By Ernest Luning
THE COLORADO STATESMAN
Colorado Secretary of State Bernie Buescher wants the opinions of election officials and the public on proposed rules that would make it easier for the state to certify voting equipment. The proposed regulations are designed to smooth Colorado’s elections, avoiding the many problems that have bedeviled them in recent years.
The Department of State last week unveiled drafts of Rules 37 and 45, covering the acquisition and certification of voting systems used by county clerks across the state, and plans to air reactions to the proposals at a meeting set for Oct. 20 (see box) before beginning the formal rule-making process at the end of the month.
While voting reform advocates universally praise Buescher for opening up the process — in effect, giving the public a chance to weigh in before the more rigid rule-making begins — some warn that the current drafts could cement in place a system that’s badly broken and in need of repair.
“This is not a comprehensive rule change,” said election reform advocate Al Kolwicz after listening to election consultants recite the draft rules for nearly two hours on Oct. 2. “It’s a patch.”
“We’re soliciting whatever amendments you want to suggest,” replied Deputy Secretary of State Bill Hobbs.
As it stands, the draft of Rule 45 is basically a rewrite of the existing one. Changes include allowing the Department of State to rely on testing and certification performed by other states using the same equipment Colorado has, plus streamlining some of the required tests and allowing voting machine vendors to participate in some stages of the certification tests.
“When we do something to kill the system (during testing), I want a vendor there to see what we did,” said Paul Craft, a consultant hired by Buescher to draft the rules. Craft said “poor documentation” and “ambiguous” instructions create the need to involve equipment reps, who could keep certification tests from going “down the tubes.”
That’s exactly why the draft rule fails to address concerns about equipment reliability, security and accuracy, said Harvie Branscomb, a member of the Eagle County election canvass board and a director of Coloradans for Voting Integrity. The voting reform activist also served this year as part of a working group established by Buescher to review the rules.
“We’re promoting the idea that certification ought to be done in the environment where elections will occur,” Branscomb told The Colorado Statesman. “We want the final certification test to be done in a county clerk’s office, where all the rough edges get revealed.”
Branscomb contends that allowing Colorado to rely on tests performed by other states puts the certification process “even further away from the county clerk’s office.”
The revised rules are only the latest step in a series of attempts to sort out the chaos surrounding Colorado voting equipment. Starting in 2006, when a Denver District Court judge ruled that then-Secretary of State Gigi Dennis had done an “abysmal” job by failing to properly certify the security and accuracy of electronic voting systems used throughout the state, warring factions have included Dennis and her successors, county clerks, equipment manufacturers, voting reform advocates and an irate public.
Following more rounds of equipment decertification and recertification that angered county clerks and left voting reform activists crying foul — and in the wake of high-profile electronic voting equipment glitches that left thousands of voters standing in the cold and delayed some vote counts by days — the Legislature established the Colorado Election Reform Commission, headed by former Sen. Ken Gordon.
This spring, Gov. Bill Ritter signed into law a half dozen bills resulting from the commission’s recommendations, including House Bill 1335, sponsored by Rep. Nancy Todd and Sen. Suzanne Williams, both Aurora Demo-crats, and Rep. Carole Murray, a Castle Rock Republican and former Douglas County clerk. That bill allows counties to continue using voting systems already on hand but sets a goal to move Colorado elections to an all-paper-ballot system by 2014. It also established new standards and procedures for certifying voting equipment.
Early last month, the Florida-based Freeman, Craft, McGregor Group won a $22,000 contract from the Department of State to revise Rule 45, at a cost of $10,000, and to prepare a testing matrix for voting equipment based on HB 1335. The firm delivered a 52-page draft of the rule at the end of September, and its principals appeared last week via speakerphone to describe how its revisions differ from the existing rule.
News that the election-consulting firm would draft the rule came as a shock to Kolwicz, a Boulder Republican and one of the organizers of the nonpartisan Colorado Voter Group. Along with Branscomb, he was part of the working group established earlier this year by Buescher to review state election equipment rules. Kolwicz said he worked with other members of the group to develop a draft of Rule 45 and to make other suggestions for election reform, and was surprised to find the group’s work appears to have been ignored.
“It leaves a very, very bad taste,” Kolwicz told The Statesman. He said his group plans to submit substantial material supporting a wholesale revision of the rule, but first the members want to know whether that might be an exercise in futility.
“If I get a bunch of troops out here working really hard,” Kolwicz asked, “are [Department of State officials] going to actually do something about it, or restrict us to correcting the spelling errors?”
The process is still wide open, Department of State spokesman Rich Coolidge told The Statesman.
“By going outside the formal rulemaking process,” Coolidge said, “this allows for more collaboration and transparency in the development of the language.”
He added that Buescher wants input from “anyone who has any interest in this review [of the rules] … from election administrators to voter activists.”
By midweek, only the El Paso County clerk’s office had submitted a comment, Coolidge said.
However, numerous election reform activists and groups told The Statesman they planned to submit comments before the Oct. 14 deadline.
El Paso Clerk Bob Balink — who served on the Election Reform Commission — questions the part of the draft rule that would allow optical scan counters to test preprinted ballots instead of ballots filled out by hand.
“Is there ever a point where machines will be tested with human-marked ballots?” asked John Gardner, information systems manager for Balink’s office in an interview with The Statesman.
“We work in the real world with real ballots,” he said, “so it should be tested with real, human-voted ballots.”
“The secretary of state’s office has been making a lot of strides to be transparent and solicit feedback to the community,” said Jenny Flanagan, executive director of Colorado Common Cause. The group plans to submit comments on the draft rule, she told The Statesman, but also plans to continue dogging election officials on other concerns, including problems with paperless balloting, voter registration and maintaining polling places as the state moves toward all-mail elections.
The clock is ticking. Two voting equipment manufacturers — Premier Election Solutions and Election Systems & Software, which is in the process of acquiring Premier — have submitted high-speed optical scanners to the state for certification. Counties currently using those systems will have to wait for the state to OK the new devices before purchasing updated equipment for next year’s elections, but that can’t happen until the new rules have been adopted.
Officials want the new rules in place by the end of the year. Freeman, Craft, McGregor has proposed conducting the testing for the two new voting systems at a cost of roughly $175,000.