Suppose Someone Found a Body . . .

Maybe in the bushes near a bike trail through the city.  It wasn't clear how the person died.  There were some bruises.  Did the person fall?  Was the person hit?  Was it hypothermia? Is our basic instinct that everyone is honest and no one would kill anyone?  No.  We know there are nasty folks out there. Maybe in the bushes near a bike trail through the city.  It wasn't clear how the person died.  There were some bruises.  Did the person fall?  Was the person hit?  Was it hypothermia? Is our basic instinct that everyone is honest and no one would kill anyone?  No.  We know there are nasty folks out there.
All the Anchorage Police department needs is "reasonable suspicion" to launch a criminal investigation.  Less than the higher level proof "probable cause" required to charge someone with a crime.  Which is less than the "proof beyond a reasonable doubt" for a murder conviction.

The Nitty Gritty:  This is a long post.  There are two key questions: Does the Anchorage Assembly have the power to call a recount at an election? Should it have that power?

Can you imagine the police department saying, "Well, there are some irregularities, but we'll only conduct an autopsy if a citizen is willing to pay for it"?   A group of citizens, concerned that foul play might be involved here, comes forward but they can only raise $1500.  So the crime lab says, "For $1500 we can check two internal organs, or we could examine the head, or we could check on the broken leg bone.  Which shall it be?"


That's pretty much what has happened in Anchorage over the last five weeks. Despite many election irregularities, the only way to get a recount was if citizens paid.  In an email to the ten citizens who called for a recount, and ponied up the $1500 necessary to recount 15 precincts, Assembly Chair Ernie Hall wrote:

I deeply thank you and the other nine outstanding citizens who filed the application for the recount. Without your successful application, Municipal election code would not have permitted a recount.  [emphasis added.]

There was an election with many (we don't know how many exactly) voters turned away from the polls because there weren't enough ballots.  There was at least one voting machine with a broken seal. When the election commissioner said at an Assembly meeting that there were no broken seals , and the election worker who had reported the broken seal  stood up to protest, she was removed from the meeting. [At Tuesday night's Assembly meeting the chair of the Assembly apologized to the election worker who had been ejected last week.]

The technical review board, made up of IT experts, that used to test the machines before and after the election, was disbanded a few years back.  There was a religious group that knowingly sent out false information encouraging people to register to vote on election day.  Why do I say knowingly? Because they had previously informed their people that they had to register 30 days in advance, which is what the law says.

There are other clues that suggest that the voter counts may be funny.  A poll taken less than a week before the election found a controversial proposition on the ballot leading with 50% yes to 41% no.  It lost 58% to 42% and the pollster acknowledged he couldn't recall a poll that was that far off from the actual outcome.  Parks and Recreation bonds that normally just squeak by or lose, won with large majorities.

Was the city going to do an autopsy of the election?  The election chief defended the electronic voting machines on the grounds that you can check them by counting the ballots.  But unless a group of citizens put up $100 per precinct, the city was not going to count any ballots.  They would have a retired judge check out irregularities after the election was certified and there was no guarantee the ballots would survive 30 days after the certification.

And in Wednesday's ADN, Kyle Hopkins reports that Ernie Hall said that the judge's investigation would not look into "the technical performance of the voting machines."  He did say that might be pursued by the Assembly's Ethics and Election committee with the State of Alaska.

OK, this is not black and white.  When the police find a body, they don't necessarily know if it was natural causes, an accident, or murder.  And with the recent election, we don't know if the problems were incompetence, lack of resources, or intent to disrupt or to corrupt the election.  But there's enough evidence that something(s) serious has occurred.  But unlike when we find a dead body and people immediately wonder about foul play, with the election, people's assumption (at least the officials) seem to be to dismiss the possibility of foul play.

However this turns out, there are several issues involved here:


1.  Certification of the election

The legal opinion the Assembly got from a private, contracted attorney, Tim Petumenos, basically said that unless any wrong doing could have affected the outcome of the election, the Assembly was required to certify the election.

