CHARLESTON – West Virginia Secretary of State Mac Warner is part of a national effort to preserve election results.
Warner and Ohio Secretary of State Frank LaRose are calling for states to pass legislation requiring the maintenance of digital, publicly accessible voter records.
The Federal Civil Rights Act of 1960 requires “all records and papers … relating to any … act requisite to voting in such election [for federal office]” be kept for 22 months.
Kersey
| Courtesy photo
But, according to an opinion piece last month on The Federalist website, some county election officials across the country began updating their digital voter list (removing people who have moved or died) within days of an election. That, the report says, included saving over the original computer file without a backup copy, making it impossible to match up data.
“Election officials across the country are not keeping the most basic data to monitor election outcomes,” authors John R. Lott Jr. and Steven M. Smith – wrote. “Even when they say they do, the numbers do not come close to matching up. … Something needs to be done.”
“Fifty percent of likely U.S. voters think it is likely that ‘widespread cheating will affect the outcome of this fall’s congressional elections, including 35 percent of Democrats and 70 percent of Republicans,” according to the story. “If we can address and enforce the Civil Rights Act of 1960’s data retention requirements, we will be able to help restore confidence in our system. Americans could see a clear picture of who voted (not how they voted) in the general election, and any discrepancy could quickly and easily be addressed or investigated.
“Doing so will ensure it is easy to vote in America but harder to cheat.”
According to The Federalist piece, the America First Policy Institute made public records requests for the 100 most-populated counties in 14 swing states. It says 94 of those counties did not keep records of who voted in the 2020 election, and only two statewide election officers had the records preserved. It also says there was an average of a 2.89 percent discrepancy between the number of people voting and the number of ballots cast.
“It was a simple goal: match the number of voters with the number of ballots cast,” the authors wrote. “After the last general election there were concerns that ballots were counted multiple times (so that there could be more ballots cast than voters who voted) and that ballots were destroyed (so that there could be more voters who voted than ballots cast).
“But, through our examination, we learned that it cannot be determined if these discrepancies exist, because most states and counties simply do not keep timestamped records of who voted as required by law.”
In West Virginia, digital data is kept “pretty much in perpetuity."
“We have it until the particular system dies,” Donald M. “Deak” Kersey III, general counsel and deputy Secretary of State, told The West Virginia Record.
As for actual ballots, that’s a different story.
“There is a real practical matter,” Kersey said. “They’re voluminous, and county clerks have limited space. Also, they deal with much more than just elections. And, as requirements change, more paper becomes part of the process to maintain voting results.”
For example, Kersey noted a federal law passed in 2005 that required the state to buy voting machines for voters with disabilities. The previous machines didn’t produce a lot of paper, just a roll of paper like a cash register receipt. But those machines are obsolete now.
“The new machines print out a paper ballot,” he said. “It takes up a lot of room. Also, we now have a tabulator for every precinct as well, and there are about 1,700 precincts in state. That’s a lot of space required to keep everything. Federal law says you have to keep ballots and all paperwork for 22 months.”
Another example of the sheer volume of material, according to Kersey, is that Wood County produced a cast vote record spreadsheet for the 2020 election. It was 17,000 pages. Each individual vote by each voter was one line in the report.
“This information can be stored digitally,” Kersey told The Record. “And every county does that.”
Kersey also said there are some legal issues associated with keeping the paper ballot information.
“You have a right to vote a secret ballot in West Virginia, and you have the right to keep it private,” he said. “This cast vote record could compromise that secrecy.”
He used a real-world example of a voter registered with the Mountain Party in West Virginia.
“In the primary election, he ran on the primary ballot,” Kersey said. “He was the only Mountain Party voter to show up in his precinct to vote. So because only Mountain Party voters can use that Mountain Party ballot, it could ascertained with public data how he voted for every race.
“That’s the problem. It’s also that way for provisional voters because there aren’t many provisional votes cast. If you compare a voter history list with provisional data, one provision voters or a few in a precinct and they all vote for same candidate, you know who they voted for.
“Like I said, it’s rare to have many provisional voters. So it’s common to have just one vote at each precinct. You can figure out who they voted for. And that information can be used in a negative way.”
Kersey said different states even have different laws regarding the cast vote ballot. Some states say it is public record, while others will redact information.
“So you can have a million-page document released with the entire thing redacted under the privacy exemption, which West Virginia does have,” he said. “If you turn over a document that way, it can look like you’re trying to hide something even if you’re not. And if you don’t turn it over because of privacy issues, it also can look like you’re trying to hide something.”
Kersey said most West Virginia counties already have the technology to store ballot images digitally.
“Then, for those counties that don’t have the technology, it becomes another issue,” he said. “For example, Mineral County has two people in their office. Wirt County has three. Even Kanawha County, which has about 20, they have many more functions than to just maintain voter records. They do deed records, probate, marriage licensure and everything in between.
“Making some of these counties scan ballots individually and storing them intelligently would be a tall order without significant help. They have the software to do it.
“The bottom line is we support preserving records, but we have to take in the practical limitations before we mandate such things. That includes storage space, manpower, time involved.”