Election Recertified, Muni Clerk Resigns

Barbara Gruenstein, Election Board Member and Observer Jeanne Friedman

I know I’ve been silent regarding my participation one of the “Ten Qualified Voters” who triggered the Election (Hand) Recount of 15 precincts.  I hope all of you understand that I was writing constantly “for the cause” and wasn’t able to write it on Mudflats.

AKM has been doing a magnificent job.

My commentary on this post will be short but you can read the letter that we (through Hal Gazaway) submitted to Chairman Hall and the Assembly before yesterday’s meeting. The letter regards our findings as we went through days of the hand count process.   When you read it, you will find it unsurprising that the Chair refused to let any of us address the Assembly in public before the vote for recertification last night. Elvi Gray-Jackson and Harriet Drummond fought valiantly for our right to speak, but it wasn’t going to happen.

Mel at Bent Alaska has a great post up which gives you some great details up to the meeting last night.

This morning, of course, we got the news about Barbara Gruenstein’s resignation.

I’ll be working on a report that we plan to submit to the Assembly with photos, video, etc…of the many missteps and incongruities discovered during the hand count of the 15 precincts. According to Jennifer Johnston last night during the meeting, they are scheduling a work session with us. That was the first we’d heard of it but we hope it happens.

You here at Mudflats will absolutely see the report when it’s done. Then we can really sit down and chat!

Letter Submitted to Ernie Hall, Assembly and the Municipal Clerk regarding the Election Recount:

May 21, 2012

Honorable Ernie Hall
Chair, Anchorage Assembly
Re: AMC 28.90.010-080 Citizen Requested Count

Dear Chairman Hall:

Ten citizen voters questioned the April 3 election and asked for a hand count of all ballots from 15 election precincts.. We understand that the Clerk’s Office has concluded its hand count of ballots from these fifteen (15) precincts, to the extent it intends to count them.

When we started this process, we had no expectations that the results of this election would change. However, we wanted to confirm the accuracy of the reported count. Future races might be decided by a handful of votes, as has frequently happened in Alaska. It only takes a few miscounted votes in each of the 120 precincts to swing a close election.

Our team of observers noted some major issues:

• Errors were discovered in 100% of the precincts that were re-counted. Some errors were more serious than others, but there were errors in all precincts. Many errors were corrected when a member of our team pointed them out. Some errors remain.
• As pointed out in our letter to you dated May 9, 2012 and to Barbara Gruenstein, Municipal Clerk, dated May 10,2012 the exercise the Municipality just completed does not satisfy the terms of the Election Recount as required by AMC 28.90.010-080. The counting teams also did not adhere to generally recognized counting procedures.
• There are gross errors in the ballot count going back to election night. At Service High precinct 840, there were over 200 votes missing based on a comparison of the register the voters signed (1029 signature) and the Accuvote count (824). It took another day of counting to find those votes. It turned out that many of those folks voted on questioned ballots on Election Day because the precinct ran out of ballots. Because of an error, the clerk’s office counted their votes with allof the questioned ballots. They were not counted that night with their precinct. Nine of the votes were never found.This error that should have been found by the Election Commission, who is in charge of the Absentee and Questioned ballots. The concern of the observers is that this rather large error occurs in a precinct found among only 15 hand-counted precincts. That leaves 104 precincts unchecked.
• The “Ballot Accountability Report” provided on the Municipal Elections website does not balance with the Accuvote count, the hand count or the count from the register. This raises serious questions, including what happened to the unused ballots which should be counted as part of the audit procedure.

The following are some of the deficiencies specific to the Election Recount issues:

1. Failure to follow the Anchorage Chapter 28.90.010-080 of the Anchorage Municipal Code regarding a citizen’s request for an Election Recount.

AMC 28.90.040 C. provides:

In conducting the recount. the election board shall review all ballots to determine which votes are to be counted in the recount, and shall check the accuracy of the original count. The election board shall check the number of ballots cast in a precinct against the registers and shall check questioned and absentee ballots voted against questioned and absentee ballots distributed. The rules in chapter 28. 70 shall be followed in the recount.

The ten citizens specifically requested that the Municipality comply with AMC 28.90.040 C and include the questioned and absentee ballots being counted for each precinct. This request has not been honored. In the hand count, the Municipality failed to count the questioned and absentee ballots for the fifteen (15) precincts.

The Clerk’s Office refers to AMC 28.80.030 which states absentee and questioned ballots “need not be counted by precinct.” However, that section applies to the original count. The code chapter which governs the request of the ten citizens is AMC 28 .90.010-080. This includes AMC 28.90.040 C, which does require a check of the number of ballots cast against the register and a count of the questioned and absentee ballots.

