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| 7-12-07: California court may punish ... |
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Bev Harris
Board Administrator
Username: Admin
Post Number: 6468
Registered: 12-2004
Best of Black Box? 
Votes: 3 (A keeper?) | | Posted on Thursday, July 12, 2007 - 4:22 pm: | 
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Voting rights advocates will love this new court finding. Thanks to litigation by attorney Greg Luke, an elections office has FINALLY been found to have acted wrongly when it allowed the destruction of elections records, preventing the public from examining them.
Elections officials in many locations are cavalier about obstructing The People's right to know. Our right to know is fundamental to our position of sovereignty over the instruments of government that we have created. If government is allowed to conduct elections in secret, we lose sovereignty over government.
Some locations, like DuPage County Illinois, have been destroying election records prematurely and illegally. Other locations, like Utah, have been locking records away with the ballots, then claiming they can't provide the public with records because they are locked up. Still other locations, like Michigan, have been attempting to charge outrageous fees for records. But this location, Alameda County California, may get more than a hand slap.
PRESS RELEASE
Tentative Ruling Finds that County Officials Destroyed Voting Records from Election Conducted on Diebold Electronic Voting Machines
Election Results May Be Nullified and County Ordered to Conduct Re-Vote on Ballot Measure at Next General Election; Hearing on the Tentative Ruling Tomorrow
OAKLAND, CA – Superior Court Judge Winifred Y. Smith issued a tentative ruling that the Alameda County Registrar of Voters and Alameda County "have engaged in a pattern of withholding relevant evidence and failure to preserve evidence" necessary to conduct a recount of a hotly contested Berkeley ballot measure. As a result, the Court has signaled its intention to void the election and order the County to place Measure R back on the ballot for a re-vote at the next general election.
Judge Smith will issue a final ruling after the Court hears oral arguments tomorrow (Friday, July 13, at 9:30 a.m. at the Wiley Manuel Courthouse, Department 114, 661 Washington Street, Oakland).
"Judge Smith's tentative ruling confirms our contention that Alameda County violated its duty to preserve the critical voting machine data that was the focus of this recount lawsuit and election contest," said Gregory Luke of Strumwasser & Woocher LLP, attorney for the plaintiffs who sought the recount of the vote on Measure R.
The lawsuit, filed on behalf of three Berkeley voters who had sponsored the measure and the advocacy organization Americans for Safe Access, challenged the County's refusal to allow the public to examine copies of the electronic votes and system audit logs during the recount of a close race conducted on electronic voting machines made by Diebold Election Systems, Inc.
Judge Smith wrote, "The evidence necessary to determine whether Petitioners' election contest is meritorious has been lost or destroyed due to Respondents' failure to fulfill its obligation to preserve the information that was reasonable available to them at the time of the recount, and at the time of the filing of this litigation. Therefore, sanctions … are appropriate." [Complete text below.]
"A re-vote is the only fair option for the people of Berkeley," said Rebecca Saltzman, Chief of Staff for Americans for Safe Access, a medical marijuana advocacy group. "By destroying the electronic copies of the votes, the County made it impossible to check that the election was properly run and the votes correctly tallied. We couldn't get to the bottom of the numerous machine malfunctions reported in the scant records the County did produce. We couldn't follow up on the massive holes in the chain of custody over those electronic votes. With a re-vote, we can finally exercise our right to confirm how the people of Berkeley feel about Measure R."
Last April, Judge Smith ruled that Alameda County and its Registrar of Voters violated both the Elections Code and three separate provisions of the California Constitution by denying voters their right to examine these election records during the recount of the 2004 election. At a hearing on the voters' Motion for Sanctions in May, Judge Smith criticized County officials for having returned the voting machines to Diebold, without first preserving the data they contained, while the ongoing legal battle over the recount was pending. She held off ruling on the sanctions motion to allow elections officials time to fulfill their promise to locate the missing election data.
While this case began in Berkeley, the search for the electronic voting records led to a warehouse in Plano, Texas where only 20 of the 482 Diebold computer voting machines used in that election still held any of the election data being sought. Copies of the votes from 96% of the machines used in the election had been destroyed. No audit logs from any individual machine were found. The County now acknowledges in its Court filings that these election records may have been overwritten and destroyed when they failed to copy those records before using the voting machines and data disks in subsequent elections.
"When a citizen files a lawsuit to contest an election result, it's Election Administration 101 — and Law School 101 — to collect all the records from that election and store them safely until the election dispute is resolved," said attorney Gregory Luke. "Here, the County allowed critical election records — the only records available on their voting system that verify whether the vote tally was correct — to be destroyed while a lawsuit and election contest were still pending. Alameda County voters should be appalled."
