Key Voting Machine Certification Document Altered In Colorado, Examiner Proven Incompetent, Judge Rules Against Secretary of State
Key Voting Machine Certification Document Altered In Colorado, Examiner Proven Incompetent, Judge Rules Against Secretary of StateCopyrighted stories below are reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
[EJF comments are in Courier font.]
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More about John Gardner's history
Boulder County can't count ballots with Hart voting machines
Security added for voting machines in Colorado at last minute
Colorado vote-security goals called unachievable in 2006
The John Gardner saga and corruption continues
Voting machine tester departs, leaving questions by Chris Bragg
Inefficient, inelegant and narrow
July 1, 2006 — On February 28, 2006, a Certificate of Approval For Voting System Use (PDF) was issued for the Hart Intercivic Voting System 6.0 and Components after what the state describes as extensive testing of the Hart voting system.
Because of a constitutional mandate for secret ballots in Colorado that forbids identifying marks on ballots, the approval certificate was issued with the restriction:
"Therefore, the aforementioned components of System 6.0 are hereby certified for use in the State of Colorado, with the condition that the optional feature for putting a readable serial number on the physical paper ballot will not be used by counties in Colorado." [emphasis added]
However, as of July 1, 2006, the certification document (PDF) posted on the Colorado Secretary of States web site has been significantly altered and the Secretary of State is being very quiet about it. (click here for altered version if SoS site doesn't work).
The alteration deletes the restriction that safeguards secret ballots; it now says only:
"Therefore, the aforementioned components of System 6.0 are hereby certified for use in the State of Colorado."
For the Secretary of State to change the approval certificate Hart would have had to apply for recertification, and the certification tests would have had to be re-run to verify that the revised system meets all functional requirements, including the secret ballot requirement.
As soon as the alteration was discovered, CAMBER notified the Secretary of State and asked for an explanation. "We can find no evidence that the Hart system was re-certified or re-tested," said Al Kolwicz, Executive Director of CAMBER.
"Serial numbered ballots are definitely not anonymous." says Kolwicz. "A voter can identify their own ballot; an absentee ballot control system can maintain a log of which voter was issued which ballot; a ballot-on-demand system can maintain a log of which voter was issued which ballot; and provisional ballots are easily associated with their voter."
The illegal alteration to the certificate seems to be a response to the desire of the Boulder County Clerk Linda Salas to identify the voters and one suspects the Hart Intercivic eSlate machines don't function properly without ballot serial numbers. [EJF note: Linda Salas was defeated in her bid for reelection in the August 2006 primary.]
In any event it is clear a critical change was made surreptitiously in a vendor's certificate of approval that has clear Constitutional implications for the performance and function of the vendor's equipment and permits illegal use of that equipment by county clerks.
Upon discovery of this alteration Mr. Kolwicz sent the following email to the Colorado Secretary of State:
From: Al Kolwicz [mailto:alkolwicz@qwest.net]
Sent: Tuesday, June 27, 2006 12:43 PM
To: Gigi Dennis (gigi.dennis@sos.state.co.us)
Subject: Altered certification document
Ms. Gigi Dennis. Colorado Secretary of State
I find that the web page containing the Hart InterCivic voting system certification document has been altered.
I have attached the original February 26th and the altered web pages.
The altered document removes a vital restriction that safeguards voter anonymity.
We hope that this is a clerical error. We do not believe that anyone has the authority to alter the certificate without first receiving an application for certification from the vendor, and then re-testing the system to ensure that it works with the altered capabilities.
The fact that the altered document is dated June 9th is highly suspect. Deliberations on the Boulder County ballot contract and other communications in the weeks following June 9th did not refer to this "June 9th" change.
Please let us know if this is an error, or somebody's attempt to intentionally alter an official record.
Thank you very much for your prompt attention.
CAMBER — Citizens for Accurate Mail Ballot Election Results
From: Gigi Dennis [mailto:Gigi.Dennis@SOS.STATE.CO.US]
Sent: Thursday, July 27, 2006 8:55 AM
Subject: Response to June 27 inquiry
Thank you for your continued interest in voting systems and certification in the State.
The changes that appeared on the June 9th certification did not reflect a modified system, or component of the system.
After researching the Colorado users of the system, focusing on the ballot serial numbers, I concluded that the condition in the original certification is not necessary to protect voter anonymity. I therefore removed the conditional requirement from the certification which is reflected on our web posting of the certification.
The relationship of the date of the change to any county issue is purely coincidental.
Ms. Dennis' biography does not list any technical background, or for that matter a college degree of any kind, that would suggest she has the requisite qualifications or experience to evaluate electronic voting machines. Her primary interests seem to be her husband and two dogs.
Clearly there is no technical basis for the alteration, and Hart Intercivic did not submit a request for recertification. Plainly, Ms. Dennis took it into her little blonde head to do this because, gee, she is Secretary of State and she can do any damn fool thing she wants to, Colorado Constitution be damned.
We note that Ms. Dennis was appointed, and has never been elected to her position though it is an elective office. Further, Gigi was appointed when former Colorado Secretary of State Donetta Davidson resigned (after a number of voting scandals erupted) to take a position as a commissioner with the Election Assistance Commission (may god preserve the United States). In turn, Ms. Davidson had been appointed Secretary of State after serving as Arapahoe County Clerk.
