AB 840: California Is Not Florida

This is an editorial I wrote about AB 840 in 2017. It’s as much about the need for thorough audits as about the bill itself. The bill passed in spite of our best efforts. Background info is here: https://countedascast.org/stopab840/.

Dear Asm. Quirk

Thank you for providing the occasion to comment on AB 840.

We can start out by dispensing with the fiction that the last minute amendments (Aug 24) to AB 840 are some kind of “clarification” of section 15360 of the California Elections code. No. The law is very clear and straightforward. The section says that officials shall conduct …
“(1) (A) A public manual tally of the ballots, including vote by mail ballots, cast in 1 percent of the precincts chosen at random by the elections official.”
Another section says, clearly:
“(B) (i) A public manual tally of not less than 1 percent of the vote by mail ballots cast in the election. Batches of vote by mail ballots shall be chosen at random by the elections official.”
The original text is here: http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=ELEC&division=15.&title=&part=&chapter=4.&article=5.
When the law does not say “some of them”, it means “all of them”, all of the vote by mail ballots shall be included in the random manual tally.

That the registrars have been following a “practice” of not following the law, by excluding as many as 4 million ballots from the random 1% manual tally, does not mean that it was legal. It took a lawsuit by a dedicated citizen in Lutz v Vu, to establish the fact that what the law clearly says, is in fact, what the law clearly says – election officials must include all vote by mail ballots in the random manual tally. AB 840 is not an attempt to “clarify” the law. It’s an attempt to radically change it, because the registrars of large counties do not wish to follow the law as written.

RE: “The purpose and intent of the 1% Manual Tally is not to detect fraud. It is to ensure the automated tabulation system is counting ballots accurately.” or “The purpose of the manual tally is to ensure that vote tabulation equipment is operating correctly during the semifinal official canvass. ”

That’s part of the purpose of the 1% Manual Tally – to check the tabulation on day 1. But we must not stop there. Tabulators and scanners are computers. And they have clocks. Just as Volkswagen rigged the tests of their exhaust emissions, a tabulator or set of scanners can be programmed to perform well during the initial, semifinal tally, and then skim votes off, when 4 million later arriving vote by mail ballots are being counted. If you sample water on Tuesday, that does not mean that it’s fine the rest of the week.

You must be reading now, daily, about hacks of computer systems (Equifax), and especially election systems, as verified by the FBI, Homeland Security, and countless election system experts. In July, at DefCon, computer experts penetrated every one of 30 election systems at their disposal within hours, or at most, a couple of days. Please connect the dots. Election systems are computers. There are bad people out there, insiders and outsiders, who would like to tilt our elections. They have the means, motive and opportunity to do it. Perfect storm. Our primary check on this is paper ballots, and the audit that must come with them.

I would like to make something very clear. When we are saying that we need audits – it’s not a reflection on the election officials. It’s a reflection on the hackability of the computers they naively use, and the fact, among many others, that a convicted embezzler has programmed the Diebold machines (Jeffery Dean, we have the conviction papers). Please think about it. Why would someone hire a convicted embezzler to program an election system? You also can look up the case of Clint Curtis. He was hired by the Speaker of the FL House to program a rigged voting machine. Again, this is documented. Registrars are not the people doing this. They are not crooks. But they are naive about computer security, internal and external. Until we have routine, thorough, professional grade, independent audits, we cannot have confidence in the announced results.

RE: “Election officials are required to complete an accurate count before it is certified.”

And how do we, the public, know that they’ve done that without a thorough, independent audit?

RE: “If election officials had to wait until all mail and provisional ballots were to be included prior to conducting the 1% Manual Tally, the ability for election officials to take corrective action” (would be hampered by time constraints)

Nonsense. They would not have to wait. They would start the tally on the ballots that they already have, and then continue them with the ballots that come in.

RE: Concern #3: In the 2016 case of Lutz v Vu, Superior Court Judge Wohlfeil last fall agreed with the straightforward interpretation of the law, we must include all vote by mail ballots. The court did not address the overall interpretation and context of the existing language. The proposed language seeks to cure the ambiguity that gave rise to the question before the court.

I’m sorry Asm Quirk. This is spin from the registrars. You cite a concern that the judge “agreed with the straightforward interpretation of the law, we must include all votes by mail ballots”. “Straightforward” means that there was no ambiguity. The law means what it says, “we must include all votes by mail ballots”. In other words, the AB 840 is rewriting election law, not “clarifiying” it. Therefore, the Assembly Elections Committee must have an opportunity to review a radical change to the bill that they never saw.

RE: Amendments were made to the bill after consultation with the Secretary of State, County Election Officials and policy experts in the area.

This part is very disappointing. You were gracious enough to spend a half hour with Dr. David Jefferson and myself this spring, discussing Internet voting. You should have been able to determine that he is very smart, knowledgeable about elections, and a straight shooter. His election-related bio, that goes back to 1994, is here: https://sfgov.org/electionscommission/sites/default/files/Documents/meetings/2017/2017-04-19-commission/David_Jefferson_Bio.pdf
Aside from having served as an advisor to many secretaries of state, he was chair of the Post Election Audit Standards Working Group for SoS Debra Bowen. He is a genuine expert on election audits. Yet you did not consult this audit expert for feedback on an audit amendment. Nor, for that matter, any of the other well-known citizen-experts that I know. Indeed, you waited until the last minute (Aug 24) to slip the amendments in, months after both the Senate and Assembly elections committee should have reviewed it. If you had introduced this bill in a timely manner, all stakeholders, including officials and the public, could well have worked something out to manage the officials’ workload – without gutting the audits.

What we are now insisting on, is that the amendments to AB 840 be thoroughly reviewed at least once by the Assembly Elections Committee, before it becomes law. This is standard procedure. That’s all.

We are very much aware that handling elections is a very complex and demanding process, especially in large counties. There are numerous ways to manage the workload without sacrificing transparency. Some of them are risk-limiting audits, public access to images of ballots, reworking audits of the processing of vote by mail and provisional envelopes, and quite a few more. Declaring ahead of time that four million ballots will never be subject to a 2nd check, however, is a wide open invitation to election fraud – by an outsider or insider. It is not acceptable. California is not Florida. At least, it shouldn’t be.

Thank you for your attention,


For more information, please see http://CountedAsCast.org/StopAB840

PS: As a general principle, the legislature should not be altering laws that are under litigation.

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