The Australian ballot comes to Wyoming

In recent months, dozens of Wyoming citizens from across the state have been denied access to public records. Many of these denials have included a reference to Article 6, Section 11 of the Wyoming Constitution. Such widespread public interest merits a closer look.

Section 11 begins, “All elections shall be by ballot.” Perhaps surprisingly, when this language was ratified in 1889, ballot elections were a recent innovation. As late as 1892, citizens in West Virginia rejected new ballot requirements and demanded a return to the voice vote.

Paper ballots, in fact, were at the heart of election reforms across the globe. In 1856, Australia first enacted the so-called secret ballot. As similar laws were enacted from London to Cheyenne they were known as “the Australian ballot.” These reforms were designed to counteract the widespread practice of voter intimidation. 

Robber barons, bosses, and corrupt politicians had learned to game the system. It was common to demand that employees or tenants vote a certain way, under threat of being fired or evicted. Observers at the polling place would enforce this intimidation either by eavesdropping on their voice vote or by observing which ballot was cast into the box.

At that time, ballots were printed by political parties and given to voters in advance of election day. They were easily identifiable by shape and color. So, it was nearly impossible to vote free of external pressures. The Australian ballot countered this with four specific reforms. 

• First, every ballot listed all candidates running for office, and not only one party’s slate.
• Second, instead of each special interest printing its own ballot, the Australian ballot was standardized and printed at public expense. 
• Third, ballots could not be distributed outside of the polling place, or before voting day. Thus, fraudsters could not pressure voters to mark ballots before coming to vote. 
• Fourth, polling places supplied a privacy booth to prevent fraudsters from observing how voters marked the ballot.

After the presidential election of 1884, all American states rapidly adopted the Australian ballot. Kentucky was the last to implement it in 1891. Wyoming’s constitution was ratified during this time and Article 6, Section 11 enumerated all four elements of the Australian ballot.

It says, (1) “all candidates… shall be printed on the same ballot,” (2) “at public expense,” (3) “and on election day [the ballot shall] be delivered to the voters within the polling place,” and (4) “All voters shall be guaranteed absolute privacy in the preparation of their ballots.”

Provisions one and two are relatively non-controversial. But early voting conflicts with our third provision. And the fourth provision recently has been stretched beyond recognition. 

“Preparation” is what happens before the ballot is cast. That is where privacy is guaranteed. But public record requests to look at ballots after they have been cast are being denied based on this sentence: “All voters shall be guaranteed absolute privacy in the preparation of their ballots, and the secrecy of the ballot shall be made compulsory.” 

The secrecy guaranteed here is in the voter’s preparation and in the ballot itself. It is a guarantee that anyone who looks at the ballot will not be able to identify the voter. Secrecy is secured not by hiding ballots from some while allowing others to inspect them. Rather, it is secured by preventing anyone who looks at them from being able to identify a voter. 

Monique Meese

So, who is saying otherwise? The former communications director for the secretary of state, Monique Meese, testified before the Corporations Committee (August 25, 2022): “I should read this sentence as broadly as I can because I want to protect my office from someone who is upset or might have a claim of action against my office for giving out information that’s constitutionally protected.” 

Two things should be said about this claim. First, the job of the Secretary of State’s office is faithfully to interpret the constitution. It is not to protect his office by stretching the words of the constitution “as broadly as I can.”

Second, the constitution demands that the ballot itself be made secret. If the Secretary’s office has not ensured that the ballot is secret so that anyone—from the county clerk to the janitor—might be able to identify the voter, the secretary has failed in his constitutional duty. But if the secretary meets his constitutional obligation, no one can be identified. And so, no one can be “upset or …have a claim of action.”

For the entire history of Wyoming millions of ballots have been inspected by clerks, election judges, and election observers. Every single one of them is a direct refutation of Meese’s novel interpretation. After 133 years of constitutional precedent, even statutory enactment of this interpretation would be hard-pressed to survive a constitutional challenge. Much less should it survive as a bureaucratic dictum.