Ms. Davidson's experience and effectiveness are perhaps best evaluated in light of the performance of her protege, Tracy Baker, whose antics are detailed in the Doofus Too Dumb To Quit section.
With a heritage like that it is little surprise that certification documents are whimsically altered by Gigi. The surprise, we suppose, is that the charade of a an evaluation of electronic voting machines is even performed at all. And Avi Rubin has looked into the Dirty Little Secrets of the Independent Testing Authorities (ITAs) so there is little wonder electronic voting is in such disrepute among citizens.
© 2006 Denver Post
September 15, 2006 — Under the gun to meet tight election deadlines, the secretary of state's office certified a voting machine for Jefferson and Mesa counties that failed to meet state requirements.
The information comes from the deposition of John Gardner — the man appointed by Secretary of State Gigi Dennis as the expert charged with certifying which types of voting machines can be used in Colorado.
But Gardner testified he has not been certified as an expert and confirmed he had no formal training in computer science, computer programing or evaluating the security of data-processing systems. (Click here for transcript of Gardner's testimony PDF 2.9 MB)
State law requires expertise in data processing, mechanical engineering, or public administration. Gardner said either he was not an expert in those areas or he did not know the definition of those requirements.
He also confirmed that Dennis' office was under pressure to certify the voting machines because at least one county had already purchased them.
Gardner's testimony comes in preparation for trial in a lawsuit seeking to block the use of electronic voting machines in the November elections, and it calls into question whether new voting machines in Colorado were certified by qualified personnel. [During court testimony Gardner acknowledged that he never had any formal computer science training and overrode some of the test results of his assistants, one of whom had a master's degree in information technology.]
The so-called Direct Recording Electronic machines have become the target of lawsuits across the nation since becoming a popular choice to meet federal Help America Vote Act requirements. Critics are concerned that the machines are unreliable.
Clerks in Jefferson and Mesa counties reported the August primaries ran smoothly. But the candidates running to replace Dennis immediately seized on the revelations.
Republican Michael Coffman said he would "immediately go through the certification process all over again" if elected. [EJF note: Presumably using the same group of unqualified blockheads presently employed in the Secretary of Stupidities office.]
Democrat Ken Gordon called on Dennis to "perform an adequate and thorough testing, as the law requires her to do."
The state Democratic Party urged people to vote absentee.
Dennis' office referred comment to the attorney general's office, which declined comment, citing the ongoing lawsuit.
In his deposition, Gardner said he and Dennis decided to certify the ES&S Unity machine even though the audio and video functions for the visually impaired didn't work at the same time, as required by law.
"I made a value judgment on that," Gardner said.
Plaintiff's attorney Paul Hultin of Wheeler Trigg Kennedy then asked, "You were in a big hurry to certify the ES&S Unity system 3.0 because Jefferson County and Mesa County wanted to use it in the primary election?"
"Yes, that's sort of true," Gardner replied.
He also confirmed there were "complications."
"And that's because there were a number of areas where the system did not meet the requirements of the statute...Isn't that right?" Hultin asked.
"Yes, that is correct," he said.
Gardner did say that his experience as information-systems manager for both El Paso County and a professional recruiting agency allowed him to certify the machines. [EJF note: He held a technician position in El Paso County that in no way qualified him as a systems engineer or computer expert.]
In June, Colorado citizens aided by the national nonprofit Voter Action filed the lawsuit against the [Colorado] secretary of state and nine counties, saying the machines are unreliable and vulnerable to fraud.
In July, Denver District Judge Lawrence Manzanares allowed the electronic machines in the August primaries but refused to dismiss the case against the secretary of state's office.
Trial for the case is scheduled to begin Wednesday [September 20, 2006].
The specific problem pointed out in Gardner's deposition was with the machine's function for the visually impaired. Gardener confirmed the state requires audio and visual functions to work at the same time.
Jefferson County Clerk and Recorder Faye Griffin said the screen goes blank on the visually impaired function for a reason.
"It's a privacy function," she said. "If you were visually impaired, how would you know if someone was looking over your shoulder?...It makes sense to me."
Still, Griffin said the issue would be corrected if needed.
Staff writer George Merritt can be reached at 303-954-1657 or gmerritt@denverpost.com.
It is critical that any equipment, programs, or processes used in such a fundamental proceeding as elections undergo the most rigorous public scrutiny by the best-qualified people available. Therefore, it is of fundamental concern to critically examine the background and qualifications of those certifying voting equipment.
As noted above, John Gardner has no formal training in computer science. However, despite that lack he was appointed to the statewide committee that made the disastrous choice of Accenture as the contractor for the HAVA-mandated statewide voter registration database. It is apparently a Colorado mandate that the Secretary of State appoint committees of the unqualified.
Despite the calamitous result of that decision, Gardner was offered his current position with the Secretary of State. He also gained considerable weight and began dressing in much more expensive clothes as is common with political appointees.
Mr. Gardner was apparently also involved in developing the Request For Proposals (RFP) and selecting the current (September 2006) contractor for the state voter registration database though he has no experience whatsoever with relational databases. And the new RFP was basically a rehash of the failed Accenture SCORE system with requirements for an election management system and petition management system that have little or nothing to do with a voter registration database. It is unlikely Saber Consulting will be able to develop those components in a reasonable time frame at reasonable cost. Further, a statewide election management system, as specified, appears to be outside the scope and function of the Colorado Secretary of State.
