This is the second in a two-part series. The first part, titled "Ballots, Lies and Videotapes" can be found below. It has also been published by Real Aspen.
SAGUACHE, Colo. — A disputed election in south-central Colorado is now in the hands of a grand jury that is reviewing allegations that the clerk and other officials committed crimes when they tallied the votes.
The officials under investigation stood to benefit from the election's outcome — most notably Saguache County Clerk Melinda Myers — who, along with County Commissioner Linda Joseph, at first lost but then won their races after Myers declared the races had to be retabulated due to a technical glitch.
The snafu hasn't just initiated secret court proceedings. It's also knocked over a political hornet's nest.
The Colorado Secretary of State's Office initially claimed it didn't have jurisdiction in the races, despite its heavy involvement in the election in question. A secretary of state official was present on election night — when Myers and Joseph were thought to have lost — but no one from the state directly oversaw the retabulation that changed the outcome. State officials did, however, remain in regular communication with Myers and provided her with guidance on how to proceed. The office also sent two officials to Saguache County two weeks after the election to conduct an audit. The secretary of state also rejected the county election canvassing board's request to hand count the machine-plagued races.
Although some staffers in his office maintain local races in the Saguache County election are not their problem, last week newly elected Colorado Secretary of State Scott Gessler vowed a public “hand review” of the ballots in an attempt to restore confidence in the region's election processes.
Myers, however, isn't having it.
"These ballots have been counted twice, reviewed by your office, canvassed and recounted," Myers wrote in a letter to Gessler's office the same day it announced the proposed hand review. "The deadline for contesting the election has passed; therefore, the outcome cannot change. It is unclear what this exercise would accomplish and could only serve to undermine the work already done in this election."
Gessler has indicated he plans to sue Myers to gain access to the ballots — the same access his office had in November when Myers allowed state officials to handle them during the post-election audit.
The Colorado County Clerks Association is backing Myers.
“There are processes that we are avowed to protect," association president Scott Doyle said. "One of them is preserving the sanctity of ballots. The cornerstone of our democracy is based on those ballots. It's what we stand for as clerks. … The law provides that the secretary of state can go in and look at process and procedure; it says nothing about ballots.”
The secretary of the state isn't the only one looking to review the ballots. The Denver Post is also seeking to access them — a request that Myers has also denied. “Nothing in Colorado's statutes precludes public examination of ballots after a count is completed,” according to The Denver Post.
Election transparency advocates around the state are disputing the stance the clerks have taken. They argue that there is nothing in the state constitution that declares that ballots are supposed to be kept secret. The constitution mandates “secrecy in voting,” they say, not “secrecy of ballots.”
“The clerks are using the false argument about 'secrecy of ballots' as a scare tactic or sympathy evoking tool to try to get a trusting public to side with them in their effort to block public verification of elections,” Al Kolwicz of the Colorado Voter Group said in an email. “Why exactly clerks oppose public verification is unknown. No matter their reason, they are wrong. Public confidence increases with public verification.”
Furthermore, they say, that ballots are necessarily anonymous. They are not supposed to be signed or marked in any identifying way and thus can't prove who voted a particular way in any election.
The clerks, however, argue that because each ballot has its own style depending on geographic districting, it would be theoretically possible for someone to figure who voted a particular way.
While the courts will be left to sort out those differences, Colorado Attorney General John Suthers is presenting evidence to a state grand jury and issuing subpoenas for witnesses to testify next month, according to The Colorado Independent.
Officials in Saguache County stand accused of more than 30 misdemeanors. Myers will testify on April 28.
PART I: Ballots, Lies and Videotape — in Saguache County
A botched election in Colorado triggers avalanche of allegations
This is the first in a two-part series.
By Troy Hooper
SAGUACHE, Colo. — Elections Director Judd Choate has proclaimed “great faith” in the results of two dubious political races in south-central Colorado and says two of his staffers were on hand to help with its “retabulation.”
“On the fifth of November, we sent down a couple of people to work on their retabulation, and we had two of our people … help [Saguache] County reassess their numbers," Choate told the state's Best Practices and Vision Commission, which he chairs, in a January meeting. "They saw no problems.”
The explanation was intended to quiet an escalating controversy in Saguache County, where County Clerk Melinda Myers reversed the results of the November 2 election and three days later declared herself the winner. The outcome of the county commissioner's race also flipped in favor of the incumbent in Myers' party.
The problem with Choate's account is that it isn't true. Amy Wilson, the secretary of state's elections trainer, was not present for the retabulation. Neither was a state lawyer Choate said was there.
Richard Coolidge, spokesman for the secretary of state, now says that Choate “misspoke.”
