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Ballot Booth Woes

March 5, 2008, 12:00 am
Can New Mexico Run a Successful Election?

With rows and rows of ballot boxes behind her, and optical scan machines to her right, Bernalillo County Clerk Maggie Toulouse-Oliver welcomes the mostly familiar faces in front of her.***image1***

Toulouse-Oliver is here on a recent Wednesday night at the Bernalillo County Complex's voting machine warehouse to discuss a study the county is embarking upon with her former professor Lonna Atkeson, a political science professor at the University of New Mexico.

Atkeson and county officials are performing a random post-election audit of the 2006 election results in Bernalillo County. They hope the study will allow them to better understand the difference between machine-tallied and hand-counted votes-and to assess the accuracy of the election process itself.

"We want to develop a smart protocol," Toulouse-Oliver says, "so we can work to ensure integrity and voter confidence in the system."

It's safe to say voter confidence in New Mexico's elections has been shaken.

Although state officials, including Gov. Bill Richardson, have distanced themselves from the debacle of the Feb. 5 Democratic Party-run presidential caucus, that contest wasn't the first in which New Mexico's voting process fell short.
In 2006, officials announced two weeks after Election Day that incumbent US Rep. Heather Wilson, R-NM, had defeated Patricia Madrid by less than 900 votes in the 1st Congressional District. In 2004, New Mexico officials certified statewide results two weeks after the election in which Bush narrowly beat US Sen. John Kerry, D-Mass. That same year, some voters' ballots were disqualified when polling places in at least five counties and on the Navajo and Laguna reservations ran out of either provisional ballots or the envelopes in which to place them. And in 2000, New Mexico didn't announce Al Gore had defeated Bush by 366 votes until three weeks after Election Day.

Undoubtedly, 2008 promises to be a historic year for New Mexico. In addition to the presidential election, voters will cast ballots for three congressional seats, a US Senate seat and all 112 state legislative positions.

Yet many questions remain about the state of New Mexico's election process-both about the private company that maintains New Mexico's voting machines and databases, as well as the ability of election officials to anticipate glitches and troubleshoot unexpected problems. Concerns about the latter were heightened this week after Gov. Bill Richardson vetoed a bill to shift the financial responsibility for maintaining voting machines from counties to the state. Currently, the Democratic Party is still investigating the voter rolls used for the Feb. 5 contest, and an election summit is planned for next month.
Part of the increased interest is a reflection of how high the stakes are. Atkeson says while there has always been some level of error within the American election system, due to the sheer number of ballots cast in presidential elections, it's a different story when the elections are close. "When you're in New Mexico and the difference between George Bush and John Kerry is about 6,000 votes-then suddenly, you want to know that everything is operating as it should be," she says.

And when election margins are that slim, she says, votes systematically missed or added can change the outcome of an election.

There are efforts across the nation, she says, to boost public confidence through the creation of tighter election processes-via audits, the creation of clear chains of custody and the opening of the process to greater transparency. Those efforts to maintain the credibility of a democratic system of government, Atkeson says, are crucial.

"From my perspective as a small-d democrat-someone who believes in democracy-it seems to me you want a process that enhances voter confidence," she says. "Because if we don't have those conditions in our election, then whatever the government does is fraudulent."  

New Mexico isn't the only state to have election woes.
"In 2000, the elections were a fiasco in the United States," New Mexico's former Secretary of State Rebecca Vigil-Giron says. "Florida-I say the F-word, I hate to say the F-word-really messed up what happened in the selection of the president in 2000."

After that, she says, Congress was intent on looking at how elections needed to be changed nationwide.

As a member of the National Association of Secretaries of State's task force, Vigil-Giron made recommendations that were later adopted into the Help America Vote Act of 2002 (HAVA). That law sent states federal funds to replace their punchcard voting systems (remember those hanging chads?), create statewide voter files and "establish minimum election administration standards" for state and local governments.

Beginning in 2003, Vigil-Giron oversaw the creation and implementation of that plan in New Mexico.

The plan had six main goals, including voter education and training for election officials and poll workers. It also addressed technology by requiring states to create a computerized statewide voter registration file to replace older "direct recording electronic voting systems," such as touch-screen machines, and to provide election machines for non-English speakers and those with disabilities.
At that time, Vigil-Giron says, New Mexico's 33 counties used five different systems. The state's task was to remove the electronic voting machines-which lacked a paper trail-and make sure precincts throughout the state were using a uniform voting

Vigil-Giron, a Democrat who is currently running for the 1st Congressional District seat, recalls meeting with Gov. Bill Richardson in 2005. "I sat down with him and he looked at me [and said], 'How can we make New Mexico an all-paper-ballot state?'" she says. "And I told the governor: 'Give me the money. I can do anything as long as you give me the money.'"

