Kansas statistician battles government to determine whether vote count is flawed
Wichita State University mathematician Beth Clarkson has seen enough odd patterns in some election returns that she thinks it’s time to check the accuracy of some Kansas voting machines.
She’s finding out government officials don’t make such testing easy to do.
When Clarkson initially decided to check the accuracy of voting machines, she thought the easy part would be getting the paper records produced by the machines, and the hard part would be conducting the audit. It’s turned out to be just the opposite.
“I really did not expect to have a lot of problems getting these (records),” Clarkson said. But Sedgwick County election officials “refused to allow the computer records to be part of a recount. They said that wasn’t allowed.”
Instead, Clarkson was told that in order to get the paper recordings of votes, she would have to go to court and fight for them.
Earlier this year, Clarkson filed a lawsuit against the Sedgwick County Election Office and Kris Kobach, Kansas’ secretary of state, asking for access to the paper records that voting machines record each time someone votes. The record does not identify the voter.
Clarkson decided an audit was important in part because of national concerns about the voting machines that thousands of Kansans use to cast their votes in elections each year.
Reports of voting irregularities involving the same types of machines have been widespread in other parts of the country for years. And when Clarkson did her own calculations after the November election, she believed she found voting irregularities similar to those in other states such as Ohio.
“I noticed that there are patterns in the data that are suspicious,” said Clarkson, chief statistician for the university’s National Institute for Aviation Research.
Clarkson is in a unique situation.
The voting machines that Sedgwick County uses have a feature that most of the Direct Recording Electronic voting machines, or DREs, in Kansas and around the country do not have: a paper record of the votes known as Real Time Voting Machine Paper Tapes.
Many counties and states opted not to have a paper record to save money, said Pamela Smith, president of Verified Voting Foundation, a nonprofit agency whose mission is to safeguard elections in the digital age.
The DREs were introduced to American voters about 13 years ago to replace “hanging chad” ballots and lever voting machines following the 2000 presidential election showdown and ensuing controversy in Florida involving Al Gore and George W. Bush.
But the DREs have a couple of major flaws, Smith said.
Because no paper records exist in most cases, voters and candidates cannot know whether the machines accurately recorded their votes, Smith said.
That means for a candidate, no recount can ever be done of the votes recorded on those machines, Smith said. And voters can never be sure their votes were recorded correctly.
In addition the voting machine software is proprietary, and even election officials cannot examine it.
“There is a cost for not knowing the results are right in each election,” Smith said. “In our view, it becomes kind of corrosive of voter confidence because over time you can never be sure.”
In addition, post-election audits of the machines cannot be done.
Douglas County does not face those problems. Douglas County is highly aware of the DRE machines and the concerns surrounding them, said Douglas County Clerk Jaime Shew.
In 2006, Douglas County held a number of townhall meetings and brought in vendors to try to determine whether it should move from paper ballots to the electronic machines, Shew said.
The county elected to stay with a system that has paper ballots mostly because there is a paper trail that allows for recounts and audits, Shew said.
Tens of thousands of DRE machines were sold in the early to mid-2000s to election offices around the country. The sales got a boost from Congress when it passed the Help America Vote Act of 2002, which passed along millions of dollars to help states replace their voting equipment.
Johnson County was the first in the country to have a DRE machine in a polling place, said Brian Newby, Johnson County election commissioner, and that was purchased by one of his predecessors before the Help America Vote Act was passed.
Problems with the DREs were apparent early.
By 2004, California decertified its machines because of concerns over security, reliability issues and the inability to have audits.
Johnson County capitalized on that by buying the machines that had been only used once at a cut-rate price and expanded its fleet of machines, Newby said.
Also in 2004, Anita Ramasastry, an associate professor at the University of Washington School of Law in Seattle, wrote about the problems cropping up across the country.
She cited problems in California, Maryland and Georgia and advocated that federal law mandate that paper receipts be available and paper records kept.
“Paper receipts are the obvious answer,” Ramasastry said. “Florida gave recounts a bad name. But there is something much worse than a recount: the utter inability to recount votes, and reconstruct voters’ true intent, in light of a serious computer error.”
Newby said his office also recognized the issue and asked Johnson County commissioners to pay to retrofit the machines with printers, but the cost — at $5 million — was too steep. The machines are now aged and the county plans to purchase new ones with some type of paper reporting by 2017.
The problems surfaced in some states because in about half the states, laws require an audit after an election, Smith said.
But Kansas does not have a state law requiring an audit. Machines are checked prior to an election to see if they are operating correctly, several Kansas election officials said.
In Sedgwick County, Clarkson, a certified quality engineer with a doctorate in statistics, says her calculations from the November election showed that patterns exist in the voting data to suspect that “some voting systems were being sabotaged, but that doesn’t mean that no other explanations are possible for these patterns.”
Clarkson’s findings were published in June in StatsLife, the magazine for the Royal Statistical Society and the American Statistical Association.
Clarkson thought getting the data would be the easiest part of her project, but she has learned that obtaining government records in Kansas can be difficult.
In 2013, Clarkson asked Sedgwick County to do a recount but the time to file had expired. So she filed an open records request. Sedgwick County officials refused to release the records and Clarkson filed a lawsuit. But the judge ruled that the paper records were ballots even though they don’t identify the voter and so were not subject to the state’s open records law.
In November, Clarkson filed for a recount after that election, but even though her request was timely, Sedgwick County officials again refused, saying that only a judge could release the records to her.
So Clarkson again filed a lawsuit in February that asks for a court order giving her access to a certain number of voting records to conduct the audit.
The lawsuit was filed against the state attorney general and amended April 1 to add the Sedgwick election commissioner and Kobach.
But then Clarkson hit another snag.
Instead of paying the sheriff to serve the summons, she mailed it to the Sedgwick county commissioner and Kobach. Under state law, they had 30 days to respond but did not.
A Sedgwick County election official and a Kobach’s spokesperson, said they were unaware of the summons.
The Journal-World asked Eric Rucker, assistant secretary of state, whether Kobach had received it.
“I don’t know if we did or not,” Rucker said. “We are not going to comment on the status or the nature of this litigation at this time. We certainly have taken the position that during the pendency of any potential litigation that we won’t discuss the particulars of the case and that would be the nature of our response.”
Clarkson said she now has paid the Sedgwick County Sheriff’s Office to serve the summons this week and is interviewing attorneys for legal assistance going forward.