Election Observers Testify They Can't See; Judge Rules That's Fine
Nobody likes having someone looking over his shoulder, judging his work, and interrupting, but in the case of elections, do observers have the right to do exactly that to election workers?
The Superior Court of Ventura County, California, has answered this question in a recent court trial. The decision by Superior Court Judge Henry Walsh answers with a resounding “no.” The ruling says that observers have the right to see various ballot processing activities, but they do not have the right to see up close and evaluate whether the activity is being done correctly. In Walsh’s judgement, observers do not have authority to challenge the decisions of election workers.
Election observers are being sidelined in California.
Ever since the debacle of the November 2020 General Election I have been researching election integrity matters, particularly in my local area—Placer County, California. In 2021 I received election observer training from the non-profit, non-partisan organization, Election Integrity Project California (EIPCa). I served as an EIPCa volunteer in Placer County for two election cycles, in 2021 and 2022. Prior to the 2022 General Election, I learned that EIPCa involvement in a couple of lawsuits made it imprudent for them to allow participation from anyone who was a journalist or blogger. Since I intended to eventually publish my election integrity findings, I informed my EIPCa county coordinator of that and stepped away. I observed the General Election solely as an independent citizen.
This May I received a call from the woman who had been my EIPCa county coordinator. She had remembered my interest in journalism and asked if I would be willing to report on the EIPCa’s court trial coming up soon in Ventura County. Events lined up for me to attend the trial, which lasted five days in June with witness testimony, and one day in July for closing arguments. My biggest takeaway from the trial reinforced my fear that our elections are compromised—many in power do not trust the people enough to let us verify our own elections. If they do not let us verify elections, how can we trust them to guard our votes?
Since its inception in 2010, EIPCa has worked to document and correct problems in California’s election system. The organization claims that in recent elections, thousands of EIPCa-trained election observers have been active throughout 45 of California’s 58 counties.
In March of 2020, EIPCa filed a lawsuit against Ventura County alleging that county officials were denying observers adequate access to properly monitor ballot processing activities. According to prosecuting attorney, Mariah Gondeiro, Judge Walsh denied EIPCa’s request for a preliminary injunction to quickly address the situation because county policies had been modified by Covid-19 mitigations that were still in force, and, potentially, observer complaints could be resolved when the state of emergency ended.
EIPCa volunteers continued to monitor Ventura County elections throughout 2020, 2021, and 2022. Although the county improved observer access in this period, EIPCa deemed the changes insufficient and undependable, as the county could alter its observation policies at will. The lawsuit proceeded to its trial court hearing this summer (2023). In the trial EIPCa asked the court, among other things, to require the county’s Elections Division to let election observers stand as close as one foot behind workers at their computer stations.
Attorney Mariah Gondeiro, of the non-profit legal firm, Advocates for Faith & Freedom (AFF), represented the plaintiffs in the trial. In a message to supporters, AFF claimed that a positive outcome of the case would set important precedent and serve as a “potential blueprint” for other states.
Gondeiro called several EIPCa members and Ventura County Elections Division representatives as witnesses. Matthew A. Smith, Assistant County Counsel for Ventura County, argued for the defense, with Martin Cobos, Ventura County Elections Operation Manager, as witness.
Throughout the trial, Gondeiro asserted that Ventura County’s election observation policies violated state law, especially California Elections Code, section 15104, subsection (d), which states,
…vote by mail voter observers shall be allowed sufficiently close access to enable them to observe the vote by mail ballot return envelopes and the signatures thereon and challenge whether those individuals handling vote by mail ballots are following established procedures, including all of the following:
(1) Verifying signatures on the vote by mail ballot return envelopes by comparing them to voter registration information.
(2) Duplicating accurately damaged or defective ballots.
(3) Securing vote by mail ballots to prevent tampering with them before they are counted on election day.
EIPCa election observers testified that county officials had prevented them from having “sufficiently close access” to tell whether or not county workers were following “established procedures” in the processing of vote by mail (VBM) ballots. Many of the ballot processing activities take place on computers, so unless observers have a vantage point comparable to that of the worker at the computer station, the observer cannot follow what is happening on the screen. Imagine checking your child’s homework on a computer screen five or more feet away. You could see that your child is busy, and maybe you could tell that a valid assignment was on the screen, but if the text was small, could you tell if your child was doing the assignment correctly?
Consider also, what if your child’s teacher wouldn’t tell you the requirements for the assignment? During the trial, EIPCa coordinator for Ventura County, Gloria Chinea, testified that in 2019 officials in the Elections Division refused to give EIPCa documentation on the county’s VBM ballot processing policies and procedures after multiple requests. Finally, in response to an open record request from the EIPCa attorney, Chinea received the county’s Handbook of Election Worker Guidelines. The handbook was heavily redacted and did not explain the Election Division’s ballot processing procedures. Officials told Chinea that the redacted information was proprietary, and that information on the procedures was held in proprietary documents. According to witness testimony, observers had to infer what the county procedures were on their own.
