We’ve written at length about how the CalPERS board elections last fall were obviously crooked. And that is if anything too kind a word.
Today, our focus is on one of the three voting methods used in the last election, voting by phone. It is not permitted under the California election code, but it was clearly rigged to favor the union-backed incumbent, Michael Bilbrey. He lost to challenger Margaret Brown.
Moreover, CalPERS has refused to provide documents and records Brown has requested related to the election. All of the law professors we have spoken to on this topic have been adamant: board members have the right to see any document in the possession of the organization they oversee. Even worse, CalPERS has insinuated that it doesn’t have the records. That would mean it destroyed them in defiance of a litigation hold and instructed its election vendors to do so as well.
History of CalPERS’ 2017 Election Fixing Efforts
CalPERS can’t be bothered to adhere to the regulations it created for its elections. CalPERS own regulation required that paper ballots be counted in public at the end of the month-long election period. In fact, they were scanned in every day during the course of the election, in secret, over 1000 miles away from where the sham “count” was later held. And nothing was counted then. A few people sat with laptops behind two layers of glass with nary a ballot present. They might as well have been shopping or playing solitaire.
In another marked departure, CalPERS instituted voting by phone and voting by Internet, even though neither is permitted in the California election code.1
New board member Margaret Brown won in a two-round election for her seat. As we wrote last year, she visited the election vendor, Integrity Voting Systems, in Washington, and also obtained the contract CalPERS had signed with them and their joint venture partner, Everyone Counts. She was so disturbed by what she saw, like the failure to have secret ballots, the failure to store ballots securely, the lack of independent adjudication of damaged ballots, and the high likelihood that results were being tallied daily and reported to CalPERS, that she demanded answers to the questionable practices she saw. CalPERS scheduled a meeting that CEO Marcie Frost ducked. In addition, the candidates’ questions were treated in a hostile manner by General Counsel Matt Jacobs and election vendors told demonstrable lies. 2
Prior to the runoff election, in October, Brown had her attorney send in a litigation hold to CalPERS as well as the two election vendors, Integrity Voting Systems and Everyone Counts.
During both rounds of the election, Brown heard complaints from supporters about the voting by phone system. They objected to the fact that it was confusing and more important, did not even state Brown’s name before before naming her opponent, Michael Bilbrey, offering the opportunity to vote for him, and forcing voters to navigate past that before they could hear any information about Brown. Voters said they had to go through the system multiple times to figure out how to get Brown’s name and then vote for her. Some gave up before they could enter their choice because they said the volume was so low that they could barely hear the instructions.
We’ll discuss the “sample script” for the vote by telephone process that CalPERS gave Brown. We have embedded at the end of this post. It’s even worse than you might imagine. But even with the information so far, it is obvious how this sort of phone process would suppress votes for Brown by not even mentioning her name before allowing voters to submit a vote for her opponent.
A confusing script also helped Brown’s opponent, the incumbent Mike Bilbrey. A difficult process would seem to deter backers of both candidates, until you understand how the unions’ “get out the vote” effort works. The unions call members and offer to transfer the call to the vote by phone system. They stay on the call while the vote is placed.3 This means the union phone agents can navigate the prompts.
And good luck with trying to get assistance other than from friendly union reps who only want to help you vote for their candidate, who was Brown’s opponent. The official help line for the election vendor had over 20 minute wait times.
Finally, many prospective voters in CalPERS elections decided to participate at the last minute, when it was too late to mail in a ballot. Their only options were to vote by phone or Internet. The Internet voting was problematic for reasons we discussed in earlier posts. So again, any down-to-the-wire voters who wanted Brown and felt overwhelmed by either the Internet or the phone system were stuck. It would have been too late for them to mail in a paper ballot.