Review of the redundant copies of the electronic votes, audit logs, and chain of custody materials is essential to this election recount and contest, because the scant records the County did produce revealed reports of machine malfunction at numerous precincts across the City of Berkeley.
"Without examining the redundant data, audit logs, and chain-of-custody records, no one can confirm whether any of the reported malfunctions were ever resolved or whether vote data was manipulated or lost. As a result, no one can ever confirm whether the vote result announced by the County was correct," noted Matt Zimmerman, Staff Attorney for the Electronic Frontier Foundation, which assisted the voters in analyzing the scant data produced by the County.
Measure R, a citizens' initiative, would have regulated the operation of medical marijuana dispensaries in Berkeley. Election officials originally announced that the measure lost by fewer than 200 votes.
What: Americans for Safe Access vs. County of Alameda et al.
When: Friday, July 13, 2007 at 9:30 a.m.
Where: Wiley Manuel Courthouse, Department 114, 661 Washington Street, Oakland
The Court’s decision and the parties pleadings are available on the Court’s website at http://www.alameda.courts.ca.gov/courts by following the Domain Web links to the "Case Summary" page and entering "RG04192053" when prompted for a Case Number.
* * * * *
Tentative Ruling issued by Judge Winifred Y. Smith:
The Motion of Petitioners Americans for Safe Access, James Blair, Michael L. Goodbar, and Donald O. Tolbert for Sanctions is GRANTED. Sanctions are appropriate under CCP §§2023.010, 2023.030. The Court finds that Respondents County of Alameda and and Dave MacDonald ("Respondents") have engaged in a pattern of withholding relevant evidence and failure to preserve evidence central to the allegations of this case. That evidence has now been determined to be irretrievable. The evidence necessary to determine whether Petitioners' election contest is meritorious has been lost or destroyed due to Respondents' failure to fulfill its obligation to preserve the information that was reasonable available to them at the time of the recount, and at the time of the filing of this litigation. Therefore, sanctions the equivalent of issue or terminating sanctions are appropriate. (See Vallbona v Spring (1996) 43 Cal.App.4th 1525, 1541-49; Do-it-Urself Moving & Storage v. Brown, Liefer, et al. (1992) 7 Cal.App.4th 27, 34-37; RS Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486 ; Electronic Funds Solutions v. Murphy 134 Cal.App.4th 1161; In re Marriage of Chakko 115 Cal.App.4th 104, 108-110.) The Court finds that it is reasonable to award sanctions as follows: Petitioners are entitled to recover the costs of the recount in this matter, $22,604.00. Petitioners are entitled to recover the reasonable costs of the trip to Texas to attempt to recover the data from the Diebold voting machines, which were returned to Diebold by Respondents after the initiation of this litigation. Petitioners are also entitled to reasonable attorneys' fees expended in connection with this motion. The evidence submitted by Petitioners on these two points is insufficient for the Court to determine the amount of reasonable attorneys' fees and other expenses sought by Petitioners. Petitioners are directed to submit a supplemental declaration breaking down the hours spent (i.e., task-oriented billing records) and costs sought. Such supplemental declaration shall be filed and served within 10 days of receipt of this order. A further order specifying the amount of fees and costs awarded will be issued thereafter. Petitioners are entitled to an issue sanction establishing that the data lost would have been unfavorable to allowing the election results to stand. The Court finds, as a result, that the election results for the November 2, 2004 election concerning Measure R are nullified. Defendants are further ordered to place Measure R on the ballot in the next general election.
* * * * *
FACT SHEET: Americans for Safe Access v. County of Alameda et al., RG 04-192053
Why Election Data Was Sought in the Initial Recount Request
On December 3, 2004, Berkeley voters requested a recount of the election for citizens' initiative Measure R, which had been conducted on a direct recorded electronic ("DRE") touchscreen voting system made by Diebold Elections Systems, Inc. The California Elections Code, in section 15630, provides that a voter may examine "all ballots . . . and any other relevant material as part of any recount." The Berkeley voters asked to examine the very vote verification tools that Diebold and the County of Alameda had touted as reasons to trust the DRE voting system, namely the back-up copies of the votes ("redundant data") that are stored on the touchscreen units for the precise purpose of providing a cross-check against the official vote tallies, and the "audit logs" generated by the DRE system that show whether the system functioned properly. The voters also asked to examine chain-of-custody records for the system — to make sure that no unauthorized persons had an opportunity to alter the votes during the vote tabulating process — as well as the results of "Logic & Accuracy" testing that had been performed on the machines before and after the election. The Registrar of Voters refused all of these requests, claiming that the law did not require him to show voters anything other than the voted ballots during a recount.
