Many Washington state counties are not able to produce certain election records from the 2020 general election. It appears they have all undergone a “scheduled upgrade/update” which has PERMANENTLY DELETED the election system’s logs.
For example, the deleted logs from the counties that use ClearVote, known as web activity logs, according to the vendor’s documentation are the only logs to show certain events of the election including; ScanServer, ScanStation and election administration station logins, logouts, and authentication failures; and administrative changes to elections and users; and other actions which are essential in determining whether the election was secure or not.
More specifically the illegal act of turning on the display vote totals before 8PM on election day only shows up on the ClearVote version 1.5 web activity log. And the source Linux records showing logins from the Linux admin account password giving direct access to the ScanServer where all the databases of election results resides (again illegal to view before 8PM on election day) only show up on the web activity log of any of the versions of the software used in Nov 2020. Without these logs we may never know whether or not any of these illegal events actually happened.
Counties That Admit Election Records Were Deleted:
Asotin – “The voting software system Asotin County utilizes is Verity by Hart InterCivic, Inc. This software underwent a system upgrade in our county at the beginning of 2021 and we no longer have access to the reports you are requesting.”
Benton – “Web activity logs for the 2020 general election were not included in the response to your public records request because unfortunately that data was automatically removed as the result of a Clear Ballot Software upgrade.”
Clallam – “Due to a Clear Ballot upgrade in April, 15, 2021 the Web Activity Log is no longer available.”
Columbia – “Columbia County has up-graded our system and is no longer able to produce the information you are requesting.”
Cowlitz – “The Web Activity log is not accessible. Our tabulation system received a software upgrade in April 2021. At that time, the technician did not perform a backup of the log prior to the upgrade, and the web activity was cleared. We attempted to work with our vendor to recover the web activity, but were unsuccessful.”
Douglas – “After completing a search of our systems, there are no records responsive to your request. Our elections equipment underwent a routine and scheduled upgrade in July 2021, which included hardware, software, and the computer hard drives. During this process, audit log report and the systems log report were overwritten and no longer exist.”
Garfield – “The voting software Garfield County uses, Hart InterCivic, Inc. Verity, underwent a system upgrade from version 2.3 to 2.5 in the beginning of 2021. After looking into this request, we found that we no longer have access to the reports you are requesting“
Franklin – “We attempted to pull logs from the system, but determined the requested logs are not available for prior elections as the system overwrites previous data when a new election is created. Since we had already started a new election, there is no previous information to assist with your request.”
Grant – “It states the Activity Log has no data – the system was updated on the Clear Ballot station and the information is no longer available.”
Grays Harbor – “In our search, it was brought to our attention by ClearCount (the database used for elections) that the web activity reports which may have been responsive to your request, were inadvertently deleted when ClearCount upgraded the County’s server in December 2020. ClearCount failed to backup all of the election databases before performing this update. This is why there are no records in the County’s possession or available to the County responsive to your request. We understand that this was also experienced by other counties during their upgrades of their ClearCount software at that time.”
King – “The Elections Department has no records responsive to your request for Web Activity Logs for the November 2020 General Election. Web Activity Logs are server-hosted, they are not maintained by King County and the County does not have a business use for the logs. In May of 2021, the County’s tabulation system, ClearCount, was upgraded to a newer version and because the Web Activity Logs are kept only on the hosted server, they do not survive upgrades which involve wiping the server.”
Kitsap – “The Hart InterCivic, Inc voting equipment was replaced in 2021. Hart InterCivic, Inc salvaged the old equipment, that contained no data. We retained the hard drive per records retention requirements. The hard drive from the 2020 election is not readable by our new elections equipment. County personnel are not able to read the data on the harddrive. We do not know if this is due to hardware or software problems. We are seeking the assistance of Hart InterCivic, Inc.”
Lewis – “The Auditor’s Office is unable to produce the Web Activity log for the 2020 General Election as that record no longer exists due to a system update to our Clear Ballot tabulation system on March 1, 2021.”
Mason – “Prior to performing the software update Clear Ballot sent out notifications to remind customers, including Mason County, that certain data needs to be backed up or it will be ‘wiped’ upon update. Clear Ballot specified what data needed to be backed up prior to performing software updates. However, the backup notification sent by Clear Ballot to Mason County (and other Countys as I understand) prior to the December 2020 software update failed to include a reminder to back up the web activity log but did include a reminder to back up the election activity log.
It is also my understanding that Clear Ballot is currently drafting a statement reflecting their failure to provide the necessary reminders relating to backing up data. This statement is anticipated to be available in the next couple of weeks.
While it is true that the Clear Ballot Manual says what to back up prior to doing an update, there was no reason for the Election Department staff to consult the manual, since it was Clear Ballot employees that did the update and they failed to follow the instructions in the manual.
This situation is not unique to Mason County. It is my understanding, after discussing this issues with a Clear Ballot representative, that each County in Washington using the Clear Ballot system have also lost their web activity logs. The Clear Ballot representative explained that they are taking measures to avoid this situation from happening in the future. They will be drafting and
distributing a more comprehensive pre software update notification regarding data back up along with additional training sessions with individual County Election Departments.
Skagit – “We do not have a system log for the 2020 General Election. It is not a log we use.”
