Registrar Mikel Haas Refuses to Supply Chain of Custody Docs as Requested by Voter, Fails to Explain $150,000 Cost Estimate, $6000 Deposit Demand, Disparity in Quotes; Runs out Clock...
Hand Count Filer: 'It seems nobody is accountable here, and the voters are just left out to dry.'
By Brad Friedman on 7/13/2006, 5:37am PT  

"It seems the Registrar is the judge and juror, the decider and the arbiter and is accountable to no one. Clearly, we've been stonewalled by the Registrar," opined Barbara Gail Jacobson in regard to having little or no legal recourse to challenge the seemingly arbitrary rules set by San Diego County Registrar Mikel Haas concerning her requested hand count of ballots in the special U.S. House election held in California's 50th district on June 6th.

Jacobson's request to hand count paper ballots and "paper trails" in the disputed CA-50 Busby/Bilbray election to replace the jailed Republican Rep. Randy "Duke" Cunningham looks to have hit a brick wall. The SD Country Registrar of Voters office has refused to provide chain of custody documents sought by Jacobson in relation to her request, filed after the revelation that the election employed Diebold optical-scan and touch-screen voting machines in apparent violation of both state and federal law.

In a letter sent Tuesday by Jacobson to Registrar Haas' office, in reply to an email the office had sent late that day, the San Diego resident requested a written commitment that the requested documents would be provided before a hand count would begin, and prior to the payment of the $6000 as demanded by Haas --- by 3pm Tuesday --- to cover the costs of the first day's counting on Wednesday.

As well, her letter sought explanation and accounting for the three disparate cost estimates for the count as supplied by Haas' office. Two different sets of varying numbers were supplied by officials to voters, while another number, nearly half the amount of the other two quotes, was supplied to a reporter at the North County Times.

The "official" estimate for the cost of the count, as given to Jacobson finally in a FedExed letter from Haas last Saturday, set the price at an estimated $120,000 to $150,000 for the entire count.

Haas' estimate equates to just under $1 per vote, as opposed to the .14 per vote as charged in neighboring Orange County for a similar hand count request, as reported yesterday by the North County Times.

The email sent late Tuesday from the Registrar's office, and Jacobson's letter in reply, are both posted in full at the end of this article.

According to the California Election Code, the requester of a hand count under the recount provisions is entitled to determine the order and manner of such a count and to review the documents necessary to make that determination. Jacobson has contended that documents such as chain of custody logs for ballots and voting machines are needed in order for her to exercise that right, particularly given Haas' demonstrated lack of adherence to state and federal rules, laws and provisions as her original hand count request had explained.

As reported many times here, the Diebold optical-scan and touch-screen systems used in the "bellwether" special election --- the first federal race to be run since the new security requirements were enacted, and the last to be run prior to this November's general election --- were sent home for overnight "sleepovers" with poll workers for days and weeks prior to the election, in contravention of both state and federal rules.

Haas has claimed to various media outlets (most of whom have failed to explore his claims more thoroughly) that such "sleepovers" have happened for years. That much is true. But that was before recent discoveries of the extraordinary vulnerabilities found in Diebold voting systems, which in turn has prompted extraordinary new security measures. It was also before even the California Secretary of State's own leading computer science advisor, David Jefferson of Livermore National Laboratories, warned that "you can affect multiple machines from a single attack. That's what makes it so dangerous."

Recently, the responsible Registrar-Clerk of Yolo County, CA, Freddie Oakley, gave a statement to The BRAD BLOG, saying that procedures for deploying voting machines used in the past were no longer applicable given what we've learned about the lack of attention given to security matters in these new hackable, largely untested voting machines.

"I am strongly of the opinion that it is exactly this kind of practical issue that should give election officials serious reservations about deploying electronic voting machines," Yolo wrote. "If, as a practical matter, they can't be secured, then perhaps they ought not be used at all. Period."

Mikel Haas is no Freddie Oakley.

Haas told me in an interview some weeks ago that he wasn't particularly concerned about the practice of sending home voting machines with poll workers, even though it's now been shown in report after report that these systems can be gamed in just two minutes of unsupervised time. No password necessary. Haas wasn't concerned because, as he told me, someone would "have to want to commit a felony" to do any such thing, "which knocks out most of our poll workers in San Diego," he added.

Haas' colleague Monterey County, CA Registrar of Voters, Tony Anchundo, who had explained to me on air last October that "There is obviously going to have to be some trust and faith in the elections official, or in this case, it's me," was not available for comment. He was charged last Wednesday on 43 criminal counts from forgery to embezzlement to grand theft.

