Violation of election laws?

James Shea

Daily Press Writer

MONTROSE — The Montrose County Clerk and Recorder’s Office might have violated several election laws during preparations for the November election, according to a representative with the secretary of state’s office.

John Gardner, the election equipment specialist with the secretary of state’s office, discussed the technical aspects of the county’s voting machine equipment, which is manufactured by Hart InterCivic, along with numerous procedural errors by the clerk’s office. He, however, was not prepared to make recommendations to the Montrose County Election Review Task Force when it questioned him Thursday.

Gardner said it appeared the clerk’s office did not test the voting equipment prior to the election, as required by law. He presented printouts of the clerk’s computer logs that did not show proper testing of the machines.

Under state statute and rules set by the secretary of state, the clerk is required to perform a “logic and accuracy test.” A bipartisan panel performs the test, which is open to the public and must be publicly noticed.

During the test, sample ballots are entered into the machines and checked for accuracy. The logs show tests on Sept. 29 and Oct. 20, 23, and 31, but Gardner said the information does not appear to show the tests were performed according to state statute.

“It’s a pretty extensive test,” he said.

The state became aware of the county not testing the equipment Oct. 23 when Elections Supervisor Debbie Rudy contacted the secretary of state’s office, Gardner said. The county had problems with the write-in candidate portion of the ballot on the machines and sought technical advice.

Gardner talked Rudy through the procedure for updating the machines but inquired about testing prior to the election.

“We were told they did not perform the logic and accuracy testing,” said Tim Bishop, a secretary of state representative who accompanied Gardner.

He said many of the technical problems the county had on election day could have been discovered during the “logic and accuracy test.” The county had numerous machines go down, part of which was blamed on not clearing the machines’ memory prior to the election.

“It would have caught some of these problems,” Bishop said.

Task force member Greg Fishering said he thought many of the problems would have come up during the primary, but he had not heard of any technical issues.

Gardner said he was not aware of any technical problems being reported during the primary.

Not having the test is a violation of state law.

“They could be pressed into an election offense,” Bishop said.

Gardner also raised concerns about the clerk’s office not reporting a security plan to the state. A few weeks prior to the election, a state judge ordered counties to develop security plans for monitoring the election. The plan includes cameras at the polling places, a secure chain of command and other procedures. Gardner said Montrose County submitted an initial plan, but it was only partially complete.

The state requested the county complete the plan and resubmit it. Gardner said the county never responded to the state’s repeated requests.

He said it was not out of the ordinary that the county did not complete the plan. The state has only approved 37 plans.

“What is not normal is not responding to our messages,” Gardner said.

He said the clerk’s actions could challenge the validity of the election.

“The election could be thrown into question,” Gardner said.

But he said not all the problems with the election were with the clerk’s office. Gardner said there are still concerns about some technical problems with the machines and whether the company provided the proper amount of support to the county.

He said Hart’s representative in Montrose County did not have enough technical expertise or knowledge of Colorado Election law. The state has asked Hart to answer a series of questions about the election, but the questions have not been answered to the state’s satisfaction.

“Clearly there were some issues with the people who were dispatched to the field,” Gardner said.

He said the challenge with digital machines is the technical aspect. Montrose County chose to program the machines itself, but many counties in the state paid Hart to program the ballots. Gardner said a digital system, like Montrose County’s, is a more complicated way of setting up a system to comply with federal law.

Gardner said the person at Montrose County who programmed the machines needed to be technically proficient and knowledgeable with new software programs.

“So, if the VCR is flashing 12, you probably should not be doing this,” Fishering said.

“It is certainly not the easiest, but it is not the most complex,” Gardner said.

Gardner said the county’s problems with write-in candidates was technical. Rather than using the proper field to add the write-in candidate, the county tried to enter the write-in line on the ballot as a candidate. This was not the proper way to use the system and created an error.

The task force asked Gardner about other counties and how they involve their information technology employees. Gardner said some counties have them heavily involved and others have no involvement. The large Front Range counties usually have an IT staff dedicated to the voting office.

Fishering said he had to show the clerk’s office and the representative from Hart how to properly plug in a machine the day of the election.

Another problem, Gardner said, was that Montrose County did not have enough memory cards on Election Day, called mobile ballot boxes. He said the county only had a few extra cards, but the state recommends a county have three to four times the number of cards as voting machines.

The task force will meet with outgoing Montrose County Clerk Carol Kruse and Rudy early next year. Its members asked Gardner for a list of information he needs from the county about the election.