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.…