A Lawsuit Was Necessary to Compel the County to Follow the Law
On December 30, 2004, three Berkeley voters and the advocacy organization who had helped sponsor Measure R filed suit to compel the County to follow the law and produce materials that are necessary tools to confirm the accuracy of votes, and to detect potential fraud or error, in elections conducted on all manner of electronic voting systems. The voters also filed a formal contest of the results of the election. The voters provided testimony from three of the country's leading voting system security experts explaining that, without examination of redundant vote data, audit logs, and chain-of-custody records, it is impossible to form a meaningful opinion about the accuracy of the vote tallies generated by the Diebold voting system employed by Alameda County. California Secretary of State Debra Bowen filed a friend-of-the-court letter in the case to support the Berkeley voters.
The Eventual Ruling on the Merits In Favor of the Voters
The Superior Court determined that the Registrar's refusal to produce the materials requested by the voters violated the Elections Code as well as three separate provisions of the California Constitution that guarantee equal protection, due process, and the right to have one’s vote counted. The Court also denied the County's requests to seal such election records from the public.
"Judge Smith's decision in the recount suit vindicates a fundamental right reserved long ago by the People of California to ferret out possible fraud or error in election results," noted counsel for the voters Gregory Luke. "The County's refusal to follow the law threatened all future elections in California – no matter what technology is used. The Registrar took a position in this case that, if allowed to stand, would have permitted elections to be conducted behind closed doors. The decision is a firm rebuke to the culture of secrecy that has taken hold in too many election offices around the country."
The Plaintiffs Discover that Election Data Was Destroyed While the Lawsuit Was Pending
While litigating the merits of their recount suit, the Berkeley voters learned that the County Registrar had returned the DRE voting machines used in the Measure R election to Diebold Election Systems, Inc., without having first copied the voting data from those units. They accordingly filed a motion to sanction the County for the spoliation of the central evidence in their lawsuit and contest. The County first responded by claiming that it "did not understand" and "was unaware" that the disputed election data sought by the voters even existed. Then, they claimed they could recover the missing data from the machines they had surrendered to Diebold.
The Court granted the County and the Registrar additional time to make good on their promise that they could obtain the missing electronic data from Diebold.
The Search for Electronic Vote Records Fails
The search for the missing data proved futile. On the County's assurance that the election data still resided on the machines that had been surrendered to Diebold, the Court ordered the County to conduct a public "download" at the Diebold facilities in Plano, Texas. Of the 482 Diebold machines used in the November 2004 election in the City of Berkeley, only 20 machines — 4 percent of the total — still contain any copies of the votes sought by voters in the lawsuit and contest. In addition, the County failed to find any of the audit logs from the individual voting units used in that election. These election records were apparently overwritten and destroyed when the County used the Voting machines and data storage diskettes in subsequent elections.
The Sanctions Hearing
This Friday, the Court will determine whether and how the County should be sanctioned for its conduct. The facts now show that the County allowed the critical election records to be destroyed. The voters have also drawn the Court's attention to numerous false statements of material fact by the County and the Registrar in their legal pleadings regarding the availability of the disputed election materials during the 2004 recount, the preservation of the disputed election evidence, and the contents of documents they tried to file under seal to exonerate themselves from the spoliation charge.
"Unfortunately, the County’s spoliation of the election records while the lawsuit was pending has deprived my clients of the tools necessary to assess the validity of the 2004 Measure R election results," said Luke. "The County must be held to account." |
Russell Novkov
Frequent Voting Rights Forum Participant
Username: Rnovkov
Post Number: 211
Registered: 02-2006
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Thursday, July 12, 2007 - 9:04 pm: |
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The person who destroyed should be punished.
Russell J. Novkov
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Trina Gomez
Voting Rights Forum Participant
Username: Trinag
Post Number: 1
Registered: 4-2009
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Tuesday, April 14, 2009 - 4:01 pm: |
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I absolutely agree! The should be punished and not let off early! I am so sick and tired of hearing about how these criminals are let out early because of overcrowding, good behavior etc. It is all B.S.
Jails are treating these criminals like they are on in there for their California Vacations! WHAT THE HECK????
