The National Election Data Archive Files a Federal Complaint Against Utah's Chief Election Official, Saying Utah Election Law Conflicts with Federal Law

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On September 20, US Count Votes, DBA The National Election Data Archive filed a federal lawsuit in U.S. District Court for the District of Utah, Central Division, challenging the legality of the Utah's election statute 20-A which is being cited by Summit County Clerk to deny public access to election records, including voter registration records which the National Voter Registration Act requires to be public. The defendants, Summit County, Summit County Clerk and Utah Lt. Governor Gary Herbert were served on Monday 09-24-2007 and have 20 days to respond.

On September 20, US Count Votes, DBA The National Election Data Archive filed a federal lawsuit in U.S. District Court for the District of Utah, Central Division, challenging the legality of the Utah's election statute 20-A which is being cited by Summit County Clerk to deny public access to election records, including voter registration records which the National Voter Registration Act requires to be public. The defendants, Summit County, Summit County Clerk and Utah Lt. Governor Gary Herbert were served on Monday 09-24-2007 and have 20 days to respond.

The plaintiff, Kathy Dopp, Executive Director of US Count Votes, a Utah nonprofit corporation, says that, "Utah's current election system is so secretive that it is akin to allowing a small close-knit group of people to take ballots to a back room and secretly count them."

Utah statute 20A-4 (106, 201, 202) requires sealing election returns and records "in a strong envelope or pouch" during poll closing; delivering "the unopened envelopes or pouches to the election officer or counting center." "Upon receipt of the election returns from an election judge, the election officer shall" make sure that all records are there, "inspect the ballots and election returns to ensure that they are sealed"; "deposit and lock the ballots and election returns in a safe and secure place"; and "preserve ballots for 22 months after the election"; and "after that time, destroy them without opening or examining them."

Dopp says that "The Utah election law is poorly written, impractical and not harmonious with sound election practices. If Utah election officials followed the Utah statute themselves, they would have to:

  • Lock up and destroy all the touch-screen memory cards and the general election management server hard drive 22 months after each election
  • Lock up all election records (originals and copies) at the polling place and never look at them again, even to tally the unofficial vote counts
  • Not examine the poll books to update voter registration databases, and not examine the ballot reconciliation forms or DRE reports to evaluate, for instance, if the number of ballots cast equals the number of voters recorded.
  • Not check the accuracy of touch-screen machine counts by comparing the counts of voter verifiable paper ballot records with the unofficial touch-screen election results.
  • Not check computer log files to see if access to voting systems appear normal

Utah election officials must violate the law or they could not tally votes, reconcile ballots or check the accuracy and currency of voter registration rolls or vote counts."

US Count Votes' seeks public access to copies of voter registration and election records necessary to check the integrity, accuracy, and currency of the electoral process and voter registration rolls.

According to Dopp, "Utah's backroom secrecy, combined with its use of 'black box' voting machines using invisible e-ballots counted with trade secret software" cast suspicion on the integrity and accuracy of Utah's election process. Keeping election records and procedures, and even detailed vote counts and registration records, secret from the public hides any miscount or errors."

If the suit successfully overturns Utah election statute, Dopp hopes that the Utah legislature will see the benefit of rewriting Utah election statute to allow for full public oversight over the integrity of Utah's electoral process.

A federal right to vote is provided by the US Constitution for US Senators and House Members and federal case law establishes that right as including the right to have votes accurately counted. Dopp says that, "A secret process for counting votes invites undetected miscount or vote fraud. Public oversight is a must to illuminate and ensure the integrity and accuracy of the process."

Dopp and the Utah Desert Green Party point out that, "Utah's election auditing procedures never compare the voter-verifiable paper ballot records against the unofficial vote counts tallied by the Diebold General Election Management Server (GEMS). Instead Utah merely compares a few randomly-selected voter-verifiable paper ballot records against a printout of votes from the same touch-screen memory cards." Dopp's request for a report of touch-screen vote counts from the GEMS server, necessary to conduct a valid audit of individual touch-screen counts, was denied."

Why is this federal suit important? Dopp says, "Utah's system of denying public access to voter registration records, election records, machine vote counts, and election procedures could spread to other states if it is not challenged. Winning this suit will help the public in Utah and other States to exercise their right to access certain election records required for public oversight of election integrity." The National Election Data Archive believes that America is not founded on "trust", it is founded on checks and balances which always involve distrustful oversight. Our votes determine all the government's power. Secrecy means no accountability, defeating the primary purpose of elections to hold government accountable.

About US Count Votes:
US Count Votes, DBA The National Election Data Archive is a 501(c)(3) nonprofit that promotes fair and accurate elections by promoting public access to election records and data; and developing technology and methods to detect voter disenfranchisement and vote miscount. Such methods include independent manual election audits. US Count Votes is requesting donations. It needs funding to pay its expenses and to hire a second staffer to enable it to create clear instructions for auditing election results and do other work to promote fair and accurate elections.

News of the federal suit has been reported in local Summit Count Utah press: "Dopp Sues Summit County in Federal Court - Parkite claims state and federal laws conflict"
http://www.parkrecord.com/todaysheadlines/ci_6995897 and "Voting Activist Sues State for Access to Election Records" http://kcpw.org/article/4510 The audio is posted at http://kpcw.org/download_media/media/audio/Local News Hour/kathy dopp and brian barnard 9-27.mp3

A copy of the federal complaint is posted: http://utahcountvotes.org/UT/USCV-FedCase-Complaint.PDF
and its exhibits: http://utahcountvotes.org/UT/USCV-FedCase-Exhibits.PDF
A copy of Utah State Records Committee's Decision and Order is posted at:
http://utahcountvotes.org/UT/UT-Election-Records-07-02DoppOrder.pdf

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KATHY DOPP

Brian M. Barnard, Esq.
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