But the misinformation trickling out of the state's elections division is producing more momentum for the avalanche of allegations crashing down on Myers' office door.
The Colorado Attorney General's Office has opened a criminal investigation into “the general conduct of the election.” Citizens are circulating a petition calling for a grand jury. And a small-town reporter is doggedly cranking out stories about “secret meetings,” grainy videotapes and alleged abuses of power.
'Pitchforks and torches'
The uproar in Saguache County is over the general election, but complaints originated in the primary.
The secretary of state's elections division received a complaint from Tim Lovato, a Democrat who barely lost to incumbent county commissioner Linda Joseph in the primary. He alleged that Myers kept ballots in boxes that were not sealed, that she and her staff mixed up ballots and failed to sort them by precinct or in an orderly manner, that tally sheets were not signed by all precinct judges on the night of the primary election, that Myers denied a request by a canvass board member to sort the ballots by precinct and that the signatures of three voters could not be found in the poll books.
Several weeks later, a complaint came from the other side of the political aisle and made many of the same claims. It was filed by Richard Drake, the chairman of the Republican Party in Saguache.
State officials responded by sending Wilson to observe the November 2 election.
The day after the general election, which Myers initially lost, she informed the state elections division that ballot totals from the tabulation on election night did not balance with the number of electors that voted through early voting, by mail and at the polls. She said it was necessary to retabulate the ballots.
The retabulation took place November 5 without any state officials present.
On that day, Myers said a software glitch deprived her of 80 additional votes on election night and that her office's new tabulation determined that she beat Republican challenger Carla Gomez by 44 votes. Likewise, the “retabulation” altered the outcome of the county commissioner race so that Joseph, a fellow Democrat incumbent, vaulted from a 27-vote deficit to a nine-vote margin of victory.
“That's when everyone showed up with pitchforks and torches,” Myers said in a recent telephone interview. “We were actually just victims of technological glitches, which we fixed on November 5th.”
Five days later, state officials instructed Myers to lock and seal all of the election materials.
The elections division sent Wilson and Michael Hagihara, the state's voter registration and elections management manager, to Saguache County on November 15 to assist in counting the total number of ballots cast in the general election.
Meanwhile, a technician from ES&S, the vendor that sold Myers a ballot-scanning machine for $54,000 just weeks earlier, also showed up to review tabulation reports.
During the review, officials said they found 10 fewer mail-in ballots than were in the machine count. The discrepancy was chalked up to “human error,” and the state signed off on the results.
“After reviewing the physical ballots, poll books and reports from the statewide voter registration system, the Division is confident that the ballot tabulation from November 5, 2010, was the correct tabulation,” according to a state elections division report released in December.
Still, officials observed a number of errors in its observation of the election.
“During the ballot review, Division Staff observed that the election judges were not properly resolving ballots that could not be read by the central count scanner," according to the December report. "Ballots are often rendered unreadable when an elector marks more than one target area either inadvertently or to correct a previously marked choice.
When a ballot is rendered unreadable, a team of election judges must review the ballot to determine the voter’s intent in accordance with the Voter Intent Guide, which is produced by the Division and provided to the counties. Election Rule 27 defines unreadable ballots as damaged ballots and requires that all damaged ballots be duplicated."
But that's not what happened.
“Rather than duplicating damaged ballots, the election judges in Saguache County were incorrectly instructed by their voting system vendor (ES&S) to amend the ballots so that they could be read by the machine," according to the report. "The methods of amendment consisted of placing a white sticker over the target area that was not to be counted, or by filling in the target area that was to be counted."
State officials also said they saw ballots stored with envelopes, poll books and voting system reports. Because of the unorthodox manner Myers and her staff stowed ballots, seals were “broken and replaced more often than if the ballots were stored separately from other election materials.”
A criminal probe
Many residents and election wonks have watched the vote tabulations with raised eyebrows.
“There were a whole lot of things that came together to make it look like she stole the election," said Allen Jones, who worked as a judge for the election. "Whether she did, I don’t know. The clerk’s saying, ‘Everything went fine. It was a great election.’ Everyone else is saying nothin’ went right.”
After a half dozen or so grievances were filed with his office, the attorney got on the case.
“Yes, we do have an open criminal investigation into the general conduct of the election,” said Mike Saccone, spokesman for the attorney general's office. “We are not going to comment on the specifics of the investigation until it is completed. That's our standard policy for investigations like this.”
A canvass board, which is charged with certifying election results, has refused to sign off on Saguache County's results and cited a litany of unresolved questions and complaints with how it was conducted.
That, however, didn't stop Myers and Joseph from getting sworn in last month.
