In Washburn’s World: Election Records Would Be Public

Blog post: The GAB: The Johnny Yoo of Election Administration <read>

I believe there cannot be effective oversight of an election (by an election official or by the public) if any of the election records are a secret.

We agree.

GAB provides legal cover to clerks so that the clerks may destroy election records which the clerks deem too inconvenient to preserve and retain.

In order to set the context for the last two years on this matter I will show my fundamentalist, Christian roots and begin with a creedal statement:

  • I believe there cannot be effective oversight of an election (by an election official or by the public) if any election records are secret.
  • I believe ballots are not secret, but anonymous.
  • I believe the content of a removable memory card used by a voting machine during an election is an election record as that term is used in state and federal law.
  • I believe that ALL of the content of a removable memory card is an election record.
  • I believe the contents of a removable memory card contain an admixture of some or all of the following:
    • programming,
    • ballot “images”1,
    • audit logs,
    • event logs,
    • vote totals at various levels of aggregation,
    • “ballot definition files”2,
    • audio files,
    • screen text,
    • page/screen layout,
    • whole, mountable file systems.
  • I believe the above list is likely incomplete because the exact contents of a removable memory card are secret and vigorously protected as trade secrets.
  • I believe election records should not be secret.
  • I believe election records are records that should have an absolute right of access. Under current law some election records in whole or in part are not even open records, much less records with an absolute right of access.
  • I believe the contents of a removable memory card used to aid in the administration of an election should be preserved and retained by jurisdictions for the same length of time as the jurisdiction is required to preserve and retain the poll registration lists used to administer the same election.
  • I believe state law, WI Stats. 7.23(1)(g), requires the contents of a removable memory card used by a voting machine in the administration of an election be preserved and retained for 22 months
  • I believe federal law, Title 42, Chapter 20, Subchapter II, § 1974, for federal elections, requires the same; preservation and retention for 22 months
  • I believe state law, WI Stats. 7.24, requires the backups made of the contents of a removable memory card pursuant to WI Stats. 7.23(1)(g) remain in the custody and control of the election official for the entire retention period.
  • I believe the contents of a removable memory card used in a voting machine is MORE important than the voter poll lists used in the same election. This is because the contents of the memory card actively and directly determine how the election is administered, where the poll books do not. If nothing else (and there is more), the contents of the removable memory card control how or if marks on the paper ballot or touches on the touch screen will be recognized and to whom votes will accrue based on those marks or touches. These are the election officials’ duties under WI Stats. 7.50 even if those duties have been delegated to an inscrutable black box.

The Government Accountability Board (GAB), its staff, and the clerks who head the Wisconsin Towns Association, Wisconsin County Clerks Association, and the Wisconsin Municipal Clerks Association do not agree with most, if any, of the above credos.

I object to the notion that there can be such things as secret election records.

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