Commentary on Letter by Jane Brady

I recently read a letter by Jane Brady. It is referenced here for your review and complete context. I agree with many items but believe she may not have set her sights high enough.

Jane Brady’s Letter is referenced here for your review and complete context.  https://delawaregop.com/letter-to-department-of-elections-new-castle-county-election-officials-must-resign/

The letter appropriately touched on several failures that were observed in the recent election.  She referenced failure of machines, failure of planning, failure of oversight, and failure of response.  I compliment her pointing out these items and amplifying the significance of each of those categories of failure and also that these problems are not a partisan issue.

Her letter is addressed to the Commissioner of the Department of Elections (DOE) which goes on to propose at a minimum 3 specific action items:

1.  Fire two Middle Managers as a minimum:  Specifically, the Director and Deputy Director of the New Castle County DOE.  

2.  Have an Inquiry:  She believes that an investigation by the very non-balanced General Assembly could get results.

3.  Ballot Shortage Report:  She asks the Commissioner  to provide a report on the number of locations where there were ballot shortages…but not a report on any of the other items.

I believe the problems and vulnerabilities in our election process are greater in scope than implied by Ms. Brady’s letter.  If the scope is expanded it might also follow that the set of recommendations and inquiries might also be expanded.

There were additional “Day of Election” failures:  I have interviewed poll workers who kept detailed notes from two locations.  I also add my observations from the location where I cast my own vote.   The results are presented in Table 1.  There were additional voting machine failures.  There were poll-book failures, poll book printer outages, serious touch screen issues, poll books reducing the number of registered voters throughout the day, error and warning messages that showed up on the screens that were not addressed in training sessions or referenced in training manuals.  Finally, the most obvious evidence that failure was on a large scale was the wait time on the DOE help lines.  

In the system, there were also “non-election day” failures that the voter does not see.  Some of these may cause more concern with respect to integrity than even the problem of running out of ballots.  The Board of Elections (BOE) including the Commissioner were made aware of concerns at their meeting on 7/11/22, 9/19/22 well before the election when there was still time to do something about them.  

Details are presented here:  https://www.delawarecounts.com/open-letter.html:

This open letter not only highlights process concerns and election system vulnerabilities but also illustrates a breakdown in the systems that are supposed to be in place to allow for fixing system when it breaks.

While there may be concerns at the Director/ Deputy Director level, I have reason to look higher.  As one example, I had asked the Deputy Director for a copy of the written Standard Operating Procedures (SOP’s) for the post-election audits.  At that time I had hoped to attend one in the future and wanted to know what to expect.  I also hoped to look for potential vulnerabilities in the process.  I was forwarded an extract of an email that was reportedly from the Commissioner.  It confirmed that the DOE doesn't have an SOP for that process.  If that extract was from the Commissioner, wouldn’t that mean the Commissioner has made a judgement call that an SOP is not beneficial or needed?

In another example, the Commissioner and all BOE members were made aware of concerns with the pre-election Logic and Accuracy Test associated with the ballot scanners and the lack of a post-election audit of same scanners.  Those scanners processed about  24% +/-  of the 2022 vote.  They did not acknowledge, follow-up, refute or even show any evidence that they understood the concerns.  Combine that and the recent election day performance, I believe it fair to say we might need to understand not only what is going on at the Director and Deputy director level but also what is going on above that level.

Ms. Brady railed on the poor quality of the election.  I have expanded on the scope of the problem.  But what was the opinion of the Commissioner?  What was the opinion of the members of the BOE?  Do they agree with either Ms. Bradys analysis or my analysis?  Are they in touch with reality?  The BOE had a meeting on 11/21/22.  Mr. Albence went through an 11 slide presentation.  On only 1 slide, and on only 2 lines of that 19 line slide,  Mr. Albence reported on his assessment of the election day events.

“Generally usual Election Day issues encountered”
“Activation cards supplies at some New Castle County Polling places”

Board member Schneikert did speak up regarding card supplies and requested an Executive session later (of course out of sight of the public).  There were other comments but no significant discussion of the details or of other issues.  Were they so concerned they decided to convene an emergency special session with expanded transparency and more open communications?  No!  In fact, the members were so unconcerned regarding problems observed they all agreed to take December and June off.  I was concerned that they might sprain an arm, or a wrist from all the patting of themselves on the back for such a good job!  

So you decide:  Do you think they are in touch with reality, and do you think they have experience or qualifications to oversee the complex computer based election system(s)?  Do you think they would recognize a problem if they saw it or just accept as gospel anything Mr. Albence tells them?  

