EDA Serves Public Records Lawsuit on Riverside County, CA

County Responses to Election Records Requests  "Not Responsive, Evasive, and Unusable"

Download EDA Complaint (PDF)

After repeated attempts to obtain election records through public records procedures were denied and evaded by the Riverside County elections department, Election Defense Alliance has filed a lawsuit in Riverside County, CA, to compel the county's registrar of voters and election department to produce all public records used to compile the officially reported voting results for the November 2008 general election.Complaint-Cover

The legal complaint, [Case No. R1C-541239] filed in Riverside County Superior Court November 13 and served on the Riverside Elections Department on December 12, is based on the California Public Records Act (CPRA) and related statutes in the California Government Code.

EDA maintains that all election records are -- or should be -- public documents, to be readily available for public inspection in a timely manner and in complete, usable form; otherwise the public right to verify election outcomes is effectively denied.

EDA is seeking these records to determine (a) whether the officially reported election results were accurate and correct, and (b) whether the elections were conducted in full compliance with the California Elections Code and state and federal requirements for the certification and use of computerized voting systems.

These laws and requirements include provisions guaranteeing the public
access to observe election processes and verify election results.

The lawsuit is the initial phase of the EDA Public Records Election Project (PREP).

Members of the
EDA PREP team collectively have experience monitoring elections and filing records requests in Riverside, Santa Cruz, and Monterey counties in California, and Pima and Maricopa counties in Arizona.

The EDA-PREP team worked 8 months studying relevant public records law, preparing the records requests, analyzing responses and records received from Riverside County, and following through with subsequent requests to obtain records that the Riverside elections department either initially refused to provide, or failed to provide in usable form.

Between April and October, 2009, EDA sent four separate CPRA request letters specifying the records sought in further response to Riverside County replies. Each of the request letters are attached to this article as downloadable PDF documents.

Lawsuit Claims and Relief Sought

EDA is seeking a judicial determination as to the legal validity of any of the exemptions the Riverside Elections Department has claimed, and whether its responses to EDA's information requests have been fully compliant with the requirements of the California Public Records Act.

EDA Complaint is Served on Riverside County Elections Department

Riverside election integrity activist Paul Jacobs accompanied Tom Courbat
to the Riverside County Elections Department on Dec. 12, 2009
to serve the summons forthe EDA lawsuit, Case No. RIC-541239.

As declaratory relief, EDA is seeking a court ruling that the Riverside defendants violated the California Public Records Act by:
 __ failing to demonstrate that requested records are exempt;
 __ requiring the payment of fees not  permitted by law;  
_ failing in their mandatory duties to respond to public information requests;
 __ abusing their official discretion, by failing to respond properly to public information requests;
 __ failing to provide requested records in useful form; and by 
 __ denying requests for public records without justification.

EDA is seeking a writ of mandamus compelling the Riverside defendants to:

 __ comply with each  provision of the CPRA
 __ deliver all records responsive to the EDA CPRA requests 
 __ comply with all such election-related records requests by citizens in the future
 __ pay EDA reasonable attorney’s fees and costs of the suit pursuant to Government Code Section  6259, the Code
     of Civil Procedure section 1021.5, and other relevant statutes; and
 __ such other and further relief as the court deems just and proper.
Below are a listing and description of election records EDA requested in the initial CPRA letter of April 24, 2009, and descriptions of the Riverside elections department response to each request.

1. Ballot reconciliation spreadsheet in unlocked electronic form

The requested "ballot reconciliation worksheet" is a compilation of the ballot statements from each precinct. These precinct ballot statements are one-page summaries signed by the precinct pollworkers detailing the number of ballots cast in the precinct, the number of voters who signed in to the poll book, and the total numbers of ballots received, voted, unvoted, and spoiled.

Without accounting for
all of these factors in the ballot reconcilation worksheet, it is not possible for election administrators -- or the general public -- to verify election results as true and correct.

In response to a previous request by Save R Vote for the ballot reconciliation statement, Riverside County Registrar of Voters Barbara Dunmore had retroactively issued a policy stating that no election-related documents would be released in "alterable" format, but only in static print form.

In its CPRA request, EDA cited sections of the California Government Code that require state agencies to provide upon public request, files in the same electronic format that the agencies have used to prepare public reports.

Regarding Riverside's failure to provide the ballot reconcilation statement in its original form as an unlocked Excel spreadsheet, the EDA complaint states:

"Defendants/Respondents refused to produce the spreadsheet as used claiming that EDA was not permitted to see the manner in which the calculations were made within the spreadsheet. Instead, they produced a stripped-down spreadsheet, an image of the spreadsheet as a .pdf file, and a 63-page comma delimited file which is one long string of alphanumeric characters. While comma delimited files can be interpreted by using an appropriate spreadsheet, the file itself is non-responsive. The spreadsheet as used by  Defendants/Respondents is a public record but was not produced."

