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American elections lore over the last 50 years is rife with tales of funny business, from charges of a Chicago graveyard vote in 1960 to the hanging chads count in 2000. But such anomalies in San Diego County? Couldn’t happen. That’s the attitude of local election officials, according to Carlsbad attorney Ken Karan. What it boils down to, he says, is that “they don’t want to be held accountable.” It’s not his intent to impugn the integrity of those volunteers who run polling stations on Election Day. “Yet there are a few people who think they know how an election should turn out,” says Karan. “If they sense it may not go that way, they’re willing to take steps to try to make sure it does.” The problem, he thinks, is that San Diego County’s registrar of voters has insufficient procedures to secure the ballots and doesn’t follow the procedures she has.

As one antidote to fraud, a Voter Bill of Rights in the California Elections Code states that every voter has “the right to ask questions about election procedures and observe the election process.” That’s what voter Linda Poniktera did during the California presidential primary election of February 5, 2008, first in an El Cajon polling place and later in the day in Kearny Mesa. To document her observations, Poniktera took along a video camera. She did it largely to challenge a policy that San Diego County Registrar of Voters Deborah Seiler wrote to guide poll workers in performing their duties. The policy states: “Photography and videotaping are not allowed by the public or voters during voting hours. However, if someone would like to photograph the seals on voting equipment prior to the opening of the polls or after the polls close they may be permitted to do so.”

Poniktera later complained that she had been threatened with arrest for using her camera. On July 31, she petitioned superior court on behalf of all citizens to prevent the registrar of voters from violating the right to observe an election. In addition, she asked the court to direct the registrar to insure that, after ballots are cast, seals are properly affixed to the ballot boxes before they leave the polling places to protect the ballots from tampering. The election code requires that such seals not be broken until the containers arrive at a counting center. In these requests, Poniktera was represented by Ken Karan.

In superior court, Judge Michael Anello ruled against Poniktera. Karan later asked the California Court of Appeals to consider from scratch how First and Fourteenth Amendment law ought to be applied to the case. In January, the appellate court denied the appeal.

After a pleasant three-dollar Coaster ride, I catch up with Karan in Encinitas. His good humor offsets an intensity about transparency in elections that has been inspired by what he calls a budding “election integrity movement” across the United States. He chuckles at a line in the appeals court’s opinion. Mistakes in the “reconciliation” of the number of voters with the number of ballots cast in the February 2008 election, the opinion affirmed, could be chalked up to the count being “performed at the end of an extremely long day.” Karan’s petition to the superior court was written in a different tone. “Of the approximately 2% of the total precincts in the County reviewed,” he wrote of a study he conducted after making a state Public Records Act request, “almost 60% indicated a material failure by the precinct board to account for all the ballots.… The record shows a serious inability to reconcile this important data.”

So how might it improve elections to allow citizens to use cameras inside polling places while the election is still under way? Karan believes that there’s a need to document the ballots’ “chain of custody.” Photographing sealed boxes only after the polls close guarantees no certain knowledge of what’s happening to the ballots beforehand.

And Karan’s postelection investigation revealed that there had been negligence regarding the seals. That included seals protecting the memory cards that store touch-screen votes. “During the February 5 and June 3, 2008, elections,” Karan wrote to the superior court, “Defendants failed to comply with [the law] by allowing ballot boxes and memory cards to be transported without seals.… Poll workers who find that they were not issued the required seals and request them from the Registrar of Voters have been told by officials to transport them without seals.…”

In the lawsuit Karan filed for Linda Poniktera, the evidence he supplied concerned more of his own experience than hers. His petition to the court claimed one polling station he visited in a 2006 election told him he could not photograph container seals at all. At another station, he was allowed only to see them on a piece of cardboard before they were attached to the ballot boxes or the voting machines.

During the February 2008 election, Karan tells me that he was twice threatened with arrest on grounds that he was trespassing when he was merely present with his camera at polling places. In one situation, he claims, poll workers indicated the registrar of voters had told them “to call the cops if this guy shows back up again.” When two police officers arrived, Karan asked them on what grounds they planned to arrest him. He claims that one of them replied, “You know, I was thinking about that on the way over here. I pulled out my book, but I couldn’t find anything. So I’m going to arrest you for whatever the registrar of voters tells me to arrest you for.” After Karan asserted his right to be there, he says the officer asked, “Don’t you think the registrar of voters knows better than you do?” “In this case, no,” Karan says he told the officer prior to leaving the premises voluntarily.