Also, at a June 24, 2006, hearing challenging the certification of the Hart Intercivic eSlate voting machine, Mr. Gardner's qualifications were questioned and Secretary Dennis refused to hear any criticism of her staff. The challenge to the certification of the Hart machines was then denied based largely on John Gardner's testimony though he clearly lacks any education or experience to make such judgements despite state law requiring such expertise.
There is also the problem of Colorado's denial of certification to the ES&S Automark ballot marking system for use by handicapped voters. Again that was done by John Gardner for inconsistent, and, it was argued at trial, arbitrary and capricious reasons. The AutoMark system is widely regarded as a better alternative than DRE machines for handicapped voting.
In preparation for a trial in September 2006 seeking to decertify Colorado's electronic voting machines, Mr. Gardner was deposed for three days by attorney Paul Hultin, of Wheeler Trigg Kennedy in Denver. John Gardner is the so-called expert appointed by the Secretary of State to write Election Rule 45 and to examine and certify the DREs that have been approved for use in Colorado elections.
The deposition extended over three days and is quite long (Click here for transcript of Gardner's testimony PDF 2.9 MB) . The transcript contains the core of Mr. Gardner's testimony about what he did and did not do, and what he knows and does not know. Attorney objections and comments have been edited out to reduce the length. According to Mr. Hultin, John. Gardner's testimony reveals that he is not qualified for the job that he was given. He has an undergraduate degree in architecture (which took him 7 years to complete and which he has never practiced) and no education or training in computer science or computer security.
The first task he was given at the Secretary of State's office was to write Election Rule 45 that sets minimum security, performance, evaluation, and other standards for computerized voting systems, something he had never done before and was not qualified to do.
Election Rule 45 (PDF), as written by Mr. Gardner, is a mess and delegates system security to the voting machine vendors, a blatant conflict of interest. He testified that he did not know the source of that illegal provision and denied that there was any conflict with having a private, for-profit entity that was selling voting systems to the state, setting security procedures and standards for Colorado elections.
It is worth noting that Al Kolwicz, a systems engineer with long experience, had asked the Colorado Secretary of State on October 28, 2005, to withdraw Rule 45. At the time he noted that "Voting systems certified under this rule will disenfranchise voters, prevent transparency, and produce untrustworthy elections." Needless to say, Kolwicz's expert opinion was ignored in favor of an unqualified political appointee.
After completing Rule 45 Mr. Gardner began examining DRE computerized voting systems with the help of two assistants he testified were incompetent for every task he assigned to them. From Gardner's testimony, the examination and testing of voting machines during the Colorado certification process was a farce:
• He did not know that one of his helpers had a masters degree in information technology and was far more qualified than him for the task at hand;
• He destroyed notes of his examination and testing;
• He failed to complete certification reports as required by law, including the Sequoia system that was used by Denver in the August 2006 primary election without having the requisite report completed, and that report was still not been completed by September.
• The ES&S system was certified as a result of political pressure from Mesa County notwithstanding admitted multiple failures to meet explicit requirements of Colorado Revised Statutes § 1-5-617 and Rule 45 that Gardner wrote; and
• Quite obviously Gardner did not follow his own flawed standards and procedures.
Also, despite the obvious problems, the Judge Manzanares refused to decertify the voting machines on September 22, 2006, citing the catastrophic effects of doing so just a few weeks before a national election (click here for copy of Manzanares's ruling PDF) .
So once again incompetency triumphs by default over election integrity. One wonders whether there will ever be a good time to do away with electronic voting no matter how many failures we uncover?
The alteration of the certification for the Hart Intercivic voting machines then led to further complications due to the incompetence of the Boulder County Clerk, who lost her position in the August 2006 primary election, but is, nonetheless, continuing her destructive ways to the bitter end of her term in office.
The subsequent problems are summarized in the following email to the Colorado Secretary of State. The CC: addresses are to the Republican candidate, Mike Coffman, and Democratic candidate, Ken Gordon, who are running for Secretary of State in the November 2006 election.
From: Al Kolwicz
Sent: Monday, September 18, 2006 11:28 AM
To: Gigi Dennis (gigi.dennis@sos.state.co.us)
Cc: Mike Coffman (Mike@MikeCoffman.com); Ken Gordon (ken@kengordon.com)
Subject: Clarification requested on HART equipment certification
Your office has certified that the HART InterCivic paper ballot system works with or without ballot stubs, and with or without non-removable unique ballot identifiers (serial numbers in the form of bar codes and/or printed digits).
Boulder County says that they cannot use ballots without permanent unique identifiers because the HART system does not support them, and the Secretary of State does not require them. Boulder County maintains that the HART system does not work without permanent unique identifiers. (1) They say that the HART optical scanning system requires that multi-page paper ballots must be read sequentially (all pages of a single voter's ballot read before the next voter's ballot). (2) They say that without a non-removable identifier, it is not possible to arrange each ballot's ballot pages into sets. Further, Boulder County says that a non-removable identifier is required to locate a ballot in a batch (for duplication purposes, for example).
