In Breaking News late this afternoon, we find yet another reason why Direct Recording Electronic (DRE, usually touch-screen) voting systems are incompatible with democracy: When an election held on them is contested, the machines themselves — which are said to hold the ballots internally — cannot be used in another election until the contest is settled.
Late news this afternoon, sent to The BRAD BLOG moments ago, reveals that a judge in an Alameda County, California election contest is set to rule that a contested ballot measure election from 2004 must now be reheld since the county destroyed data from the election when they sent the Diebold DRE voting systems back to the company in Plano, Texas.
All but 4% of election data, records and audit logs was overwritten in subsequent contests, according to the following release from Americans For Safe Access (ASA) who were the plaintiffs in the contest.
In 2004, Alameda was the same county where it was found that Diebold had installed uncertified hardware and software in the county’s voting system. The illegal action by the company eventually led to the decertification of certain Diebold systems in California.
The judge’s unprecedented decision to re-hold an election after plaintiffs were denied their right to a proper recount after the county’s failure to preserve election records on the Diebold touch-screen systems could have reverberations around the country.
The ASA release explains the astounding details and background in this tale, along with the judge’s tentative findings in full…
OAKLAND, CA – Superior Court Judge Winifred Y. Smith issued a tentative ruling that the Alameda County Registrar of Voters and Alameda County “have engaged in a pattern of withholding relevant evidence and failure to preserve evidence” necessary to conduct a recount of a hotly contested Berkeley ballot measure. As a result, the Court has signaled its intention to void the election and order the County to place Measure R back on the ballot for a re-vote at the next general election.
Judge Smith will issue a final ruling after the Court hears oral arguments tomorrow (Friday, July 13, at 9:30 a.m. at the Wiley Manuel Courthouse, Department 114, 661 Washington Street, Oakland).
“Judge Smith’s tentative ruling confirms our contention that Alameda County violated its duty to preserve the critical voting machine data that was the focus of this recount lawsuit and election contest,” said Gregory Luke of Strumwasser & Woocher LLP, attorney for the plaintiffs
who sought the recount of the vote on Measure R.
More from the press release, including background on this incredible story, the ballot measure, the long fought election contest, the overwriting of the data on the Diebold voting machines — in violation of the law — and the judge’s tentative ruling itself, follows below…
Judge Smith wrote, “The evidence necessary to determine whether Petitioners’ election contest is meritorious has been lost or destroyed due to Respondents’ failure to fulfill its obligation to preserve the information that was reasonable available to them at the time of the recount, and at the time of the filing of this litigation. Therefore, sanctions … are appropriate.” [Complete text below.]
“A re-vote is the only fair option for the people of Berkeley,” said Rebecca Saltzman, Chief of Staff for Americans for Safe Access, a medical marijuana advocacy group. “By destroying the electronic copies of the votes, the County made it impossible to check that the election was properly run and the votes correctly tallied. We couldn’t get to the bottom of the numerous machine malfunctions reported in the scant records the County did produce. We couldn’t follow up on the massive holes in the chain of custody over those electronic votes. With a re-vote, we can finally exercise our right to confirm how the people of Berkeley feel about Measure R.”
Last April, Judge Smith ruled that Alameda County and its Registrar of Voters violated both the Elections Code and three separate provisions of the California Constitution by denying voters their right to examine these election records during the recount of the 2004 election. At a hearing on the voters’ Motion for Sanctions in May, Judge Smith criticized County officials for having returned the voting machines to Diebold, without first preserving the data they contained, while the ongoing legal battle over the recount was pending. She held off ruling on the sanctions motion to allow elections officials time to fulfill their promise to locate the missing election data.
While this case began in Berkeley, the search for the electronic voting records led to a warehouse in Plano, Texas where only 20 of the 482 Diebold computer voting machines used in that election still held any of the election data being sought. Copies of the votes from 96% of the machines used in the election had been destroyed. No audit logs from any individual machine were found. The County now acknowledges in its Court filings that these election records may have been overwritten and destroyed when they failed to copy those records before using the voting machines and data disks in subsequent elections.
“When a citizen files a lawsuit to contest an election result, it’s Election Administration 101 — and Law School 101 — to collect all the records from that election and store them safely until the election dispute is resolved,” said attorney Gregory Luke. “Here, the County allowed critical election records — the only records available on their voting system that verify whether the vote tally was correct — to be destroyed while a lawsuit and election contest were still pending. Alameda County voters should be appalled.”
