Legal Errors and Distortions of Law from ROV’s Letter Dated March 27, 2023
I am an attorney working with the Lex Rex Institute, a nonprofit organization dedicated to government accountability and operation within Constitutional limitations. Shortly before a March 28 meeting of the Shasta County Board of Supervisors (the “Board”), the Board was presented with a memorandum from Cathy Darling Allen, County Clerk/Registrar of Voters (the “ROV”) putting forward various arguments against adopting a manual ballot counting system for elections in Shasta County (the “Memorandum”). At numerous points, the Memorandum offered misleading or otherwise dubious interpretations of the California Elections Code (the “Code”) and relied on several doubtful lines of argumentation. While the general tenor of the Memorandum was clearly intended to discourage paper balloting and manual counting, it contained remarkably few legal representations. During the March 28, 2023 meeting of the Board, I publicly commented on several of these legal representations, and I intend this letter to serve as a supplement to those comments. [1] It is not this letter’s purpose to refute all contentions and implications in the Memorandum, but merely to correct and clarify the mistaken points of law and/or legal distortions of the Code.
1. Page 2 of the Memorandum cites Cal. Elec. Code §12310 and §15103 to support the claim that all vote counters in an election conducted by paper ballot “cannot be volunteers but must be paid county staff.” A plain reading of the Memorandum would lead a reasonable person to conclude that vote counters must be salaried county employees, but, in fact, the Code imposes no such requirement: “Each member of a precinct board shall receive a stipend for services fixed by the governing body of the jurisdiction.” Cal. Elec. Code §12310. Further, “[t]he elections official shall pay a reasonable compensation to each member of the canvassing board of vote by mail ballots.” Cal. Elec. Code §15103. It is not at all clear that the Code in these sections is imposing a requirement that vote counters be paid. Rather, the Code is simply specifying the party responsible for issuing such payment if and when it is made. While this section of the Code remains legally untested at this time, even if the Court were to construe this section as imposing a requirement that vote counters be given money compensation, these sections of the Code are perfectly compatible with the giving of token cash compensation to volunteers. It does not suggest counters are required to be County employees.
2. Page 2 of the Memorandum claims that “section 15101 prohibits an election official from processing vote by mail ballots any earlier than 5 PM the day prior to election day. By contrast, a jurisdiction using a voting system can begin processing vote by mail ballots 29 days before the election.” Here, the Memorandum offers a self-serving interpretation of an ambiguous section of the Code. Cal. Elec. Code §15101 reads:
(a) Any jurisdiction in which vote by mail ballots are cast may begin to process vote by mail ballot return envelopes beginning 29 days before the election. Processing vote by mail ballot return envelopes may include verifying the voter's signature on the vote by mail ballot return envelope and updating voter history records.
(b) Any jurisdiction having the necessary computer capability may start to process vote by mail ballots on the seventh business day prior to the election. Processing vote by mail ballots includes opening vote by mail ballot return envelopes, removing ballots, duplicating any damaged ballots, and preparing the ballots to be machine read, or machine reading them, but under no circumstances may a vote count be accessed or released until 8 p.m. on the day of the election. All other jurisdictions shall start to process vote by mail ballots at 5 p.m. on the day before the election.
The term “necessary computer capability” is not defined in the Code, nor is it the term the Code ordinarily uses to designate an electronic voting system, which would be “voting system” (the same term used for non-electronic systems) [2] The Memorandum has thus imposed a strict interpretation on an ambiguous section of the code in such a way as to appear maximally favorable to the use of electronic voting systems.
3. Page 11 of the Memorandum refers to a test of hand-counting of ballots performed following a 2022 election and claims “the only variances discovered in the process were both caused by human error.” However, this claim is footnoted, and the footnote reads: “In one case the hand-counter missed a voter’s choice in a ‘vote for two’ contest, and in the second instance, a voter marked a write-in space, then listed a qualified candidate, and voted for the candidate. These marks caused the software to identify the ballot as requiring adjudication and it was not adjudicated correctly.” The Memorandum is misleading in classifying the second instance as “caused by human error”: as acknowledged by the Memorandum, the miscount of the second ballot was caused in part by limitations of the electronic system. As described in the Memorandum, human error was involved, but it was not the exclusive cause of the miscount and would not have been prevented by the use of electronic voting systems, which were already in use in that case.