Riverside County RoV Barbara Dunmore

2. Documents reconciling roster signatures with ballot statement

 Item 2 sought records of ballot reconciliation required by Elections Code section 15302, subdivision (b).

3. Documents resolving any discrepancy between ballots received and ballots cast

Item 3 sought records of the reconciliation described in Elections Code section 15302, subdivision (c).

Items 2 and 3 were related requests for all documents which would demonstrate how the Riverside Elections Department complied with very specific canvassing procedures required by the Election Code.

Item 2 sought records demonstrating how the elections department had reconciled  "the number of [voter] signatures on the [precinct] roster with the number of ballots recorded on the Ballot Statement."

Item 3 sought all records demonstrating how any discrepancy encountered in fulfillment of Item 2 had been resolved thorugh comparison of the number of ballots received from each polling place with the number of ballots cast, as indicated on the ballot statement. 

The Riverside elections department did not produce the records requested pursuant to EC subdivision (b) or (c). Instead, they produced records related to subdivision (d) which EDA did not request, and in addition referred EDA to the defective records produced in response to Item 1.  The records produced are not responsive, are evasive and unusable.

The defendants denied the request to provide copies of precinct voter rosters, citing "voter privacy." The claim of exemption is not cited to the CPRA and is not recognized by law.

In response to a subsequent, repeated request from EDA for the materials described in Items 2 and 3, the Riverside election department submitted what they claimed was, but was not, the same defective spreadsheet they had previously provided in response to Item 1, but with an added header row missing from the previous spreadsheet.
The results Riverside claim can be derived from the information in either the first or second spreadsheets, cannot in fact be derived. In any event, the spreadsheet that was requested, that is a public document, was not produced. The records that Riverside elections department provided in response to Items 2 and 3 are not responsive, are evasive and unusable.

4. Voting system audit and event logs, logic and accuracy (L&A) test results, and DRE results cartridges upload reports.

In response to this request for logs from the November 2008 election, the Riverside election department referred EDA to a previous response to an unrelated CPRA request filed by Save R Vote --which was nonresponsive to EDA's request -- and otherwise denied the request by claiming that the records were no longer available "due to reconfiguration of the Sequoia Voting System for the May 19th Statewide Special Election. . . . "

Although EDA specifically requested voting system log files in the same electronic format used by the county to generate election reports, the defendants provided these files as static paper printouts, making it difficult or impossible to use them for verifying those election processes and results. 

The records they did provide fell far short of the request in quantity and coverage.  EDA sought records demonstrating that Riverside had performed the mandatory logic and accuracy (L&A) tests on voting system components for the November 2008 general election, which included 791 Sequoia Edge II DRE machines used for early voting, as well as the 8 Sequoia Optech 400-C central ballot scanners, and the central tabulating computer.

The records EDA received contained L&A test results for only 143 of the 791 DREs, meaning that 648 DREs either were never tested, or that Riverside failed to provide any documentation of such tests for 82% of the voting machines used in the presidential election.

Of the 369 pages of printed documents that Riverside County provided in response to Item 4 in the EDA CPRA request, Tom Courbat noted that "the county made no effort to clearly identify what was being sent, and in a number of instances the documents were undated and/or unsigned."  Computer audit and event logs improperly labeled as to machine or time of origin, are useless.

In a subsequent June 15 CPRA letter following through on the Item 4 request, EDA provided very exacting instructions for producing log directories that would have provided the relevant information. Defendants ignored these instructions and instead delivered materials that are not responsive, are evasive and unusable.

5. Election results databases

Riverside at first declined to produce these database files, claiming that the SQL database and the
voting records it contains, are proprietary information belonging to the Riverside County E-voting contractor, Sequoia Voting Systems, and therefore exempt from public disclosure.
(Electronic voting vendors have consistently maintained that election databases and the records of the public vote they contain, are "proprietary information" protected as commercial trade secrets).

Noting that there is no such exception recognized in the California Public Records Act pertaining to
election records, EDA pressed its request, and in response, Riverside eventually produced "redacted" copies of the database files, supposedly with all proprietary information removed by Sequoia.

The redaction process -- for which EDA was billed $105 -- destroyed the database structure, rendering the files an unusable chaos of scattered data with which it is virtually impossible to reconstruct the actual record of the vote.

However, in initial examination of redacted database files, EDA investigator Jim March discovered remnants of SQL code that appeared to be "active" -- that is, capable of executing commands to perform operations on the voting data stored in the database.

When EDA announced this discovery, Sequoia immediately issued a press release asserting that the code remnants mixed in with the voting data were merely fragments of its proprietary database schema, imperfectly redacted.

However, numerous programmers who looked at the database files EDA provided for
open public inspection, agreed that there did appear to be executable code in them. If so, this would be highly illegal under federal and state law and would immediately disqualify the Sequoia systems for use in elections.