Review of the redundant copies of the electronic votes, audit logs, and chain of custody materials is essential to this election recount and contest, because the scant records the County did produce revealed reports of machine malfunction at numerous precincts across the City of Berkeley.
“Without examining the redundant data, audit logs, and chain-of-custody records, no one can confirm whether any of the reported malfunctions were ever resolved or whether vote data was manipulated or lost. As a result, no one can ever confirm whether the vote result announced by the County was correct,” noted Matt Zimmerman, Staff Attorney for the Electronic Frontier Foundation, which assisted the voters in analyzing the scant data produced by the County.
Measure R, a citizens’ initiative, would have regulated the operation of medical marijuana dispensaries in Berkeley. Election officials originally announced that the measure lost by fewer than 200 votes.
NEWS ADVISORY
What: Americans for Safe Access vs. County of Alameda et al.
When: Friday, July 13, 2007 at 9:30 a.m.
Where: Wiley Manuel Courthouse, Department 114, 661 Washington
Street, Oakland
CONTACTS:
Gregory G. Luke, Attorney
STRUMWASSER & WOOCHER LLP
(310) 576-1233 office
(818) ###-#### cell
gluke@strumwooch.comMatt Zimmerman, Staff Attorney
Electronic Frontier Foundation
(415) 436-9333 x127 office
mattz@eff.orgRebecca Saltzman, Chief of Staff
Americans for Safe Access
(510) 251-1856 x308
rebecca@safeaccessnow.orgCaleb Dardick, Media Relations
CDA Strategies
(510) 704-0130
caleb@cdastrategies.com
The Court’s decision and the parties pleadings are available on the Court’s website by following the Domain Web links to the “Case Summary” page and entering “RG04192053” when prompted for a Case Number.
Tentative Ruling issued by Judge Winifred Y. Smith:
The Motion of Petitioners Americans for Safe Access, James Blair, Michael L. Goodbar, and Donald O. Tolbert for Sanctions is GRANTED.
Sanctions are appropriate under CCP §§2023.010, 2023.030. The Court finds that Respondents County of Alameda and and Dave MacDonald (“Respondents”) have engaged in a pattern of withholding relevant evidence and failure to preserve evidence central to the allegations of this case. That evidence has now been determined to be irretrievable. The evidence necessary to determine whether Petitioners’ election contest is meritorious has been lost or
destroyed due to Respondents’ failure to fulfill its obligation to preserve the information that was reasonable available to them at the time of the recount, and at the time of the filing of this litigation.Therefore, sanctions the equivalent of issue or terminating sanctions are appropriate. (See Vallbona v Spring (1996) 43 Cal.App.4th 1525, 1541-49; Do-it-Urself Moving & Storage v. Brown, Liefer, et al. (1992) 7 Cal.App.4th 27, 34-37; RS Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486 ; Electronic Funds Solutions v. Murphy 134 Cal.App.4th 1161; In re Marriage of Chakko 115 Cal.App.4th 104, 108-110.) The Court finds that it is reasonable to award sanctions as follows: Petitioners are entitled to recover the costs of the recount
in this matter, $22,604.00. Petitioners are entitled to recover the reasonable costs of the trip to Texas to attempt to recover the data from the Diebold voting machines, which were returned to Diebold by Respondents after the initiation of this litigation. Petitioners are also entitled to reasonable attorneys’ fees expended in connection with this motion. The evidence submitted by Petitioners on these two points is insufficient for the Court to determine the amount of reasonable attorneys’ fees and other expenses sought by Petitioners.Petitioners are directed to submit a supplemental declaration breaking down the hours spent (i.e., task-oriented billing records) and costs sought. Such supplemental declaration shall be filed and served within 10 days of receipt of this order. A further order specifying the amount of fees and costs awarded will be issued thereafter.
Petitioners are entitled to an issue sanction establishing that the data lost would have been unfavorable to allowing the election results to stand. The Court finds, as a result, that the election results for the November 2, 2004 election concerning Measure R are nullified.
Defendants are further ordered to place Measure R on the ballot in the next general election.