If what Boulder County says is true, the HART system contains defects that should have been detected by your certification testing [as performed by John Gardner]. Both of the defects identified by Boulder County (above) should have been repaired before the system was certified. Defect #1 should be repaired by eliminating the requirement that ballot pages be organized into sets. This is an undesirable requirement that serves no valid purpose. Would the HART system VOID an entire multi-page ballot if one of the pages is missing? If so, under what authority? Defect #2 should be eliminated by requiring that every anonymous ballot page be endorsed, after it has been cast by the voter and before the scanned image is recorded, with a unique identifier containing the following: Batch-ID, Item-number within the batch, Date-processed, Time-processed, Machine-ID.
On the other hand, if Boulder County is not true, then you have found a way to use the HART system that does not require non-removable unique ballot identifiers.
We would like you to confirm, did you certify that the HART optical scan system does in fact work when the ballot identifiers are recorded on stubs which are removed before the ballot is cast? If so, will you please explain to Boulder County how this is done? If not, will you please retract your certification of this feature?
CAMBER - Citizens for Accurate Mail Ballot Election Results
The quite predictable bureaucratic response to the court ruling and the citizen comments above was for the Secretary of State's office to hastily throw together some security rules (PDF) and demand that Colorado counties instantly and universally adopt them.
These hastily drafted rules appear to have been cobbled together by John Gardner (see above) based on his experience with El Paso County, the largest county in Colorado. Like HAVA, dictated from above in Washington, Colorado's Secretary of Stupidity and her protégé, John Gardner, did not consider the impact of her rules on the smaller counties in Colorado.
Counties with total populations of 600 to 1,200 people do not have the resources, or the need to nursemaid fancy voting machines that have been forced on them. And the hue and cry of how much these machines help handicapped voters is utter nonsense. Virtually all of the current machines only work, if at all, for blind and visually-impaired voters, few of whom make it to the polls in any case. And those who have have not praised the DREs .
At present little or no provision has been made for other types of handicaps, e.g., paraplegics, who require sip-and-puff devices or pedals. Further, most severely handicapped voters are to be found in assisted living facilities or nursing homes. Wouldn't it make a lot more sense to first find out what kind of handicaps those interested in voting have, what special devices they need to vote unassisted, and where these handicapped voters are located? Then roving election judges could take the few special machines required to them, rather than equipping every polling place with unneeded, often unused, and very expensive equipment.
To ensure that the ballots of handicapped voters remain secret it seems self evident that they should vote on paper ballots that, when completed, are dropped in a ballot box with every other ballot from a precinct. ES&S Automark systems currently provide that capability although they are hardly portable. Other devices exist that do the same thing exist, and are portable, but may not presently be certified. The advantage here is that only a limited number of portable machines are required and the paper ballot is easily storable and requires no special security that hasn't existed for over a century.
Instead what is being forced on citizens and unprepared county clerks in small counties is simply an increasing bureaucratic nightmare fostered by clearly incompetent and unqualified election officials as detailed in the following stories.
© 2006 Denver Post
September 27, 2006 — Colorado counties must now meet new, detailed security rules issued Wednesday for computerized voting.
The rules, announced by Secretary of State Gigi Dennis, call for steps such as video surveillance of machine storage areas and background checks on those transporting the election equipment.
The rules come in response to a lawsuit alleging that the state illegally certified four brands of computerized voting machines that are vulnerable to error and fraud or do not meet state disability standards.
Denver District Judge Lawrence Manzanares ruled last week that the state' s certification process for the machines was "abysmal."
In 11 pages of small text, state officials set out a long list of security requirements, including limits on how many employees can enter election work areas and how often computer passwords are to be changed.
"The length and complexity of the rules demonstrates how badly the system is broken," said Paul Hultin, an attorney for the 13 citizen plaintiffs in the voting-machine lawsuit.
Manzanares ordered that the electronic machines be recertified after the November 7, 2006, election.
For this election, Manzanares ordered the state and the plaintiffs to agree to an improved security plan to compensate for possible vulnerabilities of the electronic machines.
County clerks contacted said they will need time to review the new rules but probably will not need to make substantial or costly changes. [Nonsense, see below.]
"There don't seem to be any surprises, and it seems like we' re doing all of this," said Carole Murray, Douglas County's clerk and recorder. [Murray is not one of the brighter bulbs in the county clerk world and Douglas County has a population of 250,000.]
Nancy Doty, Arapahoe County's clerk and recorder, said, "I really feel very confident in our security plan already in place." [Arapahoe County population 529,000 and see previous contretemps with Arapahoe County Clerk.]
The new security requirements also call for the secretary of state to conduct random inspections of county maintenance records. [What we need to inspect is the competence of the SoS and her staff.]
While the rules will require additional staff time and resources, [Secretary of Stupidity] Dennis said, "We believe there' s no cost that' s too much to ensure democracy." [Note that it isn't her money that is being spent and at some point there must be a limit to the insanity of electronic voting.]
A review of security plans filed by five metro counties with the secretary of state this year revealed inconsistencies.
Adams County's security plan took up 11 pages; Douglas County's took up only a portion of one. Denver election officials said their plan is 20 pages long but declined to release it.
Only Adams County already requires Colorado Bureau of Investigation background checks on any private moving-company drivers hired to transport voting equipment.
Denver election officials said they' re already moving to improve election security.
In June, staff with the city auditor' s office toured the Denver warehouse where the city's computerized voting machines are stored.
The inside temperature was about 100 degrees, and at least four doors were opened for fresh air, said Denis Berckefeldt, spokesman for City Auditor Dennis Gallagher. [Note that electronic voting machines require expensive, climate-controlled, secure facilities.]