During questioning, several EIPCa volunteers described how not being close enough to see ballot processing activities clearly, and not being given documentation of the county’s established procedures harmed their ability to make the challenges indicated in Elections Code, section 15104 (EC 15104).
Defense attorney Smith, on the other hand, disagreed with the prosecution’s and observers’ opinion that EC 15104 gave observers the right to challenge whether election workers were doing their jobs correctly. Smith held that just seeing the workers busy at specific tasks was sufficient. Smith insisted that observers are there to “watch, view, listen, and take notes,” and should not disrupt the administration of the election by challenging and second-guessing the actions and decisions of the workers. Smith would not concede that EC 15104 required the county to allow observers to see ballot-processing activities in fine detail.
When VBM ballots arrive at the Elections Division from the post office, they are scanned, and images of the envelope’s affidavit signatures are placed in a database. Election workers at computer then check each scanned signature to see if it matches one of the signatures on file with the voter’s registration. Voters can have multiple signatures on file; besides the original voter registration signature, there can be affadavit signatures from past VBM envelopes, as well as signatures gathered from past Department of Motor Vehicles transactions. Once signatures pass the verification test, workers remove the ballots from the envelopes, inspect them, and bundle them for vote-counting by the tabulation machines.
Witnesses in the trial described how Ventura County required observers to stand inside areas designated by taped rectangles on the floor. Elections Operation Manager, Martin Cobos, testified for the defense that in 2022 the taped observation boxes for the signature verification process were 7-8 feet away from the computer screens. EIPCa election observers said that they could not see the signatures well enough to tell whether or not they matched the signatures the county had on file.
Observers also testified that they had problems viewing the ballot adjudication process clearly. When a tabulator cannot read all the choices on a ballot, a computer program sends the ballot image to an adjudication file. Election workers access the file in teams of two. Team members view a scanned ballot image and decide among themselves whether or not they can discern the voter’s intent. Finally, the workers create a new ballot image that the tabulators will accept. Cobos said in his testimony that the taped observation box for adjudication in 2022 was 3-4 feet from the closest computer stations and 7 feet from the farthest stations. There were six computer stations situated in the room. Observers testified that all but the two closest stations were too distant to see what vote selections the workers were choosing in the adjudication.
During the trial EIPCa observers reported difficulty seeing in detail other ballot processing activities. While observing ballot opening, they could not always tell how many ballots were extracted from an envelope, nor could they read the postmark on the envelopes. When observers watched the duplication process—where damaged paper ballots are remade by hand—they had to stand 6-20 feet away from the activity, and they could not verify that workers correctly duplicated the original ballots.
On day five of the trial, the prosecution brought Ruth Weiss, EIPCa vice president and county coordinator for San Diego County, as witness to testify about the way in which San Diego County handles election observers. She said that San Diego County had written election policies and procedures, and the county shared all of its training manuals, including the policies and procedures, with EIPCa. Judge Walsh said that while Ventura County needed to adhere to the elections code, it didn’t need to follow the model of another county concerning the treatment of election observers, as circumstances vary in different places. Judge Walsh mentioned that imitating other counties could be ludicrous, as up north they were doing crazy things, like throwing out the machines! But prosecuting counsel Gondeiro replied that she wanted to show how a county can provide good access to observers, and she continued the line of questioning.
Defense counsel Smith vigorously argued that Ventura County already provided adequate observation areas and support for election observers. According to both Martin Cobos and former Ventura County Registrar of Voters, Mark Lunn, providing more observer access or adopting policies similar to San Diego’s would potentially put “hot ballots” (voted paper ballots) in jeopardy of tampering. Cobos said that the Elections Division always tries to strike a balance between “transparency, efficiency, and security.”
In closing arguments Smith declared that EIPCa had ulterior motives in prosecuting the lawsuit. He said the group wasn’t focused on observing elections, rather they wanted “to impact elections” by invalidating votes. According to Smith, EIPCa was highly partisan, striving to promote “The Big Lie” and seeking the court’s assistance to reach a “tortured” interpretation of the elections code.
Judge Walsh asked Smith, how could the close observation of signature verification affect election outcomes? Smith answered that observers could insert their own opinions over and above those of trained workers, potentially changing which ballots could be accepted. (In that answer Smith misrepresented the challenge process used elsewhere—in other counties, when observers challenge an election worker’s action, a supervisor reviews the challenge and makes the final determination.)