The selection committee charged with selecting a vendor, she says, chose the only company able to provide machines that complied with the state's election code. That company was Election Systems and Software. In 2006, the state paid ES&S more than $18 million for 1,900 M100 paper ballot tabulators and 1,580 AutoMARK voting systems. (Ballots hand-marked by voters are fed into the M100 optical scanners, which then tally the votes. AutoMARK machines are specially designed to allow disabled or non-English speaking voters to cast ballots without assistance, a requirement of HAVA.)

HAVA was a boon for ES&S: According to the company's Web site, after HAVA became law, ES&S contracted with 1,700 jurisdictions in 43 states in the United States-"carrying out the greatest transformation in the way elections are run since the Voting Rights Act of the 1960s."
Indeed, during the November 2006 election, nearly 67 million voters cast their ballots with ES&S machines.

But last fall, California and the City of San Francisco sued the company after investigations revealed ES&S had sold untested and uncertified voting machines. And in December, the Ohio Secretary of State's Office released a report revealing ES&S machines' security failures.

(Federal law requires certification of the voting machine system by the company before it sells its equipment. State law requires individual machines be certified by counties prior to elections.)

In Colorado, the Secretary of State's Testing Board, outside auditors and the Colorado Office of Cyber Security worked together to test the voting machine system ES&S sold to the state. In December, after finding that the machines sold to Colorado-and used in the 2004 and 2006 elections-failed certification, Colorado's Republican Secretary of State Mark Coffman decertified all of the state's ES&S electronic voting systems. ***image9***

Two months later, in mid-February, California Secretary of State Debra Bowen released the results of its technology assessment-a damning document revealing critical security, code and data integrity problems with ES&S's Unity software. The investigations, according to the report, "raise serious concerns about the assurance level of claimed security features of the Unity system."

In fact, according to the nonprofit, between 1998 and June 2006, there were documented failures of ES&S voting machines in jurisdictions within Alabama, Arizona, Arkansas, California, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nebraska, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Washington, Wisconsin, Wyoming and in the country of Venezuela.

ES&S spokeswoman Jill Freidman-Wilson defends the system, noting: "In the case of the M100, the system has been deployed for years across the country, in thousands of elections across the country, [including] millions of ballots. She continues: "Never, never has there been an instance of a security break." She adds that the machine has a proven track record among its users and it is a system that is "accurate, reliable and secure."

New Mexico Secretary of State Mary Herrera isn't worried about the machines or the software, according to her spokesman James Flores, although he also points out that ES&S contracts were signed prior to her administration.

Herrera was repeatedly unavailable for comment, but Flores reiterated her office's confidence in the system.

"I have answered that same question several times, and that is: We are very confident with the system that is in place right now, with ES&S, and we look forward to the primary and general election," he says. "We are very confident that it's going to run smoothly, and we are going to do the best that we can-as we always do."

But some activists say the state is doing a disservice to voters by ignoring the security concerns raised in other states.

Democratic Party activist Gideon Elliot points to the 700 tests performed in Colorado. "This was not small stuff," he says, citing programming errors that could result in votes either miscounted or not counted. "And the question that they raised was that they weren't even sure the [systems] had ever been federally certified."
New Mexico bought the same machines from the same vendor, he says. "We might have even bought equipment that was not federally certified, which would mean ES&S defrauded the state," he adds.

Activists aren't the only ones wondering about the company's contract with New Mexico.

State Rep. Dan Foley, R-Roswell, has repeatedly introduced legislation calling for an investigation of the state's voting machine contracts, which he says have left counties not only footing maintenance bills, but also wondering if their machines will work come Election Day.

Noting that the state and counties have already paid more than $1 million in maintenance fees to ES&S, Foley wants to learn why counties must continue to pay additional costs when their machines malfunction. (County clerks also have pointed out that the company will not train state or county technicians to repair the machines, preferring instead to send their own technicians.)

"We apparently signed this contract that has all this maintenance stuff involved that seems to be like buying a used car," Foley says. "And everything but your problem is covered by the maintenance agreement."
Foley's bill did not make it out of the House Voters and Election Committee. According to Committee Chairman Rep. Jose Campos, D-Santa Rosa, that bill duplicates a system already in place, by which the Attorney General's Office investigates any criminal activity. (A spokesman ***image11***with the state Attorney General's Office would neither confirm nor deny if there are pending investigations involving ES&S.)

However, Campos says he does see major problems with ES&S. This legislative session, Rep. W Ken Martinez, D-Grants, introduced a bill that would pay ES&S another $176,000 for maintenance of the state's campaign records database.

Candidates report donations to their campaigns, as well as their expenditures, to the SOS office. That information, submitted electronically, can then be viewed by the public.

Or not.