I think some of them might have a better life in jail! |
Joel Morine
Frequent Voting Rights Forum Participant
Username: Erased
Post Number: 290
Registered: 1-2008
Best of Black Box?
Votes: 1 (A keeper?) | | Posted on Wednesday, April 15, 2009 - 8:51 am: |
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There are criminals & there are criminals.
Criminals protecting & expanding bizgovt crime-systems, the end of the crime spectrum anyone engaged intentionally in voter fraud is in, are not getting a free pass due to overcrowding,etc.
Those kinds of criminals, & white collar biz fraud crime in general, get the tennis-prison treatment & deferred sentences, sometimes at sentencing, but often after they've been jailed long enough for the story to blow over...think Millikin(sp?) getting early work release to a $#,000$s/wk job as a consultant to his own lawyer.
Overcrowding has to do w/ violent crime folk, & a lot of that overcrowding is the folk who are getting locked up for trumped up charges becuz they are categorical targets...
not so much an AngelaDavis or JohnSinclair, but less-known local folk who stand up too loudly on levels where the news won't shine a light, or local kids too crazed or angry by watching their families & neighborhoods systematically squeezed.
Not all innocent, but more on the level of folk caught in a crazing maze of other folks' walls, & lacking personal resources for a real way out.
The same sort of squeeze that generates a lot of successful folks' participation in processes that are in sum (w/ others' similarly dilemma'd) inadvertent walls crazing resourceless kids & adults.
All those folk would rather be part of something better, but the options being squeezed narrower & narrower dilemma all of us.
As always, language over-simplifies all the above, & every statement there has counter-examples. But there are plenty of egs of all the above out there...the egs that fit & those that don't are all happening side-by-side all the time,
& folk that are comfortable arguing one side cherry-pick one kind
while folk that are comfortable arguing other sides cherry-pick other kinds
?& both walk away feeling virtuously smarter than the other? |
V. Kurt Bellman
Frequent Voting Rights Forum Participant
Username: Formerelecdir
Post Number: 2928
Registered: 4-2006
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Thursday, April 16, 2009 - 5:54 am: |
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Joel,
I'm not sure how the prisons are in your state, but I have toured some of ours in my new position. Let me tell you something about state penal institutions in Pennsylvania. They are not someplace you'd want to be.
I have also seen news reports on some federal penal facitities in Pennsylvania, several of which are fairly "campus-like" in nature by all appearances.
Election crimes are, almost exclusively, state crimes. No one who would ever be convicted of an election crime in Pennsylvania would ever have any "tennis-prison" to which to be sent. When they would enter rhe state system, the most benign place they might go is SCI-Camp Hill, and that is 1) pretty scary in its own right, and 2) only a temporary stopover on the way to some place even more scary. Now for females, they go to SCI-Muncy first, and I haven't seen that facility.
But Pennsylvania has no "country club prisons" for white collar criminals to be sent to, if the offender is sentenced in state courts. Federal? Another matter, apparently.
Again, this is a state by state issue - your mileage may vary.
==========================================
Sometimes, every once in a while, the real reason "your side" lost an election is because more people really DID vote for the "other guy", hard as that may be to fathom.
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Joel Morine
Frequent Voting Rights Forum Participant
Username: Erased
Post Number: 293
Registered: 1-2008
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Thursday, April 16, 2009 - 11:45 am: |
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Kurt,
I always appreciate more detail-level view re: anything I conceptualize too categorically, as is very much the case in this subject.
My sense of the subject is from news stories, & my overgeneralizations were certainly overextrapolated from a minimal-jigsaw view filled in as if all the missing pieces matched the (very questionably sourced given media habits of pushing emotional buttons on throughout spectrum w/ cherry-picked extreme egs) pieces in view.
Am wondering, [not as challenge or whatever: sincerely, for info sake], if yr aside, "Federal? Another matter, apparently." is based only on same sorts of news reports, or from yr better access to 1st or 2nd hand info due to yr profession?
[Not to put you on spot by nominating you "omniscient observer"]
Thanks for pointing this out to me, Kurt.
I wanted to correct what I saw as an oversimplification in prior post -- & am glad I did -- but merely added my own. |
V. Kurt Bellman
Frequent Voting Rights Forum Participant
Username: Formerelecdir
Post Number: 2929
Registered: 4-2006
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Thursday, April 16, 2009 - 12:16 pm: |
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Joel,
My first hand professional knowledge is limited to the state correctional system here in PA. However, there have been detailed news articles and TV pieces about some of the federal minimum security facilities in this state, and they do seem far less "Dickensian" from what I could see.
