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home : news : news March 23, 2017

12/16/2016 7:28:00 AM
After the recount, the open-record requests begin
Ohio group probes adequacy of ballot security

Richard Moore
Investigative Reporter


Now that the presidential recount is over, county and municipal clerks are turning their attention to another enormous task related to the elections: fulfilling a spate of open-records requests.

From the presidential candidate who filed for the recount to an out-of-state leftist group, county clerks are facing significant and complex requests for election-related information.

As The Times' Jamie Taylor reported last week, Green Party candidate Jill Stein has filed an open-records request for copies of all ballots cast statewide. Stein, of course, filed the recount petition and initially paid close to $3.5 million for the recount.

On Nov. 30, Harvey Wasserman of the Columbus Institute for Contemporary Journalism in Ohio filed a 64-item request with county and municipal clerks. Wasserman is senior editor of the institute's The Free Press.

In addition, on its website, some of its writers have called for a federal lawsuit to force another recount, this one completely by hand, and hinted they might file such a lawsuit if Stein didn't.

The request issued on the 30th includes a demand for a vast array of information ranging from poll lists to the contents of thumb drives to computer audit logs.

Late last week, the state elections commission advised county and municipal clerks to consult with their governments' respective attorneys and to acknowledge receipt of the request. It also provided clerks with a guidance document.



A win for integrity

Wasserman's request suggests an ongoing suspicion that Wisconsin's machines were somehow hacked and ballots tampered with. However, there has been no evidence of any such election fraud, and this week election officials around the state said the recount actually reinforced and underscored the accuracy of the original canvass.

Indeed, said Wisconsin Elections Commission chairman Mark Thomsen, who certified the official results Monday, the recount might have been a challenge, but the real winners were the voters.

"Based on the recount, they can have confidence that Wisconsin's election results accurately reflect the will of the people, regardless of whether they are counted by hand or by machine," Thomsen said. "The commission thanks all those involved in the recount for their hard work and dedication."

And, while there were discrepancies between the recount and the original canvass, said WEC administrator Michael Haas, those were attributed to human mistakes - both by voters and by local election officials - not to fraud, and the discrepancies were statistically insignificant.

"The biggest reason for these small differences between the unofficial results on Election Night, the counties original canvasses and the recount results is human error," Haas said. "Some voters do not follow the instructions and mark their ballots correctly for the machines to count them. In the tight deadlines to report the results, election officials make math mistakes, we forget things, we accidentally transpose numbers."

That said, Haas continued, the recount represented a remarkable job by Wisconsin's local election officials - county clerks and municipal clerks and their staffs, canvass board members, tabulators - most of whom did not know until the Monday after Thanksgiving that there would likely be a recount.

"Three days later they were starting the recount, and all counties were done with the counting process within 10 days," he said.

Oneida County clerk Mary Bartelt, who has received the Stein and Wasserman requests, said she, too, was very pleased with the recount and that it upheld and underscored the integrity of the state's election system.

"I was very happy," Bartelt said. "Our tabulators were great and the machines were accurate. I can tell you, and our town clerks will say it, too, these may be old machines, and it is time to get some new ones, but, boy, they do tell you and they are right."

Bartelt said every machine was retested before the recount.

"We tested every single one," she said. "We even brought in new test ballots for each of the townships that we were going to run through, and they all tested perfectly."

Most discrepancies, Bartelt said, had to do with write-ins for registered write-in candidates. She also said there were some problems with absentee ballots because of the types of markers used.

"When they vote they use a No. 2 pencil and some clerks are telling them to use black ink because the lead is coming off (the ballot) from the change of the weather, from cold to warm and so forth, and so when we put some of those absentee ballots through the machine they rejected them," she said. "But the intent was there, and you could see they had used pencil."

Bottom line, Bartelt said, they've learned not to use pencil anymore.

"Don't use red ink, either," she said. "Black ink is the best. Make sure you get that arrow attached."



Giving good guidance

Last week, the WEC advised local election officials to contact their corporation counsels or municipal attorneys and to acknowledge the receipt of the request.

Bartelt said she did just that.

"I did respond to him (Wasserman) and I told him exactly what WEC told us and that we'd get back to him after our recount," she said. "I emailed him last Friday and told him I would try to start on his public-records request this week, but I'm still waiting for WEC to give us more guidance."

That guidance was issued later to the clerks, and in it the WEC said it would be contacting Wasserman directly to see if it could more easily provide some of the requested information, such as records contained in the WisVote system, and if he would amend his request as necessary.

The WEC also advised clerks that, while 10 days is considered sufficient to fulfill a simple request, that might not be the case in this situation, given the complexity of the request and individual workloads.