Here are a few more observations regarding the BOE.  The 10-member BOE is comprised of 5 Democrat members and 5 Republican members.  They can conduct business with a quorum of 6, and they can meet without a quorum, which would at least provide the public a means to make a statement to them.  You can only make a statement because they do not allow you to ask a question, and you are limited to 3 minutes.  

With all that said, in a mid-term election year and a high focus of concern on election integrity, the board decided not to meet for 4 consecutive months from March-June inclusive.  The reason listed for not meeting was due to “board vacancies”.  When they finally met in July, it was two new Republican members who were welcomed to the board.

We may have very good and well-meaning people at the commissioner and board levels but if you are now questioning whether they have the right background or specialty experience to oversee the operation of a complex, highly technical, behemoth of a computer-based election system, the next question is how did they get there?

According to section 301 of Title 15 it appears that the Director is appointed by the Governor so any failure at that level is a reflection on the Governor.  The Commissioner’s term is up 6/23.  Now section 209 shows that board members responsible for oversight of the Commissioner and DOE are not elected but rather appointed for a term of 4 years.  Normally when a term expires individuals start their path to the board by being nominated by the respective chair of each political party.  That would be Betsy Maron and Jane Brady.  

With that review I think I can make some additional recommendations and ask for inquiries beyond those in Ms. Brady’s letter.  I have taken a first shot at that in table 2.  Feel free to review and let me know if you have any additions, subtractions or what you think at delawarecounts@protonmail.com.

Finally, in Ms. Brady’s letter she asks for resignation of the Director and Deputy Director of New Castle County Department of Elections.  

I would like to tell a story that might serve as a positive example for those above the Director level at the DOE and those on the BOE.  

 I was one of the 25+ public attendees that witnessed the most recent post-election audit where the attendees interacted with the Director, Tracey Dixon.  Ms. Dixon and staff had set up the room and an had done some work in preparation for post-election audit.  The “random selection” had already been performed and ballots had already been gathered from the warehouse.  Ms. Dixon was beginning the audit.  The public expressed concern that the “random selection” had not being performed in view of the public.  This must have seemed unusual from Ms. Dixon’s perspective in that rarely do any, let alone many from the public, show up.  You can confirm that for yourself here:  

https://elections.delaware.gov/information/elections/post_election_audits.shtml

When you confirm, you will see the DOE often does this audit with only DOE personnel present.  

When the public expressed concern she appeared to feel confident in her expertise and provided a slight pushback.  After all, her group had done a bit of preparation work and was perhaps trying to be considerate of everyone’s time.  The public firmly but politely explained their reasons for the concern as related to transparency and that witnessing the “random selection” was a key element of the audit.  

It wasn’t only what Ms. Dixon did next that was good, it is also what she didn’t do that was refreshing to those who have tried to interact with certain others at the DOE and with the board members at the BOE.

She did not say:  “You’ll have to submit that question as part of a FOIA request” as other have done at the DOE.

She did not say:  “You are not allowed to ask questions you are only allowed to make statements” as the board members tell the public at the BOE meetings.

She did not say:  “OK thank you your 3 minutes are up” and then move on as the board members do at the BOE meetings.  

What she did to was interact with the public to understand the concern.  She listened!  She said  “OK…..if you want to do another random drawing we can”.

She negotiated and allowed a few other tweaks to the process that provided more transparency and reduced vulnerability.  Perhaps unknown to Ms. Dixon, with three simple, really simple changes to the procedure, she eliminated or reduced 3 of 5 previously identified vulnerabilities of the test.  

I believe and hope DOE personnel and the public learned from each other and weren’t just putting up with each other and being polite.  I know there are other issues beyond this single event that are at stake, but for this example to the BOE and others at the DOE.  Thank you Tracey.

Item 1 - Electronic Poll Books and Printers

1.1   Printer Issues:  (My personal voting experience):  Cook: Elementary:  Arrived and got in line at 8:27 AM.  Line was long because poll book printer has been physically jammed.  Printer out since “about 7:45 AM”.  Several resets of printers required at Edison.

1.2  Outage or Frozen:  Poll books were observed “out or frozen” at the 3 different locations.  Two locations reported outage at rush hour.  Edison reported both books frozen starting at 4:58 pm.  Lombardy reported outage of one book and slow performance of a 2nd starting about 5:30 PM.

