Letter to President Biden and Attorney General Garland -- Ensuring Election Transparency and Compliance with Federal Law

Citizens Oversight (2024-09-05) Ray Lutz

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More Info: Election Integrity

• 2024-09-05 M2023 Letter to Biden and Garland.pdf: Letter to President Biden and AG Garland re election data retention and publication

Concerned Citizens Urge President Biden and Attorney General Garland to Address Election Data Retention, Transparency and Compliance with Federal Law

Press Release -- For Immediate Release

San Diego, CA – Sept 5, 2024 – Today, a coalition of concerned citizens and election integrity advocates has sent an urgent letter to President Joe Biden and Attorney General Merrick Garland, highlighting serious concerns about the retention and transparency of election data across the United States. The letter calls for immediate action to ensure that all election data, including original ballot images, are fully retained and published, in compliance with federal law.

The letter emphasizes that original ballot images, critical for ensuring the integrity of our elections, are currently being deleted by some jurisdictions, undermining the transparency and accountability necessary for public trust in the electoral process. This practice not only erodes voter confidence but also represents a clear violation of federal law.

"We are deeply concerned that some jurisdictions are actively deleting original ballot images, destroying irreplaceable audit records, and thereby violating federal law," the letter states. "To improve election transparency and voter confidence, it is essential that all election data be fully retained and, to the maximum extent possible, published and archived securely."

The letter outlines two key requests for the administration:

Immediate Action for the 2024 General Election:

The coalition urges the President and the Department of Justice to take swift action to ensure that all election data for the 2024 General Election is properly retained, making audits possible and achievable. This is a critical step to address the current violations of federal law and to safeguard the integrity of the upcoming election.

Long-Term Measures for Election Security and Transparency:

The letter also calls for additional steps that, while some are likely not feasible to implement for the 2024 election, are crucial for future elections. These include securing and publishing election data, as well as clarifying voter intimidation prohibitions to ensure a fair and transparent electoral process.

The coalition hopes that this letter will prompt immediate and decisive action from the administration to protect the sanctity of our elections and to restore public confidence in the democratic process.

For more information, please contact Ray Lutz at Citizens Oversight.org.

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Contact:

Ray Lutz, Citizens Oversight.org

Status of Saving Ballot Images, and where they are being destroyed.

This map is somewhat optimistic but is a good try at representing the areas that use equipment that cannot be configured to delete images or may have a rule to save them, but may not actually keep them in later handling. (Click image for source information.)

This email is from Chris Sautter, Attorney, who has been on the leading edge of court cases in this regard.

• Chris Sautter Bio: https://fedsoc.org/contributors/chris-sautter

Hi Ray:

Below is a list of counties where we have been active to some degree over the past several years and the current status as best we know. Most of our work during the past couple of years has been in Arizona and Florida.

Ballot images are only being saved in a handful of states, most notably Maryland, which has a state-wide contract with Clear Ballot to preserve original ballot images as part of the canvass count.

Florida

Ballot images are being destroyed in at least half of Florida's 67 counties, including the largest--Broward, Miami-Dade, Palm Beach, and Orange Counties. We have a mandamus lawsuit pending against the Supervisor of Elections in Miami-Dade County to compel the county to preserve all ballot images. Several counties have contracts with Clear Ballot to conduct post-election audits that would allow them to save ballot images although there is no contractual obligation to do so and ballot images are not being made available to the public by Clear Ballot or the counties in question. The Florida legislature passed and the governor signed a bill in 2021 to allow ballot images to be used in recounts. However, no county has yet to use ballot images in recounts. A lawsuit we brought against Florida Secretary of State Cord Byrd (R) was dismissed by a Leon County state court judge on the grounds that the SOS had no authority to require SOEs to preserve ballot images. We did not appeal because the appellate judges with jurisdiction over Leon County are extremely conservative and we feared language in an opinion that could undermine our chances of success in other counties.

Following the 2018 Florida general election there were two statewide recounts involving the U.S. Senate and the Florida Commissioner of Agriculture races. As an attorney representing the Florida Democratic Party, I requested and the Broward County Recount Board ordered Broward County election officials to preserve all of the ballot images. Nonetheless, Broward County election officials destroyed the ballot images from the recount, a fact we learned when we subsequently requested a copy of those ballot images. Also, during the 2018 recount Broward County election officials aborted a ballot image audit that was being conducted by Clear Ballot apparently to avoid public disclosure of mistakes and problems that the audit would have revealed. It came out during the recount that 2,080 ballots had been "misplaced" and were never accounted for nor was there any explanation for how it happened.

Michigan

We had face-to-face meetings with Secretary of State Jocelyn Benson (D) about saving ballot images to no avail. Some counties are saving but most are not. Following the 2020 debacle in Antrim County in which erroneous totals were reported based on computer mistakes, University of Michigan professor and election expert J. Alex Halderman conducted an investigation and issued a report that, among other things, recommended that ballot images be saved to avoid future mistakes and controversies of the kind experienced in Antrim County.

North Carolina

In North Carolina most counties are not saving although we don't have an updated count of which counties are not. There have been unsuccessful efforts by local activists to require the saving of ballot images.

Ohio

In Ohio, the then-Secretary of State issued a directive in 2018 to preserve ballot images but most counties are currently not saving-- we don't have an updated count. We filed a mandamus action in 2018 in the Ohio Supreme Court seeking an order to save ballot images. The Ohio Supreme Court denied the mandamus on the grounds that the action should have been brought in a county circuit court. However, the SOS's directive was a product of that litigation. No subsequent legal action has been brought although there have been discussions with election officials/county attorneys in Cuyahoga County. Cuyahoga County recently switched from ES&S to Clear Ballot so they may be saving ballot images this year.

Pennsylvania

In Pennsylvania, most counties are not saving ballot images. We have had some conversations with state election officials in the SOS's office but were not able to make progress in securing a clear directive. Those officials indicated that saving ballot images is already legally required but most county election officials don't interpret the law about preserving election records to include ballot images.

Virginia

In Virginia, the Department of Elections under the previous governor (Ralph Northam-D) issued a directive to election officials in 2018 to save ballot image. The directive was a product of negotiations between us and state election officials. We are not aware that any counties are currently saving or that the directive is being enforced under the Youngkin administration.

Alabama

In Alabama, most counties are not saving ballot images. We brought a mandamus action in 2017 prior to the U.S. Senate special election between Doug Jones and Roy Moore to require that all counties save ballot images. A Circuit Court judge in Montgomery issued an order requiring the Secretary of State (SOS) to direct election officials throughout the state to preserve ballot images for 22 months following the election. The SOS obtained a stay of the court's order from the Alabama Supreme Court. The Supreme Court subsequently reversed the trial court on technical grounds.

Wisconsin

We were present in Wisconsin in 2016 during the presidential recount and traveled throughout the state. Counties were not saving ballot images at that time. At our request, the Clerk of Dane County (Madison) began saving ballot images after the 2016 election and now posts all ballot images online.

END OF EMAIL.

Ray has accessed images from Dane County, WI, and a few others. Dane County has consistently posted them to allow for citizen audits.

Other Letters

• Sautter Letter to DOJ.Final.9-16-2024.pdf: Chris Sautter Letter of Sept 16, 2024

Additional Endorsers

• Douglas Cragoe, election integrity activist, Los Angeles, CA
• I, Veronica Lavarello, would like to sign this letter and support every line in it.

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