Email from Buerger, Jan 30, 2015

Hello Karen, Thank you for contacting the Government Accountability Board with your question about ballot bag security procedures. We were planning to contact you in response to your recent blog post entitled “Reaching out: Cross your fingers we can get more help for Wisconsin elections” that was posted this last weekend.

As to ballot bag security procedures, there is no requirement for election officials to keep the old bag or seal inside the new bag, although it may be a good practice. The draft Wis. Admin. Code GAB 5.01(6) requires that: “Whenever the custodian is required to open the ballot container and unseal the ballots… before opening the container the custodian shall record in the minutes of the proceeding whether the container is sealed and shall record the serialized number of the seal. The custodian shall make a record of the entry and of the ballot review. Upon completion of the review, the custodian shall re-secure the ballots in the manner provided in Wis. Stat. § 7.51, unless destruction is authorized under Wis. Stat. § 7.23.”

This means that the old bag/tag should be preserved through the appropriate retention period (90 days/22 months from the day of the election depending on the type of election), but there is no specific requirement to place those materials in the new ballot bag. If a clerk wished to keep those used bags and seals/tags in separate storage through the retention period, we would not object as long as these materials were appropriately preserved.

As for your blog post, some of your comments in the letter to Prof. Yandell were inaccurate and also do a disservice to the election officials in Wisconsin. You stated, “our election officials never check to see whether our voting machines produce accurate counts, except in the relatively rare case of a very close result when the loser demands a recount.” This is patently false as you well know.

Wisconsin election officials spent thousands of hours collectively these past few months to thoroughly ensure the accuracy of the November 4, 2014 General Election.

Every municipality in the state conducts a pre-election test of its voting equipment, which is open to the public and serves as a regular check on the accuracy of every piece of voting equipment in the state.

As part of the canvass process, election officials routinely examine the results of voting equipment to look for obvious errors like the Stoughton referendum error; which was caught and corrected via the canvass process.

Also, after every general election, the GAB orders an audit of 100+ reporting units to verify that the various voting systems used throughout the state tabulated the results correctly. Election officials have recently concluded their work on audits of the November 4, 2014 General Election and staff plan to make a full report on the results of that audit to our Board at the March 4th meeting.

Also, we object to your statement that “based on inadequate and naïve counsel from the staff of our state Government Accountability Board, [election officials] are completely unaware of any way to verify voting machine accuracy that does not involve a complete hand count of 100% of the ballots.”

Board staff routinely advise election officials on pre-election tests of voting equipment that verify the machine is programmed and operating correctly.

We also organize and provide support to jurisdictions selected for the post-election voting equipment audit each November election. Both the pre-election test and the regularly scheduled post-election audits are mandated by the Wisconsin Legislature.

You may believe that the existing processes and Board staff’s guidance regarding them are inadequate to the task of ensuring the accuracy of Wisconsin’s elections, but those processes are certainly not inconsequential to the point of entirely omitting any mention of these safeguards from your letter.

This is not to say that we cannot do more. Board staff regularly research best practices in the area of election administration and have been aware of additional methods of post-election audits including risk-limiting audits for some time. If I recall correctly, we discussed this with you as a possibility back in 2013 during an in-person meeting.

While Board staff has not decided to pursue an expanded audit process at this time due to other workload constraints and potential ballot security issues, it does not mean we have foreclosed the possibility in the future, especially as elections technology advances and makes such audits easier for local election officials to administer.

Finally, I think you do the election officials of this state a disservice when you state “Wisconsin’s county and municipal clerks are either unaware of the post-election audit recommendations of multiple national authorities… or they do not choose to consider them because they don’t understand them.”

Wisconsin’s elections officials are neither ignorant nor incompetent. Wisconsin election officials, 62% of which are part-time, work incredibly hard in an era of ever-decreasing budgets and constantly changing laws to make sure that the elections they administer are fair, accurate, and accessible to all voters.

It is not without great consideration of the burdens placed on local election officials that Board staff would ask them to complete a task not required by state law. A requirement or recommendation to implement a pre-certification hand count would be a significant and labor-intensive departure from current law which the Board cannot impose without legislative changes.

I hope this email has been responsive to your question and helps you better understand our position on post-election audits.

Sincerely,

David P. Buerger

Elections Specialist

Wisconsin Government Accountability Board