through the "Right to Know" law, and without giving me sufficient time to review the requested data prior to filing this petition within the three day period as required by law.
I am therefore requesting that the Secretary of State provide me with copies of all the data I have requested (on January 14, 2008 and February 1, 2008) from him and from LHS through the New Hampshire "Right to Know"; that I be given 14 days to review this data once received; and that I be allowed to re-file this petition if I so desire and to add additional violations and/or Exhibits if applicable.
As required by RSA 665:6, I am filing these Complaints today, February 15, 2008.
Signed and attested to by Albert Howard