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Citizens Oversight Status Update 2017

Citizens Oversight (2017-12-20) Ray Lutz

This Page:
More Info: Ballot Access Lawsuit, California Public Utilities Commission, Coalition To Decommission San Onofre, COPs Program, East County Transitional Living Center, Easy Voting, Election Integrity, Election Team, Snapshot Protocol, Election Audit Lawsuit, Helms Proposal, March Against Monsanto, Net Neutrality, Nuclear Energy, Nuclear Waste, Open Ballot Initiative, Rock Church Ecpac Takeover, San Onofre Settlement Federal Case, Save ECPAC, Shutdown Diablo, Shut San Onofre, Snapshot Protocol, Stop Nuke Dump, Stop The Unfair Settlement

This has been a successful year for Citizens Oversight and for everyone who has helped in our projects. The most active projects have been related to the San Onofre nuclear plant, and with regard to Election Integrity.

For anyone wishing to catch up on these projects, please see Citizens Oversight Status Update 2016 to read a detailed review. I am going to try to keep this report shorter and sweeter.

Most important events:

  • Judgment (mostly) in our favor in Election Audit Lawsuit, and have appealed.
    • Worked to block AB-840 with incredible support from many organizations but it was signed into law, gutting election audits.
  • Started Ballot Access Lawsuit, based on CPRA but court ruled against access, and have appealed
  • Reopened CONTEST of 2016 Primary, that is still ongoing, see San Diego Primary Contest 2016
  • Settlement agreement to Move the Waste to a Safer Place -- Stop Nuke Dump -- Many events held to educate the public.
    • Starting campaign to support the Settlement and Helms Proposal
    • Forming Settlement Oversight Panel
  • Engaged in mediation on Nuclear plant bailout -- no settlement. (Settlement Conference Scheduled for Jan 30, 2018)
    • Continuing to work on federal case on San Onofre unfair $3.3 billion bailout.
  • Released Helms Proposal for community comment, submitted the legal petition to the NRC, waiting for a hearing date.
  • Substantial work on Ballot Image Security Standard, still not released.
  • ECPAC Theater to reopen under management of Live Nation. (Save ECPAC)

Election Integrity

Election Audit Lawsuit

This case was about the fact that San Diego Registrar of Voters Michael Vu did not include the Later VBM ballots nor the validated and accepted provisional ballots in the scope of the 1% manual tally audit, both comprising about 37% of the election.

Judgment mostly in our favor

On January 10, 2017, we received the judgment, which was mostly in our favor. The court ruled that all the VBM ballots should be included in the scope of the 1% manual tally audit, but unfortunately got sucked into a bogus argument by the County of San Diego (COSD) that argued that we wanted them to include not only the accepted and validated provisionals, but also the invalidated provisional ballots. We never argued that but the COSD use the confusion factor of the term "provisional ballots" to confuse the issue. So the judgment did not support including the provisional ballots.

The judge also did not support our request that the COSD be required to redo the 1% manual tally audit from scratch.


So both parties did not get everything they wanted in the case. We wanted the scope of the 1% manual tally to include all ballots, including both VBM and validated and accepted provisionals. Vu wanted to omit both. The Ruling was to include only the Later VBM ballots but not the provisionals.

So we both filed appeals. First step is to get the court transcripts of the case, which were finally released on August 15, 2017. The appeal process is still ongoing as of this writing, and it appears to still be appropriate despite the passage of AB-840 (see below).


Just days after the official record was created for the appeal, CACEO, the California Association of Clerks and Election Officials, headed by Los Angeles Registrar Dean Logan and with Legislative Committee chair Sacramento Registrar Jill Lavine, modified bill AB-840 so as to make it standard for all counties to omit the Later VBM and provisionals as Vu had done. This change was inserted so late in the game that there was no time for hearings. Despite a robust opposition from many election integrity activists across the state, we were unable to affect a single vote, and it sailed through and was signed into law on Oct 15, 2017.

