Nov 11 Excerpt: Audit Integrity, Organization, and Chain Of Custody

A. Integrity of the Random District Drawing

A new concern uncovered last year is the inaccurate list of districts used in the random selection process which is required by law to be based on all of the districts in use for the election or primary. This directly impacts the integrity and credibility of the entire post-election audit.

In the 2011 legislative session the General Assembly passed a law, at the Secretary of the State’s request, to address this issue. The law required that all towns submit a list of districts in the election to the Secretary of the State, such that the Secretary of the State’s Office could use that list to create the list of polling places in the drawing. For whatever reason, that system is not working, or is not being used, to provide an accurate list for the random selection.

In this observation:

In discussions with registrars in Weston and Essex we found that both  towns had only one polling place used for this election, yet two polling places from each town were included in the drawing.

In our November 2009 Report:

We noted that the public has no reliable mechanism for checking the accuracy of the districts used in the random selection process. Checking with the Secretary of the State’s Office indicated that they do not have a list of districts that is guaranteed to be up to date.

In our August 2010 Report:

We noted that our concerns were realized in this [August 2010] audit when non-existent and ambiguously identified districts were chosen to be audited. The selection process also may not have included some districts used in the election.

In our November 2010 Report

..an advocate, without extensive investigation, quickly discovered a district missing from the list of districts in the random drawing…Bridgeport had twenty- 25 districts in the election and only 24 were included in the list of those in the drawing supplied to us by the Secretary of the State’s Office.

When districts move or are identified in various ways – with and without district numbers, with and without polling place location, with many towns not posting districts on the web – it can be challenging or almost  impossible for citizens to verify that the list of polling places for the drawing is accurate or that the selected district is actually the one audited.

After the fact, it is possible to discover non-existent districts that were selected when towns are not able to count such districts, but it would be quite challenging to identify districts not included in the selection list from the 169 towns. In either case, there is no current, established legal or procedural means to restore the integrity of an audit based on a discovered inaccuracy.

An accurate, verifiable list of districts for selection is critical to the integrity of the audit. Missing or incorrectly specified districts can be the result of error or deliberate action on the part of election officials. If all discovered inaccuracies in the list are dismissed as errors, then the opportunity is opened for cover-ups, for fraud or for steering the audit away from particular districts.

B. Procedures Unenforceable, Current Laws Insufficient

We noted in previous reports, discussions with representatives of the Secretary of the State’s Office and the State Elections Enforcement Commission (SEEC) indicated that many, if not all, of the post-election audit procedures, including those covering chain-of-custody, are unenforceable. Early in 2011 the  Executive Director of the SEEC stated that he believed that such procedures are enforceable. However, at least one member of the General Assembly disagreed – without a court test of an enforcement action, enforceability remains in doubt. 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 for extended periods undetected, 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 audits.

We emphasize that this report does not question any individual’s integrity. However, a secure, credible chain-of-custody procedures would preclude the opportunity for a single individual to have any extended access to ballots unobserved.

C. Procedures Are Not Being Followed, Understood

Problems uncovered in this observation include: notification issues, incorrectly completed forms, chain-of-custody concerns, transparency, and actions contrary to procedures and the law.

In past years, the Secretary of the State’s Office published incrementally improved audit procedures for each election, often basing those improvements on suggestions from Coalition members. We noticed no improvements in 2011.,The procedures are still 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 D 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 local audit.

C.1 Notification To Selected Towns And To The Public

Unfortunately, the only requirement in the law is that towns notify the public in advance, with no deadline or notice requirement. For example, a single notice on the door of the Registrars’ Office, posted fifteen minutes prior to the counting session would meet the requirements of the law. The Secretary of the State’s procedures do require three business days advance notice notification to the Secretary’s Office.

In past observations we have noted improvements by election officials in providing advance notice of the audit schedule, informing the Secretary of the State’s Office of that schedule, and, in turn, improvements in that office informing the Coalition.

For this audit, we recognize that the Secretary of the State’s Office held the random drawing well in advance of the audit start, providing adequate time for towns to plan and schedule audits in advance. Most towns were aggressive in quickly setting dates for counting sessions and providing that information to the Coalition well in advance of the audits.

However, it remained difficult to obtain all dates in advance[1]. Although towns are required to notify the Secretary of the State’s Office and provide public notification three days in advance, the Office was only able to inform us of one audit prior to our contacting towns to ask for the dates. In two instances, towns did not give the required three day notice and made it impossible for the Coalition to observe those audits.

• One town insisted, prior to the holiday weekend that they would not schedule the date of the audit until after the drawing on the 28^th. When we called on  morning of the 29^th they said the audit was underway – making it impossible that they could have scheduled it and given the three days notice to the public required by procedures
• Another town said they would set the date late on the Wednesday before Thanksgiving, but when we called on the Monday after they said they held the counting session on Saturday – which could have provided only one business day notice. They said they could not notify the Secretary of the State’s Office because the Secretary’s Office was closed.

