ALJDEC decisions subject to certification as final

06F-HAVA118- SOS · Secretary of State · 2007-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2007 APPEARANCES: Francis M. Henry appeared on his own behalf; Assistant Attorney General Diana L. Varela for the Secretary of State ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. The Help America Vote Act (“HAVA”)[1] was enacted in 2002 to ensure that voters are treated equally across the United States of America. The legislation came about as a result of certain inadequacies brought out by the 2000 presidential election regarding voting and what constitutes a vote. 2. HAVA provides that “[t]he error rate of the voting system in counting ballots (determined by taking into account only those errors which are attributable to the voting system and not attributable to an act of the voter) shall comply with the error rate standards established under section 3.2.1 of the voting system standards issued by the Federal Election Commission which are in effect on October 29, 2002”. 42 U.S.C. § 15481(a)(5). 3. Voting system standards section 3.2.1 (“Section 3.2.1”) provides: Voting system accuracy addresses the accuracy of data for each of the individual ballot positions that could be selected by a voter, including the positions that are not selected. For a voting system accuracy is defined as the ability of the system to capture, record, store, consolidate and report the specific selections and absence of selections, made by the voter for each ballot position without error. Required accuracy is defined in terms of an error rate that for testing purposes represents the maximum number of errors allowed while processing a specified volume of data. This rate is set at a sufficiently stringent level such that the likelihood of voting system errors affecting the outcome of an election is exceptionally remote even in the closest of elections.

The error rate is defined using a convention that recognizes differences in how vote data is processed by different types of voting systems. Paper-based and DRE [Direct Recording Electronic] systems have different processing steps. Some differences also exist between precinct count and central count systems. Therefore, the acceptable error rate applies separately and distinctly to each of the following functions:

a. For all paper-based systems: 1) Scanning ballot positions on paper ballots to detect selections for individual candidates and contests; 2) Conversion of selections detected on paper ballots into digital data;

b. For all DRE systems: 1) Recording the voter selections of each candidate and contests to the voting data storage; and 2) Independently from voting data storage, recording voter selections of candidates and contests into ballot image storage.

c. For precinct-count systems (paper-based and DRE): Consolidation of vote selection data from multiple precinct- based systems to generate jurisdiction-wide vote counts, including storage and reporting of the consolidated vote data; and

d. For central-count systems (paper-based and DRE): Consolidation of vote selection data from multiple counting devices to generate jurisdiction-wide vote counts, including storage and reporting of the consolidated vote data.

For testing purposes, the acceptable error rate is defined using two parameters: the desired error rate to be achieved, and the maximum error rate that should be accepted by the test process.

For each processing function indicated above, the system shall achieve a target error rate of no more than one in 10,000,000 ballot positions, with a maximum acceptable error rate in the test process of one in 500,000 ballot positions.

Exhibit B.

4. HAVA further requires that “[e]ach State shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State.” 42 U.S.C. § 15481(a)(6). 5. Title III of HAVA provides a grievance process whereby persons claiming violations of HAVA can file a grievance in the state where the person resides and pursue an administrative hearing to resolve that grievance. 6. In 2006, the Arizona Legislature enacted SB 1557 to address voting issues. Among other things, SB 1557 provides for manual audits of elections to be conducted and established designated margins to be used in the manual audits. 7. To effectuate the implementation of SB 1557, the Secretary of State developed the Procedure for Precinct Hand Count and Early Ballot Audit (“Procedure”-Exhibit 22). Grievance 8. On November 1, 2006, Francis M. Henry (“Mr. Henry”) filed a Grievance Form (Exhibit 1) with the Secretary of State alleging that SB 1557 and the Procedure violate HAVA with respect to two main issues. Mr. Henry’s grievance stated:

[Issue 1]

The newly enacted Arizona law (SB 1557) and the related new procedures that will be implemented in the November 7, 2006 elections in the area of post election machine audit by comparing hand count of paper ballot tabulations vs machine tabulations . . . have the following problems: a) The audit (test) does not measure all positions on the ballot. b) The audit (test) does test only approx. three races and one question. A typical ballot will have about 25 or more races and about 20 or more questions (adding up to 128 ballot positions or more). c) Arizona is allowing an error rate (being called “difference percentage”) of one in 100 race totals of two or more districts on a county by county basis. The error rate formula the county election staff must use is focused on race totals. The formula should be focused on ballot position total. When position totals errors don’t effect race totals the formula will report out a zero error rate.