Smith advised the judge that he had the option to not issue any declaration in this case because the California Secretary of State was planning to enact a new regulation that would soon standardize county election observation policies. This pending regulation defined “observe” as “to watch, view, listen, take notes and ask questions,” the same definition Smith had used to defend his position that observers have no role in election oversight, and do not, therefore, need to see ballot processing work clearly. Prosecuting attorney Gondeiro countered that the new regulation “still gives the county discretion to do what they want; observers should be able to see and hear everything.”
In comments throughout the trial, Judge Walsh demonstrated his concern that the EIPCa’s requests could overly inconvenience election workers. While desiring to support and correctly apply the requisite laws, he also wanted to ensure the smooth administration of elections. He was concerned that observers with little or no training could obstruct activities in the Elections Division, “How can the county guarantee that no troublemakers participate?”
Judge Walsh completed his “Statement of Intended Decision” within a month after the trial’s closing arguments. The plaintiffs filed their objections to the intended decision on August 18, and the defendants filed their response to the objections on September 6. In a minute order filed on September 15, Judge Walsh adopted the court’s “Statement of Intended Decision” as the court’s final “Statement of Decision.”
In his statement Judge Walsh did not agree with the EIPCa position that EC 15104 allows election observers close enough access to see clearly and challenge the actions of election workers. Judge Walsh agreed with the defendants that election observers have the right to be present in the Elections Division, but they do not have a role in holding election workers accountable to any standards. In Judge Walsh’s determination,
The observer is there to insure that the elections worker is following “…established procedures…”. Here, that means that the elections worker is doing what he or she is supposed to be doing, i.e., comparing signatures so as to validate the VBM submission by a voter. The procedures in place and being examined in this case allow for that. The observer can see that two signatures came up on the worker’s screen and the worker either found a match, or made a finding that there was not a match. Those are the “procedures,” and that is what the election worker is doing. That is what the observer is allowed to observe, and that is all they are allowed to observe in their role as an observer.
Sadly, Judge Walsh’s judicial reasoning seemed to be colored by his impression that the public cannot be trusted with the close access to ballot processing activities that EIPCa believes is implicit in the law. He wrote:
Elections are a critical part of the democratic process. The importance of the manner in which elections are held became evident by the event of November 2020, and the weeks and months following. Rudy Giuliani’s hair coloring running down his face was comic. The mob at the Capitol on January 6th was not.
Judge Walsh’s opinion of the people gathered to support President Trump on January 6 reflected the prejudiced narrative buttressed by mainstream media that a mob tried to overthrow the government. Judge Walsh wrote, “the potential for interference with the ballot counting process by untrained observers with an agenda cannot be discounted.”
Presently, individual counties in California have discretion in establishing election observer policies—some counties allow observers better access than others to see ballot processing activities in detail. If the court had ruled in favor of EIPCa, observers would have had legal precedent to demand close viewing positions. However, if Judge Walsh’s decision stands as the precedent, election clerks currently allowing close access for election observers may opt to deep six those policies.
On the third day of the trial, during subpoenaed testimony, former Ventura County registrar, Mark Lunn, said that he had restricted the location and movement of observers in order to prevent something nefarious happening to the ballots. Observers try to prevent something nefarious happening to ballots as well. Without close access, observers cannot verify the legitimacy of elections. If observers are not permitted close access to oversee signature verification, what can stop bad actors from emulating Maricopa County, Arizona, and speed-verifying signatures?
We want to be a self-governed people, but we have delegated the administration of our elections to a small subset of people that does not and cannot exclude bad actors. Volunteers still can and should observe our elections, but how can we keep our eyes on the ballots every step of the way?Voter rolls grow and shrink, ballots are mailed out, ballots are filled out and returned, all with no citizen oversight. When VBM ballots get processed election observers do their best to oversee and report on the activity, but they are spread thin and cannot cover the whole election season. Ballots get counted in machines, and with no citizen access to the source code, there is no citizen oversight. Election observer rights in this opaque context seem like a pretext, a mirage of transparency. Without actual transparency in our elections, we receive only a mirage of freedom, not the reality.
Elections should enable two or more groups of people who hate and distrust each other to keep such close watch that all sides can agree that the results are correct.
—Commentary by David Farschman, after attending closing arguments of EIPCa vs. Lunn, 7-10-2023
The Ventura County Elections Division administrators would not give this journalist a tour of their ballot processing areas; however, they let her take photos from the lobby.
Ten Points -- proposals to drastically improve election integrity.
Citizens Journal -- article about the initial filing of the case.
Link -- to access case documents.
Write-ups of my notes from days 1-5 of the trial are available at Grandma’s News.
If you have experience related to this trial, please comment below with your story, observation, or correction. Thank you for reading and sharing!
Thank you for this coverage!