Post Script:

• The Reporters' Committee for Freedom of the Press has done a state-by-state analysis of which election records are publicly available. Colorado, Georgia, Texas, Vermont, and West Virginia explicitly permit public inspection of ballots. Many other states have not addressed the issue. The report concludes: "All election records of a county [in Wyoming] are public unless specifically exempted."
• Texas attorney general, Ken Paxton, issued an August 17, 2022 opinion stipulating that both legislators and the general public have the right to inspect secret ballots.
• To varying degrees, states and counties throughout the United States have already set precedents by treating paper ballots, ballot images, and cast vote records as public records. In one example, Maricopa County, Arizona made 2.1 million available for public inspection in 2021.

Ballots, or ballot images? Which is it?

Photo credit: Brett Jordan on unplash.com

Last week’s meeting of the legislature’s Joint Corporations, Elections and Political Subdivision committee crackled with controversy. 

Observers were troubled by the ranked-choice voting scheme proposed to strip our political parties of the power to put their own candidates on the general ballot. 

Committee members pushed back against the secretary of state’s novel, and overly broad interpretation of Wyoming’s Constitutional provision for “secrecy of the ballot” (Art. 6, Sec. 11). 

Senator Nethercott’s motion to draft a bill that codifies federal guidelines for certification of election equipment raised concerns that Wyoming election law would dance to the constantly changing tune of the Election Assistance Commission.

Committee Chair, Dan Zwonitzer’s, motion to remove election oversight from the secretary of state’s office seemed to thumb a nose at 76,000 voters who resonated with Chuck Gray’s calls for increased election integrity. 

All of these issues merit the careful attention of Wyoming citizens. Each, in its own way, has the potential to erode further the power of our vote to express the consent of the governed. 

But the part of the meeting that most piqued my interest happened in the opening ten minutes. State election director, Kai Schon, gave a brief report on the August 16 primary election. Generally speaking, things went very smoothly. For that, we thank him for his good work.

Kai Schon, Director of Elections

He ended his report by touting a post-primary audit that went above and beyond the requirements of state law. He explained, “We want to look at the ballots that are actually being voted and see how our tabulators are adjudicating ballots.” In that sentence, he captured the mood of a strong majority of Wyoming voters.

Schon described reaching out to professor, Ken Gerow, director of UW’s statistics program, to help determine a statistically significant sample for the audit. He then reported triumphantly that the roughly 3,000 ballots of this random sample, distributed across 23 counties, matched exactly with the Cast Vote Records (CVRs).

If this report were exactly true as worded, voters around the state would have good reason to, in his words, “put to bed,” concerns about the trustworthiness of Wyoming’s ES&S voting machines. But Schon’s description was different from the Uinta County clerk’s description of the event. According to that website, they were comparing “ballot images and cast vote records.”

Audit observers in Uinta, and several other counties, did not carry out the stated intent of the director of elections to “look at the ballots that are actually being voted.” Instead, they looked only at the “ballot images.” There is a significant difference between the actual ballots and their “ballot images.”

Ballot images are photos that the machine takes of the ballot. They are produced by the machine, not by the voter. So, the audit conducted in Uinta County only compared one product of the machine (the ballot image) with another product of the same machine (the CVR, or cast vote record.) Nobody in Uinta County has looked at the actual ballots. 

Sheridan and Natrona counties both promised a “Post-Election Ballot Audit…in accordance with and as required by the Wyoming secretary of state policy (dated June 29, 2022).” Was this different than Uinta county’s audit? Or did all of Wyoming’s counties look only at the ballot images? Did the secretary of state’s June 29 policy require a look at the ballots, or only at the ballot images? (Public Records Request, pending).

Lawmakers should ask Mr. Schon these questions. Either Uinta County defied the SOS’s requirements, or Mr. Schon’s language before the Elections Committee was sloppy and misleading to the Wyoming people.

Some might scoff at this question as the mere splitting of hairs. But in this day of computer wizardry, it is a matter of night and day. Images can be altered in the blink of an eye. Paper ballots cannot. The smartphone you have in your pocket has the capability of instantly editing any photograph. It can automatically erase unwanted pixels, like red-eye, and insert new pixels, like stars and dog noses. More sophisticated programming can do even more.