"What is the purpose of a Registrar of Voters?," Jacobson asked incredulously in a phone discussion on Wednesday. "Are they public servants or not? Is their role to prevent citizens from having access to information? To make it difficult for voters to find out how elections were run? Or is it supposed to be to serve the taxpayers who entrust them with this duty?"

Jacobson added, "the Registar is simply being obstructionist instead of allowing individuals, who they are supposed to be serving, the ability to determine whether or not our elections are accurate."

Indeed, even Jacobson's request for the results of a state-mandated 1% audit of ballots and "paper trails" in the race --- which she had filed to see as part of a public records request prior to her filing for the hand count --- have still not been fulfilled by the Registar's office. At this time, we are unaware of anybody having seen the results of that 1% audit. Which, unfortunately, again raises the question; What is the San Diego County Registrar's office trying to hide?

The letter sent to the RoV's office on Tuesday was in reply to an email, received just hours earlier, responding to Jacobson's letter from Monday which also sought clarification about the costs demanded by the RoV: $6,000 by 3pm Tuesday as payment for the costs associated with expenses of the following day's hand count. Jacobson received her reply at 2:43pm. By California law, a count requester must pay the following day's expenses in advance. The Registrar, of course, may only charge for the actual expenses of the count each day. Haas has failed to give any accounting for his numbers.

Fundraising led by VelvetRevolution.us, an election integrity organization, has so far raised about $10,000 towards the overall expenses of fighting for accountability in the Busby/Bilbray election. Jacobson's letter was appropriately cautious in demanding a written response from the Registrar that the documents would be supplied before being forced to commit $6000 of those funds towards the effort without any assurances or accountability from Haas. (DISCLOSURE: The BRAD BLOG is a co-founder of VR.)

"Please be aware that we are not necessarily in agreement with you regarding what constitutes relevant material," wrote Asst. Registrar Tim McNamara in the email sent to Jacobson just minutes prior to the Tuesday 3pm deadline. "We can discuss that when we meet" on Wednesday morning, he wrote.

Nonetheless, Jacobson would be forced to pay the $6000 up front, according to the emails, with no guarantees of anything from the Registrar's office.

Jacobson's letter from Tuesday has gone unanswered by the RoV's office. As of 8am Wednesday morning, the time at which the hand counting was supposed to have begun, the other participants were notified of the cancellation of the count by Haas' office. Jacobson had been told nothing.

Haas had succeeded in running out the clock. The time allowed by law for such a count to begin --- which, at Haas' discretion, started over the holiday week prior --- had ended.

In our phone call yesterday, Jacobson also wondered why Secretary of State McPherson's office hadn't enforced their own new rules and security mitigation requirements as set out in his February 17, 2006 "conditional certification" of the Diebold voting systems. She wondered why McPherson hadn't bothered to hold the San Diego County Registrar accountable for failing to meet those requirements.

"What is the role of the Secretary of State? To make sure his Registrars keep the letter of the law? And if there were new laws to make sure elections were safe and secure in light of new vulnerabilities found in the machines, isn't his job to make sure those RoV's follow those new laws?"

"It seems like nobody is accountable here, and the voters are just left out to dry," she added in frustration.

Organizers on the ground who are fighting the battle for accountability in Busby/Bilbray CA50 --- a rag-tag group of concerned citizen patriot volunteers currently made up of mostly San Diegans and local reps from groups such as California Election Protection Network, Democracy for America, Progressive Democrats of America and VelvetRevolution.us, all of whom have declared "No Confidence" in the results of the Busby/Bilbray election as announced --- are now exploring further legal options as they continue to fundraise to pay for what will likely be an extremely costly effort in the weeks ahead. The funds raised so far are now earmarked to be put towards attorney fees and other expenses related to such legal options. But publicity efforts, and demonstrations to raise awareness about what the hell is going on here, are currently in the works.

The email sent late yesterday from the RoV's office to Jacobson, just minutes prior to the Registrar's imposed 3pm deadline for payment of $6,000 is below. It is followed by Jacobson's reply which has gone unanswered by the office of San Diego County Registrar of Voters, Mikel Haas...

From: Roberts, Monique [Monique.Roberts@sdcounty.ca.gov]
Sent: Tue 7/11/2006 2:43 PM
To: [email address redacted for privacy]
Subject: FW: Response to your letter to the ROV today--------------------------------------------------------------------------------

From: McNamara, Tim
Sent: Tuesday, July 11, 2006 1:49 PM
To: [email address redacted for privacy]
Cc: Haas, Mikel; Roberts, Monique
Subject: Response to your letter to the ROV today

Ms. Jacobson,

We are in receipt of your letter dated today that you delivered to the ROV office.

