The Epoch times recently had an article on how the FOIA law is broken. We couldn’t agree more. They look at examples and cases primarily regarding national issues. This broken system is being experienced down to the local level. In August of 2022, the South Carolina Safe Elections group and Michael Funderburk (plaintiffs) filed a lawsuit against the SC Election Commission (SEC) and 8 county Boards of Elections in SC (Aiken, Beaufort, Charleston, Dorchester, Greenville, Lexington, Spartanburg, and York) as well as a Temporary Restraining Order (which was granted) to preserve all 2020 election data.
The defendants had denied Freedom of information Act (FOIA) requests for an important audit report called a Cast Vote Record (CVR). Prior to September 2020, our election offices provided these reports and they were even used to for analysis in national whitepapers. But in August of 2020, just prior to the 2020 election, the then executive director of our state election commission, Marci Andino, decided that due to the fact that the new machines produce ballot images, these reports should not be provided. Not to mention the fact that she changed the definition of a cast vote record in her request to include not only the actual CVR report but also the ballot image and the physical ballot. She asked Alan Wilson’s SC Attorney General’s (AG’s) office to provide an “opinion letter” responding to the facts she presented.
The AG’s office issued a letter that agreed with her, as they could only make their determination on the facts provided by her. This was despite the fact that 28 other states and the District of Columbia provide Cast Vote Records to their citizens. Some counties even provide them online so that they can be conveniently downloaded for review and analysis. Curiously, she also decided at that time to ask for guidance from the AG’s office on preventing citizens from accessing security reports and the AG’s office also complied with that request. Reminder– many states allow public access to all of the aforementioned reports!
Why the sudden change and why just prior to the 2020 election? Also, why would the supposedly conservative state of South Carolina withhold valuable information from citizens who desire clarity and transparency in their elections?
UPDATE: The judge dismissed the case after a year and a half of “lawfare” and the case being designated “complicated,” our ability to present the facts has been denied. Note that our state FOIA law which is laid out in Title 30 is clear that FOIA lawsuits are ideally meant to be heard and concluded within 6 months. This is a travesty of justice and a total lack of respect for our state Freedom of Information Act.
This delay cost regular citizens copious legal fees and frustration as well as the inability to properly analyze not only the 2020 election data but the 2022 midterm data as well. This should never happen. In a free society, transparency is government’s obligation to share information with citizens. It is at the heart of how citizens hold their public officials accountable. If our government tries to withhold information from citizens, how can we trust it?
Now into the specifics of the case and our arguments. First, what is a CVR or cast vote record? From NIST (National Institute of Standards and Technology) manual Nov 2019 Publication 1500-103 Cast Vote Records Common Datra Format specification Version 1.0:
A CVR is an electronic record of a voter’s selections, with usually one CVR created per sheet (page) of a ballot (this is markedly different from Andino’s definition). Election results are produced by tabulating the collection of CVRs, and audits can be done by comparisons of the paper ballots or paper records of voter selections against the CVRs.
Here is an example of a CVR from Arkansas:
The NIST manual even states that these were meant for election officials and the public alike. Federal standards developed by NIST were done at the direction of the federal Election Assistance Commission (EAC).
There are many complex operations performed by voting devices when voters submit their paper ballots to be scanned. These operations are mostly invisible to voters but are necessary to determine whether contest selections have been marked adequately and whether voter intent is reflected by what is marked on the ballot. This specification includes the necessary detail to capture these operations so that CVRs can be better audited and adjudicated as necessary to include write-in candidates or other issues. This specification is geared towards the following audiences:
• Election officials • Voting equipment manufacturers • Election analysts and auditors • Election-affiliated organizations • The public
CVRs are an itemized receipt for our vote. Cast Vote records have been around since the mid-2000s yet the counties and the election commission claim to have no knowledge of these reports. The whole point of obtaining machines with physical ballots, ballot images and a CVR database audit trail is to instill more public confidence in the process. If we can’t view the images or a record of how the vote was tallied for that election, how can we feel confident about our election results from our electronic voting system? Yes, we can review our ballot post-vote, but the tabulator machine isn’t reading our selections; it is scanning a barcode that is at the top of the ballot. How can we be sure that bar code is not corrupted or that there is a change in our vote once it is input into the machine?
