Guest Blogged by Parke Bostrom of the Humboldt Transparency Project
At the California Secretary of State’s public hearing regarding the possible decertification of Diebold’s tabulator systems, GEMS v1.18.19, in relation to the “Deck Zero” covert deletion of 197 ballots in the November election, the audit log’s magical “clear” button, and the GEMS audit logs failing to report when ballots were manually deleted by the operator, Diebold/Premier representatives tried to shift blame for the 197 deleted ballots onto the Humboldt County, CA, Registrar of Voters, Carolyn Crnich.
Crnich responded, “If you’re saying that your system needs to be checked every damn time we turn it on, I agree with you.”
Crnich’s use of an expletive seems to have pushed Diebold/Premier’s legal counsel over the edge, causing them to reach for and firmly press the “nuke” button in response, by petulantly informing the county of termination of licensing for the use of any of the company’s products.
Several days after returning to Humboldt, following the hearing in Sacramento, Crnich received two letters from Premier. Both letters arrived in a single envelope, but unlike Premier Khrushchev’s two letters to President Kennedy, Crnich did not get to choose which letter to respond to.…
The first letter, dated March 17th, was regarding section 25 of the Diebold Information Management System (DIMS) license agreement. The license agreement, for the company’s computerized voter registration system, was signed on April 27th, 1999. Apparently section 25 allows Diebold/Premier to terminate Humboldt County’s annual license to use the DIMS system on 90 days notice. Additionally, the letter went on to revoke all of Humboldt County’s licenses to use any Diebold/Premier election systems and software following the May 19th statewide special election. Diebold/Premier also required that many pieces of equipment would have to be returned.
The second letter, dated March 18th, asked for confirmation that Registrar Crnich had declined Diebold/Premier’s offer of a free hardware and software upgrade to GEMS v1.18.24. That version of the software, though it no longer includes the flaw that auto-deletes ballots, still allows for ballots to be deleted without any notation in the system’s audit logs (a violation of federal requirements for such software).
An upgrade to the newer version would also require that Humboldt County’s fleet of eighty precinct based Diebold AccuVote optical-scan machines receive a hardware retrofit.
Previously, Premier had offered to perform that upgrade at a cost of $324 per AccuVote (a total cost of $26,000), but they generously offered to throw in a free upgrade of the software part of GEMS. A week after Crnich rejected that deal, Premier offered a complete free upgrade of both hardware and software, that Crnich also rejected. Instead of retrofitting Humboldt’s current AccuVotes, Premier offered to provide refurbished retrofitted machines direct from the company’s headquarters in Texas. According to Crnich, Santa Barbara and San Luis Obispo counties have accepted a free hardware and software upgrade to GEMS v1.18.24, including retrofitted and refurbished AccuVote optical-scanners.
Apparently, after “every damn time,” all offers were taken off the table and the nukes were launched.
I asked Crnich if Premier would be taking back all the AccuVotes, too, or if Premier was merely taking all the “brains” (GEMS & DIMS) and leaving us with “just the useless pieces” (the AccuVote hardware). After pausing for a second, she replied, “they are leaving us with the rest of the useless pieces,” referring to the entire system. I asked her if she really wanted me to quote her directly on that. Crnich’s reply: “What else can they do to me at this point?”
Back in December and January, when Crnich was discussing the transition to Hart InterCivic equipment, she did say that she was planning on continuing to use Premier’s DIMS voter registration system. But now she has to scramble to switch to another system there as well.
The state has a special election scheduled for May 19th. After that, Crnich will have to take delivery of the replacement Hart equipment, test it, be trained on it, train voters and poll workers to use it, conduct a test election on it, and then start preparing for the November statewide election. At the same time, she will have to return Premier’s equipment, as they are requiring. Additionally, she will have to transition Humboldt’s entire voter registration database to a new system. I think the voter registration system transition needs to be done within 90 days, meaning by June 17th-ish. In other words, the entire voter registration transfer will need to be done during the preparation for and post-election canvassing of the May 19th special election.
I asked Crnich for copies of the two letters from Diebold/Premier so I could post them here. Absurdly, Crnich claimed that after having read both of the letters to members of the public at a public meeting, the letters are still attorney-client privileged because she had sent copies of the letters to county counsel. These are letters from Premier to Crnich terminating contracts between Premier and Humboldt County. (If there are any lawyers out there who think this claim is not absurd, and that the letters are indeed privileged, please let me know.)
Finally, here is some free advice to any Premier public-relations types who may be reading this post and thinking about trying to do some damage control. Call up your corporate lawyers and get them to apologize to Crnich for terminating all the contracts in the middle of an election cycle. Then have them politely request that Crnich propose a schedule for discontinuing the use of DIMS at her convenience. It may take a little longer than 90 days, but I am pretty sure that at this point in time she is very eager to stop using any products that carry the Diebold/Premier name.
