BOULDER– Marty Neilson, Republican Party election watcher, walked out of the Boulder County Clerk’s building in disgust as workers there tabulated primary voting results the last week of June. Neilson said she couldn’t see anything of substance and felt like she was participating in a sham exercise in oversight.
“[Clerk Hillary Hall] kept us behind [solid] walls and behind glass walls,” Neilson told the Colorado Independent. “We are there to view the whole process, which is what the statutes say we’re supposed to do, from the time the [election workers] get the ballots to the time they verify the signatures and then count the votes. But it was a charade. I left because why stay? There was no reason to be there.”
Neilson said she phoned Secretary of State Scott Gessler to complain and that he later called back to say he was sympathetic to her concerns. His office didn’t return messages left by the Independent seeking comment, but the update to election law Rule 8.6 (pdf) he has proposed with the aim of bringing clarity to the regulations governing election watchers may well exacerbate the kind of problems watchers complained about in Boulder. The new version of the rule would give greater discretion to county clerks to direct watcher activities. The secretary of state’s office is holding a public hearing on the rule June 23.
Neither Neilson nor any of the other Boulder County watchers the Independent was able to contact– members of the public appointed by political parties to oversee the election process– as well as members of the county’s canvass board, doubted the veracity of the election results produced by Hall and her staff and they commended the efficiency of the operation. Yet most of them shared Neilson’s concerns.
“We were just too far from everything to do proper monitoring. It’s totally inadequate,” said Mary Eberle, a watcher for the American Constitution Party who is also a member of the watchdog group Citizen Center, which is suing six county clerks, including Clerk Hall, and the Secretary of State for using ballots that Citizen Center believes can be traced to voters.
“We used to stand beside the workers and look to see if the person reading an ID number and the person typing the ID number into the system were doing it properly,” Eberle said. “We could see how well they matched the signatures on a ballot envelope with the voter signature on file in [the state’s registered voter database]. Well, we can’t do that anymore from 10 feet away behind a glass wall.”
The facility and election division operations at the Boulder Clerk and Recorder’s office are impressive. On primary night– the county’s second all-mail primary election– a team of something like 20 people manned stations in what staffers call the “ballot processing center,” a light-industry-style warehouse space divided by waist-high partitions and walls of glass. Separate rooms have been created for envelope and ballot sorting, signature verification and vote counting and for reviewing ballots that the computers won’t read for various reasons. Trucks drop off mailed ballots at a lower-level dock and an elevator delivers them to a conveyor on the main floor. This year, the county is test-driving a new Bell and Howell election-industry sorter, a machine roughly the size of four washing machines that can read ballot envelopes, gauge whether the right number of inserts have been included and then capture images for staffers to review of the voter signatures that appear on ballot envelopes.
Eberle, who has been a watcher in four Colorado counties for elections held over the last six years, said her frustrating experience this year in Boulder was unique but, she fears, a harbinger of things to come. She notes that the conduct of elections is moving from polling places, where sorting lists are spread out on tables and members of the public read each other’s faces, to backstage sites like the one in Boulder, where machines and computer screens dominate.
Of the roughly 145,000 active registered voters in Boulder County, about 95,000 have registered as permanent mail-in voters, according to the clerk’s office. For the primary this year, the county sent out 109,000 ballots and about 37,000 were returned for counting, about 34 percent. Roughly 43 percent of voters participated in the county’s 2010 all-mail primary and only 29 percent of voters participated in its last polling-place primary held in 2008.
Clerk Hall, a high-profile and influential county clerk in the state, told the Independent that, in keeping the watchers at a remove from her election workers, she was simply weighing concerns for security and efficiency against concerns for transparency. She said that election-watcher rules were designed when polling place interactions predominated and that they don’t squarely address activity that takes place over the course of days or even weeks at a high-volume ballot processing center like the one in Boulder. She said that, where the rules aren’t clear, responsibility falls to the clerks to balance competing interests.
The rule scheduled to be heard Monday, would bolster that reading of the law.
The six-foot limit
Watchers are appointed by political parties, candidates or issue committees. The same laws govern watchers as govern other election observers, including members of the media. Watchers are meant to provide checks and balances on and against each other and against the clerk’s office. County clerks in Colorado are elected officials and mostly members of the Republican and Democratic parties.
The law governing watchers is just one among many election laws, some on the books for more than a hundred years, according to irrepressible election law activist and founder of Citizen Center Marilyn Marks. The laws have been elaborated with rules formulated by successive secretaries of state, part of the executive branch’s regulatory authority, where rules are proposed to carry out the intent of legislation. The original Rule 8 (pdf), which carries the force of law, grants watchers the right and responsibility to “witness and verify… each stage of the election.”
[Watchers] may observe polling place voting, early voting and the processing and counting of precinct, provisional, mail, and mail-in ballots. For mail ballot elections, or mail-in ballot processing, watchers may be present at each stage of the election including the receiving and bundling of the ballots received by the designated election official.
