BBV - Libertarian Party Files a Lawsuit In Washington State

[JohnGideon]

That challenges the use of federally uncertified software in the Washington State Primary. We are going to court tomorrow morning.

FOR IMMEDIATE RELEASE
Contacts:
Ellen Theisen
[e-mail]

John Gideon
[e-mail]

Libertarian Party Lawsuit Challenges the Use Of "Provisional" Software in Washington
Bremerton, WA. September 28, 2004. In what may be the first of many lawsuits filed in Washington State this election season, the Libertarian Party of Washington State has filed a suit against the Secretary of State claiming that the use of federally uncertified software on the voting machines in six Washington Counties may have hurt their opportunity to get candidates on the ballot in November.

The voting systems in 6 western Washington Counties (King, Pierce, Snohomish, Chelan, Kitsap, and Klickitat) have not been inspected or tested by Federal Independent Testing Authorities as has been required previously by state election law and administrative code. The Secretary of State changed the administrative code to allow this new software to be used with “provisional” certification.

“Only manual audits can confirm that this uninspected software is counting correctly," stated John Gideon, Information Manager for VotersUnite! "Audits would have been a good safeguard for the primary, and they are even more important in November to protect the State from massive lawsuits."

Though the Washington State Elections Office admitted to the State Senate Government Operations and Elections Committee last Tuesday that they allowed this software to be installed for the fall elections, no manual audits were done after the primary election.

Members of the press are invited to visit the website, created by VotersUnite! and Concerned Citizens for Democratic Integrity in King County to inform the public about Washington's current use of election software without Federal certification and advocate for some assurance of the accuracy of November election results. (http://www.electionintegrity.com).

VotersUnite! (http://www.votersunite.org) is a national non-partisan organization dedicated to fair and accurate elections. It focuses on distributing well-researched information to elections officials, elected officials, the media, and the public; as well as providing activists with information they need to work toward transparent elections in their communities.

# # #

[Boredtodeath]

1. THIS is the most important work of this election

It doesn't matter how many new voters we register if their votes aren't counted as cast.

Excellent work, Ellen and John.

[Boredtodeath]

2. Come on, folks

These activists have worked hard on this. Give them some support!

[harmonyguy]

3. Kick

Good luck folks!

HG

[GregD]

4. Go Gettum!

[claudiajean]

5. Where is this being heard tomorrow? Thurston Superior?

Is it a mandamus hearing or a summary judgement hearing tomorrow or something else?

Is the hearing in Thurston County Superior Court? Can interested folks who are local to Olympia attend, or is it closed? What time is it?

Who is the attorney that the Libertarians have retained? (If you can say) - Do they have experience in Washington election litigation?

I'm concerned that this suit may be bumped - the court may rule that a suit against the OSOS isn't appropriate if the cause of action is that the Libs may have been robbed of an opportunity to advance candiates to the general as the elections are administered individually by the counties. The court may find that is the case, and that the suit should have been filed individually against each auditor in each of the six counties.

If the cause of action is a writ of mandamus against the OSOS to pull the emergency "certification" (to use the term very loosely)
then they may just have something there...

[JohnGideon]

6. Libertarian's Press Release

The suit is being heard at Thurston County Superior Court at 9:00AM Wed. 29 Sept. The judge is Judge Strophe. According to our attorney this is open to the public.

Seattle, WA – September 27th, 2004 – Attorney Richard Shepard, on behalf of the Libertarian Party of Washington State, J. Mills and Ruth Bennett, filed suit today against the Secretary of State Sam Reed and the state.

The object of the lawsuit is to have Libertarian candidates placed on the November ballot. The Secretary of State says these candidates did not qualify for the general election under Washington law.

Part of the lawsuit alleges that six counties, including voter rich King, Pierce, and Snohomish Counties, used consolidated ballots; a single printed document containing candidates from all three Major political parties.

In these counties emergency WAC regulations were issued by the Secretary of State allowing the use of specially modified software to count votes. The modified software was only provisionally certified by the Secretary of State. It has yet not met rigorous federal certification standards.

The software will not be unconditionally certified as to accuracy and reliability until sometime in 2005, when the national ITA has reviewed it, and the Libertarian Party alleges it is in possession of documents suggesting the programming will never be tested. Nevertheless, the six counties using consolidated ballots went ahead and tabulated votes using the new software.

Counties that used the consolidated ballot, and the new software, experienced an extremely high percentage of voters who either invalidated their vote, or choose no party candidates.

Spokane County, with about 110,000 voters which had the 4th largest voter turnout did not use the modified software or the consolidated ballot. Spokane County had about 5% of their ballots invalidated or not cast for a Party.

Snohomish County, with about 150,000 votes cast had the 3rd largest voter turnout. It used the consolidated ballot and had over 13% invalid ballots. This trend persisted in all consolidated ballot counties.