Another challenge is that there is no way for the public to be made aware of towns which are selected for audit, later exempted, and then an alternate selected. This happened several times during this audit. Typically, after several tries on several days we were able to contact local officials for audit dates, only to find that they were exempt and replaced by an alternate. We then needed to contact the Secretary of the State’s Office to determine the alternate substitute – sometimes counting sessions are completed by the time we are able to determine and contact the alternate municipality.

C.2 Four Official Audit Reports Not Available, To Date

We appreciate the assistance of the Secretary of the State’s Office in providing us with copies of the official municipal audit reports. The process improved, from our view, this year with the reports scanned and emailed to us promptly, rather than paper copies. Unfortunately, as of this date, four official reports from three municipalities have not been sent to us (or apparently received by the Secretary’s Office). In each of those cases, observers obtained unofficial reports which have been used in our calculations.

C.3 Missing, Incorrectly Completed Forms and Incomplete Audit Counting

Reviewing the 69 official district reports submitted to the Secretary of the State, we note that:

• 14 reporting forms were not accurately completed, making it difficult . to create comprehensive statistics or to depend on the audits as a vehicle for assessing the voting machines’ accuracy and correct programming.
• 10 forms did not have all columns filled on the reports or columns not correctly filled in e.g. they supplied tape counts and undisputed counts but no total count.
• 3 forms contained math errors.
• 1 for did not have ballot counts – they filled the form in with total vote counts by hand and scanner instead
• 1 did not provide counts for one candidate in  an audited race
• 5  towns demonstrated a lack of understanding of questionable votes

1 town  indicated in comments that differences were explained by questionable ballots, but even including all reported questionable ballots differences remained of 4, 8, and 40 votes

• 3 towns indicated in comments that they had questionable votes, but did not report them all on the forms
• 1 town indicated in comments that differences were explained by questionable votes but undisputed count was higher than tape count.
• Several towns did not fill in the column for questionable votes. In those cases, we assumed they found none.
• Several towns did not fill in the undisputed or the total hand count columns. In those cases we assumed the missing column from the others.
• 1 town with 2 districts audited two races and two questions where the law requires auditing of three races
• 1 town with 8 districts audited one race where the law requires auditing three races
• 1 town explained vote differences because write-in ballots were not counted in the audit, however, the ballot counts matched for the hand and tape counts.
• 1 town said that counters counted “undisputed ballots that the scanner did not read”
• 1 town the count varied because of “possible machine misread – acceptable level”
• 3 towns indicated the reported differences were of an “acceptable level for human counting” etc. Where no such standard has been established.
• 14 towns explained differences by either “Hand count errors,” “Human errors” or similar vague language.

We recommend that the two towns claiming possible machine errors should be taken seriously and be cause for a technical investigation.

Incomplete data should be taken seriously. The state should not accept incomplete forms and insist that they be filled out correctly and, where necessary, counting be completed  or redone. Every inadvertent error in following the law is an opportunity for an election error or malfeasance to remain undetected.

Officials should be expected to count accurately. An official level of acceptable differences should be defined in law. It should be unacceptable to have reports indicating acceptable levels of differences when none have been established.

Selected quotes from official audit report forms and [our commentary in brackets][2]:

“Differences are explained by questionable ballots” [There remain differences of 4, 8, and 40, even considering those questionable ballots.]

“Due to human error on the part of the Moderator at the polls, the ballots containing write-in votes were placed into and incorrect envelope, thus these votes were not counted during the audit.” [But the audit hand ballot count matches the tape count from election night!]

“It appears that perhaps 1 ballot was not read by the machine as the ovals were too light.” [It also appears that they did not count it as questionable]

“2 ballots marked outside oval. 5 ballots where ovals not completely filled in.” [This may explain questionables, but not machine count difference, since the undisputed count is higher than tape totals.]

“RE: Undisputed – count varied by 1,2,3,or 4 votes due to possible machine misread – level acceptable” [What is acceptable level? Not defined as far as we know.]

“Three separate teams counted the ballots and their numbers are added up. Total appears to be within expectation for human error.” [But what is that expectation? Is the reported error of 7 votes (1.4%) acceptable?]

“Human Error – ‘We are not machines’”

Images of the actual official Audit Reports supplied from the Secretary of the State’s Office along with our complied data a reports can be viewed at: http://www.CTEectionAudit.org/ResultsDisplay.aspx

C.4 Multiple Chain-of-Custody Concerns

In several observations[3], observers expressed concerns with the chain-of-custody in the several ways. In 5 municipalities observers expressed general concerns with the chain-of-custody. This is about the same percentage (17%) as the two most recent observations with 14% and 18% concerns.