Errors in conducting the election which are not targeted to bring about a particular result are treated differently than those which appear to be aimed at affecting the outcome. Outright corrupt or criminal conduct which may have been aimed at affecting the outcome of  an election is insufficient ground to invalidate an election unless the conduct reasonably had the potential for changing the outcome.

The rationale the Assembly made was that none of the contests on the ballot were close enough to be affected.  This is probably true.  But can you actually know before you investigate?  Unless tampering with the voting machines was at the serious number level, combined with disenfranchising of the people who didn't vote because of the shortage of ballots.  The Assembly did certify the election, but conditionally, depending on the result of the recount.

2.  Questions about how the election was administered

This would look at the procedures that led to the shortage of ballots and the inadequate response when the clerk's office began to hear about the shortages.  It would be looking at other administrative ways to make future elections problem free.

3.  Questions about the security of the voting machines. 

There are two levels of questions here:
A.    Local Issues.  How are the machines and ballots handled in Anchorage?  There were reports of broken seals and that the election chief told election officials not to worry about that.  There are questions about where the machines were stored and the security of the ballots from the moment they left the, assumed, safety of the Clerk's office until they are used by the voters, and until it is certain that they are no longer needed to confirm that the voting machines counted the votes properly.
B.    National Issues.  Nationally, voting machines have had problems.  There are security issues about people tampering with the hardware and software.  Brad Friedman is an expert on election fraud and voting machine problems, who writes Bradblog. He has been watching the Anchorage election closely.  Reports on past national voting machine problems can be found at the Center For Voting Technology Research. 
Or you can watch the video Hacking Democracy.

4.  Questions about what looks like an attempt to disrupt the election.  
Jim Minnery of the Alaska Family Council sent emails out to his list telling people to register 30 days before the election or they couldn't vote.  Then just before the election he sent another email telling people they could register and vote on the day of the election.  I don't claim to know what his intentions were, but the more ineligible voters to come to the polls and take up the time of election officials, the harder it would be for regular voters to vote.  This should certainly be on the investigator's list of issues to investigate.  And it appears, from the ADN article to be on the list. 




Back to the autopsy-vote count analogy.

Remember what Ernie Hall said in the email cited at the beginning?

Without your successful application, Municipal election code would not have permitted a recount.

Really?  Is it true the Code wouldn't permit a recount?  The Assembly got advice from the Municipal Attorney and from a privately contracted law firm. 

The Petumenos  Report (the contracted report) said that the Assembly had to certify the election unless there were issues that could change the result.  Much of it focuses on the responsibility of the Assembly to certify the election, unless there was evidence to suggest that the election outcome would have changed.

"Inconvenience to voters is not sufficient.  Errors in conducting the election which are not targeted to bring about a particular result are treated differently than those which appear to be aimed at affecting the outcome.  Outright corrupt or criminal conduct which may have been aimed at affecting the outcome of an election is insufficient ground to invalidate an election unless the conduct reasonably had the potential for changing the outcome.  This is true even when people may go to jail for their wrongful conduct."

If the Petumenos Report,  discusses whether the Assembly can, on its own, call for a recount, I didn't find that part.  The Municipal Attorney's Memorandum to the Assembly addressed the following questions:

A.  When voters are denied the opportunity to vote because of a lack of ballots, what are the standards and remedies applied by the courts in determining whether a new election is required?
B.   May the Assembly call for a special election  even if the failure is not sufficient to change the outcome? 

A quick review of the report didn't turn up a prohibition on the Assembly calling for a recount.  It's not clear to me why Ernie Hall said there could not be a recount unless the citizen group called for one.  The Municipal Code does not explicitly say the Assembly may or may not call for a recount.  It does give three situations which require a recount.

The Municipal Code allows for defeated candidates and groups of ten citizens to call for a recount.  It also says that the Clerk 'shall' initiate a recount if there is a tie.