The appeals court’s opinion, however, accepted the registrar’s version of events. It claims that prior to the February 2008 election, Dennis Floyd of the San Diego County Counsel’s office had explained to Karan that he would be able to use his camera if he weren’t intimidating, or otherwise interfering with, people trying to vote. Karan was to alert Floyd when he was going to a polling place; Floyd would tell workers what Karan was doing and that it was permitted. Instead, according to the appeals court’s opinion, Karan called Floyd to complain that “a precinct inspector was not allowing him to take photographs in the polling place and that the police had been called.… Floyd spoke with Karan and the officers, and then with the precinct inspector (Ms. Ritter), and learned Karan had attempted to debate his constitutional rights with Ritter (rather than calling Floyd to resolve any impasse), which was disrupting voters trying to enter to vote while Karan was lecturing Ritter on the law. Floyd told the poll workers and the officers that Mr. Karan would be allowed to photograph the documents he requested as long as it did not interfere with the voters. Thereafter, during a lull in the voting, Karan took pictures of the ballot box and log.…

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electionguru March 11, 2010 @ 6:15 p.m.

For the record: Ms. Poniktera complained that, given the experience of other citizens being faced with arrest for trespassing at a public election, she is herself facing the risk of arrest for doing what, in a more enlightened time, would be laudatory: protecting the process by which citizens make themselves free of tyranny. Photography in elections is just one way citizens have of documenting elections. Documentation ensures transparency, promotes accountability, and creates evidence instead of anecdotes. Documenting the security of the ballots is only one important part of a transparent election. Few voters consider what happens to their ballot after dropping it in a box. Spoiling a ballot is as easy as marking a second vote where only one is permitted. The seals on a piece of cardboard referred to in the article were not as described. These seals are required by state and federal law to remain in place over the memory cards being used with electronic voting machines. The fact that the seals were removed and placed on a piece of cardboard is evidence that security had been breached and the machines tampered with. The first threat of arrest occurred while standing in a driveway at a polling place. The second occurred after the polls had closed. It is this occasion during which a 17 year old poll worker is recorded as telling police that the registrar instructed him to call police if a citizen election observer returned with a camera. Photography at a polling place is permitted by the registrar’s own policies after the polls have closed. Citizens are not required to obtain a license from a government lawyer to exercise free speech rights. In this case, no one debated poll workers over constitutional issues. Citizen Election Observers do not believe that cameras at polling places might scare voters away. They do recognize that some people, however irrational, might find it offensive to have their photographs taken in a public setting. People are under surveillance in an ever-growing number of public places. They still go out in public. The appeal concedes that burdening free speech with some regulation of photography is permissible, but only if it is narrowly tailored to serve a compelling state interest such as preventing fraud or voter intimidation, and preserving the secrecy of a ballot. Having a pleasant experience at the polls is not a compelling state interest. If the registrar’s procedures and training were adequate, the lawsuit filed would not have been necessary. The quote attributed to Stalin expresses the sentiment among dictators that it is enough to hold an election, even if it is just theater, to keep citizens sullen but not hostile to authorities. Without transparency and the ability to verify the results, our elections are no better than theater.

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SurfPuppy619 March 15, 2010 @ 10:30 p.m.

The courts relied on a position established by the U.S. Supreme Court that the speech of election campaigners can be restricted within 100 feet of polling stations. That establishes polling stations as nonpublic places

Having speech restricted does not mean it is not a public forum.

There are all sorts of time, place and manner restrictions on public forums.

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electionguru March 17, 2010 @ 10 p.m.

SurfPuppy is partly correct. However, simply because a regulation that burdens free speech is found to be constitutional does not mean that the forum in which the speech is regulated is a nonpublic forum. The Burson decision referred to explicitly holds that the area around the voting compartments is a public forum subject to strict scrutiny analysis. The lead opinion in Burson is derived from a strict scrutiny analysis. The holding is that burdening campaigning within 100 feet of a polling place is constitutional because it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. However, the activity being restricted by government in this case is not campaigning. The activity here is functionally compatible with the voting process. Therefore, a total ban on the ability of citizens to document government conduct which does not interfere with the ability to cast a secret ballot neither serves a compelling state interest nor is narrowly drawn to serve whatever interest the government claims justifies the ban. Citizens need to understand their rights. Read the California Constitution, article II, section 2.5, and Elections Code sections 2300 and 15702.

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