Cast Vote Record (CVR)
A Cast Vote Record is a report created by the tabulation system. It is the record of each ballot selection. Every ballot is represented by one row, and each option on the ballot has a column. There will be a 1 in the box where a vote was credited, and a 0 if not. It’s a spreadsheet style record, consisting of all the ballots counted in the election.
Instruction from Above
Washington counties have been told by the SOS that they are not disclosable on several occasions. However, they also tell the county that they should consult with their Prosecuting Attorney on the matter. Read the guidance sent to multiple counties from Les Bowen, the Certification and Training Program Specialist, from the Elections office of the Secretary of State.
Also see the correspondence below between anther employee from the same Certificaiton and Training Program at the OSOS:
Excuses
The earlier requests for these records were denied for various, and equally ridiculous reasons. One common one was because the cast vote record could somehow be traced back to the voter, and that would violate the right to secrecy of the vote. If that is true, then they are not in compliance with RCW 29A.08.161, which states,
“No link between voter and ballot choice—Exception.
No record may be created or maintained by a state or local governmental agency or a political organization that identifies a voter with the information marked on the voter’s ballot, except the declarations made under RCW 29A.56.050(2).
[ 2019 c 7 § 6; 2004 c 271 § 107.]“
Changing the Rules
Once they realized telling us the record can be tied back to the individual voter wouldn’t work, they changed the meaning of the phrase “Cast Vote Record” in WSR 22-12-035:
“3(5) “Cast vote record” or “CVR” means a record of all (votes) voter markings produced by a single voter on a ballot card, presented in electronic form, and is defined as a ballot in accordance with RCW 29A.04.008.”
Wait until you hear their definition of “ballot” and how they twist that around in their favor. Below is the most current reason for denying the records to the public.
Most Recent Excuses
RCW 29A.04.008(c), defines “ballot” as, “a physical or electronic record of the choices of an individual voter in a particular primary, general election, or special election.”
WAC 434-261-114 defines the “cast vote record” as a “record of all votes produced by a single voter in electronic form.”
The cast vote record contains the choices of individual voters in electronic form and therefore constitutes an electronic copy of each voter’s ballot under the definition set forth in RCW 29A.04.008(c).
In White v. Skagit County and Island County, Wn. App., No. 72028-7, the Court of Appeals Division I held that ballots are exempt in their entirety. Additionally, in White v. Clark Cty. II, 199 Wn. App. 929, 401 P.3d 375 (2017), the Washington Court of Appeals has held that RCW 29A.60.110 and WAC 434-261-045“provide an ‘other statute’ exemption for tabulated ballots.” Id. at 934. Accordingly, your request for the cast vote record is denied pursuant to RCW 42.56.070(1); RCW 29A.60.110 and WAC 434-261-045.
They are essentially claiming the because the CVR would show the choices of “an individual voter”, it is exempt from disclosure.
The Cast Vote Record would show the choices of every election on every ballot. It is not just one individuals’s ballot. It is a list of ALL voter’s selections. A “secret” list of ALL voter’s selections, to stay compliant with state law, as explained above. There is no way this would violate the right to voters to cast a ballot in secrecy!
Holes in Their Story
It is my belief that the county is stretching their interpretation of the RCW and WAC to deny these records. Or just repeating what they were told, which appears to be the case. It is unfortunate that they clearly don’t actually understand it themselves. Either that or they just have no problems with repeating the lies.
The WAC is referring to election audits. I am referring to a report generated by the tabulation system. This report could also be called a Ballot Manifest, or tabulator tape. The WAC was changed this year, when the new definition of a Cast Vote Record was made up for the sole purpose of extinguishing any transparency left in the conduct of the elections.
Cast Vote Records are available in other states. Recently, in Texas, the Attorney General has just issued official AG Opinion KP-0411 designating anonymous ballot information as public information.
If a public record qualifies for an exemption, the county has the option to provide the record, or use the exemption. The record is not prohibited from disclosure. If they were concerned with restoring the people’s confidence in the election process, they could choose to be transparent and provide what we are asking for. That would require them to think for themselves, which could be part of the problem.
See More CVR Denials Below
Next Steps After Denial
In Washington, when a person is denied access to public records through a records request, they are able to petition for a review of the county’s decision. In many counties these are reviewed by the Prosecuting Attorney’s office.
They are required to respond to the petition within 5 business days. If the prosecutor sides with the records officer, the last resort is to take it up with the judge.
Stand UP. Get LOUD. Pay attention.