A larger concern is that, in many towns, single individuals may access the ballots undetected for extended periods of time. In 41% of towns surveyed in this audit, a single individual can access the ballot storage. In other towns, even though policies require more than one person to access ballots, there are little protections to prevent a single person from accessing the ballot storage.

Selected observer comments and their record of official responses to survey questions[4]:

The ballots are stored as are most town records in file cabinets with a single file cabinet style lock within a single large open room. Despite a very attractive “logging” book they sign together when opening the file cabinet, there is no barrier to a single person opening the cabinet alone

Only one individual returned ballots.

Nothing to prevent just one Registrar opening it – each has a key locked in his desk. Their office is kept locked.

The 2 registrars; there is one shared key, policy and tradition dictate that they access ballots together.

C.5 Transparency

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.

Overall, of 29 counting sessions observed, only 2 observations noted concerns with transparency.

In one municipality, our observer noted:

The two registrars resolved the discrepancies by themselves and not as a result of recounting by the counters. As we observed, it was not apparent to us how the two registrars resolved the ballots and races discrepancies after the counters had left. They were in a huddle and were unable to discern what they were doing and how they came up with their explanation of differences. Until the counters left, all procedures were totaling transparent and easily observable.

In late January, after the November 2008 audit, and again after the November 2009 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.

Difficulties in discovering the dates, times, locations of audit counting sessions and alternate substitutions present obstacles to observing all of the counting sessions.

Selection of races to be audited are not legally required to be announced or made public. Although many are, transparency and integrity would be enhanced if they were legally required to be public and to be made the first event of the counting session, rather than a separate event.

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

D.1 Audit Organization and Counting Procedures:

Observers expressed concerns that many of the audits were not well organized. Observers noted the following problems, several of which occurred within the same audit:

• In 8 audits, observers had concerns that the auditing was not well organized.
• In 6 audits, observers had concerns with the integrity of the counting and totaling process.
• In 9 audits, observers had concerns that the manual count was inaccurate.
• In 2 audits, observers had concerns that the results on the reporting forms were inaccurate.
• In 5 audits with counts that did not originally match, the votes or ballots were not recounted a second time.

D.2 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 16 observations a second official did not verify that votes were read accurately by the first official or that hash marks were recorded accurately.
• When counting ballots, in 6 observations a second official did not verify ballot counts.

D.3 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 15 observations, counters were aware of ballot or race counts from the election while they were counting.
• In 16 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:

Read the Procedures at beginning of audit but left it up to individual counting teams to devise their own methods of keeping batches, counting, recording.

It was obvious that the teams were well prepared. There were no questions in the course of the count, none of the confusion I had seen in other locations.

Went over procedure in general but did not specify method or role of individual workers

The registrars told the counters that it was all up to them. On registrar was not involved because “her husband was on the ballot”.  As the audit progressed and counts did not match, at various times, various members of the team read parts of the procedures and made attempts to influence the procedures the team was using.

There were times when piles were swapped for counting by another person, or a 2nd person helped another recount third or fourth time, but it was predominantly fast inaccurate counting repeated until desired result or acceptably close in their mind.

Ballot counting – no one aware initially, but when it was off they knew by how much when they recounted. Race counting-did not go through ballots again.

After the initial counting of the ballots, counters were told how many ballots they were off and that they needed to recount.  They kept recounting until their count matched the machine number.

Moderator always told counters how many votes were needed plus or minus to make the manual count match the machine count for each race  and candidate that didn’t initially match – this would happen even after several counts of the same race for the same candidate – occasionally when a match finally occurred, the counting was stopped for the remainder of the race for that candidate

D.4 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 that 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.

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

Some observers’ notes:

All ballots were checked during counting of ballots for bad or questionablke marks and none were found for the races being audited, though there were a few noticed in other races. Well handled.

A bit disorganized here as each team kept its own group of questionables and had to find place for them on tally sheets.

The unquestionable votes on questionable ballots were not considered until the vote totals were compared to the tabulator result and didn’t match. Then those votes were used to adjust the total. the remaining questionable votes were then listed as questionable on the SOTS report.

D.5 Counting Write-In Votes and Cross-Endorsed Candidates

Three years ago we noted a high degree of confusion and lack of training of counters in counting cross-endorsed candidates. This year, as last 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.

Ballots with write-in votes caused confusion in past audits. Some 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. In this audit we noted only one town attributing counting differences to write-in ballots and debate among officials on how write-ins are counted on election day.

From the observer:

They spent lots of time debating if machine had read votes on write-in races, one registrar assumed that the machine read every vote in race except write-in or would automatically count write-in bubble for the one registered write-in candidate.