CalPERS Covers Up What Went on in the Elections
After she joined the board, Brown requested the breakdown of votes by voting channel by candidate in her runoff election, to see if confirmed her hypothesis that the bias in the vote by phone channel resulted in meaningfully lower votes for her. CalPERS claimed it didn’t have the data. That is wildly implausible give that the election contract required the vendors to provide that information. The implication is that CalPERS and the election vendor destroyed information in defiance of her litigation hold. 4
This was CEO Marcie Frost’s response to Brown’s request for the phone script, which she had to make three times:
On Mar 23, 2018, at 3:20 PM, Frost, Marcie
Good afternoon Board Members,
Here is a response to questions that arose during the February 2018 Board meeting concerning the 2017 Board of Administration Member-at-Large Runoff Election for Position B. The first question was whether a recording or script of the telephone voting automated system could be provided. The second question related to whether the election results could be broken down to show the number of votes received by each candidate from each voting channel (i.e. paper ballot, online, and telephone).
Attached is a sample script for the runoff election provided by our Board elections vendor, Integrity Voting Systems/Everyone Counts Inc. The vendor does not maintain an audio recording. However, the vendor confirmed that the IVR system referenced candidates by their names and did not reference them solely by a candidate number during the 2017 Member-at-Large election, including the Runoff. The vendor also confirmed that candidate names will be used for future elections.
In response to the second question, the vendor does not maintain election results by voting channel broken down by candidate. Any link between the substance of the vote and the channel used is broken during the decryption process. However, the vendor does maintain voting channel data in connection with demographic data (voting channel utilized for total ballots received, turnout by age, turnout by gender, top 20 employers, top 20 cities, etc.). This information was provided in the February 13, 2018 Finance and Administration Committee Agenda Item 10a, titled 2017 CalPERS Board of Administration Member-at-Large Election Results.
Have a good weekend,
Someone needs to tell Marcie Frost she needs to learn to lie better. This is giving a too-obvious middle finger to Brown and the board.
First, Frost is pointedly ignoring that Brown asked for the script, not the recording. Frost refuses to acknowledge that both the election vendor and CalPERS have to have copies of the final scripts. It is a virtual certainty that Everyone Counts, the vendor that handled the “vote by phone” channel, sent drafts to CalPERS since CalPERS had to approve the text. This wasn’t done by smoke signal.
If they don’t have the records, this means both CalPERS and Everyone Counts, which ran the phone voting, destroyed evidence in defiance of a litigation hold.
Given the timing of litigation hold, both CalPERS and Everyone Counts had the records when Brown demanded that they be retained. Everyone Counts obviously had the audio recording then because that election was about to start.
Specifically, Everyone Counts was responsible for managing the “vote by Internet” and “vote by phone” channels, which had separate software. The collection of the votes would be in two discrete systems and then would be relayed onward. The votes when first tabulated by definition are by candidate. Remember the vendor is still supposed to have that information for the runoff election by virtue of getting a documents preservation notice before it began.
Nevertheless, it is hard to get rid of all electronic records even when trying to do so, as Hillary Clinton’s missing server records demonstrate. In a very worst case scenario, they can be recovered from the vendors’ Internet service providers, which are required by law to retain copies of e-mails for two years.
Second, “The decryption ate it” is the lamest version of “The dog ate my homework” that I have ever seen. Decryption does not destroy or alter information. As our bank IT expert Clive put it:
First off, to state unambiguously, when Frost writes:
Any link between the substance of the vote and the channel used is broken during the decryption process.
… this is flat out wrong hokum. The decryption process does not alter the data (the data here being a record of the vote and the channel it was cast through). A cryptography routine takes data and, stating the obvious, encrypts it and then, optionally, you can decrypt the data again. Nothing whatsoever in any of that alters, deletes or appends anything to the data in its original form in any way.
Attorney Jim Moody, who also has a degree from MIT in computer science, similarly dismissed the decryption excuse out of hand: “The explanation is evidence of corruption.”
Not to put too fine a point on it, anyone who encounters discussions of computer technology even occasionally knows that the whole point of encryption is to put information in a super secure package so that no one can get at it save the party at the other end with the decryption key. Recall that IT is a big part of CalPERS operations based on the huge number of accounts and payments it tracks. The idea that Marcie didn’t recognize that she was (at best) passing on bafflegab or at worst thought she would get away with it reflects poorly on her ability to manage CalPERS.