There was only one guard, Berckefeldt said. "There is no security to speak of out there," he said.
The warehouse now has a cooling system, said Alton Dillard, spokesman for the Denver Election Commission.
There are security cameras and a burglar alarm, he wrote in an email.
Dillard declined to discuss security in detail. [See previous experience with Denver Election Commission concerning fraud and theft. Not a proud record.]
Staff writer Katy Human can be reached at 303-954-1910 or khuman@denverpost.com.
© 2006 Denver Post
September 28, 2006 — County clerks in rural Colorado said they have no idea how to meet strict new election-security rules imposed Wednesday by the secretary of state.
"I' m sorry. I don't know how my county can comply. I don't have the money," said Jackson County [population 1,500] Clerk and Recorder Charlene Geer.
Last week, a Denver district judge agreed with plaintiffs in a lawsuit that Secretary of State Gigi Dennis did a poor job in certifying new computerized voting machines for the election.
Experts testified that those machines — used in every county in Colorado — are vulnerable to tampering and fraud.
Judge Lawrence Manzanares ordered county staff to recertify the electronic machines after the election and to come up with security improvements for this election to compensate for possible security weaknesses.
The new demands of counties are precise, detailing everything from who gets access to computer passwords and rooms where equipment is stored, to temperature controls in those rooms and continuous video surveillance. [Lets see, a billion dollars a year ought to just about cover the cost of those requirements for every Colorado county.]
Jackson County, on the state' s northern border, has 1,262 registered voters who vote in two polling places, Geer said.
Geer' s office has already spent this year' s $21,000 election budget on the primary and the Nov. 7 election, she said.
"I' m going to need considerably more to do this," Geer said.
Dennis said she has heard from concerned county officials. She said she believes most counties will not face "overburdensome costs." [Legalizing marijuana, on this year's ballot, should be of use to Mrs. Dennis, she is obviously smoking something.]
Counties can rent video-monitoring equipment for about $300, she said, and could meet other standards — such as keeping equipment off the floor — by asking local hardware stores for free pallets. [In addition to the video equipment someone must be paid to watch the monitors 24/7/365. Mrs. Dennis has a knack for making herself look stupid.]
"They just need to think outside the box a little bit," Dennis said. [Our opinion is that Gigi Dennis is out of her mind, let alone out of the box.]
Cheyenne County [population 2,000] Clerk Kay Feyh said she didn't think her county could afford the video equipment.
"Well, I guess we'll have to go through it and try to comply as much as we can," she said.
In Cheyenne County, on the state' s eastern border, officials store their six computerized voting machines in the basement of the county building, Feyh said. "I'll probably have to take the key away from the janitor," she said.
Moffat County [population 13,400] Clerk and Recorder Elaine Sullivan groaned when asked about the new requirements. "Every week there' s something else," she said. "We're going to struggle to do this. Everybody is."
In Moffat County, in the northwestern corner of the state, voters with disabilities appreciated using the new computerized machines in the primary, Sullivan said. [Note that what disabilities were accommodated isn't specified, nor is the future cost of maintenance, upgrades, and testing for these machines considered.]
"Buying them is probably the most proactive thing we've done," Sullivan said.
But the machines, mandated by the 2002 Help America Vote Act, have turned out to be more costly than many administrators anticipated.
"All of us were already hit hard with programming and printing costs that we didn't expect," Sullivan said. [One wonders how San Juan County, population 577, is faring under this bureaucratic nightmare? Citizens of Hinsdale County, population 765, Mineral County, population 932, and many other Colorado counties with populations of a few thousand must also be wondering who is going to pay for this idiocy?]
Staff writer Katy Human can be reached at 303-954-1910 or khuman@denverpost.com.
© 2008 The Colorado Statesman
June 20, 2008 — On December 20, 2007, John Gardner, the state's voting systems expert, sent an email to subordinate Department of State equipment testers entitled "Potential lame workaround."
In it, Gardner proposed to fix a problem with the Sequoia electronic voting machine that had resulted in Secretary of State Mike Coffman's decertification of the machine just three days earlier. The complex procedure proposed by Gardner involved interchanging two printing devices on the machine in order to conduct a "print test." Gardner was having trouble performing the test.
"Doesn't that sound like a crazy idea? But would it work?" Gardner wrote.
The next day, Gardner reported good news to Coffman. He had solved the "print test" problem.
But it wasn't by exchanging the printing devices. Rather, a Sequoia representative had told Gardner that directions on how to perform the test were in the machine's instruction manual.
In a December 23, 2007, email, Coffman asked Gardner, "Then Sequoia should have been certified from the beginning?"
At a public hearing five days earlier, Coffman had suggested fixing the problem with the Sequoia "print test" by passing a law allowing a federally-uncertified software patch onto the machine — a fairly unconventional move.
"I don't understand how you could have missed this during the testing process," Coffman chided.
Less than six months later, on Friday, June 6, 2008, Gardner put in his last day at the secretary of state's office. Gardner held the post through two tumultuous election cycles, and the reasons for his departure are unclear. However, it doesn't appear he left under a cloud, or directly because of tensions with Coffman.
He apparently was offered his old job back as the information technology director for the El Paso County Clerk's office, a position he had held from 2001 to mid-2005.