Larey McLaren, Chair of the Libertarian Party said: “the large discrepancies between these six counties and those that used separated ballots, calls into question the accuracy of the consolidated ballot and the uncertified software used.”

Other groups have raised issues about the new software. For now, the state plans to use its modified, and uncertified, software in the general election.

[claudiajean]

7. Are you going?

Will you or Ellen be able to give an update of what the outcome was, and what the courtroom arguments were?

The difference in the spoilage due to cross party voting (or voter confusion) from a consolidated ballot to the four seperate ballot methodology is huge, and the problem was well-documented in King County when they used the consolidated ballot in February 2000 for the Presidential Primary that year.

Dean Logan, the Director of records, Elections, and Licensing Services of King County issued a press release on July 2004 that stated that there was "no difference" in the spoilage rate between the two methods (seperate vs. consolidated), and that was the "most important" reason that King County chose to go with the consolidated ballot. Yet, he admitted in an interview just before the Primary with George Howland of Seattle Weekly that the spoilage rate in their focus group testing was eight points higher (88% to 96% correct - 12% vs. 4% spoilage).

So, basically, Dean Logan lied to the public about the spoilage rates early on to ensure that no public outcry would be heard about the consolidated ballots before the ballots were printed in early August and there was nothing that could, as a practical matter, be done about the poor ballot design choice on the part of King County.

Between that and the uncertified software that nearly melted down on election day and night, it was a disaster from one end to the other.

I hope the Libertarians do well tomorrow.

[JohnGideon]

11. Unfortunately, Neither of Us Will Be There

We both have other plans that are impossible to get out of. Our attorney will be there and we will get a report just as soon as the case is heard.

Right now we have pressured our state legislators to pressure the Attorney General's Office to make a decision on whether the county auditors and, in King County, the Elections Director; have the ability to require a robust recount of the votes. The SoS Office told us, in public, that the counties can make that decision. The Prosecuting Attorney in King County said that the law does not allow it. We say the law allows it and we want a large recount to be done in Nov. We are very optomistic that the Attorney General will agree with us.

[Character Assassin]

8. Sure glad some major party thought of this first! Oh, BTW, You're welcome

How strange. We stand on principle, not public opinion, and somehow this might serve the purposes of some other parties.

Glad we could make a conspicuous PR moment for those who might have otherwise purposefully overlooked the opportunity.

Honesty is weariness.

[RedEagle]

9. New Software Was NOT Necessary

Good luck with this. And I'm very happy to see some lawyers begin to step up to the plate in Washington State.

FYI-

The Secretary of State declared an emergency and gave provisional certification to untested, uncertified software because six counties wanted to use it.

"Wanted to use it," not needed to use it.

A consolidated ballot was an option, not a necessity.

Each of those counties could have used the separate ballot, which, given the statistics you have, was definitely the better option.

At one point the SOS said he had no choice, he could not stop the counties from using the consolidated ballot. He said it was in the new law regarding the primary. However, there is nothing in that law that specifies that counties have the ultimate decision in selecting which ballot to use.

Washington State law makes him the head election chief of the state. I think the SOS had the authority if he wanted it.

More than that, if the SOS had the authority to overrule state law to make using the consolidated ballots possible, then he had the same option to overrule state law (if it really existed, see above) and prohibit their use in an election until software could be developed that was legal under state law.

It works both ways and the argument for prohibiting the use of uncertified software is actually stronger.

I do concur that, if possible, bringing suit against each county individually is also in order. Of course, that depends on how many attorneys are willing to take this on. :)


I also note that the 27 pages of emergency WACs contains a lot of the failed legislation the SOS tried to get passed last year. It would make the paper record (after the fact) of paperless DRE's an audit source, does not give the same status to any voter verified paper ballot DRE, and attempts to create the bogus voting systems board, which will only give the opportunity to stack the board and consolidate where vendors have to do their lobbying.

[JohnGideon]

10. It Was Truly The Start of a Symbiotic Relationship

Our attorney is renting an office from the Libertarian's attorney. We all met in a State Senate Hearing Room where we were giving testimony about the way our voting system was being used. They saw that they could use the information that we had gathered, and our arguments, in their suit. If this can get the media to talk about the issue then we have won a little victory.

The fact that this is only the first of what may be many challenges to elections held on that "provisional" software has got to get the attention of people in power. The next argument we make will be that "provisional" has some expectation of being satisfied in the future. The fact is that this software will never be certified. They are going to write more and different software and replace everything, next year. So, can we have a "certified" election when it is counted on "provisional" software; or should that election only be "provisional"?

[RedEagle]

12. Wonder if this software switch it happening other places?

I want to keep this thread kicked anyway, but it would be interesting to know if these software switches are happening, without a lot of fanfare or notification, in other areas of the country?

John and Ellen discovered this in Washington State.

[JohnGideon]

13. kick....

We should have news real soon but until then kick it up

[RedEagle]

14. Not much time right now but want to see how this goes.

Kick!