Currently we are only provided the final total vote count post-election but don’t receive the detail for the vote—how was it counted over time? Were there any duplicate ballots? Was the adjudication done accurately? Due to the black box nature of our tabulators and the fact that we only receive the final total counts for our vote, we are currently counting our ballots in secret. This is in violation of our state constitution.
The South Carolina Constitution states in Article II Section 1:
“All elections by the people shall be by secret ballot, but the ballots shall not be counted in secret. The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct.”
Secrecy of the ballot is referring to the casting of the ballot. Once cast, the ballots should be counted or viewed in public. Andino’s own memo to the AG’s office in August of 2020 that asks for their opinion states that the ballots are “cast” when inserted into the tabulators. Marci Andino, herself, in old poll worker manuals states that the counting should be public per the federal and state constitutions. How can we count the ballots if the machine is tabulating in secret and then we only receive the end result? Her memo states that Title 7 has reference to the public’s right to observe processes associated with the counting of ballots but then makes the leap that this suggests that the legislature did not intend for voted ballots to be subject to public disclosure! This is counter to exactly what has been stated in our poll managers handbooks for years. Also, our federal and state regulations and laws mandate that there is no identifying information on the ballots themselves. In fact, Ken Paxton Texas Attorney General as well as former Secretary of State of Arizona Ken Bennett are on record as saying these records and images should be available to the public. Most of these states have ES&S systems like ours, so why does South Carolina view this issue differently? In addition, our federal and state law call for a voting system with an audit capacity. Dr Daugherity, another one of our experts, cites this law in his affidavit.
“The statewide voting system currently used in the State has the necessary audit
capacity,” namely, that “The voting system shall produce a record with an audit capacity
for such system.” The CVR report is such a record.
“The voting system shall produce a permanent paper record with a manual audit
capacity for such system” and “The statewide voting system currently used in the State
produces an image of each vote cast; however, these votes cannot be associated with
any particular voter.” Thus, disclosure of these images cannot compromise voter
privacy, and neither can the ballots from which these images were produced, nor can the
CVR produced from the ballots and/or ballot images
Here are the facts the plaintiffs have that dispute the election commission and counties’ weak arguments:
Argument 1- There is Personally Identifiable Information (PII) on the ballots; i.e. an individual’s ballots could be identified.
Counterargument- During depositions and discovery the defendants admitted that there is no PII on the ballots and our experts claim the same and that there is no way to tie a voter to a ballot. Other than the voter’s selections, the only information on the ballot about the voter is their precinct and their ballot style. One way that the SEC believes that a voter can be identified in terms of how they voted (and this is also very improbable if not impossible) is if there are just a few people with the same ballot style and they all voted for the same candidate. There are roughly 950 persons who live in our entire state with less than 10 ballot styles and these could be easily redacted or filtered from a CVR report. This is how other states handle this issue.
Furthermore, ES&S guarantees privacy in their own documents. In the Michigan Request for Proposal no. 007116B0007029 for Election Systems and Software on page 33 of 152, it states the following:
“Every ballot is assigned a random 16-byte identifier and all the ballot CVRs and Ballot images are stored on the inserted memory media with exactly the same timestamp. This effectively decouples any association of the ballot to the voting order to guarantee voter privacy.”
See Affidavit Rick Weible Supplemental Addendum below
Argument 2- They use the SC constitution ballot secrecy clause to keep us from seeing the ballots.
Counter argument: The ballots have no identifying information and they ignore the issue of public counting which is the second part of that clause. The casting of the ballot is secret, not the counting. This is why safeguards are put into place to ensure that no identifying information is on any ballot. Note that if they believe that there is a way to tie ballots to voters to determine the way in which they voted, we would need to abolish the current system entirely since it doesn’t meet federal requirements that mandate secret ballots AND that means that they (the SEC as well as ES&S) know how people voted.