FACT SHEET: Americans for Safe Access v. County of Alameda et al., RG 04-192053
Why Election Data Was Sought in the Initial Recount Request
On December 3, 2004, Berkeley voters requested a recount of the election for citizens’ initiative Measure R, which had been conducted on a direct recorded electronic (“DRE”) touchscreen voting system made by Diebold Elections Systems, Inc. The California Elections Code, in section 15630, provides that a voter may examine “all ballots . . .and any other relevant material as part of any recount.” The Berkeley voters asked to examine the very vote verification tools that Diebold and the County of Alameda had touted as reasons to trust the DRE voting system, namely the back-up copies of the votes (“redundant data”) that are stored on the touchscreen units for the precise purpose of providing a cross-check against the official vote tallies, and the “audit logs” generated by the DRE system that show whether the system functioned properly. The voters also asked to examine chain-of-custody records for the system — to make sure that no unauthorized persons had an opportunity to alter the votes during the vote tabulating process — as well as the results of “Logic & Accuracy” testing that had been performed on the machines before and after the election. The Registrar of Voters refused all of these requests, claiming that the law did not require him to show voters anything
other than the voted ballots during a recount.
A Lawsuit Was Necessary to Compel the County to Follow the Law
On December 30, 2004, three Berkeley voters and the advocacy organization who had helped sponsor Measure R filed suit to compel the County to follow the law and produce materials that are necessary tools to confirm the accuracy of votes, and to detect potential fraud or error, in elections conducted on all manner of electronic voting systems. The voters also filed a formal contest of the results of the election. The voters provided testimony from three of the country’s leading voting system security experts explaining that, without examination of redundant vote data, audit logs, and chain-of-custody records, it is impossible to form a meaningful opinion about the accuracy of the vote tallies generated by the Diebold voting system employed by Alameda County. California Secretary of State Debra Bowen filed a friend-of-the-court letter in the case to support the Berkeley voters.
The Eventual Ruling on the Merits In Favor of the Voters
The Superior Court determined that the Registrar’s refusal to produce the materials requested by the voters violated the Elections Code as well as three separate provisions of the California Constitution that guarantee equal protection, due process, and the right to have one’s vote counted. The Court also denied the County’s requests to seal such election records from the public.
“Judge Smith’s decision in the recount suit vindicates a fundamental right reserved long ago by the People of California to ferret out possible fraud or error in election results,” noted counsel for the voters Gregory Luke. “The County’s refusal to follow the law threatened all future elections in California – no matter what technology is used. The Registrar took a position in this case that, if allowed to stand, would have permitted elections to be conducted behind closed doors. The decision is a firm rebuke to the culture of secrecy that has taken hold in too many election offices around the country.”
The Plaintiffs Discover that Election Data Was Destroyed While the Lawsuit Was Pending
While litigating the merits of their recount suit, the Berkeley voters learned that the County Registrar had returned the DRE voting machines used in the Measure R election to Diebold Election Systems, Inc., without having first copied the voting data from those units.
They accordingly filed a motion to sanction the County for the spoliation of the central evidence in their lawsuit and contest. The County first responded by claiming that it “did not understand” and “was unaware” that the disputed election data sought by the voters even existed. Then, they claimed they could recover the missing data from the machines they had surrendered to Diebold.
The Court granted the County and the Registrar additional time to make good on their promise that they could obtain the missing electronic data from Diebold.
The Search for Electronic Vote Records Fails
The search for the missing data proved futile. On the County’s assurance that the election data still resided on the machines that had been surrendered to Diebold, the Court ordered the County to conduct a public “download” at the Diebold facilities in Plano, Texas.
Of the 482 Diebold machines used in the November 2004 election in the City of Berkeley, only 20 machines — 4 percent of the total — still contain any copies of the votes sought by voters in the lawsuit and contest. In addition, the County failed to find any of the audit logs from the individual voting units used in that election. These election records were apparently overwritten and destroyed when the County used the Voting machines and data storage diskettes in subsequent elections.
The Sanctions Hearing
This Friday, the Court will determine whether and how the County should be sanctioned for its conduct. The facts now show that the County allowed the critical election records to be destroyed. The voters have also drawn the Court’s attention to numerous false statements of material fact by the County and the Registrar in their legal pleadings regarding the availability of the disputed election materials during the 2004 recount, the preservation of the disputed election evidence, and the contents of documents they tried to file under seal to exonerate themselves from the spoliation charge.
“Unfortunately, the County’s spoliation of the election records while the lawsuit was pending has deprived my clients of the tools necessary to assess the validity of the 2004 Measure R election results,” said Luke. “The County must be held to account.”