We will need to work to undo this ridiculous move in the coming year. For now, even if we are successful in our appeal, the law has been changed to get Vu and others off the hook. I have at least one plan to go about this by focusing on the definition of the "semi-final canvass".

Ballot Access Lawsuit

Early in the year, we requested and got access to the 1% manual tally sheets, so we could verify the totals for the Early VBM ballots that they did tally. These were done in a very suspicious manner, because initially, they had chosen batches out of 723 batches they had in the Early VBM set. We anticipated that they would tally these by batch. But as soon as we filed the Election Audit Lawsuit, Vu changed course and decided to do them by Precinct, therefore disregarding the 8 batches selected in the random draw. But the ballots are stored by batch, so he hired 40 people for a week to rifle through the 723 batch boxes to find the ballot corresponding to the precincts initially chosen. After we photographed the tally sheets, we found the results did not correspond. I tried to ask Vu about this but he refused to answer my questions, citing the fact that we had recently sued him.

So the first step of this process was we asked to see the ballots under the California Public Records Act. They refused to provide access, saying that although the ballots must be preserved for 22 months by law, that the are "sealed" and therefore they cannot provide access. Attorney Alan Geraci sent a letter asking for the ballots and they refused, so a case was filed. The county filed a "demurrer" which then forces us to show that our position is valid under the law assuming the evidence is all in our favor. Well, since the law does say that the ballots are sealed, the judge ruled against us, requiring that we bump this up to to appellate level.

The California Public Records Act is a relatively new law, passed in 1964, and it has a companion constitutional amendment passed in 2004 that says that any existing statutes must be interpreted to provide access to the records by the public. The ballots are certainly public records, and there is no explicit exemption in the California Public Records Act itself for voted ballots, and there is no voter-identifiable marking on the ballots. Reasonably, they should be accessible, But the election code is very old in comparison, (1800s) and so these provisions were never harmonized.

Contest of 2016 Primary

Fortunately, we had filed a "Contest" of the Hillary vs. Bernie race in the 2016 Primary election on July 11, 2016, within the time period after election certification. But it has been sitting without any action since then and I found that it is a very rarely utilized niche of the law, and even the best election attorneys I knew or was working with, really did not know how to process it. After the completion of the Ballot Access Lawsuit, I decided to push forward on this to find out how to utilize such a contest for our purposes.

The main topic for this project is here:

We just had an ex parte hearing to deal with getting this into the mind of the new judge, Hon. Laura Parsky, transferred from the retiring Hon. Lisa Schall. This hearing was my first and it failed to accomplish anything except to hear what objections the County of San Diego (COSD) is making, 1) that the affidavit was not served and 2) that San Diego superior court is not the correct venue to file the contest. My view is that the COSD is not actually a defendant in the case, Hillary Clinton is the Defendant. Their role is to perform their ministerial duty to implement the contest and provide our access to the ballots. As I write this, we are right in the middle of deciding our next steps. We have until May to get this done.

I believe it will be feasible to get access to the ballots. Once we do, then I intend to purchase a (used) high speed scanner so we can scan the ballots in our sample of at least 1% of the ballots. Alternatively, we may be able to ascertain if there is any problem using a Risk Limiting Audit. If we use that method, need only sample less than 400 ballots, but it is a lot of work to pull the ballots out of all the batches.

Snapshot Protocol

Because this was an off-election year, we did not do much with regard to the Snap Shot protocol, but we are now planning to have even better coverage of the election year, starting in the February special election in Orange County.

  • Ray participated in the California Election Conference in Berkeley, October 7-8 and then conducted a rally at the State Capitol in opposition to AB-840.

To support this work, we created:

The Open Ballot Initiative

This year, Ray has been working on the Ballot Security Standard. This is largely complete but there are still some loose ends to clean up, and hopefully will be able to release it in 2018

We want this to be our goal for the future in election integrity. The industry is tending in this direction anyway. There is some interest by the Git Hub software community in the idea. Also, there is some work on a standard Cast Vote Record that can help standardize the data across all election districts. Sounds good, but everything is a double-edge sword. Standardization also means any vulnerabilities can be more easily be exploited. But with the Open Ballot Initiative, there are fewer opportunities for such hacking because the system includes constant 100% audits by third parties.