Department of State spokesman Richard Coolidge said he couldn't comment on the reasons for Gardner's departure because it's a personnel matter. Gardner did not answer an email seeking comment.
Gardner's departure from the Department of State was welcome news to voting-integrity activists, who consider him a well-meaning civil servant who was in way over his head.
"I think it's good news for him, and it's good news for Colorado," said Paul Hultin, the plaintiff's attorney in the 2006 court case Conroy v. Dennis, in which opponents of electronic voting attacked the state's certification of voting machines under then-Secretary of State Gigi Dennis.
Hultin had focused his case on Gardner's allegedly inadequate IT background, competency and job skills. In his ruling on Conroy v. Dennis, a Denver district judge gave a negative review to the methods Gardner used testing the state's voting equipment for the 2006 elections and ordered all the equipment retested for 2008.
And, although Gardner is gone, his work testing the state's voting equipment is likely to continue to have repercussions on the elections in November.
Voting activists are particularly concerned that, six months after tests were completed, the Department of State has yet to release the documentation of Gardner's work for public scrutiny.
In an interview with The Statesman last October, the former Chief Information Officer at the Department of State, who had retired in March 2007, expressed concern about whether Gardner, a former colleague, was up to the task of testing the state's voting equipment.
"He's gotten a ton of info. But can he read it? I think on some points, vendors are having to point out what's in the documentation," Brian Balay said. "Mr. Coffman just does not know that he needs a little more horsepower in there."
"He was an 'IT power user,'" Balay continued. "That means he's pretty good on a PC, that he can use a spreadsheet, word processor, et cetera. He does not have an IT background."
Although the paper records of Gardner's testing are unavailable, emails between Coffman and Gardner following the December 17, 2007, decertification decision offer considerable insight into that later effort.
Those emails also, perhaps, illuminate the approach Gardner and Coffman took during the earlier effort of testing equipment — an experimental approach county clerks saw as better suited to a laboratory than an actual election.
Gardner and another member of his testing staff indicated they felt pressure from Coffman to hastily fix perceived problems that led to the decertification. In the saga that would play out over the next two months, Gardner and his testing staff dutifully, if with some initial reluctance, tried to respond. Coffman and Gardner even came up with one solution involving industrial-strength Velcro.
Gardner had joined the secretary of state's office in July 2005 as an assistant tester. His boss quit after three months, throwing Gardner into the job of writing rules for testing the state's electronic voting equipment, then certifying that equipment.
To the consternation of voting activists and some county clerks, despite the judge's criticism of Gardner's work in his ruling on Conroy v. Dennis, when Coffman came into office in January 2007, he kept Gardner as the state's voting systems specialist.
On December 17, 2007, Coffman decertified at least some equipment from 52 of Colorado's 64 counties. Emails written in the days before the decertification indicate most of the office's focus had been on finishing the testing and scheduling a date to announce certification results after a six-month delay.
A December 14, 2007, memo written by department legal adviser Stephanie Cegielski laid out post-certification options: holding paper-ballot elections or mail-ballot elections and using electronic voting machines only for disabled voters, or doing a post-election audit on all decertified equipment.
Coffman, however, would quickly propose an entirely new course.
The first inkling of the secretary of state's plans came at a Capitol hearing on December 18, 2007, one day after the certification decision. At that hearing, Coffman laid out a series of fixes to problems found during the testing, many of which he said he'd come up with the night before in a brainstorming session with Paul Craft and Glenn Newkirk — nationally known private voting consultants who were in town to audit Gardner's testing. (And who have reputations, at least among election integrity activists, as boosters for the electronic-voting-machine industry. They gave Gardner's testing a glowing review.)
Coffman believed the series of fixes to what he called "tipping points" — the big problems that had resulted in each decertification — would require changes in the law, and he asked the Legislature to pass laws narrowly tailored to address each specific fix.
In addition to asking for a law allowing him to put a software patch on the not-actually-broken Sequoia machine, Coffman's legislative wish list included suggestions for equally quirky solutions. For a problem with the Hart optical scanner, Coffman proposed a law allowing him to import testing data from California — a solution soon scrapped as unworkable.
Coffman directed Gardner to start coming up with procedures to fix the voting equipment. Gardner was less than thrilled. He had thought the work was supposed to be done largely on December 17, 2007, the date of the certification decision.
"Can you tell there's a rush to have these events take place? No pressure on me...I'm supposed to be on vacation," Gardner wrote in a December 20, 2007, email to his testing team.
On the same day, Gardner wrote an email to Newkirk indicating Coffman was the one pressuring him.
"I've been avoiding him...hoping to get through the last two days before vacation," Gardner wrote.
Gardner then referred to a story broken that day by the Rocky Mountain News, revealing connections among Coffman, the electronic voting vendor Premier Election Solutions and a political consulting firm in Denver.
Gardner wrote in his email to Newkirk that he thought the story might affect Coffman's future certification decisions because "you don't want too many bad stories out there when you're running for a congressional seat."
Coolidge, the Department of State spokesman, also declined comment on those emails.
Within days, solutions were found to problems that had resulted in the decertification of the Sequoia electronic voting machine (the one in the instructional manual), as well as with the ES&S optical scanner (counties that used the scanner could come to the office and demonstrate that it counted 10,000 ballots correctly).
Over the next week, Coffman and Gardner exchanged emails in which Coffman pushed quick solutions to fix the rest of the equipment.