"What happens is ES&S's software has been having problems with us being able to download it, and then, when it's entered in, there are problems with the software," Campos says. "The other problem is if you, as a news reporter, wanted to see my campaign donations and how I'm spending my money, they have been having problems also on accessing that information."
The extra appropriations should address that problem, but not right away: "ES&S is fixing some of the problems, but not the whole program," he says, adding that while the software problems won't be resolved by the primary, "they should be ready by the general election."

Campos adds that he has shared his concerns with Herrera, asking her office to be "more frugal and more tenacious on ES&S to properly maintain their own software."

Meanwhile, in Chaves County, County Clerk Rhoda Coakley says three of her 63 voting machines are out of service.

"Two from the general [election] and one recently that malfunctioned," she says. "No one has ever called us back about it. The other two, they picked them up last May, but I haven't heard any word on them."

She's also livid regarding a $64,000 maintenance bill from ES&S. "I'm over 120 days late," she says. "They reduced it to $32,605, which I'm still not going to pay." This bill, she explains, came in addition to the yearly maintenance fee the county is required to pay under the terms of the state's contract. (A House bill that would have shifted the financial burden of voting machine maintenance from counties to the state was vetoed by the governor this week.)

But ES&S doesn't just supply and service the state's voting machines. It also has a hand in its voter registration list.

ES&S has maintained the state's voter registration list since 2000. Now, that voter registration list is on the hot seat as the Democratic Party struggles to explain why the names of so many registered voters were missing during the Feb. 5 caucus. 
Under HAVA, when one's voter eligibility is questionable, the voter is given a "provisional ballot." After all the other ballots have been counted, officials verify provisional ballots. Once the voter's eligibility is verified and the ballot qualified, that vote is added to the tally.

The holdup in announcing the close caucus contest between Barack Obama and Hillary Clinton was due to the 17,276 provisional ballots cast. That number represents approximately 10 percent of the total votes cast.

It took Party officials and volunteers nine days to verify those ballots and, of those 17,276 votes, a total of 8,200-almost half-were registered Democrats.

Democratic Party Chairman Brian Colón confirms to SFR the list originated with the SOS's office, but will not discuss the list further, citing a pending investigation. "We're still evaluating the lists," he says.

But he insists Democrats should not worry their names might be left off lists in the future: Twenty percent of the provisional ballots were cast by voters who were not registered as Democrats, he says.

According to SOS spokesman James Flores, his office sent Democrats a complete list, and he dismisses what he calls "conspiracies" about ES&S having access to the voter list.

County clerks enter voter information into a centralized database that is also accessible by the SOS's office, he says, calling that database the "hub."

ES&S, says Flores, only maintains the system. He adds that the company does not have access to the information, cannot change voter information and does not enter information into the database.

"A good analogy is like a car: The hub of information is a vehicle. ES&S changes the oil and the tires-they maintain it-but they have nothing to do with driving the vehicle," he says.

ES&S spokeswoman Jill Friedman-Wilson concurs, noting: "What ES&S does not do, in any way, is have responsibility for the data in the database."

Under the terms of the original contract-which included $195,000 for the system software and a $29,250 annual maintenance fee, among other costs-ES&S agrees to provide the software, maintain the central system and perform "customization/upgrade/modification/support" services at additional costs.

Not everyone is sold. In 2006, Democratic Party activist Gideon Elliot, at the time a volunteer for the nonprofit NM Vote, tried to obtain a voter file of all registered voters in New Mexico. Elliot told SFR in January that the lists given to him by the SOS's office were incomplete; that is, they did not include voters who were known to be registered.

(Although the original contract for the voter registration system was signed in 2000 by Vigil-Giron, Herrera's office plans to renew the contract, which expired in early January, with a new, no-bid contract.)

Election watchdogs worry that glitches in the database will continue to cause problems in the June primary and November general election. "The Secretary of State needs to reach out now to county clerks, and make sure we've got this database right," Patricia Leahan, director of the Las Vegas Peace and Justice Center, says. "And citizens need to keep asking questions."

According to Colón, there will be a summit in Albuquerque on April 25 during which party officials, elected leaders, constituent groups and the public will learn more about what went wrong with the Feb. 5 caucus and how to improve things for the next one.
"The idea is to look forward to see where we go from here," he says. The party is still finalizing where the summit will be held, but plans to have a Web site up and running by April 1.

While final conclusions about the voter list used in February are pending, it's clear that voters in some counties were far more likely to be handed provisional ballots than voters in others.

The percentage of provisional voters ranged from 0.6 percent in Guadalupe County to 15.3 percent in Eddy County. But in two counties, the percentages were even higher: In McKinley County, 18.3 percent of voters cast provisional ballots, and in Mora County, 52 percent did. In Mora County, in fact, more people voted with provisional ballots than with absentee and regular ballots combined. (Santa Fe County, by the way, came in at 9.7 percent.)