To support this work:

Legislative Agenda For Election Integrity

With AB-840 behind us, we have lost ground on our legislative agenda, however, in our work to block that, a number of papers were written as comments that can be used to push forward. Here is our list from last year, still largely unchanged, although with the new item at the end to respond to AB-840,

Another angle we are working on is to push for legislative changes, particularly in California to:
  • clean up audits
    • frozen (snapshot) results before random selection in a machine-processable format.
    • open random selection using random number generators (like dice) and a list (rather than the easier to hack raffle method).
    • No re-scanning ballots (to generate a new report) when variance are reported (as they do in LA and many other counties which does more to cover up fraud rather than expose it).
    • Improved audit reports, including disclosure of what ballots are covered by the audit.
  • Provide for better citizen involvement
    • Random selection meeting must be able to be video recorded by anyone.
    • Loosen rules on video recording/photographing ballots if the identity of the voter is impossible to determine.
  • Support Open Ballot Initiative
    • Future election management equipment must produce ballot images, and create standard Cast Vote Record.
    • Use cryptographic mechanisms to secure the ballots such as SHA digest of each image and Block-Chain digest of ballot set.
    • Ballot images data and CVR data shall be made available to the public prior to certification.
    • Since use of this approach supports 100% independent audits of the election, 1% manual tally is not necessary, but can be replaced by statistical checks that image data accurately represents the physical ballots.
  • Respond to AB-840
    • "Honestly in reporting" bill, to include
      • better reports by districts, so news media knows that 100% precincts reporting does not mean all the ballots have been reported.
      • Redefinition of the semi-final canvass so it does include Late VBM ballots. This can undo the damage done by AB-840.

Easy Voting

We started a new projected called "EasyVoting" to deal with voter suppression issues. Volunteer Susan Schneider did a great job researching the status of same-day registration, which is now finally going to be implemented in California. It will undo much of the rigging by groups with the agenda to suppress voting. This will be announced and will have a larger profile in the next year.

Shut San Onofre Project

Since the emergency shutdown on January 31, 2012, Citizens Oversight (sometimes under fictitious name Coalition to Decommission San Onofre) has been working hard to make sure the plant did not restart, that ratepayers are treated fairly in the settlement, and that 3.6 million pounds of high-level nuclear waste is not stored only 100 ft from the seawall. On one of these, the permanent shutdown of the plant, we can report that the result comports with our intentions. The plant is indeed shutdown and defueled, and no new nuclear waste is being produced. (YAY)

On the other issues, we have not been so lucky YET. However, it does appear that things are starting to go our way. This is good news.

Shutdown Settlement

During 2017, the record was reopened on this case, and then starting early in the year, we entered into confidential settlement negotiations. These went on until the end of August without reaching any settlement. Most recently, a hearing was held in LA on the matter in an attempt to quickly make it appear they are processing the settlement deal again without actually making any changes. The scene was quite amazing, with three uniformed CHP (state police) officers in the room as the ALJ tried to stop Mike Aguirre from finishing his comments, and several times the officers would get up while Mike said "let the record show that the uniformed officers in the room are now rising and standing behind me." As of this writing, no scope has been set in the process.

CPUC President Picker tried to apologize for Mike to the ALJ and Mike objected.

I was able to make comments and I did bring up the fact that most of the hearings are not accessible remotely. They said they would allow cameras in the room in the future and would livestream it if possible. That is a big win.