The most pressing need was to fix the decertified Hart InterCivic optical scan machines. The machines are used to count paper ballots in 47 of Colorado's 64 counties, and the decertification enraged county clerks in the affected counties. Gardner had found the Hart scanner counted certain extraneous marks on ballots as votes.
In a Christmas Day email to Gardner, Coffman proposed to fix the problem by having poll workers check ballots for such marks before scanning them. Coffman indicated the fix might not be practical, but it would give him some breathing room.
"This, no doubt, would be a very inefficient solution...but it may give comfort to the smaller counties," Coffman wrote.
Gardner wrote back, however, that the proposed solution was not "reasonable or practical." (Two months later, after the idea was panned by county clerks, Coffman himself would term the idea "ineffectual and unnecessary.")
Coffman then asked Gardner whether testing had yet begun on a different version of the Hart optical scanner that had been certified in California. It apparently did not have the same problems as the version tested in Colorado, and Coffman believed it could be used here as a substitute.
Gardner, who by that time was finally on vacation, forwarded Coffman's question about whether testing had begun to a subordinate tester, Michael Chadwell.
In his response to Gardner, Chadwell said he was in "shocked disbelief at the assumption of the SoS that [led] to the premise of your question."
"NO! OF COURSE I AM NOT TESTING!" Chadwell wrote. "I saw this as a top-down, start from the beginning exercise that did NOT fall under the model of 'quick-and-dirty' path testing."
Gardner, responding to Chadwell, tried to buoy his co-worker's spirits, noting that it somehow had miraculously snowed in his tropical vacation destination that night, and implied that a similar miracle could be pulled off in fixing the state's voting equipment.
"I can see from the press releases that we have the full blessing of the secretary of state to certify machines," Gardner wrote. "If they can make it snow when it's 70 degrees, we can get through this."
In a series of emails, Gardner and a Hart representative would discuss new tests to be performed on the more advanced version of the Hart optical scanner. (In the emails, the Hart representative expressed concern about whether Gardner would use special "Hart pens" to mark ballots during the tests. Gardner assured that he had used the special pens in previous testing, and would continue to do so.)
It eventually turned out, however, that the new Hart scanner suffered from the same glitch as the one previously tested in Colorado, and that idea also was scrapped.
If using "special pens" to mark ballots sounds like the conditions of a lab, rather than an actual election, county clerks also noted a similar theme when Coffman and Gardner proposed a fix for the ES&S electronic voting machine.
The problem was the machine could be shut down if someone stuck a magnet into its "PEB slot." In a January 10, 2008, email to his testing team, Gardner wrote, "The Secretary and I just discussed the possibility of gluing or Velcro-ing a plastic box to the PEB slot that would prevent our magnet from getting close enough to trigger the events."
If followed to its logical conclusion, the plan would have called for county clerks to place a plastic cover with a padlock over the slot and to attach the cover to the machine with industrial-strength Velcro.
At a February hearing where that potential fix was formally presented, Jefferson County Clerk Pam Anderson mocked it, calling the fix an "inefficient, inelegant and narrow option that screams to the voter that it must have been created in a lab."
And there was yet another problem. A videotape from Gardner's tests had been misplaced that showed how a magnet would shut down the machine.
"Everything else can be put on hold until we either — re-create the stack dump or find the video. Ugh," Gardner wrote in his January 10, 2008, email.
On January 11, 2008, ES&S vice president Steve Pearson would start badgering Gardner for the videotape, calling his cell phone, work phone and emailing him. And whether or not the tape existed — and by extension, whether the defect was actual — would become an ongoing point of contention between the secretary of state's office and Mesa County, which uses the ES&S machines.
If Mesa County officials had been privy to a December 17, 2007, email written by Department of State Chief of Staff Jacque Ponder only a couple hours before the certification decision, they probably would have been even more suspicious.
"Since Ohio just released its study on electronic voting machines, stating a Treo and a magnet would be all the tools you need to tamper with the working of the electronic voting machines, would you like to include the same statement about ES&S in our [press] release?" Ponder wrote to Coffman.
To resolve the issue, Gardner's staff performed the magnet test at a February 21, 2008, hearing before Mesa County officials, showing that the problem was, in fact, real.
Pressure kept building from the Colorado County Clerks Association to find a solution that would get all the equipment recertified. Before the certification decision, there had been limited communications between the secretary of state's office and county clerks. The office was afraid communications with county clerks could be construed as political pressuring by the clerks and used against the office in a lawsuit attacking the certification process. (Some clerks contend the lack of communication resulted in unwarranted decertification. They say the problems discovered by Gardner that resulted in decertification were resolved soon after December 17, 2007, because of increased communications with clerks and vendors).
Now, however, the clerks lobbied freely. El Paso County Clerk Bob Balink, who uses the Premier [Diebold] Election Solutions system and was among the 12 clerks whose equipment was certified from the get go, reported in an email to Coffman that less fortunate clerks were clamoring for answers concerning the decertified equipment.
"CCCA sentiment is forcing a Jan 31 decision," Balink wrote.
At the same time, legislators were trying to pull together a bill that would allow the decertified equipment to be recertified. Coffman had recruited Rep. David Balmer, a Republican, as a sponsor, but Balmer was having trouble keeping Democratic Sen. Ken Gordon on board. Having a Democratic sponsor was important, since Coffman and Balmer wanted to the bill to be bipartisan and non-controversial.