At best, Frost is directly promoting the culture of casual lying that we have so regularly called out at CalPERS. She is actively enabling election abuses and apparent document destruction to cover it up. This fish is rotting from the head.
We asked Everyone Counts and Integrity Voting Systems to comment. Everyone Counts refused. Integrity Voting Systems did not reply.
The Obviously-Biased Vote by Phone “Sample” Script
We’ve embedded the “sample” script at the end of the post. One has to assume the one actual is no better and likely worse.
Raymond Stover, who has been in the call center industry for nearly 20 years and has a strong personal interest in developing high quality interactive voice response systems (IVRs), reviewed the script and concluded: “This is very lopsided in favor of the unions.”
As you can see, once you have gotten past the authorization process, the script repeatedly calls the election a “contest.” There is an entire industry of scammers who call older people about “contests” to try to get them to give the fraudsters their credit card information. Some CalPERS beneficiaries called Brown, alarmed that the number CalPERS provided for telephone voting number had a recording that kept referring to a “contest”. Most people, upon hearing the word “contest” would be concerned that they had somehow dialed up a con artist who had set up a number that closely resembled the CalPERS’ election number.
In addition, as noted earlier, the script failed to provide the candidate’s names early on and instead referred to their order on the ballot. The people who are calling in are doing so in order not to mail in a ballot. They are almost certain not to have it out, so pretending that it is a guide rather than going the obvious route of reading out the names, can only be the result of CalPERS wanting to avoid their use. The set up of the sequence of prompts meant that that helped the incumbent, Bilbrey.
The script violates one of the cardinal rules of IVR design by using different navigation conventions at different points. At the very top of the script, “You can review your selections at any time by pressing 4.” But in the very next section, 4 is for “To hear the previous contest.” And since there is only one “contest,” in this election, every “To hear the previous contest” is extraneous and thus again can only be intended to confuse.
To put it more simply, these portions of the script were pointless and should never have been there:
Please select a contest to move to. To move to the first contest press 6….
[Voter presses 6]
Position B, vote for 1. To go to this contest press 5.
To hear the next contest press 6.
To hear the previous contest press 4.
To submit your vote press 9.
[Voter presses 5]
You are now selecting candidates for Position B. There are 2 candidates which are listed in the
same order as the ballot.
To hear the first candidate, press 8.
To repeat these instructions, press 1.
Similarly, voters are told only once, at the very beginning, how to cast their vote: ‘To submit your vote press 9.” They then have to get past two (for Bilbrey) or three (for Brown) other prompts, meaning they have to press other digits on their phone in between. But after they are finally given each candidate’s name, the script says, “To select this candidate, press 5.”
So which is? Do you vote for the candidate by pressing 9 or 5? Only someone with a copy of the actual script, like those union phone bankers, knows for sure: The script says: “[Voter selects a candidate by pressing 5].”
Stover pointed out that the script was also missing basic navigation and verification options:
The IVR should collect a voter registration number (for verification and to help prevent multiple fraudulent votes via phone) and have very clear wording and options. Additionally the choices should be repeated if there is no response, and voters should be presented the option to have questions repeated. Additionally, voters should be able to review their selections and make changes if deemed appropriate.
So either CalPERS hired a grossly incompetent election vendor or the appearance of incompetence was instead a useful cover for heavy-handed efforts to assist the union-backed incumbent, Michael Bilbrey. Given CalPERS’ persistent stonewallng of Brown in providing relevant records, it’s not hard to guess which theory is correct.
1 We aren’t making that up. CalPERS has made the strained argument that it is subject only to the Public Employees Retirement Law, when in fact the pension fund is obviously subject to a whole swathe of California law, such as its criminal code, its personnel laws, and all sorts of “transparency in government” provisions, like the Bagley Keene Open Meetings Act and the Public Record Act. The Secretary of State, under pressure from CalPERS (CalPERS has withheld an exchange between their general counsel and the general counsel of the Secretary of State), certified the elections last year, with the bizarre qualification that the certification did not constitute an endorsement of the election methods used.