A version of this article was originally posted at Parke Bostrom’s blog…
UPDATE 4/30/09: Copies of the two Diebold/Premier letters have finally been obtained from Crnich, in response to a public records request. Copies of the letters, and details here…
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Parke Bostrom became a poll worker in 2004 due to concerns with paperless voting machines (which are not used in Humboldt County). He became involved as a volunteer with the local Voter Confidence Committee, the Humboldt Election Advisory Committee, and Humboldt County Election Transparency Project over the course of 2008. Parke has also served as an election night election observer, most recently on behalf of the Humboldt County Republican Party. His professional background is in software and programming.
Am I missing something here? Carolyn Crnich is Humbolt County’s Registrar of Voters. Premier/Diebold is an independent vendor of voting equipment. The letters to Crnich were not submitted by Humbolt County Counsel. They were submitted by Premier/Diebold’s legal counsel, who do not, insofar as this article sets forth, represent either Humbolt County or Crnich. (There would be a conflict of interest if they did).
The attorney-client privilege only attaches to confidential communications between the attorney and that attorney’s client. Since Premier/Diebold’s attorneys do not represent either Humbolt County or Crnich, the letters would not be shielded by the attorney-client privilege irrespective of whether they were read aloud in a public hearing or not. (When a client publicly discloses the content of an attorney-client communication, the privilege is ordinarily waived, but there was no privilege to begin with here.)
Ernest A. Canning
Attorney at Law
Attorney-Client privilege prevents only the ATTORNEY from disclosing something. The client, against all advice of his attorney, can discuss anything he or his attorney spoke or communicated about. Crnich is stating there is a Client Attorney privilege she cannot breach.
It might be the documents are not open records because the records are attorney-client communications. If that is the case then she violated the open records law by reading the records at a public meeting.
I suspect exemption from disclosure for a official record may be like trade secrets or virginity; once violated it is gone permanently.
CA open records law may be such that once an official has made an otherwise exempt record public, the previously exempt record is now permanently classified as a public record.
I don’t CA public records well enough to know which of these possibilities (illegal to read at the public meeting or now permanently public) is the correct interpretation of the law.
1. EVM specs, physical, electronic and computer code, must be PUBLISHED FOR THE PUBLIC TO READ.
2. Contest to BREAK IN to a candidate machine, followed by a large REWARD for anyone who can break in.
3. No WIFI or INFRARED access to an EVM. Only physical wires.
4. NO MORE BUSINESS for ES&S, TRIAD, DIEBOLD or SEQUOIA because they wanted us to use GARBAGE and they HAVE STOLEN ELECTIONS. The above-named companies are to be put OUT OF THE EVM BUSINESS as our reward for their patriotism.
1. Tear up the contracts
2. Use the paper for ballots.
3. Done
Can it really be any harder than that?
… John Washburn said on 3/25/2009 @ 3:22 pm PT.
It might be the documents are not open records because the records are attorney-client communications.
_______________________
Mr. Washburn: You might try to follow what the President said he does when asked why he did not speak out immediately about the AIG bonuses–“I like to know what I am talking about before I speak.”
The article reflects that the letters were sent by Diebold’s attorneys to Ms. Crnich, who is not their client. A letter sent by an attorney to a person who is not that attorney’s client is not a privileged communication.
Your speculations about some other possible privilege are not useful. Ms. Crnich did not invoke a privilege other than attorney-client privilege.
Just go to paper and pencil and a human count… works in Canada and a lot cheaper.
However, its much cheaper to game
3 words to get out of a Diebold/Premier contract, “every damn time”, so do it (now) & we’re free!
Skeptic94514 said:
Perhaps. But much more difficult to succeed at and/or not get caught.
Wow. We can add blackmail to the list of reasons not to use propitiatory, computerized systems that can’t be understood by non-computer specialists. Sounds like Premier should be working for Russia’s oil and gas companies so they could cut those resources off from Europe when the Ukraine doesn’t pay.
It seem like Ms. Crnich is the hero in this bigger story.
I don’t know why she does not want to give this Park guy the letters, but who cares, she had the guts to run their Transparency Project in the first place, and that’s more then any other Registrar of Voters any where in the entire country has done. I would spend more time praising her and less time second guessing her judgment on this one rather minor issue.
Crnich sounds like a super gal and a full disclosure type of public official of the type we need more of! Crnich’s story, along with Tom Ammiano’s proposal to legalize marijuana to fix the budget deficit, almost restore my faith in government officials — at least for today.