Balmer said he would try to recruit Sen. Ron Tupa as a Democratic sponsor instead, and Coffman agreed.
"I'm not entirely sure if Gordon is the right choice for this bill. He wants to placate everyone, and I'm not sure if that is possible. I'm sympathetic to those who want paper ballots at polls, but they go too far," Coffman wrote to Balmer on January 7, 2008. "Gordon seems squishy, while the one good thing about Tupa, whether you agree or disagree with him, once he makes a decision he tends to stick with it."
That statement would prove ironic, as Coffman himself would soon change his mind from favoring holding primarily a paper-ballot election in 2008 to advocating on behalf of mail ballots, then later to supporting whatever kind of election each individual county clerk wanted to hold. Meanwhile, Gordon wound up sponsoring the bill, House Bill 1155, which quickly passed both chambers unanimously.
In late February, Coffman recertified all the state's electronic voting under HB 1155, and all the state's electronic voting equipment will be available for widespread use this November.
Coffman came full circle in his overall view on which type of election to run, from initially supporting paper ballot elections — in opposition to county clerks — to supporting whatever type of elections the clerks wanted to hold. Over the same period, Coffman came to abandon the fixes he and Gardner had produced in favor of more practical, common-sense solutions proposed by the clerks.
The unresolved question is whether there might be another Conroy-v-Dennis-type lawsuit this summer or fall.
Hultin won't say one way or the other. But several citizen election integrity activists say it's impossible to know whether it's time to attack Gardner's work again.
Six months after the tests were completed, the testing documents produced by Gardner and his staff that resulted in the initial December 17, 2007, certification decision are still not available to the public. So while a Denver District Court deemed Gardner's work in 2006 troubling enough to order a retest for 2008, the competency of Gardner's testing for the 2008 elections remains publicly unexamined.
Before it became clear HB 1155 would pass, electronic voting vendors expressed enthusiasm about quickly distributing documents to the public. After all, immediately following the December 17, 2007, certification decision, it appeared the only avenue for vendors to get their equipment recertified was to hold hearings challenging Coffman's decision. And allowing the Department of State to release testing information to the public for scrutiny was a necessary step in getting those hearings scheduled.
The vendors wanted to redact proprietary information from the documents before the documents were released, but, according to one email, that would be no problem. In a January 15, 2008, email, Sequoia vice president Ed Smith wrote that his company could be done with redaction on their documents "by the end of the week."
That never occurred. Now, in late June, those redactions have yet to be completed by any of the four vendors. The secretary of state's office and vendors reportedly have been unable to agree on what information is proprietary.
Following the passage of HB 1155 and the recertification of all the equipment, neither side seems in any particular rush to get the documents from Gardner's testing to determine whether the state's voting electronic voting equipment is secure, accurate and verifiable into the hands of the voting activists who may sue them.
According to the October 16-22, 2008, issue of the Colorado Springs Independent Denver attorney Michael Williams has asked for an investigation into whether John Gardner, information systems manager for the El Paso County Clerk and Recorder, committed perjury when he testified about his background in a 2006 lawsuit about the state's testing program for electronic voting equipment.
Gardner worked for the El Paso County clerk for several years before taking a job with the secretary of state and quickly becoming head of its testing program. His qualifications and the nature of tests were major issues in the lawsuit, which eventually forced the secretary of state to repeat voting machine tests in 2007 and 2008 at considerable cost to the taxpayers.
In his letter to the Denver district attorney's office and Colorado Attorney General John Suthers, attorney Michael Williams, one of the plaintiff's attorneys in the lawsuit, argues that Gardner should be investigated for first-degree perjury, a felony. Williams argued that Gardner's apparent lie made a difference to the outcome of the trial.
Gardner, who returned to the El Paso County Clerks office in June 2008 to oversee voting equipment and other computer systems gave sworn testimony that he graduated from Montana State University in 1994. Earlier job applications gave other graduation dates. The Montana State registrar's office has said there is no record of Gardner graduating.
Asked about the discrepancies, Gardner told the Independent he may have made an "error."
In what we have come to expect when perjury is committed, the Denver district attorney's office declined to pursue a perjury case against John Gardner.
While "there was little question about the inaccuracy of Mr. Gardner's statements regarding his educational background," the January 23, 2009, letter states, DA officials were swayed by the 2007 suicide of Denver District Judge Lawrence Manzanares after he was caught stealing a laptop computer. An interview with Manzanares, who presided in the 2006 lawsuit, "would have been integral to a successful prosecution of the case."
In the trial Manzanares ruled that voting machine tests conducted by Gardner when he worked in the secretary of state's office were flawed, but Manzanares determined the machines could still be used in the 2006 general election. Given Gardner's lack of qualifications it seems reasonable to presume that if perjury had not been committed the judge might well have ruled the electronic voting equipment could not be used in the 2006 election.
At that time, County Clerk Bob Balink answered questions about Gardner's "error" via e-mail:
"WE DO NOT HAVE KNOWLEDGE OF ANY FACTS OF A VILATION [sic] OF LAW OR POLICY, EITHER COUNTY OR STATE THAT WOULD REQUIRE SEPARATIN [sic] OF EMPLOYMENT FROM EL PASO COUNTY."
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