Their supporters — several of whom hold key positions in Saguache County — say the matter is overblown.
At a public meeting last month, Randal Arredondo, the chair of the Democratic Party in Saguache and the county's road and bridge supervisor, said the election issue "is being pushed way beyond the point it needs to be pushed. A mistake has been made and let's let it go.”
When a canvass board member asserted that Myers was violating state election laws, withholding public documents and issuing false certifications, Arredondo said it's “a bunch of misdemeanors and fines; that's all it is,” according to Center Post Dispatch reporter Teresa Benns who has reported on the election's many twists and turns.
The disagreement among Democrats, however, is palpable. Lisa Cyriacks, the vice chair of the party in Saguache, is among those who has filed a complaint with the state attorney general.
“Through this whole process of canvassing the election, there was at the very least sloppiness and incompetence,” she said. “What we're trying to determine at this point is whether it was solely the clerk or more things done by the secretary of state where we could have avoided some of the more egregious mistakes that were made. … People in Saguache County are still worked up about this.”
Surveillance tapes
Adding to the intrigue is the release of some surveillance tapes and the disappearance of others.
Colorado law requires county clerks to keep continuous recordings of all election areas and activities. The recordings are supposed to be preserved for two years. Through an open-records request, Benns was provided with tapes from November 2 through November 5 but no video of subsequent dates.
Sheriff Mike Norris, custodian of the videos, said some tapes Benns requested were mistakenly erased. The videos that were turned over reveal a number of questionable activities.
In the November 4th tape, Myers appears to be angrily talking with one of her staffers, Christian Samora, who was wiping tears from his eyes.
Samora is later shown nervously walking about the election room alone, double-checking to make sure the doors are locked and then inserting what looks to be a USB drive in a laptop that ES&S provided for the county to correct its vote retabulations. Samora is also shown operating the M650 voting machine and running reports with no one else around.
In 2007, the secretary of state decertified the use of the M650 ballot-counting machine after discovering it had accuracy problems and was vulnerable to serious security breaches. The state later recertified the machines but with a long list of conditions that the videos show weren't followed in Saguache County.
The surveillance tapes also show what Benns reported as a “secret count” of ballots on November 4 involving Myers, her staff, a Democratic Party judge and Twyla Collins, Myers' friend who the clerk says was acting on behalf of the Republican Party. Republican leaders say Collins was not their representative, and they were not aware of that day's activities.
Myers maintains the videos simply show election officials vetting ballots — not illegally counting them — and preparing for the November 5 retabulation, which was conducted before a bipartisan audience.
Given all the problems that were observed, Colorado's election rules call for a hand count. County officials, however, have repeatedly denied requests to hand count the disputed races in question.
Further complicating any reconstruction of the election is the deletion of, according to Benns, the “election database, election tabulation details, election audit logs and reports from the election management software run on a laptop” that Myers borrowed from the M650 manufacturer.
Lost trust
Nicolas Sarmiento, a lawyer who represents Stephen Carlson, the challenger to incumbent County Commissioner Joseph, said his experience with Myers has been especially frustrating.
“In any election, procedures serve as a check and balance where people can go back and determine what happened and feel comfortable with the outcome," Sarmiento said. "In our election, not only were procedures not followed but evidence was destroyed. So how do you go back and really double-check things? You can't. Here, the raw data was lost, and the clerk is really standoffish and really defensive. It's hard to get things out of her that's for sure. She's just picking and choosing what she wants to let go.”
Gomez, who challenged Myers in the election, said she's not sure who really won the election.
“From the beginning there's no question there were some questionable actions going on,” Gomez said. “It's just really unfortunate that there was not at that time and there is not now a response to any of these questions. It's really tragic. This whole thing really almost made a mockery of our constitutional right to vote. … It's unfortunate that some people feel they can wield their power and act as if they're above the law.”
Mike Garcia, a longtime Saguache County resident and Democrat, said he feels betrayed by his own party. He said the election is part of longstanding corruption in the area, which has recently seen the ouster of its police chief and utility board over alleged abuses of power. Garcia is petitioning for a grand jury to investigate.
“The attorney general's ongoing investigation is good but, if anything, it's only going to be able reach a couple of people whereas a grand jury is more like an octopus with all its tentacles out and it can get everyone who is involved with this,” Garcia said. "People feel disenfranchised here. Trust has been lost.”
Myers, meanwhile, is downplaying the controversy that is enveloping her.
“There's nothing to find here,” she said. “There's no smoking gun. But I don't think it'll be over for a while. There's a lot of people that have made up their minds that something has gone on. We just do our jobs and move on. The good news is nothing happened, and the votes were counted accurately.”
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