Computer experts that examined the CVRs and ballot images of the machines in Mesa County Colorado raised precisely this possibility. They demonstrated on-screen how the hand-blackened ballot oval in front of one candidate could be cut out and replaced by an empty oval, and how that hand-blackened oval could be pasted in front of a different candidate—altering the ballot image to contradict the actual ballot. (See [s]election.code at the 48:00 mark)

Nobody is alleging that such fraud happened in Wyoming. But the director of Wyoming’s elections should recognize that words matter. If the ballot audit actually audited the ballots, Wyoming voters should know it. But if the ballot audits only audited ballot images—as happened in Uinta County—public testimony that omits that detail degrades voter confidence.

Full access to election records benefits everyone

Numerous voters, including this author, have sent a letter to the Uinta County clerk requesting to inspect ballots and other relevant materials from the 2020 election.

The letter emphasizes, up front, that the signers are making no accusations against any elected officials. It stipulates that they appear to have “faithfully performed their duties as election officials.” And it continues: “Nor do we seek to challenge any prior official results.”

Our officials should not be falsely accused of wrongdoing. Unfounded accusations dishonor public servants and threaten to create an “us vs. them” environment where election officials resist, rather than assist citizen involvement in the vote-counting process. This degrades, rather than strengthens election integrity.

Transparency in legislative and rule-making processes deters unethical behavior while simultaneously bolstering citizen confidence in governance. Conversely, wherever government actions are opaque, citizens begin to imagine all sorts of things—some of which are real. This is the reason for open meeting laws and laws giving citizens access to public records. The same standards should apply to the election process and its public records.

Sadly, transparency has been slow in coming. On April 5, citizens in Park County presented a plan to the county commissioners for a citizen-audit of the upcoming 2022 county primary. They waited over 40 days only to be told that their request was denied. They were denied, in part, because of the federal statute requiring that ballots be kept for 22 months. But that statute requires only retention and preservation of ballots and election records. It does not forbid public access.

Park County Commissioners
Mangold, Tilden, Overfield, Livingston, Thiel

Nevertheless, rather than contest this dubious ruling, they simply asked to inspect the ballots from the 2020 primary after the 22 months expired on June 18, 2022. That request was almost 60 days ago, and still they have received no response. There is no justification for this.

If Park County cannot cite explicit laws that forbid the inspection of these public records, it should gladly assist any citizens who have the time and the motivation to perform a citizen audit. Citizen scrutiny of election records is a worthwhile endeavor that has no legal downside. It can only help to detect weaknesses and to suggest improvements. 

Wyoming signed a contract with Election Systems and Software (ES&S) in March 2020. At that time, State Election Director, Kai Schon, told the told the Buckrail in Jackson Hole, “Each ballot will be printed on paper—always creating an audit trail that can be used to confirm the accuracy of every single vote.” Now, over two years later, nobody yet has been allowed to audit the printed ballots. What good is an audit trail that is shielded from audit--whether by elected officials or citizens?

Kai Schon, Wyoming Election Director
2016 - present

The Public Record Request enclosed in the letter addressed to the Uinta County clerk identifies 13 specific categories of records pertaining to the 2020 election. The cover letter enumerates nine points explaining why there is no legal reason that inspection and copying should be denied.

The first two points outline how computerized voting is unacceptably opaque. As I explained in my June 24 column, “It’s time to rethink computer voting,” it is impossible for the average citizen to see inside the machines or to understand the code that processes their vote. Worse, even Wyoming’s elected officials are forbidden to perform these vital tasks! Instead, they are supposed to be performed by nameless technicians in a distant Voting System Test Laboratory selected and paid by ES&S.

The rest of the letter provides legal support for the Public Records Request. It looks at the state and federal laws in play and shows how they are consistent with citizen access. In sum, it argues, “Election records are public records like any other official records and are not privileged or confidential and the disclosure of election records will not cause injury to the public interest.” It continues, “Citizen inspection of all aspects of our voting system must be a routine matter,” for the same reason that independent, certified audits are standard practice in businesses both small and large.

The transfer of governmental power to individuals selected by the sovereign people is the very most sensitive operation of a democratic republic. Any possibility that it could be done without the consent of the governed must be ruled out absolutely. The guarantee of pure elections should not rest of the trustworthiness of election officials, but on the transparency of the process. Wyoming’s Constitution (Art. 6, Sec. 13) “Purity of elections” requires no less.

