Internal Memo from SoS Office to County Election Officials Informs That Any CA Voter is Entitled to Choose Paper over Plastic!
Apparent Response by Republican State Officials to Our National Call for Emergency Paper Ballots Causes Concern for Some...
By Brad Friedman on 10/16/2006, 6:35am PT  

Every California voter who wishes to vote on a paper ballot in this year's general election may do so, The BRAD BLOG has learned, according to an October 3rd, 2006 memo issued by the California Secretary of State's office!

The terse, single-page internal memo, sent to "All County Clerks/Registrars of Voters/Vendors" on CA SoS stationery (download complete memo here [PDF]) instructs elections officials across the state that they should "have an adequate supply of paper ballots" if electronic voting machines should break down or "if a voter chooses not to vote on electronic equipment."

Written by CA's Asst. SoS, Susan Lapsley, the memo was issued in apparent response to our recent call for Congress to introduce and pass immediate "Emergency Paper Ballot" legislation. While bills were subsequently introduced in both the House and Senate, neither chamber succeeded in voting on the legislation before adjourning for the election recess. Eagle-eyed BRAD BLOG readers may remember Lapsley as the one behind the Busby/Bilbray fax to Congress, declaring the Republican Bilbray the winner of the recent CA50 U.S. House Special Election to replace "Duke" Cunningham weeks before it was certified, while thousands of votes remained to be counted --- and well after we had already exposed that the tainted election included voting machine "sleepovers" with poll workers in the days and weeks prior, in contravention of both state and federal law.

Lapsley's memo was written just after Congress adjourned and prior to the letter [PDF] we sent last week, along with more than 50 other Election Integrity organizations and leaders, to all 50 Secretaries of State and Governors calling on them to institute immediate plans and procedures for Emergency Paper Ballots.

The good news here, as we see it, is that all California voters across what Diebold refers to as "the country's largest voting market" may now demand paper ballots when they go to the polling place this year. This will be crucial in counties such as San Diego and San Joaquin, where the Registrars of Voters have chosen to side with the voting machine companies instead of the voters by supplying only hackable touch-screen Diebold voting machines for their citizens this year.

In enormous Los Angeles County, which includes some 8 million voters, such dangerously unreliable touch-screen systems are used only for early voting. It seems clear, however, from Lapsley's memo, that even early voters in LA County may now choose to vote on paper ballots instead!

From the CA SoS' memo...

[A]ll county elections officials shall have an adequate supply of paper ballots, as determined by the elections official, available at the voting locations for use in the event of a temporary loss of the ability to use electronic equipment, or if a voter chooses not to vote on electronic equipment.

This back-up supply can be absentee ballots or other option as determined to be reasonable by the elections official. If absentee ballots are used at the polls the voter need NOT apply for an absentee ballot in order to be able to use it to vote at the polls. You may also use paper provisional ballots to satisfy voters wishing to vote on paper in the event that DRE counties do not have a sufficient supply of absentee ballots to satisy the needs of the precinct voters. In such instances, the ballots of verified eligible voters who wish to vote on paper and are provided a provisional ballot to do so should not be treated as a provisional ballot cast but, rather, as a regular ballot.

Seems clear enough to us. And, we believe, it's very good news for the voters of California in general.

With that in mind, however, some Election Integrity Advocates have expressed concern about the vagaries and other dangers of the Lapsley memo, including the Democratic Secretary of State candidate Debra Bowen and election attorney Paul Lehto, both of whom we have immense respect for...

In a quick exchange with Bowen's office over the weekend, concern was expressed that the SoS' directive leaves a number of important details unspecified. In particular, it leaves it up to local Elections Officialsthe to determine what is an "adequate supply" of such ballots. As was revealed in hearings held by Bowen in Kern County after a number of problems during the June 6th primary, the Registrar of that county determined that "zero" would be an adequate supply of such ballots. As a result, many voters were turned away without being allowed to cast a ballot during the primary election, when voting machines failed to start up, or even show up, in some cases.

As well, Bowen's office responds, the SoS has failed to specify, as required by the proposed federal legislation, that election officials are to post information "in a conspicuous manner" informing voters of their right to vote by paper at each polling place.

Lehto expressed another, certainly more nuanced and legalistic, concern in a recent posting at DemocraticUnderground.com. Essentially, his worry (and he states from the outset that he is a strong proponent of paper ballots in general) is that Democrats may be more likely to opt for paper over plastic than Republicans under Lapsley's declaration. In the bargain, he says, such paper ballots may not be counted as quickly as those cast on electronic touch-screen systems, which are able to turn out vote totals (accurately or otherwise) almost immediately on Election Night.

The concern, then, is that the Election Night totals may be disproportionately weighted in favor of Republican voters, which might cause such elections to be called, at least by the media, for Republican candidates before all of the paper ballots have yet to be counted. As we've learned of late, the first one to be declared the victor by the media in American elections has an inordinate advantage during any post-election challenges. Further, Lehto argues, it may be easier to challenge and/or disqualify paper ballots for any number of reasons, whereas electronic votes, by their very uncountable lack of actual existence, are nearly impossible to challenge. That, suggests Lehto, would lead to more Democratic votes than Republican votes being discarded, invalidated or disqualified in a close election.

Lehto's points are well taken. As are Bowen's, and we certainly agree with her that Lapsley's memo is woefully short on the sort of details one would expect from a responsible state election administrator about the specifics of how such ballots are to be supplied, stored, counted and publicized. You'll note, for example, the Riverside County Registrar who deceived voters that had used paper ballots during the recent primary. After the voters left, poll workers were told to punch those ballots into DRE touch-screens anyway! Violating both the point of voting by paper, and the voters privacy rights to boot!

But then again, SoS Bruce McPherson has fallen woefully short of everything for the voters of California since being named to the post by Arnold Schwarzenegger. Little wonder he doesn't give a damn about details on Emergency Paper Ballots either.

In an emailed reply to Lehto's concerns from another Election Integrity advocate, Jonathon Simon of Election Defense Alliance over the weekend, it was argued, essentially, that "we're damned if we do, and damned if we don't." Our elections, at this point, Simon argued (and we agree) are so entirely screwed up, gamed, secretive, and lacking in either transparency or integrity that it's a matter of choosing one's train wreck and hoping that the one chosen is the most mitigable.

Ultimately, the arguments expressed by both Lehto and Simon come from the viewpoint of Democratic Activists. Our concerns come more from a small "d" democracy advocate. And from where we sit, we simply cannot brook the idea of legally registered voters, from any party, being sent away from the polls without being able to cast a vote. That's something that we believe should be a felony and look forward to a moment in the future when we might be able to call on Congress to institute such a law.

For the moment though, we agree with everyone's expressed concerns that "the devil is in the details" on these matters, and election officials have the responsibility to spell out those details to the letter prior to election. It is then incumbent on them to ensure that every vote is counted --- and accurately so --- before any winners are ever announced.

That last is a point in which Ms. Lapsley, in particular, has shown herself to be appallingly uninterested. But now that she's declared all voters in California may vote by paper ballot, we believe it's time to spread that good news nonetheless!

UPDATE 1:23pm PT: Debra Bowen has now sent us a press release, just issued, excoriating McPherson for not including specific details on procedures for the use of paper ballots as we alluded to above. She has some very specific, and sharp thoughts on the matter. The full press release is here [WORD]...