From the Municipal Code Chapter 28: Elections

28.90.010 - Recount application. A. Within five days after the election commission has adopted its report of the results of the election, a defeated candidate or ten qualified voters may file an application with the municipal clerk for a recount of the votes from any particular precinct, or for any particular office, proposition or question. The date on which the municipal clerk receives an application rather than the date of mailing or transmission determines whether the application is filed within the time allowed under this subsection. B. If two or more candidates tie in having the highest number of votes for the same office, to which only one candidate is to be elected, the municipal clerk shall initiate a recount.

HTML Tables

The Code above does not explicitly give the Assembly the power to order a recount.  Nor does it prohibit the Assembly from initiating a recount. 

Changing Times, Changing Needs  -   From deciding close races to testing voting machine integrity

The recount ordinance comes from the pre-voting machine era.  The intent of this part of the ordinances was to resolving close elections.  It gives a losing candidate or citizens the right to call for a recount, at their expense, to double check that the votes were counted right.

But another reason to recount by hand in 2012 is to check the accuracy of the voting machines.  There were revisions to the ordinance in 2001.  Although the 2001 revisions came after Florida election fiasco in the 2000 presidential race, the amendments to the much older basic law  were to add language necessary to accommodate the introduction of voting machines to Muni elections.

Under Ernie Hall's interpretation, if the election is not close, the Assembly couldn't order a recount, even if there were a Youtube of people tampering with the machines.  The assumption was made in this election that the margins of victory were so large that the outcome of an election wouldn't change, even with a recount.  But that, I think, was based on the paradigm in place before voting machines and their vulnerability to tampering were widely known.  (Actually that vulnerability still isn't widely known which is why I recommend you watch the movie Hacking Democracy.)  But today, when hackers could reprogram the voting machines to, say, give every fourth vote for Party X to Party Y, it's possible that there could be significant deviations in the actual count.

Since the Assembly is the body that makes the law, it would seem, in this case, they could choose to interpret the  existing code, given its ambiguity here, to allow them to recount the ballots.  It would take as many votes to approve recounting the votes as it would take to amend the ordinance to explicitly allow it.  And since elections are the Assembly's responsibility, a mayor is probably wise not to veto such an ordinance.

The ballots are the body of the election

In a sense, the marked ballots are the corpse. It's difficult to prove the intent of a criminal. The ballots are the forensic evidence of the integrity of the voting machines.  If the ballots demonstrate that the voting machines were highly inaccurate, then suspicion shifts toward misdeeds.   But, if the hand count of the ballots matches the count of the machines, distrust can be more easily dispelled.  But if the ballots aren't kept securely, are allowed to deteriorate,  or are destroyed, it's much harder to identify criminal intent.


So where are we now?

1.  There were a number of irregularities in the election, some identified above
2.  There's a recount going on now of 15 precincts which should tell us if there is a significant discrepancy between the machine count and the hand count of the ballots in this sample of precincts.  This sample wasn't scientifically chosen, so it's not clear whether no serious problems in this sample can be seen as an indicator that the other 106 precincts were also without serious problems.
3.  There will be an investigation by retired Judge Daniel Hensley.  It's unclear whether he will have the time or inclination or resources to do a comprehensive investigation.  As mentioned above already, according to the ADN story "the judge's investigation would not look into "the technical performance of the voting machines."

Given the broken seal report, the loss of the technical review board, and the general concerns about security that have surfaced around the country, it would seem appropriate that someone is looking into the kinds of precautions the necessary to prevent hacking into the Anchorage (actually the State of Alaska's) voting machines.  Even if the recount does not indicate evidence of hacking this time (a likely outcome in my mind) that doesn't mean they couldn't have been hacked.  This is a good opportunity to review their security.


Almost to the end (if you're tired from reading this far, think how I feel)

This post covers a lot of ground.  Not too many people will get this far.  Perhaps it will be of use to the investigator.  There were lots of problems in the election.  A key one I focused on here is the inability of the Assembly to call for a recount on its own.  The integrity of our elections shouldn't be dependent on 10 citizens coming forward with enough money to call for a recount.  If there are enough suspicious circumstances, the Assembly should know it has the power to order a recount to check the integrity of the machines.