Secretary of State, Ed Buchanan, has been crisscrossing Wyoming to assure its voters that elections are secure and accurate. We hope that he will see the voters of Uinta County as allies in his quest. By assisting our access to the records requested, he can enlist an army of public-minded citizens to provide the hands-on verification of his assurances. Together, we can strengthen the purity of Wyoming’s election system while simultaneously boosting voter confidence.

It's time to rethink computer voting

Wyofile’s Maggie Mullen recently reported that, “all four candidates [for secretary of state] have made election integrity their No. 1 priority.” That is welcome news to Wyoming voters. One does not need reckless allegations of wrongdoing to have legitimate concerns about Wyoming’s voting law.

The 2000 presidential election traumatized American voters by opening the possibility that the highest office in the land might be decided by judges rather than voters. The danger to the American republic was obvious enough that congress overwhelmingly passed legislation called the “Help America Vote Act.” This act ushered in the age of computerized elections.

At the time, it seemed like a reasonable response. The world was enamored with the speed and accuracy of computer technology. Harnessing all that power to assist in the voting process seemed like a no-brainer. But that was two decades ago. The internet was barely a decade old, and smart phones not yet invented. 

Election activities that used to take seconds and could be observed with the naked eye now happen at the speed of light, in the unobservable recesses of a metal box. Meaningful observation is impossible. Security that could once be insured by locking a door or sealing a box now requires highly specialized knowledge of machine language and wireless technology. The years have seen an exponential rise in the sophistication of hacking. Even the thumb drives used to update software and transfer votes are capable of infecting a machine with hidden and malicious code.

County clerks and secretaries of state cannot be expected to be experts in cybersecurity. Therefore, to assist them, the Election Assistance Commission (EAC) outsourced the creation of Voluntary Voting System Guidelines (VVSGs) to the Technical Guidelines Development Committee (TGDC), chaired by the director of the National Institute of Standards and Technology (NIST).

This dizzying array of acronyms produce an evolving set of guidelines that require highly-skilled technicians. Elected officials are unable to examine the hardware and software of our computerized election machines, not only due to lack of expertise but because every contract between voting machine manufacturers and the states that lease them forbids state officials from personally performing the inspection (Wyoming Contract, Section 13.B, pp. 7-8).

Instead, the EAC has certified two Voter System Test Laboratories (VSTLs) to do the inspection. These VSTLs are selected and paid by the machine manufacturers to tell the states whether or not the hardware and software meet VVSG standards. You read that right. Wyoming voters are absolutely dependent on the expertise and integrity of third-party technicians paid by Election Systems & Software (ES&S) to certify its machines.

Wyoming signed a contract with ES&S in March 2020 which included three attachments. “Attachment B-Statement of Work,” which presumably details the “who, when, and where” of the VSTL certification, is deemed “confidential” and withheld from a public records request. 

Thus, Wyoming voters are required to trust that the certification contract between ES&S and an anonymous VSTL is on the up-and-up (Section 8, p. 5). Not only so, but the details of that contract are considered “trade secrets and confidential commercial data.” This lack of transparency requires an inordinate amount of trust from Wyoming’s voters.

Wyoming’s contract with ES&S also stipulates (Section 13.E, pp. 8-9) that it retains full rights to update the machine software—apparently even after the VSTL certification. However this updating is done, it calls for a recertification of the machines; but this is not provided for. As the Cybersecurity and Infrastructure Security Agency (CISA) recently admitted, a thumb drive infected with malicious software can change the machine code merely by being plugged into the machine.

The confidence of Wyoming voters in the integrity of our voting machines depends upon the faithful performance of duty of a great many persons unknown and unaccountable to them. This is a far cry from the simplicity of the method mandated by our Constitution (Art. 1, Sec. 27, and Art. 6, Sec. 11). This is not illegal. But neither is it right. It is high time to reconsider our unwarranted faith in the supposedly neutral and efficient computer. 

None of this is an indictment of Wyoming’s election officials. They are doing their best to implement laws that were hastily written in the aftermath of the 2000 election. The passage of time has revealed that the laws, themselves, are flawed. 