Our claim is bolstered by the Municipality’s own hired attorney, Timothy J. Petumenos from Birch, Horton, Bittner & Cherot. He wrote a letter to Chairman Hall on May 8, 2012 in response to a question from the Chair as to whether a hand count of the ballots was permitted under AMC 28.90. The response from Mr. Petumenos included this paragraph:

Our conclusion is that the Clerk has discretion as to the method of recount. The limits on that discretion are: 1) the Clerk must scrupulously follow the municipal election code as to the execution of the recount, and 2) should exercise her discretion in choosing the method and manner of recount so as to enfranchise voters as well as bolster the credibility and legitimacy of the election.

This recount has failed to count the questioned and absentee ballots in any of the fifteen (15) precincts. It has also failed to produce the register to allow for a check of the number of ballots cast in the precinct against the questioned and absentee ballots distributed.

The Clerk’s office claims AMC 28.80.030 C allows for the questioned and absentee ballots to be separated from their envelopes, mixed and counted together with the other questioned and absentee ballots under AMC 28.70.030 or 28.70.050. However, that section of the code does not exempt the questioned and absentee ballots from being counted by a hand count under AMC 28.90.010-080 and specifically required by AMC 28.90.040 C.

2. Failure to hand-count the original ballots.

The Municipality presented a number of ballots for each precinct which had been segregated into folders marked “Facsimile” ballots. Apparently, some of the votes cast by the voters, for a number of reasons, could not run through the Accuvote machine. When that occurs, the information on the original ballot is manually recopied onto a ballot by someone at Election Central. The facsimile would then be run through the Accuvote machine. The original ballots — the ones filled out by the voters — are stored with the facsimile ballots.

The counters counted the facsimile ballots which had been fed into the Accuvote machine. They did not count the original ballots filled out by the voters. Therefore, the counters failed to pick up any discrepancies between the ballots completed by the voter and the facsimile substituted by the election board.

3. No procedural guidance for the hand count provided.

The Clerk’s office did not promote proper, recognized audit procedures during the conduct of the hand count:

a. Failure to use a blind audit number.

The correct way to conduct an audit. much like a scientific experiment, is to proceed Without having a preconceived number or outcome in mind. This is to reduce the likelihood of the person conducting the recount from working to make their figures match the prior total rather than doing a blind count to come up with the correct total.

The majority of the time, the counters received the prior Accuvote total at the beginning of the count. On May 10, 2012, one of the counters even went to the clerk and specificallyasked for the Accuvote number. Several of our observers noted various counting teammembers being more concerned with their number matching the Accuvote number thanhaving an accurate count, which even led to multiple recounts of the same precincts to correct errors.

b. Lack of verification.The teams doing the counting had two people each, one to read the number and one torecord the number. However, they sat across a table from each other. Neither had avantage point that would allow them to confirm the accuracy of the number the otherperson either read or recorded.

Other jurisdictions (like the State of Alaska) use a four person counting team. One to read the number, one to verify the reader accurately read the number, one to record the number and one to accurately verify the number written down.

The system used fails to provide for any check and balance system.

c. Failure to rotate counters.

Counters frequently spent the entire time they counted teamed with the same partner. There was a husband and wife team who worked as a team the majority of the time. Sometimes, the husband would read the wrong number and his wife would correct thenumber he had just read. Later, he recorded the number and the wife read the number. Several times the wife corrected her husband and gave him the correction. More than one observer expressed concern to the Municipal Clerk over their lack of accuracy and much of their work had to be recounted by other teams. The Municipal Clerk allowed this to continue for several days.

d. No uniform methodology for the hand count.

The six teams did not use the same methodology to count the ballots and observers have video tape of poll workers confirming that they were not given a procedure by which they were supposed to count the ballots. Therefore, each team came up with their own. This allowed for inconsistent, frequently inaccurate results. Overall, guidance regarding what to count and what not to count was often inconsistent or not provided. The decisions were often left up to the counting teams themselves.

The videos, photographs, and notes taken by the observers during the recount show not just the lack of Municipal Recount procedure, but a lack of attention-to-detail in the Municipal Election overall. This poor performance reflects on the Municipality as a whole, but more specifically on the Municipal Clerk’s office and the Election Commission. Elections may be time consuming and expensive, but they are not complex. One simply has to keep careful track of all ballots, ensure that every eligible voter is allowed to vote, and then count the ballots slowly with observers present to catch any error.

Anchorage needs to develop precise procedures for conducting elections and for recounts when those are requested. We then need to insist that our public officials follow those procedures. Our Municipal Clerk was quoted in the news saying that it was not necessary for the recount officials to follow the rules she approved for the recount.

We would like to present our findings to the Assembly and the independent investigator at the June 5th Assembly Meeting. This report will include videos, photographs, observer notes, and spreadsheets created to document the errors made during this election and the recount. Most important to all of us is fixing the problems so the mistakes made this year, are not repeated in the future.

Thank you for your prompt attention to this matter.

Very truly yours,
Hal P. Gazaway

cc: Barbara Gruenstein, Municipal Clerk
Municipal Assembly Members
Hand Count applicants

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