"If you are unable to fully respond for an extended period of time, you may wish to acknowledge the request in writing, outline what matters may delay a response, and provide an estimated date for when a more complete response will be provided," the WEC guidance stated.

In addition, the WEC advised the clerks that they could seek clarification if they thought parts of the request were unclear, and that the records custodians could require pre-payment of any estimated legitimate costs related to the request, i.e., the actual, necessary and direct costs for such things as location costs of more than $50, copying and transcription, document reproduction, and mailing and shipping.

In addition to Wasserman's request, Bartelt and other clerks are dealing with the request from Stein, whom Bartelt said wants all of the ballots imaged and scanned.

"We don't have anything here we can scan it with," she said. "We have a copying machine that does scanning, but the ballots are too big, so we would have to have someone who scans come in here to do it and then somebody from this office or a poll worker would have to sit with that person and watch them do this because those ballots are secure. They're in bags. They are sealed."

For her part, Bartelt said she doesn't like the idea of anyone touching the ballots again because every touch adds to potential degradation.

"So I just don't want my ballots to be touched anymore," she said. "They've been touched too many times."

Fulfilling the requests will be very costly and time-consuming, Bartelt said, and she is not sure of the point.

"He (Wasserman) wants a CD with everything on it so it's compatible with his computer and so it's like, 'What are you going to do with this? I don't understand what you're going to do with it.' There is a lot of stuff he wants."



The stuff he wants

Among the documents Wasserman was seeking were 13 elections forms, including tally sheets, board of canvassers statements, elections complaint forms, supplemental poll lists, and supplemental absentee ballot logs.

That's not all. He requested ballot images recorded on the thumb drives in any and all voting devices, such as optical scanning machines, on (or in connection with) Election Day 2016, including early votes and absentee ballots, as well as a list of any and all persons who have custody or had custody of a key to any lock used to secure election materials.

Wasserman requested removable media used in or in connection with any voting equipment, any and all logs showing the identity of persons who accessed any area where any election material used in the Nov. 8 election was stored, any and all logs showing the time of access and identity of any person who after July 1, 2016, accessed through an electronic access point any area where election material was stored, and a copy of any security plan designating secure areas for the storage of election materials.

What's more, he requested the audit log for any computer on which information from any electronic access point securing an area where election material was stored, and the log of any operating system of any computer on which information from any electronic access point was stored.

If there was video, Wasserman wanted that, too, asking for "any and all video recorded after July 1, 2016, by any camera showing any portion of any door or other access point through which access is or was available to any area where election materials are or were stored," as well as the "log of any and all computers on which was recorded or stored any video recorded after July 1, 2016, of any portion of any door or other access point through which access is (or was) available to any area where election materials are (or were) stored."

Diving even deeper, Wasserman requested spreadsheets or other documents showing by ward how many ballots of each type were delivered along with the date of each delivery, and any spreadsheet or document showing by ward how many ballots of each type remained at the conclusion of voting on Election Day.

He also wanted the originals of all blank or unused ballots, the master image of each style of ballot for each ward, and a mirror image of the hard drive of each computer used to prepare master ballot images.

Wasserman also requested a copy of any document required by law listing or describing any security procedures used in connection with the election, the maintenance logs for each voting machine showing the dates of maintenance of each machine and/or the maintenance performed and/or the hardware added and/or the software added and/or the identity of those performing the maintenance.

In addition, he requested "any document showing since the acquisition date of each machine or computer by the election administration agency the date any software patch was added to any machine or computer used in the election administration process and the name(s) of the person(s) adding the patch and an identification of the software patch by manufacturer and version number."



Who's on Left?

So who is Wasserman and what is the Columbus Institute for Contemporary Journalism?

The institute, according to its website, provides progressive activist news, political analysis, and social issue commentary through freepress.org, CICJ Books, alternative media projects and sponsorship of community events promoting journalism and social justice.

It publishes the Free Press newspaper, Free Press Express broadsheet, the website freepress.org, books, and other educational materials.

And it's decidedly radical, if less militant, as the CICJ self-describes itself.

"The original Columbus Free Press (a sister publication) grew out of the anti-war movement on the campus of Ohio State University in Columbus, Ohio in October 1970," its website states. "Inspired by the activism against the Vietnam War and the senseless killings at Kent State, the underground paper was published for a 25-year tumultuous history (1970-1995)."

Through the years it evolved, it states, from serving as the voice of the students in the early 70s to reporting on social justice issues such as sexism, racism, peace activism, corporate misdeeds, politics and the counterculture.

