Post Election Audits: Is Delaware in Compliance with it's Law?
Letter to the Board of Elections 08/01/24
Post Election Audits: Absentee and Early Voting
1. Introduction: I am concerned that the Department of Elections (DOE), in carrying out elections, may have operated outside the letter, and/ or intent of Delaware law. Regardless of whether they have broken the law or not, I am concerned that the DOE is implementing elections in a way that de-facto, results in a situation that all Early and Absentee ballots, circumvent a critical quality control test.
2. Subject Issue: The topic of this post is the “post-election” hand count audits of Absentee and Early Vote ballots. I am concerned that audits of the Absentee and Early Vote ballots that I believe may be required by law were not performed. If it is deemed they are not required by law there would still be the question of professional judgment of those involved.
3. Significance: Why is this significant?
1. In 2022, over 20% of the vote used the Absentee and Early methods. In 2020 the Absentee and Mail-In vote, with processing similar to 2022, was over 30%.
2. The Logic and Accuracy Tests, that are supposed to be designed to ensure that the machines are programmed properly, in my opinion can not achieve that objective. The the test can be beat by the most trivial of algorithms which would be “Improper Programming”. If post-election audits are not performed on a portion of the system it both incentivizes “bad actors” to infiltrate our systems by using such algorithms as they are the easiest and most efficient way to cheat with least chance of getting caught. I make that case here and show how it is done on a working machine so you can judge for yourself as to whether that is the case.
https://delawarecounts.com/p/introducing-the-cheat-o-matic-100k
3. Relevant Code / Practice: Why do I argue that the DOE, in practice, may be operating outside the letter and intent of the law. There are 3 reasons
3.1 5012 A: Audits: In practice, the Absentee and Early Vote Ballots have not been subjected to section 5012 A, (c) (1) and (2) audits.
An extract of the referenced language is below (highlights mine).
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1) The Department shall audit all results of 1 randomly selected election district in each county and 1 randomly selected election……………
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While the code states that all results of the selected districts shall be audited, in practice ONLY the machines that process the “Day of In Person” ballots for those districts have been subject to audit. This can be confirmed by reviewing audit results and also has been stated at such audits by DOE personnel.
Chapter 50A of Title 15, is titled Electronic Voting Systems . It does not limit itself to just the systems for one method of voting. Chapter 54: Early Voting, and Chapter 55: Absentee Voting do not specify any requirements for post-election audits and they don’t need to as the requirement is addressed in Chapter 50A. To argue that is not the case would be tantamount to argue that it was the intent of the legislature to have over 20% of the vote circumvent a critical QC audit.
3.2. Administrative Code Audits: The State of Delaware and the DOE and BOE have accepted there is an increased vulnerability of the Absentee Method of Voting. In Delaware’s Administrative Code: Section 15: Elections you will find section 200 Security and Integrity of the Absentee Voting Process. At the end you will see section 10.3 and 10.4 I have copied section 10.3 below for convenience.
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10.3 The Department shall audit the General Election Absentee Results for at least 3% of the Election Districts after February 1 in the year following a General Election and report the results to the Board of Elections for New Castle County.
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While the Administrative Code appears to reference the New Castle County Board of Elections, you can see from section 203 of Title 15: that the State Board of Elections inherited all duties that were previously those of the prior county boards so it would seem that this law should still be current.
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§ 203. State Board of Elections; powers and duties.
There is hereby established a State Board of Elections, which shall have all of the powers and duties previously vested in the Board of Elections for New Castle County, the Board of Elections for Kent County, and the Board of Elections for Sussex County, as well as such other powers and duties as set forth in this title.
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The reason I have concern that DOE may have operated outside law regarding this item is the response I got to a recent FOIA request which is shown in exhibit A. This reply is consistent with, but perhaps not proof, that the audit was not performed, or report delivered.
4. Remedy/ Logistics: The remedy requested is to perform both audits referenced above in 3.1 and 3.2. I assume that the audits of the Absentee and Early ballots will flow as a natural extension from the“random selections” of machines and ED’s currently performed for the “Day of In Person” machines. I have witnessed the audits performed by the DOE and have discovered vulnerabilities. In interests of keeping this letter brief I will recommend procedures that should help eliminate those vulnerabilities and address logistics of incorporating the Absentee and Early vote Ballots also. The recommendations are in Exhibit B below.
Exhibit A: FOIA RESPONSE
