Nov 09: Audit Organization and Chain Of Custody

A. Procedures Unenforceable, Current Laws Insufficient

As we have noted in previous reports, discussions with representatives of the Secretary of the State’s Office and the State Elections Enforcement Commission (SEEC) indicate that many, if not all, of the post-election audit procedures, including those covering chain-of-custody, are unenforceable.  There is no incentive for following the procedures and no penalty for disregarding them.

We note that the adherence to prescribed chain-of-custody and ballot security procedures varies widely among audited districts. Laws that govern the sealing of ballots, memory cards, and tabulators after an election are unclear. Ballots are not uniformly maintained in secure facilities and access to these storage facilities is not reliably logged or recorded, even though two individuals are required to be present when these facilities are accessed.  In many towns, each registrar could have individual, unsupervised access to the sealed ballots, and in many towns, several other individuals have such access.  The lack of uniform security of the ballots diminishes confidence in the integrity of the ballots which are the basis for the data reported in an audit.

We emphasize that this report does not question any individual’s integrity.  However, a safe, credible system of security procedures should not enable a single individual to have any extended opportunity to access records unobserved.

B. Procedures Are Not Being Followed, Understood

The Secretary of the State’s Office continues to publish incrementally improved audit procedures for each election, often basing those improvements on suggestions from Coalition members.  However, they are frequently not followed, are not enforced, and, as noted previously, may not be enforceable. Additionally, the procedures still lack detailed guidance in efficient methods of counting that provide accurate and observable results. See Section C below.

Our observations indicate that some towns do a good job of using the procedures in the audit, following each step in order, and enhancing them with effective detailed counting methods.  However, in other towns, there is no evidence that election officials are referencing or following the procedures.   Some who attempt to follow the steps do not seem to understand them and appear to be reading the procedures for the first time at the start of the session.

Problems uncovered in this observation include: public notice requirements, incorrectly completed forms, insufficient number of races and candidates audited, chain-of-custody problems, transparency, and actions contrary to procedures and the law.

Notification to Selected Towns and to the Public

We recognize an improvement in notification of towns by the Secretary of the State’s Office. In past audits, some towns reported they had not been officially notified of their selection for audit for several days after the district random selection.  We note no instances of that happening in this audit.

Procedures require that municipalities provide the Secretary of the State’s Office with three business days’ notice of the schedule.  We note continuing improvement in this area, yet there is still room for improvement:

• Most towns selected for the audit set their date several days in advance.  By early in the audit period we had all the audit dates.  This is a significant improvement.
• Obtaining dates for all the towns still takes a significant amount of work, especially in contacting small towns with limited office hours for the Registrar of Voters Office.  We call all towns daily, starting two days after the drawing, until we have an audit date.
• One town accomplished its audit counting –unsealing and counting their ballots before the audit’s legal starting date.  When the Coalition called on the day before the official starting date to ascertain audit plans, this town reported that they had already started their audit.

Incorrectly Completed Forms and Incomplete Audit Counting

Reviewing the sixty (60) district reports submitted by the municipalities to the Secretary of the State, we note that fourteen (14) reporting forms were not accurately completed – indicating that the required counting was likely not completed.  Without complete information, it is difficult to create comprehensive statistics or to depend on the audits as a vehicle for assessing the voting machines’ accuracy and correct programming.    Some of these reports show that it was not only the reporting that was incomplete, but that the audits themselves were flawed:

• One (1) town counted only two of the minimum of three races required.
• One (1) town counted only one of the minimum of three races required.
• One (1) town counted three races, but only one candidate in each race.
• One (1) town counted three races, but only one candidate in only one of the races
• One (1) town did not count nine ballots with write-in ballots according to their audit report.
• One (1) town did not provide overall ballot count totals counted as part of the audit, as required. We noted (5) arithmetic or transcription errors in totaling hand counts for individual races.
• Two (2) towns counted more races and contests than the minimum three and minimum 20%, indicating misunderstanding of the requirements and procedures.

Multiple Chain of Custody Concerns

In several observations, observers expressed concerns with the chain of custody in the following ways:

• One (1) town did not seal their ballots at all.
• Two (2) observations noted that ballots were delivered to the audits in cardboard boxes with numbered tamper evident seals.  In one case, the interview indicated that the ballots were not sealed in a container after the election but instead held in the universally keyed ballot box .
• One (1) observation noted that ballots were delivered in unsealed bags.  The interview indicated that they were held in a room with the door, sealed with a tamper evident seal, that had been unsealed and re-sealed three times since the election.
• One (1) unsealing of the ballots was conducted without access to the moderator’s report, so that the seal number could not be verified as the same seal applied on Election Night.
• Two (2) observations noted that, while regular ballots were sealed, other ballots such as write-ins, hand counted, or absentee ballots were not held in sealed containers.
• One (1) observation report noted that, in an audit continued to the following day, the registrars had misplaced the record of seal numbers used to reseal the ballots on the first day.
• Overall, in eleven (11) municipalities, observers expressed overall concerns with the chain of custody.