"The Free Press founders grew older, less militant, got jobs but the paper survived," the website states. "Changing faces on the editorial staff show different politics and policies through the years."

The institute itself was founded in 1986 as the sponsor of the Free Press newspaper.

Among its members is Bib Fitrakis, the institute's executive director and the editor of the Free Press. Fitrakis currently serves as co-chairman of the Ohio Green Party.

He also serves with Jill Stein on the Green Shadow Cabinet, whose purpose it is to "provide an ongoing opposition and alternative voice to the dysfunctional government in Washington D.C."

Though he is a Green Party activist now, Fitrakis was a founding member of the Michigan Democratic Socialists Caucus, a founding member of the Democratic Socialists of America, and the Democratic Socialists of Central Ohio, his Free Press biography states. He served on the National Political Committee of DSA in 1994-95.

Fitrakis has been an election protection activist since March 1994.

Wasserman is the Free Press senior editor and also an advisor to Greenpeace USA and the Nuclear Information & Resource Service, his Free Press biography states. Both he and Fitrakis have long believed American elections are rigged and stolen by the GOP. They co-authored the book, "How the GOP Stole America's 2004 Election and is Rigging 2008."

The Columbus Institute for Contemporary Journalism is no stranger to making open records in Wisconsin seeking election data. Writing on the Free Press website in August 2012, Fitrakis said the institute made a comprehensive request to virtually every county and municipal election official in the state on July 3, 2012, about a month after the June 5 recall of Gov. Scott Walker.

"As outlined in a previous Free Press article, our staff was concerned with the election results deviating so far from the exit polls that predicted an evenly divided vote - or too close to call," Fitrakis wrote. "Walker won with a 7 percent discrepancy from the polls."

Wasserman apparently wanted at the time to appear personally in Wisconsin but complained that elections officials were making requirements that made it virtually impossible for them to inspect the ballots.

He said the Waukesha county clerk labeled the request "overly burdensome" and told the institute she had a "no-touch requirement," that is, instead of allowing citizens to count ballots in the presence of election workers, she said she would copy the 213,332 ballots at 25 cents a page, at a cost of $53,000. And if an inspection team showed up, Wasserman wrote, they would only be allowed to count ballots for two hours a day.

"So that's what's wrong with Wisconsin," Fitrakis wrote. "It has been corrupted by the lure of non-transparent, unverifiable, faith-based voting and their election officials have decided to be keepers of the secrets because they don't believe that citizens in a democracy have a right to touch and see and count their own votes."



Federal lawsuit?

Apparently the institute still feels that way.

In addition to making the open-records request, the Free Press published an article on Saturday, Dec. 10, entitled, "How to save the Wisconsin recount," by Chris Sautter and Jake Schlachter.

"The Wisconsin recount is headed for disaster, but there's still a chance to save it," the authors wrote. "We need a federal lawsuit requiring a hand recount of all paper ballots."

In the article, the writers delve into the deficiencies of "electronic voting machines and their susceptibility to tampering, fraud, and computer hacking."

"The optical scanning computers used in Wisconsin and other states, especially the infamous ES&S DS-200, too often fail to count votes where voter intent could be discerned by hand," they wrote. "These are officially called 'undervotes' or 'overvotes,' but in many instances could be called 'not counted votes.' A lightly marked ballot filled out by an elderly or handicapped person, a checkmark instead of a filled-in oval, or even a ballot cast using the wrong pen color can be missed or 'no votes' in a machine count but real, legal votes in a hand count."

The disparity between machine counting and hand counting is why the Stein and Clinton campaigns petitioned for a judicial order that would require all counties to recount paper ballots by hand, they wrote. That court petition was denied.

Still, the authors acknowledged, 47 of Wisconsin's 72 counties chose to hand count. But that means, they contend, that the machine-counted votes in the 25 counties are counted less than the hand-counted votes in the other 47.

"This violates the Equal Protection Clause and was the central holding in Bush v. Gore, that similar ballots must be counted in the same way," they wrote. "Since hand counts are being used in many of Wisconsin's rural and predominantly white counties and machines are being used in many counties with large minority populations like Milwaukee and Racine, the failure to use a hand recount in all counties creates uneven results and racial disparities in how votes are counted."

That alone is reason for a federal lawsuit, they contended. The authors urged Stein to file the federal lawsuit.

But if she doesn't?

"The Jill Stein campaign - or failing that, We The People - must file a federal lawsuit immediately to force all Wisconsin counties to count by hand," they wrote. "Failure to do so could cost Americans the recount we need to ensure that every vote is counted fairly."

Richard Moore is the author of The New Bossism of the American Left and can be reached at www.rmmoore1.com.





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