EDA is continuing is examination of the Sequoia code found mixed in with the Riverside election database records.

6. Documents used to generate or validate the Statement of Vote

In response to EDA's request for "documents used to generate or validate the data reported on the Statement of Vote," Riverside sent numbers, not the documents -- and the numbers were inconsistent with previous responses, and did not answer or enable answering questions about how the official election reports were derived from the vote data.
Working from the Riverside election department's own figures  (a massive spreadsheet titled "Audit Spreadsheet for Doug" [Kinzle, deputy registrar]) the EDA PREP team found thousands of vote count discrepancies between what the worksheet showed and what the county officially reported.

The  screenshot to the right, showing a vote count discrepancy of 457, is an example of errors uncovered by EDA analysis of the election audit spreadsheet received from the Riverside election department.

The larger point of EDA discovery, however, was that working from the documents the Riverside
elections department provided in response to CPRA requests, it is impossible for the elections
department -- or any member of the public -- to actually determine what the correct vote count is.

In the words of the EDA complaint, "the official account of how the vote was tallied cannot by reconciled with the official published results of the elections in question."

Why Riverside County?

EDA chose to initiate its first legal enforcement action in Riverside County, where a history of flagrant violations has been carefully documented in every election since June 2006 by the local election integrity group, Save R Vote, an affilate of EDA organized and led by EDA Election Monitoring Coordinator Tom Courbat.
Following are examples of the kinds of violations Save R Vote has observed in Riverside elections,that make it impossible to validate election results.
• Refusal to post election results or ballot counts at the precincts per EC §19370 and EC §19384, making confirmation of centrally-reported vote counts impossible
• Failure to reconcile the beginning count of ballots with ending count, taking into consideration voted, spoiled, canceled and unvoted ballots per EC §14405

• Failure to reconcile the number of voter signatures in the precinct rosters with the numberof ballots recorded on the Ballot Statement at each precinct per EC §15302(b)
• Refusal to allow citizens to view the central vote tabulating monitor at a legible distance as required by Condition 24 of the Secretary of State’s Recertification Conditions

• Failure to retain electronic voting results cartridges for 22 months in federal elections
 (This is a violation not only of federal election law, but also of the Secretary of State’s Re-Certification Conditions number 27).
• Refusal to release the ballot reconciliation worksheet in original Excel electronic format as required by GC

(Refusal to release the document in the requested format severely impairs efforts to audit election
These failures, refusals, and violations in Riverside County constitute a chronic pattern of the county's election officials picking and choosing which election laws and regulations to obey and which to ignore.
Similar patterns of selective noncompliance and obstruction have been documented in other California counties, with especially serious violations repeatedly committed in San Diego, Los Angeles, and Santa Clara counties.

Why Aren't Election Laws Being Enforced?

The office of the California Secretary of State has stated that it does not have sufficient enforcement authority under state law to enforce compliance with election laws on the part of the county election department administrators.
It is difficult to reconcile this claim of powerlessness, with the direct, unambiguous statute language describing secretary of state enforcement authority.
However, it is true that there is very little case law in California concerning adherence to the Election Code and related statutes on the part of county election administrators.
The practical effect of this vacuum in election law enforcement, is that citizens are left with no recourse but to sue in county superior courts for writs of mandamus requiring their local election officials to comply with state election laws.
This is the approach that EDA has determined must be taken. If EDA prevails in this legal contest with the Riverside County registrar of voters, as we expect to, one of the counties most averse to election transparency will be under court order to provide full public access to observe election processes and full disclosure of election records,including the unredacted records of the vote. 
When similar legal actions to access election records are filed in multiple counties in California, or in any other state, eventually one or more such cases will be appealed by election administrator defendants or their E-voting contractors.

When those cases are decided in vindication of the public's right to access public election records -- as we expect they will be -- case law will be established, applying not only to the county in question, but as state law applying to every electoral jurisdiction in that state.
This is how EDA forsees the election integrity movement advancing, from one legal victory to the next, one county at a time, until the record of legal precedence established in case law provides a consistent basis of enforcement that will support and defend the public's right to know how our votes our counted.


  Help Extend the Reach of Tactical Election Integrity Law
by Contributing to the EDA Public Record Elections Project (PREP)

Please click on this link to go to the Donations page where you can find and fill in the form pictured below.

PREP donation


EDA-CPRA-Petition-for- Writ-RiversideCounty.pdf653.26 KB
EDA-CPRA_Request1_042409.pdf178.72 KB
EDA-CPRA-Request2-061909.pdf156.47 KB
EDA_CPRA_Request3_Riverside-090109.pdf84.25 KB
EDA-CPRA-Request4-Riverside-101909.pdf115.32 KB
Card_Audit_For_Doug.pdf227.83 KB
Riverside-CPRA1-Response.pdf72.49 KB