[Issue 2]

The newly enacted Arizona law (SB 1557) and the related new procedures that will be implemented in the November 7, 2006 elections provides for post election audit procedures which involves political parties as an integral part of the audit process. The discriminatory problem can and is allowed to occur as follows: a) Each of the two political parties is to supply a minimum number of names to be members on a Hand Count Board. If the number of members of either party is less than the minimum at the time of the audit the election officials will not perform the audit and will use the machine tabulations as official without benefit of an audit. The above indicated political party(ies) action/inaction to provide the members to the Hand Count Board gives the party(ies) a discriminatory sway over the post election audit process, by giving the parties “cancellation” power which no other voter, group of voters, or other political party(is) have received.

Grievance Form, Exhibit 1.

9. The gravamen of Mr. Henry’s complaint with respect to Issue 1 is that in enacting SB 1557, Arizona is allowing an error rate greater than that allowed under HAVA. 10. The gravamen of Mr. Henry’s complaint with respect to Issue 2 is that SB 1557 and the Procedure interject the political parties into the audit process and effectively provides the parties with “cancellation power” to avoid a manual audit. Issue 1 ( Error Rates 11. Mr. Henry expressed concern that in the November 2006 election, the error rate of the election machines was greater than it should have been and no explanation or reason has been provided as to why that occurred. 12. The relevant portion of SB 1557 that is of concern to Mr. Henry requires manual audits to be conducted under certain circumstances. Before SB 1557 was enacted it was sent to the United States Department of Justice for clearance. The Department of Justice issued a pre-clearance letter wherein it found that SB 1557 was in conformance with HAVA. 13. The Procedure encompasses the methods by which manual hand counts are to be conducted for hand counts and early ballots. 14. A Vote Count Verification Committee, created under SB 1557, established designated margins to be used in the manual audits of votes. 15. Mr. Henry’s complaints with respect to issue 1 focused on how the manual audits are conducted in Arizona under SB 1557. He asserted that the designated margins utilized for such audits is less stringent than the error rate provided for in HAVA. 16. The Secretary of State maintained that the cited provision of HAVA pertains only to the testing of voting machines prior to elections, a requirement that has been complied with. 17. The Secretary of State referenced A.R.S. § 16-442(B) as requiring the State to use electronic machines that have been federally certified. That statute provides: On completion of acquisition of machines or devices that comply with the Help America Vote Act of 2002 (P.L. 107-252), machines or devices used at any election for federal, state or county offices may only be certified for use in this state and may only be used in this state if they comply with the Help America Vote Act of 2002 and if those machines or devices have been tested and approved by a laboratory that is accredited pursuant to the Help America Vote Act of 2002.