Argument 3- The counties and election commission have limited knowledge of CVRs and have no way to “produce them” and shouldn’t have to given that our state FOIA law states they don’t need to “create” data to provide to citizens. The defendants admit they didn’t retain or don’t have these records. This is a violation of federal laws: Reference 52 US Code 20701-2
Counterargument: This is concerning. These are important records required by federal and state law that have been around since the mid-2000s. They are essential to auditing elections and they are also mentioned in their manuals and the system certificates in multiple places. It is their job to know about these reports and understand how to export/print them. Furthermore, they don’t need to create anything. The Cast Vote Records are created at the time of tabulation. In Boone County, MO in their County Commission Meeting document dated 7/16/2019 it states:
Safeguards voter intent. The system captures and retains digital images and cast vote records of every scanned ballot for auditing and adjudication. ES&S does not alter a single digital image.
Again see Affidavit Rick Weible Supplemental Addendum above
To further emphasize this point, one of our other experts Donnie Scroggins from Arkansas who gets CVR reports by request (Arkansas has the identical ES&S system to South Carolina) has videotaped how easy and quick it is to download a CVR report that has been uploaded via a flash drive into the Electionware system with just a few clicks of a button. Here is his video:
Argument: The Mickey Mouse defense- The Cast Vote Records could be used to promulgate fraud
Counterargument: This is the most ridiculous and inane claim. The defendants and Attorney General Alan Wilson argue that if a nefarious candidate or their proxy wanted to commit fraud, they could pay people to vote for them and use an alias as a write-in for another race to confirm their vote. So, for example, one would vote for Tom Smith for Treasurer and tell him that they will write in “Mickey Mouse” in another race to prove they voted for him. They are basically using this excuse of fraud, which they admit they never encountered, to disenfranchise citizens who are serious about checking for potential issues or fraud. Seriously? And by the way, the cast vote record reports can remove the “write-ins” with a click of a button, so this isn’t even an issue.
Argument: Small votes can be determined; for example, Provisional and UOCAVA
Counterargument:
Provisional votes – These are already potentially exposed due to the fact that if you have a few votes and someone attends the provisional hearings they may be able to go to scvotes.gov and know how that person voted. If there is only 1 provisional in a precinct and I attended the hearing and know who that person is and the one provisional for that precinct will be disclosed by just looking at how the provisional voter voted in that precinct. Once again, this is a stretch as most people are not trying to determine how people vote in a provisional hearing. The CVR itself is not the pathway to determine votes as that can be done just through the state’s own reporting system.
Overseas votes/UOCAVA—These votes are already viewed by election staff as they come in via email and are then transcribed onto a ballot and then scanned. We are not sure how a CVR would expose a particular individual and how they voted since the designation of who is UOCAVA isn’t disclosed anywhere.
Finally, Andino uses the 1939 Corn vs Blackwell case as a precedent for why the secrecy of the ballot is important but this has no bearing with our situation given that the ballots and the overall system is markedly and profoundly different from today’s system and the ballots don’t have sequential numbering on them nor can we determine order given the randomization and identical timestamps for each day that there is a tabulator in use; i.e. each cast vote record regardless of the time of the day will have an identical timestamp equivalent to the start of the machine, usually 7 AM in SC.
From Dr Daugherity’s expert affidavit:
This case is inapposite and irrelevant to the CVR report, since the CVR report contains no voter ID. voter registration number, ballot number, social security number, driver’s license number, name, address. birthdate. or any personally identifiable information whatsoever.
He further states:
AG Opinion’s conclusion that these public records … are not required to be disclosed is conditioned by the phrase “To the extent that the disclosure of materials related to a cast ballot would lead to the identification of a voter.” Since neither ballots, nor ballot images, nor CVR reports contain any personally-identifiable information whatsoever, the conclusion that they are not required to be disclosed fails.
Sorry but the judge got it WRONG!!! Here are additional expert affidavits which rebut the facts as presented in Marci Andino’s letter as well as the 2 AG opinions that were issued. The facts are on our side. This case should not have dragged out this long and this information should have been provided long ago. The people deserve to know how their vote was counted. Trust in the veracity of our elections is the cornerstone of our republic. Election integrity and FOIA law is not being respected and something must be done about it.