“Our office upgraded to Verity 2.5 last year. We do not currently have a machine that would allow us to re-install the 2020 election and run the report you are requesting. In order to do so, we would have to pay HART Intercivic to build a machine with the version of Verity required and have it shipped to our office.“
Snohomish – “Upon further review of the web activity log provided to you, Snohomish County Elections confirms the web activity log does not contain data before May 2021 and is not responsive to your request. It has also been confirmed by Snohomish County Elections that a Clear Ballot system upgrade occurred May 2021, that upgrade cleared the web activity log for the 2020 General Election. Please note, the Clear Ballot system upgrade predated any public records request for this information.”
Stevens – “Our vendor has informed us that our locally-held archive of the 2020 election cannot be retrieved by the County because we have upgraded our workstation. Therefore we do not have a record – nor the ability to generate one – that meets the criteria outlined by the requestor.”
Whatcom – “The web activity log is only available for past elections if we are running on the same version of Clear Ballot. Once we upgrade to a new version, the web activity log is no longer available. We upgraded in 2021 to a new version of Clear Ballot, so any Web Activity Logs that are needed for elections before this date will not be available. These logs are not part of the system backup, so they aren’t available there either. This situation has been verified with the vendor.”
Yakima – “Please note, per the Yakima County Auditor’s Office – Elections Division, the adjudication logs from your previous request serve as the system, event, or audit logs. A copy of those logs are being provided to you again today.
Generating typical audit logs that tracks who logged in, what buttons they pushed, etc, is not required by law; therefore the Auditor’s Office did not generate them as part of their processes. However, the law does require that adjudication logs be generated, so that’s what was provided in the previous request. The Auditor’s Office – Elections Division cannot go back and create this typical audit log now as they have since implemented a newer version of Hart Intercivic.”
The Law
The Civil Rights Act of 1960, now codified at 52 U.S.C. §§ 20701-20706, governs certain “[f]ederal election records.” Section 301 of the Act requires state and local election officials to “retain and preserve” all records relating to any “act requisite to voting” for twenty-two months after the conduct of “any general, special, or primary election” at which citizens vote for “President, Vice President, presidential elector, Member of the Senate, [or] Member of the House of Representatives,” 52 U.S.C. § 20701.
The materials covered by Section 301 extend beyond “papers” to include other “records.” Jurisdictions must therefore also retain and preserve records created in digital or electronic form.
The ultimate purpose of the Civil Rights Act’s preservation and retention requirements for federal elections records is to “secure a more effective protection of the right to vote.” The Act protects the right to vote by ensuring that federal elections records remain available in a form that allows for the Department to investigate and prosecute both civil and criminal elections matters under federal law.
The Federal Prosecution of Election Offenses, Eighth Edition 2017 explains that “[t]he detection, investigation, and proof of election crimes – and in many instances Voting Rights Act violations –often depend[s] on documentation generated during the voter registration, voting, tabulation, and election certification processes.”
(Above paragraphs from Federal Law Constraints on Post-Election “Audits” pg 2. Published July 28, 2021)
EAC Standards
Additionally, the Election Assistance Commission requires voting systems and tabulation equipment to create a “real-time audit log” which records the events of an election. Read the EAC Decision on Request for Interpretation (Audit Logs) for details on what logging is required.
The EAC didn’t require the manufacturers to incorporate these logs on each system so election officials could choose for themselves whether or not they were important or necessary.
Who is to blame?
According to federal law, it is the custodian of the records that has the obligation to hold on to them for the 22-month retention period. The county Auditor is the custodian of the election records. However, it was the vendors who deleted or “wiped” the logs.
It’s certainly possible some in the counties may have known what was going on and even participated in carrying it out. However, we have reason to believe the Auditors and election staff did not intentionally allow these records to be deleted.
They were put in a vulnerable position by the vendors. Unfortunately, some of them have been taken advantage of and have been thrown under the bus by the vendor. They have broken federal law, as a result of the vendor’s “scheduled upgrade”.
The vendor has to absolutely be aware that records would be deleted. In at least the ClearVote manual, they state specifically that a back up needs to be performed and some specific logs must also be exported prior to an upgrade. Yet this was ignored.
Some counties have shown remorse for the deleted logs. Others have offered a different log, stating it shows the same information as the log we asked for. This is simply not the case.
The log they are offering doesn’t show any log ins to the scan server, unauthorized access, and other important events. It is clear by their response that they either have no idea what is on the logs, or how the system really works. Or they do know, and they are underestimating our knowledge of the system.
On the record
Some counties were able to provide the requested logs. Turns out Pierce County viewed the vote totals early. RCW 29A.40.110 states nobody is to view the vote totals until 8pm on election day. At 6:01pm on 11/3/2020, Pierce County turned on the “display vote totals” feature. They created a report and exported the report. Then they turned off the “display vote totals” again and left it that way until 8pm, when they turned it back on again, to report the official results up to that point.
Coming Up Next
This upgrade is a “routine” practice. It seems by design that it wipes the equipment clean of any evidence that the election was something other than secure. If that’s indeed the case, someone along the line knows exactly the underlying purpose of why those updates are necessary and scheduled them and executed the destruction of our election records. Was it planned? If so we plan to find out who is behind this, and call for justice. They certainly know we are looking into it.
UPDATE:
25 of Washington’s 39 counties were sent litigation hold notices, requesting they refrain from further deleting election records from 2020 and later, in anticipation of litigation.
On another note… Now we have more evidence to support our suspicion that they are deliberately Running Out the Clock with our records requests. It’s difficult to admit you have broken federal laws. God always humbles the proud in spirit.