1.3  Different Times:  Time on poll books, off by 1 hour.  (Edison)

1.4  Changing # of Registered Voters: The number of registered voters reported by DOE website as of 11/1/22 for referenced location (Edison) was 2,531.  Poll book snapshots were documented at as 2527, and 2522 at perhaps the “incorrect” poll book times of 13:50 and 18:35 respectively. Is that OK?  The turnout at this location was amazingly low at about 21%.   To provide context, the total difference of 9 in the poll book numbers was a magnitude equal to 36% of the total Republican Vote in the race for Attorney General at that location.

1.5  Ballots Not Read by Machine:  Multiple (Edison), had to be spoiled.

1.6.  1 Ballot through the printer printed no bar code (Edison)

Item 2 - Voting Machines

2.1  Failed Screen:  Edison:  7:00 AM:  One of 4 touch screens would not work at all and required service call.  Hold time reported on service line was 20 minutes.  Eventually a technician did arrive and the repair was done.  Total ballots for that machine for the day was 28 or about 5% of the ballots at the location.  That implies that it was not available to process ~ 80% of the ballots it was placed there to process.  

2.2  Touch Screen Problems:  Lombardy/ Edison.  Confirm touching of certain candidates did not initially work and voters requested help.  Discussed in Brady letter, will not elaborate further.

Item 3 - Error Messages not referenced in Training manual

There were many error messages and situations that were not referenced in DOE training manuals.

3.1  Wrong ballot length.  (Edison)

3.2  Printed Card Not Read:  (Edison)

3.3  Ballot Container Almost Full:  (Lombardy) This message was triggered at about 300+/- ballots.  Confusion resulted and inspector temporarily stopped using the machine   (More lines)

Item 4 - Ballot Shortage

(Lombardy)  Even after inspector reported “in person” to “roving” DOE personnel that location was short on ballots, with about 2 hrs notice prior to running out.  Rover was reported to have provided ballots she had on hand and that she would bring more.  The site ran out and was down for ~35 minutes starting at ~ 5:40 PM

Item 5 - Help Desk

Inspector and individual poll workers were dialing and waiting for someone to answer help line for either mechanical problems or voter help desk issues.  Lombardy:  Inspector reported need to get to help desk assistance for approximately 10+ voter issues and twice for supplies with average wait time about 25 min.  +/-.  (That’s ~ 5 hrs on help line)

Additional Recommendations and Inquiries

Item 1 - Legislators

Please consider laws that require elimination of machines to simplify the mess.  Human based hand mark, hand count systems are not perfect, just better.   

Item 2 - Party Chairs: Governor

Until #1 above is done, please consider review of your criteria for filling BOE and Commissioner positions.  Technical, Process, QC and other backgrounds might be appropriate.  

Item 3 - BOE Members

With the advent of complex computer systems the days of this being a nice easy assignment and title as an award for political loyalty are gone.  Given recent election result it is evident that LATE HOURS and a lot of HOMEWORK in preparation for OVERSITE WORK is needed.  You are the next to last defense to integrity of our elections.

Do not continue to get information from the single source that is the Commissioner.   In an oversite roll you don’t just ask members of the DOE questions because you don’t know the answer and want them to educate you.  You ask questions because you are the expert and want to see if they know the correct answers.  If you don’t know the code, learn it.  If you don't have the expertise, get it, or find people that can help you with what questions to ask.

Meet in person and on zoom and be open to two way dialog with the public.  Provide contact information.  Sometimes public will purr, sometimes they will bark, but after a bit, it probably won’t be too bad, unless of course you continue to try to muzzle them.

Item 4 - Commissioner

With respect to Ms. Brady’s focus on ballot shortages can you confirm whether the State of Delaware purchased the "CentralPoint®  or equivalent application that was advertised in the bid package?  That system:

“allows the Delaware Election Commissioner to monitor the statewide poll activity from one location” and “allows election administrators to timely address issues before they become serious problems” and can alert elections officials when ballot style quantities are about to run low?  

If this is the case, within reason, it shouldn’t matter how many ballots were provided at the beginning of the day if the "CentralPoint®  or equivalent system is implemented properly?  

Please explain why you have not acknowledged, addressed, or refuted any items in the open letter.

Please clarify the budget items in the November BOE meeting? Between the COE and counties, there are expenditures on the order of about $19,000,000+/- ?   There are 2022 and 2023 references. What is time period does that amount cover? Is that rolling 1 yr expenditures? Two years expenditures or other?

Item 5 - Public

Be more “hands on” and critically observant of the process.  Look at the code.  Attend a BOE meeting.  Attend public tests.  If you have an interest in election integrity consider signing up for new posts at  delawarecounts.com  or drop us a line at delawarecounts@protonmail.com.