Some observer and registrar interview comments:

One ballot bag was sealed intact and two were already opened; they had to break seals on those two bags to get them out of storage area

No [numbered] seals used. Ballots in cardboard box secured by “Security Tape” (Red, White, and Blue seal tape)

Where were the ballots stored after the election? – Election box from election day.  How is the ballot storage area secured? – Basement area.  Who has access to the ballot storage area and keys to the storage area? – Registrars and Janitors.

The seal was looped through the zipper pull and the plastic luggage tag that identified the contents of the bag but not through the second zipper pull making the seal unsecure.

Transparency

The Secretary of the State’s Audit Procedures state that observers should be allowed to view every aspect of the proceedings. Once again, we point out that the random selection of races is performed in a separate event from the audit and, unlike the counting session, the race drawing is not required by law to be public. However, a public drawing requirement appears in the Secretary of the State’s Post-Election Audit Procedures.

We appreciated that several towns held their race selection publicly at the beginning of the audit.

All aspects of the audit and as much as possible of the entire selection process should be transparent, open to the public, and publicized in advance in an easily accessed announcement.  The audit procedures distributed by the Secretary of the State recommend these practices. Audit credibility would be enhanced if the race selection were part of the Secretary of the State’s random selection of districts or was required to be announced and held publicly in each selected municipality.

In late January, after the November 2008 audit, there were post-audit investigations conducted by the Secretary of the State’s Office, recounting ballots in several towns where large discrepancies were reported or reports were incomplete.  Those investigations were not announced publicly and not open to public observation.  The transparency and confidence in the official state audit report would be enhanced if such investigations were announced and open to the public.

Observers at the Secretary of the State’s random selection of districts to be audited are given a list of districts in the election as well as those  districts exempt from the drawing because of recanvasses. This allows Coalition volunteers to make sure the selection includes all eligible districts.  However, there is no public way for observers to compare the list to an officially published list of actual voting districts.  In fact, the list used for the November drawing was not complete. Observations indicate that the list was incorrect in at least one instance and a non-random, non-transparent selection was made:

The registrar said they had a question about whether they should audit both precincts in the location that was selected or just one and were told by [a lawyer in the Secretary of the State’s Office]  that they could pick just one.  She said that he also told them they had to audit all races.

Observers reported instances of issues with transparency in the counting sessions, especially with the totaling and audit report form completion, for instance:

A grand total of the ballot count was not tallied and since the tally sheets were sealed in the bag at the end of the audit without recording the total on the Audit Report a final count of ballots was not available at the audit…Since the audit report was not filled out during the audit I have no confidence in the numbers that the ROV [Registrar of Voters] is going to report to the SOTS[Secretary of the State], especially if they turn out not to agree with the numbers I recorded during the first count. There was no transparency in the recount tallying since no final total was ever arrived at in public.

C. Guidance, Training, and Attention to Counting Procedures Inadequate, Inconsistently Followed

Audit Organization and Counting Procedures:

Observers expressed concerns that many of the audits were not well organized. Out of 42 audits observed , the observers noted the following:

• In fourteen (14) audits, observers had concerns that the auditing was not well organized.
• In five (5) audits, observers had concerns with the integrity of the counting and totaling process.
• In eighteen (18) audits, observers had concerns that the manual count was inaccurate.
• In six (6) audits, observers had concerns that the results on the reporting forms were inaccurate.
• In thirteen (13) audits with counts that did not originally match, the votes or ballots were not recounted a second time.
• In thirteen (13) towns, the supervisor attributed discrepancies in ballot counts to “human error” on the official audit report forms.
• Several observations noted effective counting procedures in counting stacks of ballots and hash marking votes in stacks of ballots, but that the totaling process was disorganized, often confused, and caused potential inaccuracy.

Need for Dual Verification

Observers noted that audit counting procedures requiring “two eyes”, i.e., dual verification of counts, were frequently ignored. When a large number of ballots are counted by a single individual, miscounts can require tiring recounts and unnecessary investigation. When single individuals count hundreds of ballots or votes, errors are almost inevitable.

• When using the hash mark counting method, in seventeen (17) observations a second official did not verify that votes were read accurately by the first official, nor that hash marks were recorded accurately.
• When counting ballots, in eleven (11) observations a second official did not verify ballot counts.