Meanwhile, the federal lawsuit which Citizens Oversight is the lead plaintiff is proceeding in the 9th Circuit. It is our position that the CPUC is so fully implicated in the malfeasance of the tainted settlement deal that they cannot process it without undo bias. This case will be moving forward with a hearing in Feb or March, 2018

Nuclear Waste Dump on the Beach

This was definitely one of the most important projects of the year. At the end of 2016, the judge had ruled that our case could proceed, and a court hearing was scheduled for April 14. One week earlier, SCE agreed to a negotiated outcome, which was unfortunately a process that had to be done in confidence. On August 28, the settlement deal was reached, which requires SCE to use commercial reasonable effort to find another place for the 3.6 million pounds of spent nuclear fuel and move it there. We are now in the mode of working to provide oversight to the deal, which is the first of its kind in the nation. We are still assembling a settlement oversight panel to provide oversight as we proceed. We have received one monthly report and there are issues, and this will be announced in the coming days as to what will be happening.

Ray conducted a number of informational seminars at Oceanside, Vista, Encinitas, Carlsbad, Dana Point, San Juan Capistrano, San Diego, and Ocean Hills Country Club. Also we had a great "Move the Waste To A Safer Place" celebration at the Oceanside amphitheater at the pier.

Helms Proposal

As a follow-on from the San Onofre waste situation, a submission to the NRC is in the works. The HELMS proposal means that spent nuclear fuel would be placed in Hardened, Extended-Life (1,000 year design goal), Local (but away from the water and populations), Monitored, Surface Storage. To achieve the 1,000 year design goal, the proposal includes the use of DWC -- Dual Wall Casks with a new outer shell that will be added to the existing thin canisters. This proposal will affect the entire nation and will be soon submitted as an official petition to the NRC. As a rule of thumb, it appears that we will need to be adding the outer shell within 10 or 15 years after the facility opens, and in some cases, if the fuel is cool enough, the thin canisters should be placed inside the outer shell right away. Please stay tuned to this as we move into the new year.

Local Govt Support Campaign

We have started to solicit support from local governmental bodies for the Settlement to Move the Waste and for the Helms Proposal. We need people to help us get these govts on board.

Other projects

Citizens Oversight has been involved in a number of additional projects, such as:
  • March Against Monsanto, San Diego -- This did not occur in 2016 due to a need to start doing something new, we had done it for five years. The issue is not dead but it may be time for a change in terms of activism event.
  • Save ECPAC - Big news, the City of El Cajon has inked an agreement with Live Nation, the largest corporate live performance management company. This will revitalize the East County area. They are to have at least 50 live shows each year.
  • Grossmont Healthcare District -- COPs member Allan Goetz, and now Ed Martinez has been doing a great job providing citizens oversight of this local governmental organization. They have sort of come around a lot from the early days. Many of my proposals are now being embraced and we have a good reputation with them whereas in the past, I was a pariah. Allan has also become a representative attending the hospital board of directors. Allan has been successful in bringing up key issues such as quality of service at the emergency room and avoid side-issues. If you want to pursue oversight of any body, Allan has first-hand experience and tips of what has been effective.

Fundraising, etc.

Our work on Election Integrity, our Election Audit Lawsuit and the Snapshot Protocol have been supported by our fundraising efforts which have done reasonably well this year. As we have been keeping our costs to a minimum, our fundraising thus far has been used only for out-of-pocket costs for the lawsuits, travel, and events. We will be sending out confirmations to our donors in the early part of next year. We have been fortunate to have some very generous donors this year which should enable us to continue the pursuit of our agenda.

Organizational Plans for the New Year.

  • Membership platform -- This platform is now running and we are in the process of getting used to using it as we move forward.
  • Regular Meetings -- We've been using the Zoom web conferencing solution which allows up to 50 people to be on the same call, with screen sharing and anyone can speak. This has been a great help in doing the limited organizing we were able to do for the Election Team. We need to set these on a more regular basis and also a local meeting place would be a help, particularly as we are interested in helping anyone react to current events with open dialog in the public space.


Please consider donating to Citizens Oversight, as you can still claim a deduction for 2017! Please visit this page: Donate To Citizens Oversight

Thank you! --Ray Lutz

Topic revision: r6 - 12 Mar 2018, RaymondLutz
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