Following reports that Democrats were stripped of their Party affiliations within the county's own database, Mora County Clerk Charlotte Duran says she is currently working with the SOS's office to determine why so many voters in her county had to vote with provisional ballots and cannot discuss the matter further.

San Miguel County Clerk Paul Maez-who also had to vote on a provisional ballot on Feb. 5-is still wondering what happened leading up to the caucus.

He says one prominent member of the community had changed his voter registration four years ago after moving from one side of town to the other. "That was updated in our site, but it was the same old address on the list provided for the caucus," he says.

"We haven't had any good luck in trying to find where these rosters came from," Maez says, "but it seemed to me it was the same list provided four years ago, that it was a four-year-old list."

Replacing controversial electronic voting machines was supposed to help alleviate the fears many voters had concerning the integrity of US elections, following the volatile and divisive 2000 presidential election.

Voting activists remain dissatisfied.

Optical scan machines and paper ballots allow election officials to document the voter's original ballot, according to lawyer John Boyd. But they are not foolproof, he says. Any number of problems-ranging from human error or manipulation to a programming error in optical scan machines-can occur during ballot counts.
One critical piece remains missing, he says: The "genuinely random audits of precincts," in which ballots are hand counted and compared with the machine results from the precincts. Performing random audits in a high number of precincts, he says, will result in a "high degree of confidence that the entire vote is accurate."

The state does have a new 2 percent post-election audit provision: "After an election," writes SOS spokesman Flores in an e-mail, "two percent of the results will be tallied and checked against the machine."

This means 2 percent of the voting systems, including M100 and M650 machines, will be randomly selected for an audit, explains Bernalillo County Deputy Clerk Robert Adams. The details of how the systems will be selected remain undecided, but Adams says the process will be "public and random."

"The audit will consist of hand counting the ballots that were tabulated by machine and comparing the hand count to the machine count," he writes in an e-mail. "If the results of the hand count differ from the machine count by more than 1.5 percent, then a recount of the races in that [legislative] district will ensue." According to New Mexico statute, Adams writes, a recount is defined as a hand count of ballots.

The 2 percent audit provision is one of the main reasons Bernalillo County is conducting its own post-election audit, Adams says, adding that the county intends to make recommendations to the SOS on the procedures it might implement.

As Adams points out, the state also has a recount provision.

Currently, state law allows the SOS's office to order a recount if, during the audit, the machine counts and hand counts differ by more than 1.5 percent. However, that recount provision applies only to the presidential or gubernatorial race. A candidate in any other race must request a recount and post a bond. According to Flores, if the recount doesn't change the race results, the bond covers the expense of the recount; if the recount results in a change of winner, the bond is returned.

A new law signed at the end of February, which takes effect in mid-May, will require recounts when the margin of error between the top two candidates is less than one-half of 1 percent. The new law also will apply to federal, state and local offices-and will not require candidates to pay the deposit.

Following the close race between George W Bush and John Kerry in 2004, the Green and Libertarian candidates for president, David Cobb and Michael Badnarik, requested a recount.

"They thought the results were inaccurate, and somebody had to do it,"

Boyd, who represented Cobb and Badnarik, says. "Somebody had to ask for a recount and obviously the major party candidate-the Democrat-was not going to ask for it."

Activists made a $114,400 deposit and a district judge affirmed their right to a recount. But in mid-December, when the State Canvassing Board, in concurrence with Gov. Richardson, granted the request for a recount, it also declared the candidates had to pony up a $1.4 million deposit.

Despite a notice of appeal preventing the Secretary of State from "opening and clearing" the voting machines, Vigil-Giron authorized counties to clean their machines.

The case made it all the way to the New Mexico Supreme Court and, in May 2006, Justice Patricio Serna opined that the State Canvassing Board lacked the authority to require a full deposit before starting a recount. Serna did not order a recount, however, because even had a recount been possible, its results would not have changed the ultimate result of the presidential election.

As she wraps up the audit meeting in the Bernalillo County warehouse, Toulouse-Oliver says people keep asking her what she'll do if there is a major difference between hand-counted ballots and machine-tallied ones.

"I can't say exactly. That's a bridge we're going to cross when we come to it," she says. "But I can promise we are not going to sweep it under the rug. I can guarantee you that."

Indeed, at the county level, some election officials believe the public has more reason to feel confident about elections than otherwise.

Denise Lamb, Santa Fe County's Bureau of Elections director, poses the following rhetorical question: "Have we-in the nine elections we have conducted in the last three years-has anything happened here that approached what happened in the caucus?" She answers quickly and confidently: "I don't think so."

Nonetheless, Lamb acknowledges the June primary, as well as November's general election, will be "difficult" elections:

"We're going to have an enormous amount of new registrants. We will have a lot of people who will probably think that election administrators are, you know, part of the evil empire, but the people who work in elections pretty much have devoted their life to making elections accessible to people and we do everything we can to make that the case."


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