Blind Counting

Blind counting is a method of counting without pre-conceived knowledge of the expected outcome.  When counting teams know the tabulator totals or know the differences between their counts and the machine totals, there is a natural human tendency to make the hand count match the machine count.  This risks taking shortcuts and seeking cursory explanations for discrepancies which, in turn, lowers the credibility of the process and undermines confidence in the audit results.

• In fifteen (15) observations, counters were aware of ballot or race counts from the election while they were counting.
• In eleven (11) observations, when counts were off, counters were informed of the level of difference while they were recounting.

When election officials know the election totals or the differences between manual and machine counts, there is a tendency to accept any explanation or any new count that reduces the difference without an additional verification.

Some observers’ comments[:

No one knew what to do, including the supervisor. There were not “two eyes” involved in counting the ballots or the votes.

It didn’t appear that the supervisor was familiar with the SOTS audit procedures – counting all races [rather than three], not totaling the ballots, not separating out the questionable ballots at the beginning.  She did not seem to take the process seriously, referring to hashing as chicken legs, joking about how she couldn’t let the counters know how far off they were on the first count because we[observers] were there (though she later did tell them).

They were going to count the question until I pointed out that it was unnecessary…they had a lot of trouble adding things up as they had no formal forms so they kept confusing which number was which.

Counters were in one room, registrars in another, registrars spent perhaps 10 min total time in room with counters. One team spacey and seeming disorganized, two teams doing well.

One worker I felt was disinterested in that he would leave the room for 15 to 20 minutes in the middle of counting then return and play with his piles of ballots, draw on his recording pad and get up and leave again. The other workers finally take his ballots and count them. This went on throughout the whole counting process. There needed to be more overall supervision over the ballot counting, stacking, and recording. This town has done election audits before and the head registrar said he felt the individual counting worked better than teams.”

Confusion in Definitions of Ballots with Questionable Votes

There continues to be confusion in the definitions of “ballots with questionable votes” (marks that the machine may have misread) and those ballots should be considered “undisputed”:

• On the official reporting form, some towns fail to classify any ballots as having any questionable votes.   Other towns classify many ballots as questionable, when clearly the machine counted the vast majority of those votes.
• There is often confusion between differences in voters’ intent that would not be recognized by the scanner and marks that may or may not have been read by machine.
• Observers report a wide variety of interpretations, counting methods, and classification methods.  In some towns counting ballots with questionable votes are left to individual teams; in others they are counted by the supervisors; often the frustration and uncertainty of questionable ballot counting leads to much confusion in the totaling of votes.

There is a need for further examples of questionable votes, clarification of ambiguities, and instructions on how to classify and count questionable votes in the procedures.

Counting Write-In Votes and Cross-Endorsed Candidates

Last year we noted a high degree of confusion and lack of training of counters in counting cross-endorsed candidates.  This year we can report great improvement in this area.  This year we note no less accuracy in counting cross-endorsed candidate votes than those for other candidates.

Write-in ballots and votes caused confusion in several municipalities. Officials seem to lack an understanding of how write-in votes are counted by the scanner and how they should be counted by hand in the audit.

• Like ballots with questionable votes, the handling of ballots with write-in votes varied from town to town. Sometimes supervisors counted the write-in votes, sometimes one team performed this count.  In still other cases, each counting team counted the write-ins they encountered them, often in significantly different ways.
• Since write-in ballots are required to be sealed in separate envelopes in the ballot container and held separately, they can be easily overlooked at the initial count of ballots, or may be treated as completely hand counted ballots and not counted at all.

Some observers’ notes:

On Site Supervisors did not instruct the counters on how to identify questionable ballots and what to do with them until late in the process, after all votes in specific races had been counted. The ballots were redistributed so that questionable ballots might be identified. The On Site Supervisors then appeared to use the questionable ballots to adjust the race totals.

No effort was made to count the number of ballots with write in votes, despite the fact that this was reported as explaining the discrepancy between total ballot counts and the machine tape total… It was theorized that the optical scanner may have initially rejected and later accepted ballots with write-ins. It was further theorized that these ballots may have been counted. This theory was offered by the Secretary of the State’s office according to the registrar, who left the room in order to call SOTS soon after the counting began.

There was a mismatch between hand count of ballots and machine count of 15 ballots. There were three counts of the ballots and different teams were involved in recounting. The discrepancy was explained as being due to a machine error based on registrar’s conversation with SOTS Office . SOTS Office was reported as stating that the machine is likely to have double counted ballots. No effort was made to identify and count ballots with write-ins.  All of the races involved mismatch of counts. This made the registrars focus on the questionable ballots. It was observed that the registrars attempted to use the hand count minus questionable ballots in order to match the machine tally. The registrars had the machine tallies for each candidate in front of them as they made decisions on questionable ballots.