If election law permitted a stack of ballots to be left unguarded on the side of the road, voters would rightly be upset. County clerks and secretaries of state would be the first to call for a law to tighten security. And the legislature would pass such bills unanimously. Nobody would require prior proof that the sloppy practice actually changed vote totals.

In exactly the same way, Wyoming’s electronic voting system has insecurities that leave it vulnerable to outside interference. The legislature can address the vulnerabilities without waiting for proof that they have been exploited. Tens of thousands of Wyoming voters are eager for the secretary of state to lead the way.

Park County can lead the way to restoring voter confidence

The commissioners of Park County are considering a proposal to boost voter confidence while satisfying every legal requirement. The plan was presented at an April 5, 2022, meeting of the commission, which is posted on YouTube. (It begins at the 4:07 mark).

Park County resident, Dave McMillan, explained: “This is not a partisan issue.” Americans across the political spectrum lack confidence in our ability to conduct an honest election. An ABC/Ipsos poll conducted in late December reveals that only 20 percent of the public is “very confident” about election integrity. That is a 46 percent drop from only one year ago. 

A major cause for the precipitous decline in confidence is the advent of the computerized polling machine (A.K.A. e-voting). These entered Wyoming elections in 2006, but their history goes back to the contested presidential election of 2000. 

Two years after the infamous “hanging chad” shenanigans in Florida, President Bush signed into law the “Help America Vote Act” (HAVA). This sweeping federal legislation established the “Election Assistance Commission” (EAC) consisting of four unelected appointees. The EAC was empowered to rewrite election standards and to establish a bureaucracy to enforce them.

Formally, the EAC is prohibited from imposing “any requirement on any state” (Part 2, section 209). Nevertheless, through multi-million-dollar grants it entices states to follow its “recommendations,” and through threats of investigation by the Department of Justice, it bullies the reluctant. 

Responding to the carrot and the stick, Wyoming eventually abandoned hand counting in favor of the newly emerging technology of e-voting.

Immediately, the new technology was called into question. A year after the EAC began pushing e-voting, the New York Times published an exposé on its inherent security vulnerabilities: “How to Hack an Election.” Likewise, CNN detailed “The trouble with e-Voting” in August 2004. Since then, there have been over 100 other such articles that document the numerous ways election hardware and software can be hacked. 

Malignant algorithms can be hidden in the software or hardware of machines at the factory. They can also be introduced through removable memory, or they can be uploaded to machines that are plugged into a network. 

But even if you disable the removeable memory ports, and unplug the network cable, a simple 120v power cord can be made to upload data. Embedded modems, sometimes invisible to the naked eye, make the machine accessible, even if it is hermetically sealed in a box and running on batteries. For proof of this, simply place your cell phone in a locked safe and send it a text. 

In 2020, Wyoming bought DS200 tabulators from Election Systems and Software. But only two months earlier ES&S admitted to NBC News that “14,000 of their DS200 tabulators with online modems are currently in use around the country.” That’s why tamper-proof security tape and “look, no cables” demonstrations may impress the impressionable, but only heighten the concerns of cyber-security experts. 

Voters concerned about hacking do not have the burden of proof. Election officials do. No law or constitutional principle requires citizens to trust elections. Rather, election officials are required by law to earn the trust of the electorate. And every county clerk already knows how to earn that trust. 

Wyoming Statute 22-10-108 spells out exactly how to match up the numbers on the tabulator with an actual hand-count of ballots. That simple act verifies the electronic count and satisfies even the most Luddite witness. What it cannot do, given the wonders of technology, is to prove that the program remains unchanged for the next count. That’s why the Park County Commissioners are considering a simple proposal to extend the rigors of the pre-election test to a post-election test as well. 

The EAC has assured Wyoming that ES&S’s software (EVS 6.0.4.0) is certified. But that dodges the question. The question is whether the certified software on any given machine has been altered; and that is not so easily dismissed. First, it is logically impossible to prove a negative. But on top of that, three recent filings testify that it can be hacked.

First, the Cybersecurity and Infrastructure Security Agency (CISA) blocked release of a forensic report on Georgia’s e-voting arguing that the report can expose the already-existing vulnerabilities. Second, President Biden’s nominee for the Federal Election Commission has stated under oath that Georgia machines switched votes in the 2018 election. Third, Wisconsin’s Office of Special Counsel reported: “The OSC learned that all machines in Green Bay were ESS machines and were connected to a secret, hidden Wi-Fi access point” (p. 14).