Whoo-Hoo!!!
Hmmm, this sounds familiar…
I wonder where they learned that Diebold had installed uncertified hardware and software in the county’s voting systems? Could that have been revealed by a whistleblower?
Brad, great story! I can’t seem to recall any order to re-run an election for this reason. Was there any prior instance of that?
Please keep up your great work.
And in Berkeley, too. I attended Cal as an undergrad, quite a few years ago. Glad to hear Berzerkeley is still in the forefront.
I hope Judge Smith has 24-hour security–the best possible. And I hope the people up there are smart enough to start collecting pledges now, before the election, so that they can show that they have an overwhelming majority of the vote that nobody can fudge. Something witnessed, notarized, and sworn, that says something along the lines of, “I (full name as registered to vote), residing at (full address as registered to vote), do hereby swear under penalty of perjury that I am in favor of the Medical Marijuana Initiative and that I intend to vote for it on (date of next election) [at (location of polling place)] {or} [by abesentee ballot]. As further proof of my support for this measure and my intent to vote for it I have donated (amount) to this cause and to cover the expenses needed to demonstrate the intent of voters by means of sworn affidavits like this. (Signed) (Date) (Witnesses) (Notary’s declaration and seal).
I’ll never forget Lula, who was more than 80 years old when I lived in Berkeley. Lula was a very proper person, a retired schoolteacher, I believe, who lived at the Shattuck Hotel and always dressed to the nines. One of Lula’s sons was an eminent surgeon. Lula never tired of bragging to anyone who would listen how Lula’s son would purchase marijuana on the black market and give it to Lula because it was the only thing that helped with Lula’s glaucoma. Lula was as far from a hippie as you can get–registered Republican, I believe. They HAD to destroy the evidence. There’s no way that measure could have failed in Berkeley. Just a few blocks from the old Shattuck Hotel (which may since have been turned into condos or something–I haven’t been back there in at least 20 years), was the campus of U.C. Berkeley, home of the free speech movement and Boalt Hall law school. College students vote.
Geez, I hope Judge Smith is safe in some undisclosed location, because I fully expect the CIA/FBI/DEA/ATF/DIA/NIS/NSA, etc., to “arrange” to have Judge Smith’s house burn to the ground overnight, if they don’t decide to anthrax or bomb the courtroom.
Did you see that KPBS documentary about the Native American family living on a reservation as part of a sovereign nation, that has been trying to grow industrial hemp, with 0% THC, for a decade, and every year the feds come and confiscate their crop? A judge dismissed their case and told them they had to take it to Congress. Meanwhile it is legal for companies that manufacture stuff made from hemp to buy it from Canada, but it isn’t legal to grow it here. (whole string of expletives deleted)
I don’t know if Lula is still alive, but I doubt that there was anyone of any social importance in Berkeley twenty years ago who hadn’t met Lula and heard Lula’s story. Medical marijuana never had a more elegant and respectable spokesperson. Lula, wherever you are, it may be more than twenty years late, but this one’s for you.
How fitting, that a harmless drug that has resulted in the most unconstitutional laws in our country’s history for the purpose of corporate greed and imprisonment of people practicing the “all American” enterprise of supply and demand, would be a catalyst in the demise of the worst and most harmful scam against democracy:
Voting machines.
What caught my attention was.
“County Officials Destroyed Voting Records from Election Conducted on Diebold Electronic Voting Machines”
These electronic voting machines, from ALL MANUFACTURES, are going to plunge the United States into a civil war, because when they fuck up, the worst scum gets control of government, and just look what’s happened to our constitution since 2000. It’s not just Alameda, it’s EVERYWHERE these machines go.
By getting rid of the machines, we can get rid of the scummy oath breakers, restore the constitution, and stop the oath breaking congress, and executive before were all using the “Amero” for currency in (our no longer producing anything, and no longer gun owning part) of the North American Union. That’s if it hasn’t gone so far with that presidential directive which is waiting for an “event.” An event that may or may not be real terrorists. Since we can’t never get the truth anymore anyway, from these liars, who should be PUBLICALLY FUNDED when they run for an office, not funded by lobbiests, or their own deep pocket.
It’s time to end the rein of the perceived dilligence oath breakers, and to whip out the integrity, fairness and validated truth.