19. yay! I offer my services as expert witness--

Contact me.

[JohnGideon]

15. The Decision Is In...

There will be Press Releases going out soon but the Libertarians WON!! !!! Partially because of the fact that the software that counted the votes in the 6 counties was federally uncertified.

This is the first in what we are claiming could be many lawsuits in the state. Yesterday we asked the AG for a decision on whether the counties can do audits/recounts. We are pressing for that and this law suit can only help.

Tomorrow we meet with a member of the King County Council and Dean Logan to discuss what their next moves are going to be. Our attorney will be there with us.

[harmonyguy]

16. Yeehaaa - and kick.

Good work John and all others.

With enough people covering enough angles of this whole thing, maybe, just maybe, elections with integrity can return.

HG :toast:

[RedEagle]

17. Congrats guys!

This is hard, hard work.

There is nothing, nothing in state law that I see that would restrict the auditors from doing audits.

The recount laws are only there to insure that in close races (very close- .50% generates a recount by machine and .25% a recount by hand)a recount is done.

This law confirms the principle of audit purposes:

29A.12.150 Recording requirements
(1) No voting device or machine may be used in a county with a population of seventy thousand or more to conduct a primary or general or special election in this state unless it correctly records on a separate ballot the votes cast by each elector for any person and for or against any measure and such separate ballots are available for audit purposes after such a primary or election.
(2) The secretary of state shall not certify under this title any voting device or machine for use in conducting a primary or general or special election in this state unless the device or machine correctly records on a separate ballot the votes cast by each elector for any person and for or against any measure and such separate ballots are available for AUDIT PURPOSES after such a primary or election.


And, if those lawyers want to take on another issue, this law also states that the system must produce a separate ballot. It must be correctly recorded and that means it has to be voter verified to insure correctness.

I think Washington State has also certified touch screens in violation of state law.

This is the law they tried to eliminate 2 sessions ago. Watch for them to try it again.

I believe touch screens without voter verified paper ballots are illegal in this state.

(This law was enacted, I was told, because of lever machines, which did not leave a paper ballot and were not recountable/auditable. Touch screens are nothing more than a high-tech, expensive, lever machine)

[claudiajean]

18. The Washington Sec'y o' State is spinning it thusly...

Washington Secretary of State Sam Reed's media people are spinning it that the basis of the ruling was: The new open partisan primary (used in Washington for the first time this year) made the 1% requirement to advance to the General ballot unconstitutional.

No mention whatsoever of the judge's concern about the uncertified software, or the excessive spoilage rates for the consolidated ballots, as expressed in court!

"It's all a technicality, and we can once again blame that horrible primary that everyone hates, folks! Nothing to see here! Let's just move along!"

And regrettably, the first articles out, including the AP wire story, bought the Sec State's press release hook, line, and sinker, and are reporting it nearly verbatim from the Sec State's press release.

It's just past midnight here, so I'm hoping there are some more balanced stories that come out overnight.

How frustrating!!!


Edited to correct spelling. EEEK. It's late.

[RedEagle]

20. That's the Washington press

Just like as described by Greg Palast in Florida- they called Jeb to see if it was true.

It seems no matter how many times the press is contacted, no matter how much information they are given, whatever comes from the SOS office- or perhaps any other state agency- is what is taken as the truth.

Kicking to see what else happens on this one.

Oh, yes, note how Sam Reed has continually spun the PR and attention to the disappointment over the loss of the blanket primary. Every fault is that, not the fact that he violated state law without just cause and put the primary and November election in jeopardy.

[JohnGideon]

21. An Op-Ed on the Case

http://www.tribnet.com/opinion/story/5616397p-5547879c.html

Change in software made primary inherently unfair
by John Mills

Republicans think Libertarian Jeff Jared cost Slade Gorton his seat in the 2000 U.S. Senate race and accordingly cost the Republicans control of the U.S. Senate.

They don't want a repeat this year, so Sam Reed, our Republican secretary of state, thinks the Libertarians should butt out of the U.S. Senate race this November.

<<snip>>

Even more remarkable, Reed intends to use his beta-version software to tabulate votes in the upcoming general election. When asked by state senators whether he intended to go back to the federally certified programming for the general election, Handy candidly admitted he was not going to do that.
<<snip>>
----------------------------------------------
"Reed" for those who are not familiar with the state is the Washington Secretary of State. "Handy" is Nick Handy our recently named State Elections Director. Nick is a political appointee with NO past elections experience except for running for office as a Port of Olympia Commissioner. He retired from that job and when he did he took out all of his retirement money in a lump sum, nearly breaking the bank for the rest of the commissioners.

[RedEagle]

22. Hey, Reed spent State money on that software

Isn't that a little out of line, since the money went to only six counties?

For a software change that they didn't need?

For new software that put the health, safety, and welfare of the public at risk?

Inappropriate use of funds.