2 Extracts from a September 2017 post, which we encourage you to read in full:
CalPERS is using new election procedures that violate the California constitution and election laws by having paper ballots that are not secret and by allowing for voting over the Internet, which is against the California election code….
Upon further investigation, it turns out that CalPERS’ new election process also violates its own election regulation. In addition, CalPERS’ staff lied to the board by saying the the vendor who is responsible for processing the paper ballots, Integrity Voting Systems, a division of K&H Printing, is certified by the Secretary of State. IVS has no certifications whatsoever. K&H is certified only to print a subset of the ballots used in electronic voting machines in California. It is not certified to produce the ballot CalPERS is using, nor is it certified to count ballots…
Even worse, the IVS vote-counting operation is obviously amateurish and insecure. Brown and a witness toured the IVS facility….except it wasn’t an IVS facility. It was a K&H Printing facility in Everett, Washington, certified for printing and finishing some types of ballots used in California voting systems. There was no IVS sign on the facility nor did any employees have IVS business cards. The “Integrity Voting Systems” part of the operation is very much an afterthought….
IVS also gave implausible answers regarding how the ballot counting process worked. During Brown’s visit, the employees maintained that all they were doing was checking ballots to see if they had the required signatures, adjudicating ones where the ballot marks might not scan correctly (for instance, if the voter had made a tick marks rather than filling in the circles by the candidates’ names) and making and checking the PDFs that were then to be sent to yet another vendor, Everyone Counts, for the tally.
My, why are we hearing that “Everyone Counts” name only now? Why has it been kept under wraps, with nary a mention to the board? Could it be because a web search would have revealed unflattering information about Everyone Counts overhyping its pet initiative, voting over the Internet? From a 2016 article in the Atlantic, which among other things, :
“They’re pretending like voting is no different than buying a book on Amazon, and they’re completely, by virtue of ignorance or malice, ignoring the truth of the world,” said Joe Kiniry, a cybersecurity researcher. “The simplest way to check the veracity of their statements is to call up any security researcher in the world that you find online who has made public statements about end-to-end verifiable elections and ask them. And you will find that 999 out of 1000 will tell you that [the likes of] Everyone Counts, [other online voting venders], and Estonia are full of shit.”….
IVS said Everyone Counts was not just running the vote by phone and Internet parts of the election, but also doing all the tabulation. The reason that sounds implausible is that the equipment in IVS’ sad-looking counting room was equipment is uses to sum up votes for “private elections,” meaning non-government elections, such as union elections, . Brown saw only ten machines. The six laptops were not capable of scanning. The four other devices are designed not just to create images (which they would do to have an audit trail) but primarily to “score” tests or ballots.
3 Believe it or not, court decisions have authorized voters bringing someone into a voting booth to help them. However, the reason that it is permitted in those case is the voter has difficulty with the voting system. Think of a blind person dealing with an old-fashioned election booth. Having union representatives on the same phone call as voters make their selection looks like a per se violation of the California constitutional provision, “Voting shall be secret.” In addition, if you read the script, you can see how the voter first provides the information needed to validate that they have not voted previously. It would be possible to engage in voting fraud by having a voter provide that information and then have the union call center volunteer take over and place the vote.
4 CalPERS and the election vendors may try to maintain the litigation hold was applicable only for as long as the statute of limitations was in force, and that candidates can contest California elections only for a short period after the election has finished. However, Brown’s lawyer sent a letter describing Brown’s objection to the election methods. CalPERS is conducting elections on a regular basis. That means Brown can still sue CalPERS over its election methods as a beneficiary, as well as a board member who will presumably seek re-election. That means CalPERS records would be subject to CalPERS’ records retention policy and the vendors’ would be subject to other statues, such as ones related to wire fraud, which in most states is ten years. That is unquestionably longer than the five months between the date of her litigation hold and when she asked for this information.CalPERS Sample Runoff Telephone Voting Script