On this attorney client privilege thing, I gather someone in County Counsel’s office has told her not to distribute the Diebold/Premier termination letters because of some concern over possible “liability” or some other reason (maybe there are more threats from Premier/Diebold that we don’t know about.) I wouldn’t be surprised if Crnich told Bostrom that County Counsel told her not to distribute the letters, and when asked why, she said it was “privileged” (County Counsel’s advice)and Bostrom thought she meant the letters. Assuming Bostrom indignantly denies my interpretation, then someone in County Counsel’s office must have given Bostrom a dumb excuse to give for not distributing the letters. An excuse like “attorney client privilege” almost invariably originates with the attorney, not the client.
Paul McCarthy, Oakland
(Judging from the comments, it sounds like there are a lot of attorneys who read Bradblog, myself included…)
John Smith said:
She does not want to give me the letters because she does not want them published. She does not want the public to be able to see and read the letters.
Were this the first time Registrar Crnich has controlled the flow of information, it might be a minor matter. But this is not the first time. A few of the other cases are detailed on my blog:
http://parke.dreamhosters.com/s9y/a/4
http://parke.dreamhosters.com/s9y/a/1
Registrar Crnich’s requests for secrecy have been confirmed by Dave Berman and by the Times-Standard. Many election activists in Humboldt County are very loyal to Registrar Crnich and do not criticize her lack of transparency in these matters, but I am not one of them.
Paul McCarthy said:
From what source did you “gather” this information?
Registrar Crnich saying “What else can they do to me?” would tend to contradict your theory.
I am confident that you would not be surprised, but that is not what happened. It is indeed more surprising to discover that Registrar Crnich is in fact not a “a full disclosure kind of gal”.
Wrong in so many ways.
I do deny your interpretation, but I would welcome written clarification from Registrar Crnich or County Council as to why the letters (a) can be read aloud at a public meeting but (b) cannot be released to the public.
Whether I am denying your interpretation indignantly is a matter of opinion. I will leave it up to readers to decide.
And as for your second implicit assumption (that “someone in County Counsel’s office must have given Bostrom a dumb excuse”), you are also wrong, for I have never spoken to anyone in the County Counsel’s office.
Additionally, Registrar Crnich sent copies of the letter to the Secretary of State’s Office, when they requested copies. Attorney-client privilege was not a problem for her then.
This is the second time Registrar Crnich has read me a letter but refused to give me a copy of it. The first was around noon on December 30, 2008. The letter was from Hart explaining why Hart had unilaterally withdrawn the newer version of their election system (version 6.4) from the Federal certification process. Crnich offered to give me a printed copy of the letter. I made the mistake of requesting an electronic copy instead. As a result, Crnich gave me neither an electronic copy of the letter, nor the paper copy she had offered moments before.
This is one of those exceptional cases where the excuse originated with the client.
Humboldt County is lucky.
COMMENT #2 John Washburn is right. So beware when a client evokes “client-attorney” privilege. It’s a lie, it’s the client’s privilege to say what he wants.
3/29/09
I am a member of the Humboldt County Elections Advisory Committee, and a volunteer with its Election Transparency Project. I attended the meeting during which Carolyn Crnich declined to give Parke Bostrom copies of the letters from Diebold/Premier which she had read to us.
It is my understanding that that the letters are part of an ongoing, difficult, and possibly unresolved, business transaction. On this basis alone I feel that Ms. Crnich’s decision not to release the letters is fully justified. Issues about attorney-client privilege are quite secondary, in my view. I think that Ms. Crnich’s mention of (“privileged”) communication was actually a “shorthand” reference to her earlier statement that the letters shouldn’t be released until reviewed by (the assistant) County Counsel, who was unavailable because he was on vacation.
I fully expect that after she speaks with County Counsel, and if she isn’t advised otherwise, she will release the documents.
The demand or expectation for Ms. Crnich to release letters of this type is tantamount to a demand or expectation that any citizen should be able to go into the office of any elected official at any time and demand to see any or all of that official’s correspondence. Clearly, that would be absurd. We elect our officials to take care of our business in a competent, professional, even-handed, and efficient way. Carolyn Crnich’s performance has been excellent, and groundbreaking, without fail.
— Jim Lamport
P.S. Mr. Bostrom’s statement that Carolyn Crnich “. . . . does not want to give me the letters because she does not want them published. She does not want the public to be able to see and read the letters.” begs the question of why she doesn’t want the public to see them. In my view this question cannot be answered, because once the prudent step of getting attorney approval is done, the letters will be released.
So those damn machines must be returned?
Ok, line ’em all up in straight, parallel lines right in front of the pair of tracks on a bulldozer; run bulldozer straight forward all the way along the lineup of the machines.
Then return the flattened/shattered machines.
Point made.
I’m with Mozart!