Paper ballots are the actual instruments of democracy. They, and not the machines, settle elections. Why not adopt the simple solution offered in Park County? Is there any better way to prove an accurate count? Wyoming’s secretary of state could lead the nation in restoring voter confidence.

Elections are not games; they serve the people, not politicians.

Photo by Felix Mittlemeier on Unsplash

The first rule of government in a representative democracy is that those representing the people be democratically elected. That’s what the words mean. So, it was highly disappointing that the Interim Committee on Corporations, Elections & Political Subdivisions recently killed two election bills proposed by Representative Chip Neiman (R-Hulett).

Current Wyoming laws prevent political parties from holding head-to-head primaries to find out which candidate has majority support of that party. When three candidates split the vote with no one getting a majority, Neiman’s bills would put the top two head-to-head and let the voters determine which one has the support of the majority. 

Why the state of Wyoming has any authority to prevent parties from doing this in the first place, is a question for another day. But, until that day, Wyoming legislators can improve the situation by allowing parties to hold runoff elections and amending the state Constitution to allow adequate time for the process.

“Runoff elections-constitutional amendment” LSO 22-0092.3 was a simple bill to insert the needed time into the Wyoming Constitution. A “yes” vote would have put it before the state’s legislature in January. If both senate and house passed it with a two-thirds majority, it would be put on the ballot for Wyoming citizens to decide in November of 2022.

Rep. Chip Neiman

Seven members of the committee voted against even bringing the constitutional amendment before the full legislature. The committee then went on to kill its companion bill, “Runoff elections” LSO-0093.4, which would have responded to the will of the voters by creating a runoff process in Wyoming law.

So, why did a slim majority of the committee deny Wyoming voters from letting their majority be heard? Interested readers can watch the discussion and learn for themselves. The first thing they will learn is that these proposals are entirely doable. 

A lawyer from the Legislative Services Office, the state election director, and the president of the Clerks’ Association testified that the bills were both legal and workable. While the Clerks had opposed an earlier version of the bill, they worked with Representative Neiman to address its concerns and no longer resist it.

A lobbyist and a legislator or two raised objections that a runoff election for statewide office would cost about a million dollars. But if that is too much money to find out the will of the people, why have elections at all? Imagine the cost savings if we skipped elections altogether! But the very point of an election is to determine which candidate has the consent of the governed. Anything less than that is a sham—no matter what the cost. 

Already, the general election is designed to give citizens a head-to-head vote. That’s because everybody knows it would be unfair to allow a dozen candidates on the ballot and give the office to someone who could only get ten percent of the vote. So, why should any party be kept from doing what we already agree is the best practice for general elections?

Why, indeed? This is where the comments got interesting. Representative Sweeney (R-Casper) was most candid. He opined: “the majority party is pushing this… to stack the deck against folks they don’t like, myself being one.” His argument hinged on the assumption that a runoff election would lower his chances of reelection. 

Rep. Pat Sweeney

Whether Sweeney would lose a runoff or not, I don’t know. But I do know that, if he lost, it would be the voice of the people. And if he won, it would be the voice of the people. A civic-minded public servant would be horrified to win an election that did not accurately reflect the voice of the people.

Elections are for the people and not for the politicians. Elections are not a game of thrones to be won by hook or by crook. They should be designed to clarify and amplify the voice of the people. America needs principled public servants who understand this. They should care about a fair vote, not for a favorable vote. Elections are fair when they determine which representative has the support of a clear majority. 

In a perfect world, where the will of the people was perfectly known, we would not need elections at all. Rather, politicians would gladly resign as soon as they knew they had lost the support of the majority. They would nobly defer to anyone who better represented the constituency. But since we don’t live in such a perfect world, civic-minded legislators should work diligently to make elections as responsive to the will of the people as possible. 

For this reason, let us hope that Representative Neiman brings his bill back before the full legislature. Despite the slim majority of the Corporations Committee, the majority of the people should be heard. True representative democracy requires nothing less.

Also published in the Wyoming Tribune Eagle on December 10, 2021.