That rule, however, was complicated by a letter drafted by Deputy Attorney General Maury Knaizer for the secretary of state’s office in 2010. Knaizer was asked to address the role of election watchers in an era when identity verification, ballot reading and vote tallying increasingly takes place in the absence of actual voters.
A key provision of long-established election law referenced by Knaizer appears as statute 1-5-503 on the “arrangement of voting equipment or voting booths and ballot boxes.” It states that “No person other than the election officials and those admitted for the purpose of voting shall be permitted within the immediate voting area, which shall be considered as within six feet of the voting equipment or voting booths and the ballot box, except by authority of the election judges or the designated election official, and then only when necessary to keep order and enforce the law.”
That statute is meant to ensure voter privacy as ballots are cast. It applies to watchers and has been informally used as a reference point even in the age when watchers are witnessing less voting and more ballot sorting and counting.
Knaizer cautioned that his letter “contained only [his] analysis… not an official opinion of the Attorney General,” but he endorsed the reading of the law proffered by then-Secretary of State Bernie Buescher, who thought the “six-foot limit” should apply to watchers in ballot-processing centers, keeping them at a remove from the machines. Knaizer added that “any potential disadvantage to the watcher [would be] mitigated by the requirement that the equipment booths and ballot boxes must be in plain view.”
The clerks’ kitchens
Martha Tierney, one of the state’s top election lawyers who has led voter-protection efforts for the Democratic Party here for a decade, agreed with all of the other sources contacted by the Independent for this story that no laws were being broken by clerks who kept watchers at a distance. Yet, like many others, she suggested that the spirit of the law is likely being violated in some of the state’s counties.
“If you’re made to stand at the door across the room while people are sorting and counting ballots, what can you ‘witness and verify’?” she said.
She commended Gessler for seeking to clarify the rules but she said her firm, Heizer Paul Grueskin, submitted feedback on the rules critical of the discretion they would grant to clerks.
“Every county has a different set up. Some clerks provide tremendous access. Others are basically not interested in having watchers in their ‘kitchens.’ They’re the ones who will limit access. And then what we have is an equal protection problem,” she said, suggesting that, if Gessler’s rule goes into effect without change, citizens across the state could not rely even theoretically on the same level of monitoring or “witnessing and verifying” meant to protect the integrity of their votes and elections.
“This is not a partisan issue. Democrats and Republicans are on the same side,” said Tierney. “We all want clarity but we’re just not there yet. With mail elections it’s true that there is less opportunity for watchers to participate… but they play a critical role.”
The plan to ‘protest mightily’
In speaking about her experience in Boulder last month, Eberle conceded that the equipment at the ballot processing center, including desktop computers, were “in plain view” but that the work being done with the equipment happened at a distance from election watchers and that the data on computer screens, the images of voter signatures, for example, was simply too far away to read.
At the Boulder center, it’s physically possible for watchers to stand as close as two feet from two desktop computer stations where signature images are being compared. But a glass wall separates the watchers and the computer stations, and the rest of the stations where workers compare signature images sit on the far side of the walled-off room, ten or more feet away.
“How can we see if ballots are falling under the scanner machines and not being read?” Eberle asked. “How can we judge the quality of the signature verification work being done?”
She said that in the past she has asked for election workers to re-examine signatures and to explain why they believe this or that rough signature match should be or should not be OK’d. She said that kind of conversation can’t really happen in Boulder the way the processing center is set up.
Marks at the Citizen Center said election watchers and their supporters are depending on Gessler in the end to make rules that take into account the new reality of Colorado’s election processes and sets a statewide standard that prioritizes transparency.
“We are going to protest mightily,” she said, referring to the hearing Monday. “This is an attempt to strip us of our statutory rights.”
The Secretary of State can adjust the proposed rules after the hearing. Whatever shape they take will be in effect for the presidential election this fall.
What’s at stake
The push and pull in Boulder underlines battles being waged in Colorado this year over what critics see as a trend on the part of officials toward limiting the public’s ability to monitor elections. Gessler with the support of county clerks recently loosened security regulations on electronic voting machines, which have been a source of election-integrity anxiety for years. And a recently passed controversial law, HB 1036, narrowed the ability of the public to review voted ballots as well as digital tallies produced by voting machine, even though ballots physical and digital are clearly subject to the state’s open records laws.
Ralph Shnelvar, a libertarian and Boulder County canvass board member for the American Constitution Party, told the Independent that Clerk Hall runs a tight ship. He was confident in the election results, the same as were the other primary election watchers in Boulder.
“But what if we didn’t think it went so well?” he said. He was sitting on the floor with his legs crossed in the hallway outside the clerk’s office. He turned the palms of his hands toward the ceiling. “What if we didn’t think it went so well? That’s what’s at stake.”[ Image by JaulaDeardilla via Flickr ]