18. Craig Stender (“Mr. Stender”), a Secretary of State Contractor Project Manager for HAVA implementation, testified: a. HAVA requires that election machines meet a certain error rate. His reading of HAVA and Section 3.2.1 require that accuracy of election machines be tested with pre-marked ballots b. Independent testing authorities (“ITA”) certified by the federal government make control checks of pre-marked ballots to measure results with expected results. c. Section 3.2.1. does not take into account the intent of the voter, which is what a manual audit takes into consideration. The purpose of Section 3.2.1 is to determine if the election machine is working properly. d. All election machines used by all counties in the State of Arizona have undergone testing procedures and been determined to meet HAVA’s error rate. e. The election machines that are used in Arizona are tested by ITA. f. The machines have to meet the voting system standards in order to be certified by the federal government. Arizona requires that only machines that are federally certified can be used in Arizona. Once a machine is determined to have been federally certified, the Arizona Certifications Board runs tests on the machine, reviews the results, and makes a recommendation to the Secretary of State, who ultimately certifies the machine for use in Arizona. g. The implementation of SB 1557 and the Procedure did not change any HAVA requirement. h. SB 1557 takes into account hand counts and the intent of the voter, which is different than the error rate requirement under HAVA. Issue 2 ( Political Party Involvement 19. According to Mr. Henry, SB 1557 and the Procedure provide that if the political parties do not provide a sufficient number of workers’ names to conduct a manual audit, there will be no manual audit and the election machine results will stand as the official votes. Mr. Henry contends that this effectively diminishes the votes that were cast because there is no assurance that the intent of the voters were taken into consideration and avoids a review of the election machines to determine their accuracy. 20. Mr. Henry presented into evidence letters obtained from the Secretary of State’s website that were generated by certain county officials within the State of Arizona showing the extent, if any, of the political parties’ involvement in the voting process in terms of sending names of workers so that a manual audit of the November 2006 election could be conducted. See Exhibits 4-18. 21. Mr. Stender testified that the provisions of HAVA alleged to have been violated with respect to Issue 2 requires a uniform definition of what constitutes a vote. According to Mr. Stender, Arizona has several statutes that address what constitutes a vote[2] and the Procedure also defines what constitutes a vote. 22. The Secretary of State maintained that whether or not a manual audit occurs has no relation to HAVA’s requirement that the State adopt standards that define what constitutes a vote. CONCLUSIONS OF LAW 1. Mr. Henry has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). “It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. 42 U.S.C. § 15481(a)(5) requires that a voting system must meet certain error rate standards established in by the Federal Election Commission. The Commission has set such standards, which are set forth in Section 3.2.1. 4. The weight of the evidence of record established that the State of Arizona uses and, by statute,[3] is required to use only those election machines that have been certified by ITA as meeting the Federal Election Commission standards. 5. The concerns Mr. Henry addressed in the Grievance Form pertain to issues regarding a manual audit and the designated margin used in conducting the audit as required by SB 1557 and the Procedure. While Mr. Henry may have raised certain aspects of the manner in which manual audits are conducted in furtherance of SB 1557, such issues do not involve 42 U.S.C. § 15481(a)(5), are not within the scope of hearing, and are not properly before the Administrative Law Judge’s consideration. 6. 42 U.S.C. § 15481(a)(6) requires all states, including Arizona, to adopt uniform and nondiscriminatory standards to define what is a vote and what will be counted as a vote for each category of voting system used. 7. The weight of the evidence of record established that the State of Arizona has established by various statutes and by the Procedure, definitions of what constitutes a vote and how votes will be counted for each voting system. 8. The concerns Mr. Henry addressed in the Grievance Form do not pertain to HAVA’s requirement that Arizona define what a vote is and how a vote is to be counted. 9. While Mr. Henry may have raised certain aspects of the manner in which manual audits may not occur due to the language set forth in SB 1557 and the Procedure, such issues do not involve 42 U.S.C. § 15481(a)(6), are not within the scope of hearing, and are not properly before the Administrative Law Judge‘s consideration. 10. Mr. Henry presented insufficient evidence to meet his burden of proving by a preponderance of the evidence that with respect to Issues 1 and 2, there exist violations of HAVA as alleged in the Grievance Form. 11. The Administrative Law Judge does not address Mr. Henry’s argument that SB 1557 and the Procedure violate the Equal Protection Clause of the 14th Amendment to the United States Constitution. To the extent Mr. Henry believes that SB 1557 implicates constitutional issues, those arguments should be raised in a court of competent jurisdiction. ORDER Based on the above, there being no violations found with respect to U.S.C. §§ 15481(a)(5) and (a)(6), the grievance is denied and no relief is granted to Mr. Henry. Done this day, January 24, 2007.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Secretary of State Jan Brewer ATTN: Gene Palma Business Services Division 1700 West Washington, 7th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] 42 U.S.C. §§ 15481-15485. [2] Mr. Stender referenced the following statutes: A.R.S. §§ 16-400 (definition of a mark on a ballot); 16-448(a) (how write-in votes qualify as votes); 16-502(B)(1) and (2) (instructions for voters to properly mark a partisan ballot); 16-502(I)(1), (2), and (3) (instructions for voters to properly mark a nonpartisan ballot); 16-514 (what information is to be placed in a voting booth or printed on the sample ballot); 16-543.02(B)(1), (2) and (C) (definition for federal write-in ballots when a vote will or will not count); 16-610 (how to handle the situation if there is uncertainty as to a voter’s choice when there is an “over vote”); 16-611 (defining when a vote will count in an over vote situation); and 16-612 (when a vote will count when there are write-in votes). [3] A.R.S. § 16-442(B).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826