When you think about it, though, this makes perfect sense. Federal prisoners can vary BOTH ways from the run-of-the-mill state prisoner. The federal system will tend to have BOTH the real "bad asses" who need really secure facilities to protect the public and ALSO the white-collar technical criminals (think of Indy 500 champion driver and "Dancing With The Stars" champion Helio Castroneves - now on trial in jury deliberations for tax evasion in a highly technical case) who are no danger to the public at all.
State crimes, and hence inmates, tend to be all the typical stuff people think of when they think of crime - right about between the two types of federal extremes.
In MY state, if your sentence is under a year, you serve it in county prisons. Only felons tend to go "up state". So people in our state system usually are there on some kind of felony, and usuallly of the violent or severe property type of offense. When you do see white-collar state crimes, you tend to see probation and suspended sentences.
But grieve ye not for the voting rights of Pennsylvania felons. Once they are out of prison, they are IMMEDIATELY and WITHOUT FURTHER PROCEDURE eligible to register and vote. And anyone incarcerated on strictly misdemeanors, even serial ones, remains eligible to vote by absentee ballot from prison.
(This is why it makes no sense to elect Presidents by popular vote - Pennsylvania felons may vote, Alabama ones may not. How do you square THAT with Equal Protection IF you use popular votes?)
==========================================
Sometimes, every once in a while, the real reason "your side" lost an election is because more people really DID vote for the "other guy", hard as that may be to fathom.
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Joel Morine
Frequent Voting Rights Forum Participant
Username: Erased
Post Number: 294
Registered: 1-2008
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Friday, April 17, 2009 - 9:10 am: |
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Last pt is an excellent one I personally haven't seen made re: electoral college, which I like myself, for the vague reason that it just feels to me that there are likely several aspects to which the principle in yr last paragraph applies.
Another weakness of my prior statement was to state the category as "white collar crimes"...
when the dividing line is more really extreme wealth or prior loyal self-risking utility to extreme wealth...an apter criteria statement for Federal tennis prison, whether one does or doesn't regard it as an apter criteria. |
Tom Courbat
Voting Rights Forum Participant
Username: Leftisbest
Post Number: 100
Registered: 6-2006
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Friday, April 24, 2009 - 6:58 pm: |
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Ok, but so did anyone go to jail? Or prison? Was the county required to pay a fine to anyone over and above the attorney fees and the cost of the trip to Texas? Is there any kind of follow up review to see if they are continuing to violate the law? |
Joel Morine
Frequent Voting Rights Forum Participant
Username: Erased
Post Number: 295
Registered: 1-2008
Best of Black Box? N/A
Votes: 0 (A keeper?) | | Posted on Saturday, April 25, 2009 - 12:51 pm: |
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Thx Tom for bringing this back to a more important prior pt.
Re-reading to get the context of Tom's comment brought up another pt I'd nitpick...not for its limited impact on views re: Kurt's pts above, but more becauze I hear it said so often and it so very much is not so in my judgment.
The federal system will tend to have BOTH the real "bad asses" who need really secure facilities to protect the public and ALSO the white-collar technical criminals ... who are no danger to the public at all
White collar-crime is in fact quite dangerous in a whole variety of indirect ways, and it doesn't take much work to imagine a quick dozen that are in effect the tip of a large iceberg. White collar crime systems, operate in effect (whatever the intent) as if they were a form of class warfare. A high proportion of such crimes' ?wages? come directly from bank accounts and pensions of retired people, hardworking people who just scrape by, accumlated gradually over long periods via small amounts scraped together by disciplined self-sacrifice.
While all those hours of work banked by self-disciplined self-denials manifest the earning end of the equation ... what's equally lost is the rainy day emergency or trip-of-a-lifetime or grandkid's college education or overpriced medical procedure or whatever the money might someday have been spent on with pride and satisfaction at hard earnings well spent.
No one investigates how many foreclosures, foregone medical treatments, homeless families, whatever...result. The effects are very real and tangible -- and dangerous -- to the smallfry victims' who get taken, however much they may taste like monopoly money to a Milliken or a Neil Bush who already were playing with large enough amounts of other folks' money to regard it all as just numbers on paper that might lead to better options toward bigger amounts that get even more abstract the bigger they get.
The above only states the more dramatic versions of what in effect is a whole lot of less extreme but equally tangible losses that matter in real lives of real people who really do the work, and pay the purchase prices as customers, of the companies that concentrate the capital that white collar crimes generally need to employ as their starting pt. |
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