Outstanding!!!!!! Are they finally catching on to these crooks?????
NSA/CIA or Diebold, whats the difference. It’s all treason. Like credit systems of the Talmud Templar Mason Bankster Gods. Just because it can be done doesn’t mean it should be. No paper no trail no proof and trackability only when they want to rape us.
Agree or not, print or not, thanks for your good work in logging these traitor crooks activities.
Is it not a paradox that government at every level is never found guilty of any wrong doing. However the same government finds it citizens guilty of wrong doings 24/7?
Is it not a paradox that government at every level makes all activity that are pleasurable or helpful and or healthy for the citizen illegal?
Is it not a paradox that those very laws enforced on its citizens with cruel relish by governments at all levels are the very laws the same governments ignore and or break 24/7?
My hunch is that Alameda County performed a risk assessment: Would it be worse to be take the heat for destroying the public records prematurely and illegally or would it be worse for the truth of the Diebold machines and fraudulent election results to come out?
So…they chose to destroy the records and kept their fingers crossed that the lawsuit would be lost. Let’s hope that the authorities go after these county officials and file criminal charges.
John,
Good story.
But hold on, be careful, and lets not get our hopes too far out there yet.
This will go thru appeals and will be ultimately decided by the California Supreme Court.
It is a good landmark, but it is likely to be appealed and resisted.
Especially if Diebold has any say in it.
But if it holds as law, it will be a good case for future use as precedent.
I read the replies to this aricle. And I laugh to myself.
The manipulation and games that are being played on the American people is very pro-found.. Yes we live in an electronic age.. How complex does a vote have to be????
yes or no .. count the yes’s and the no’s .. Why or who has turned a straight yes or no (now I know)answer into and formal debate.. Any C++ student could write a simple program to register, tally the votes and count them.. you could write the program on an old 1.44 floppy disk.. and save the results on the same disk.. When I was a child we would draw straws.. it still works today.. The only reasons for electronic voting.. IS… #1 our elected officials are to damn lazy to count the votes.. or .. #2 It is the best way to manipulate the votes.. History question ???.. Who Said
“It doesn’t matter who votes.. It only matters who counts the votes”.. Including the Court Appointed .. I am The Decider, Commander In (Shit) Chief.. if the votes don’t count for me ask a court to rule in my favor.. WOW the court did a recount and bush won? Kind of FUBAR .. don’t you think?
Vote Fraud, yet another infringement on our rights by the gov’t. Add it to the ever-growing list of violations:
They violate the 1st Amendment by opening mail, caging demonstrators and banning books like “America Deceived” from Amazon.
They violate the 2nd Amendment by confiscating guns during Katrina.
They violate the 4th Amendment by conducting warrant-less wiretaps.
They violate the 5th and 6th Amendment by suspending habeas corpus.
They violate the 8th Amendment by torturing.
They violate the entire Constitution by starting 2 illegal wars based on lies and on behalf of a foriegn gov’t.
Support Dr. Ron Paul and end this madness.
Last link (unless Stark Count District Library caves to the gov’t and drops the title):
America Deceived (book)
The best (and worst) of two American scandals: election fraud and the War on Drugs (marijuana) are present in this one case.
The election fraud is familiar to everyone reading this blog. The so-called War on Drugs is a way to effect elections too — they put marijuana users in jail and take away their votes. About 50% of everybody in jail is there because of “drugs”. Probably marijuana sale, possession and use is about 85% of that. I wonder what percentage of the people in jail for marijuana are White and what percentage are NOT White. I suspect Blacks are disproportionately being penalized and having their votes taken away. Why? They vote disproportionately for Democratic candidates and Republicans HATE that.
Good legal and journalistic work bringing this issue to light.
The basic drug laws that are used to maintain a Police state and fill up the prison camp system, are themselves based in fraud.
The Militarist “Master” class has used law as they have used the “Wheel,” as a machine to break the people upon.
Hemp and its derivative products provide income for many ordinary people. The “Master” runs his Death squads builds his prison camps and hires his war criminals, all with an eye to “maintaining the disparity.” “Master” has forced large segments of humanity to subsist in poverty, to satisfy his simple animal primitive ways.
Keep up the good work and continue to bring our soon to be dislodged “Master” class to the bar of Justice to answer for their enemy acts upon the human race.
A better day will arrive when we finally can say; “Farewell to the Masters.”
.
Amen.