4. Page 14 of the Memorandum cites the development and implementation of procedures to guarantee voter confidentiality and ballot secrecy as a drawback of a manual counting system. Any and all systems for counting votes must account for confidentiality and secrecy. Implying that such procedures are a unique burden on manual ballot counts is misleading at best.
5. Page 15 of the Memorandum repeats the dubious interpretation of Cal. Elec. Code §12310 and §15103 cited in Part (1) above and implies that the need to perform background checks and implement security measures to accommodate the staff required for a manual ballot count is a unique burden of paper ballot systems. However, electronic voting systems equally require information technology security measures and security measures pertaining to any personnel installing or servicing electronic voting systems. Moreover, the fewer individuals who have access to critical voting infrastructure, the greater the capacity of any given individual to cause harm to the system. The necessity of performing background checks on a greater number of individuals to facilitate a manual vote count may impose a somewhat higher administrative burden on Shasta County, but it will also go some way toward limiting the security risk posed by any individual bad actor.
6. Similarly, page 17 of the Memorandum cites the requirement to perform a proof-of-concept test on any manual vote counting system as a drawback of a hand-counting system, even while acknowledging that such tests are also required for electronic systems. There is no reason to single out manual count systems in this regard.
7. Page 18 of the Memorandum repeats the self-serving interpretation of Cal. Elec. Code §15101 noted in part (2) above. Again, this section of the Code is ambiguous, and the Memorandum offers a reading biased against manual vote counting systems.
8. Throughout the Memorandum, an implicit argument is made that electronic voting systems should be favored because a final vote count can be produced more quickly. The Memorandum makes repeated reference to Cal. Elec. Code §15372, which requires final counts to be submitted within twenty eight (28) days of an election. However, the Memorandum offers no evidence to suggest that a manual count could not be completed well within the 28-day limit, and there is no reason to believe so.
9. The Memorandum makes repeated reference to the number of registered voters in Shasta County, implicitly suggesting that, at approximately 115,000 voters, a manual ballot count would be too difficult to administer. As can be seen in a 2020 report (accessible at https://elections.cdn.sos.ca.gov/ror/15day-gen-2020/county.pdf), Shasta County's 115,000 or so registered voters is by no means unusually high among California counties. A handful of counties have registration below 100,000, but a great many have registration several times higher than Shasta County’s. Moreover, and perhaps most importantly of all, the benefits of a manual ballot count are not to be found in greater speed or efficiency, and no reasonable person would suggest so. Manual ballot counts remain the most effective measure to ensure election security, and on that basis alone they are to be strongly recommended.
Very truly yours,
Alexander Haberbush, Esq.
Lex Rex Institute
Footnotes
During the March 28 Board meeting, a question was raised about my presence. I would like to provide a clear explanation to address any potential concerns. On the afternoon of March 27, 2023, I attended a brief Zoom meeting with a group of concerned citizens, who informed me that the Board had questions about California election law and could benefit from the insights of someone knowledgeable on the topic. These citizens specifically requested my attendance at the Board meeting. Kevin Crye was present at the March 27 Zoom meeting, and this was the first time I ever interacted with him in any capacity. No other Board members were present and, apart from the questions asked during the March 28 meeting, I have never spoken with any other member of the Board. My participation in the Board meeting was not a direct invitation from the Board itself, but rather, I attended as a knowledgeable member of the public, responding to the general invitation for public comment. I hope this puts to rest any misunderstandings.
“Voting system” means “any mechanical, electromechanical, or electronic system and its software, or any combination of these used to cast or tabulate votes, or both.” Cal. Elec. Code §362.
Comments