A $6,000 deposit shall be due at 3 p.m. today to commence any part of the recount including the gathering and review of relevant material. This is based on a labor estimate cost to begin to gather all or part of the material that you have requested and/or counting actual ballots.

We invite you to have further discussion when you make your deposit by 3 p.m. In the alternative, we may discuss these issues at some other time today or at the 8 a.m. meeting tomorrow or before that meeting.

Please be aware that we are not necessarily in agreement with you regarding what constitutes relevant material. We can discuss that when we meet.

Thank you.

Tim McNamara
Assistant Registrar of Voters
858-694-3403

July 11, 2006Dear Mr. McNamara:

I received a forwarded copy of the email you sent to me at 2:43 pm today from Ms. Monique Roberts which is in response to my letter to Mr. Haas dated July 11, 2006. For some reason the original email from you did not go through to me. However, I do see that there is a "reference" in the top line of Ms. Robert's email to me that an email was "sent" from you to my email address at 1:49 pm. However, I would appreciate receiving another forwarded copy of this email from you showing the time it was sent to me the first time you sent it. I do not understand why I did not receive it when you sent it at "1:49."

Based on the content of your email to me that I received from Ms. Roberts at 2:43 pm today, I cannot in good faith respond intelligently about the manual hand count request since you have refused to commit to which materials you will provide to me and other interested voters to review in order to properly determine the precincts that should be counted first per my right under California Election Code 15622. California Election Code 15622 states: “The request may specify the order in which the precincts shall be recounted.”

In addition, you have refused to guarantee that the key relevant materials regarding "chain of custody" and audit logs will be given to us. This relevant information is mandatory in order for us to review the extent that voting machines were compromised and to determine if the total vote is accurate for the 50th Special Run-off Election of June 6th.

As indicated in my letters of July 5th and July 11th to Mr. Mikel Haas, Registrar of Voters, I requested a detailed list of the materials you would be willing to provide to me regarding the manual hand count as well as a reasonable time frame to include reviewing materials before the count took place.

If you were in my place, would you agree to pay for something that you had no idea you might ever receive? Your lack of specific information in response to my clear and specific requests leads me to believe that there would be no guarantee that we would receive relevant materials to the recount process as guaranteed to a requester of a recount in Section 15360 of California Election Code where it states:

"All ballots, whether voted or not, and any other relevant material, may be examined as part of any recount if the voter filing the declaration requesting the recount so requests."

In your email to me today you stated,

"Please be aware that we are not necessarily in agreement with you regarding what constitutes relevant material. We can discuss that when we meet."

However, it is unclear that you would be willing to discuss this without us first giving the ROV a $6,000 deposit. I would never pay for a car sight unseen. That is what you are asking of me and it is inappropriate. If there are reasonable charges to gather the information before the counting begins, then we would be happy to pay for those charges. However, you are asking us to pay for something without the guarantee that we will ever receive it and this is totally unacceptable.

In addition, there is no mention in your message whether there would be any delay of counting of the ballots to give me and other interested voters a reasonable amount of time to review the documents. It is my understanding that a hand count under the recount provisions can be considered to begin by reviewing all documentation requested. It is inefficient and a waste of money to pay counting boards to stand by while I and other concerned voters review the documentation. I am paying for the recount and as a voter it is only reasonable that I should know specifically what I am paying for. While reviewing relevant materials, it is unnecessary to pay counting boards.

Finally, it is unclear how you are arriving at the figure of $6,000 for "gathering materials" and counting on the first day.

You say that you would be willing to have a meeting "in the alternative" today at some time or tomorrow at 8 am. Does that mean that if we do not provide the $6,000 deposit to you today, you will still hold a meeting?

In addition, it appears that you have not begun to gather the information we requested on July 5th. Does that mean that you would start the recount before we have even gathered the necessary information? In your email to me today you state:

"A $6,000 deposit shall be due at 3 p.m. today to commence any part of the recount including the gathering and review of relevant material. This is based on a labor estimate cost to begin to gather all or part of the material that you have requested and/or counting actual ballots."

Based on the lack of specific information from the Registrar of Voter's Office I received in response to my request for a Manual Count of the 50th District's Special Run-off Election on June 6, 2006 including specific relevant materials, it is clear to me that the conditions the Registrar of Voters, Mr. Haas, has put on our exercise of our right to a recount are unacceptable.

Sincerely,

Barbara Gail Jacobson