To:       Chuck Broerman, El Paso County Clerk and Recorder

From: Xxxxxxx Xxxx, Canvass Member for the El Paso County

Date:   September 2, 2022

Re:       El Paso County Primary Recount 2022, Minority Report

I would like to extend my sincere thanks to El Paso County Elections Division employees, Karl and Matt, who, despite the pressure of the job, were always cordial toward me and answered my questions throughout the process. The following report is in regards to my decision to not certify the recount of the 2022 El Paso County Primary election.

Clerk Broerman frequently claimed that this recount (as well as the 2022 primary election, which I did not certify) was performed transparently and smoothly and that the recount, as well as the primary election, produced fair and accurate results. I respectfully disagree for the following reasons.

• A Logic and Accuracy Test (LAT) was performed as the first step of this recount. Elections Division employees used the same 4,216 machine generated test ballots as were used in May 2022 during preparations for the primary election. During the primary LAT, fewer than 20 of these test ballots were referred for adjudication.  During the recount LAT, 2,266 ballots from each of the seven tabulators were referred for adjudication.  Although the Elections Division staff anticipated more ballots to be referred for adjudication during this LAT, they did not expect such an exponentially higher number.  This higher rate of adjudication clearly took them by surprise and they did not have a plan for dealing with it.  The evident confusion was clearly made worse by the fact that Clerk Broerman was not present during this process.  It must be noted that Clerk Broerman was the third Canvass Board member; all Canvass Board members are required to be present for all phases of the recount process, however, Clerk Broerman was absent for the better part of this first day.
• Because the Elections Division had not anticipated such an unusually high adjudication rate of their own test ballots, the Secretary of State (SOS) was consulted for guidance. The SOS instructed the Elections Division to perform the exact same LAT with all seven tabulators and conduct the manual adjudications in accordance with normal adjudication operations. The fact that the Elections Division did not have a plan for performing this recount and would need continual guidance and instruction from the SOS was abundantly obvious.
• Immediately following the LAT, the candidates involved in the recount were instructed to fill out 10 ballots apiece in order to further test the elections machines. This test was conducted twice as the Elections Division was not clear on how to perform this test and its first run was unsuccessful.
• Following the machine testing, the scanning and tabulating of ballots were performed over approximately three days. I observed that batches of ballots were scanned in the exact same order through the exact same tabulators as they were during the primary. There was no randomness that would more likely reveal anomalies or discrepancies, but instead the recount was a concerted effort to reproduce the same results as the primary election. This conclusion is further supported by the fact that these tabulators were programmed to read exactly the same way as they were for the primary.
• As a Canvass Board member, Clerk Broerman not only supervises the conduct of the election and recount processes, he also certifies the results as true and correct. The conflict of interest between his role as elections supervisor and his vested interest as a candidate is unavoidable and cannot be ignored. He should have recused himself.
• The fact that CISA published a report describing vulnerabilities just before the 2022 primary election (summarily ignored by the SOS and Clerk Broerman) casts serious doubts on the legitimacy and reliability of election results as well as the recount.
• Colorado Revise Statute 1-10.5-102 (3)(a) states that

“Prior to any recount, the canvass board shall choose at random and test voting devices used in the candidate race, ballot issue, or ballot question that is the subject of the recount. The board shall use the voting devices it has selected to conduct a comparison of the machine count of the ballots counted on each such voting device for the candidate race, ballot issue, or ballot question to the corresponding manual count of the voter-verified paper records.”

This was not performed.  Scanning and tabulating of ballots (the recount) were commenced immediately upon conclusion of the LAT and so-called candidate ballots (ten per each).  At no time was any manual count or comparison of machine count to voter-verified paper records performed. 

In closing, I regret to mention the behavior of the clerk and his staff which projected demonstrable contempt for the legal process. First, failure to accommodate the crowd of witnesses in the hallway was seen on the second day of the recount. Benches that were lined up in the hallway for observers were removed and dragged inside the cypher locked chambers of the clerk. This was a blatant sign of disrespect. Further, the clerk and staff refused to pick up legal notices served by the candidates, leaving them on the floor in the doorway to be trampled upon.

My report has been delayed due to unfulfilled requests for information from Clerk and Recorders office relevant to the primary election and now the recount.  My requests for information such as system configurations, vendor contracts, adjudication settings, original disposition of L&A test ballots, tests conducted to ensure software running on each piece of voting system is the same software that was certified, etc., were all categorically rebuffed.  I was instructed by the Director of Elections to submit CORA requests for any information that I needed in order to make informed decisions in my role as a Canvass Board member.

There is very little about this recount or the 2022 Primary Election that inspired confidence in this county’s processes as transparent, accurate, reliable, or impartial; quite to the contrary.  For the reasons cited herein, I am not able to certify this recount.

Respectfully,

Xxxxxxx Xxxx

Canvass Board Member

El Paso County