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Watchdog group that won lawsuit says last-minute amendment inserted by election officials would allow 40 to 70 percent of ballots to be omitted from audits

By Miriam Raftery

September 1, 2017 (San Diego) --- Citizens' Oversight, a nonpartisan group that focuses on election integrity, announced today that it has filed written comments in opposition to CA AB-840, a bill which will make drastic changes to the one-percent manual tally of elections, which would omit 40% or more ballots from the scrutiny of this important audit process. Local Assemblywoman Lorena Gonzalez-Fletcher (D-San Diego) is a coauthor of the bill.

ECM asked Vu late Thursday for comments. Vu replied via email, “The amendment came through and is sponsored by the California Association of Clerks and Election Officials (CACEO) and is supported by the Secretary of State and the County."

According to the State Senate analysis of the bill (available here), “The California Association of Clerks and Election Officials (CACEO) recognizes the effect any court ruling may have on the inclusion of all mail ballots as part of the one percent manual tally. Any adverse ruling would effectively redefine the purpose and intent of the one percent manual tally and change the long-standing practice many counties use. There is a high risk of counties not being able to certify their elections within the 30-day statutory timeframe. This risk is exacerbated with the dramatic increase in voters wishing to vote by mail throughout the State and the passage of recent legislation that increases mail balloting and the acceptance of them. As a result, CACEO is sponsoring this legislation to clarify existing law. “

County spokesman Michael Workman has previously disputed Lutz's contention of any wrongdoing by the County or Registrar. He stated,"The 1% manual audit is to check the accuracy of the tabulation devices used to tally ballot...Over 1% of all ballots cast were manually tallied and zero discrepancies were found."

But Ray Lutz, founder of Citizens Oversight, says, “We noticed that Registrar of Voters Michael Vu in San Diego was cutting corners and violating the law when doing the audit process in the 2016 primary. We asked him to follow the law, he refused, so we took him to court and won. Now, he and other election officials friends are looking to gut the law so all counties will cut corners the same way. This is a bad idea and must be stopped!”

Election officials in most counties are members of the California Association of Clerks and Election Officials, or CACEO. On August 24, CACEO sponsored an amendment of a bill which originally had nothing to do with the Election Code that relates to the election audit process, Section 15360, says Lutz. It added a section which he contends will "effectively omit all vote-by-mail (VBM) ballots which are not yet processed on election day and all provisional ballots from the audit process, which can comprise 40% to 70% of the ballots" in the election.

“Voters are already suspicious of the election process,” continues Lutz. “Elections officials say the only errors that need be of concern are machine bugs. Voters know that electronic equipment can be hacked and votes changed on a massive scale. The one-percent manual tally audit is one step to help thwart and expose such attacks. To gut this audit process so that at least 40% of the ballots are known to never be audited invites hackers to make there changes to those ballots and never be detected.”

This isn’t Vu’s first instance of controversy involving elections he’s overseen. In Ohio, a presidential election in a major county where Vu headed up elections led to conviction of felony misconduct by two employees working for Vu found guilty of  rigging a recount, in the words of prosecutors, Free Press reported.

The San Diego Union-Tribune reported in 2016 that “Vu was the top elections official in Cuyahoga County in 2004, when long lines and other irregularities plagued the presidential ballot. Some of the same problems occurred in 2006, and a special panel convened to examine that result blamed Vu and his staff.In 2007, two poll workers were convicted of felony misconduct related to the Cuyahoga recount of presidential ballots." Vu himself was not charged with any crime.  He resigned weeks later and was hired in San Diego County as Assistant Registrar that spring, later becoming Registrar.

Citizens Oversight's submission includes an alternative revision to 15360 which improves the effectiveness of the one-percent manual tally and allows the public to provide increased scrutiny. In addition, the proposed changes include an option not to do the one-percent manual tally at all, if election officials upgrade their equipment to the current generation of election equipment that shoots an image of every ballot and makes those images available for review by the public in a timely fashion. This new approach will allow anyone to perform a virtual hand-count of the election, or process them using their own tabulation equipment as a redundant check on the results.

Citizens Oversight has been conducting a review of numerous counties’ election results in the most populous counties in California and in many other states using a methodology called the Snapshot Protocol. This method exposed what Citizens Oversight contends was election audit fraud in the 2016 primary in San Diego, where Registrar Michael Vu “not only did not audit the later VBM and provisional ballots as we assert is required in the election code, but he hired 40 people to work for a week to pre-stack the Early-VBM precincts so they would match the computer report. However, they did not match, so they just ran a new computer report as well,“ a press release by Citizens Oversight states.

Citizens Oversight continues to seek to look at those ballots which Lutz says he suspects were tampered with in the 2016 primary under the California Public Records Act (CPRA), but Vu says the ballots are “sealed” and cannot be inspected. So  another lawsuit has been filed on this issue.

“There is no dispute that voted ballots are public records,” Lutz says. “They have no voter-identifiable information, and so we argue they should be disclosable. There is no specific exemption in the CPRA law (Cal Code 6250 et seq) for voted ballots although there are other exemptions of a similar nature. This is why we think something very bad is going on here,” said Lutz. “Vu not only violates the law, but now the election officials lobbyist group joins in the conspiracy to gut the audit process and make his violation go away.”


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