Voting Equipment Recert Delayed, Lawsuit Likely

Secretary of State Mike Coffman announced in his departmental newsletter today that counties will be able to use their electronic voting equipment for this November’s election even though it hasn’t been recertified by the state.

But Paul Hultin, an attorney for the plaintiffs in the Conroy v Dennis lawsuit that led to the recertification order, disagrees with Coffman’s decision.

“You just can’t use the machines if they’re not certified,” he said. “I think if people try to go ahead and use that equipment before it’s certified, we’ll probably be back in court real fast. I don’t think it’s unclear at all.”In recent weeks, some county clerks had been under the impression that the machines couldn’t be used until they were recertified. They were concerned about their all-mail elections because the deadline to get custom ballots printed was nearing, and some were considering the prospect of hand-counting ballots.

But Coffman told clerks not to worry. While he had intended to complete recertification in time for November’s election, he isn’t legally required to have it done until next August’s primary, he wrote in his latest newsletter (not yet available online). 

The court order to recertify the voting equipment came after a judge in a lawsuit last September said former Secretary of State Gigi Dennis’ office had done an “abysmal” job documenting the certification process. It was too late to recertify the machines before the November 2006 election, the judge said, but he issued this order:

The Secretary is ordered to retest previously certified systems or any new systems, using the revised security standards to be promulgated by the Secretary, prior to the next primary, general or statewide ballot issue election following the November 7, 2006 general election, whichever comes first.

After developing new rules for testing voting equipment, Coffman invited vendors in March to apply for recertification, a process he said would take up to 90 days.

“My focus is on ensuring that the electronic machines used in our elections are secure, are able to accurately count every vote, and that the results can be verified,” he said in a statement at the time. “Electronic voting machines that meet this threshold will be recertified for use in Colorado’s elections.”

But vendors were slow to cooperate, Coffman said, and the recertification process was delayed.

That alarmed some county clerks who thought the machines were legally required to be recertified before the November 2007 election.

Pueblo County Clerk Gilbert Ortiz Jr. thought that was the case, according to a Pueblo Chieftain article last week.

“We all thought we had to have them recertified this year,” Ortiz is quoted as saying. “This makes me feel a lot better. Of course, we’re still in the process of buying equipment for next year, so it’s still a concern about recertification.”

Coffman said today that because only local issues are on the ballot, it doesn’t qualify as a “primary, general or statewide ballot issue election” and is not subject to the court order.

That is how Larimer County Clerk and Recorder Scott Doyle also understood the situation.

“There are no state questions this year, which is a lucky thing,” he said. “We have only local questions on the ballot, but we all consider those as important as any other election that we do.”

But even if the equipment can legally be used this year without recertification, there’s still concern about the appearance of the integrity of the voting process.

“None of us want to hold an election on a piece of equipment that’s been decertified,” Doyle said. “But we’re holding an election, and we’re going to do the very best job we can, as we always do.”

But Hultin warned the issue might not be resolved.

“If Coffman wants to say that it was substantial compliance with the law, then let him say that to the judge,” he said.

Secretary Coffman’s spokesman, Jonathan Tee, did not return calls for comment.

Disclaimer: Colorado Confidential’s Wendy Norris was a plaintiff in Conroy v Dennis which resulted in the original settlement. She had no role in the assignment and/or writing of this story.

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