Scott Gessler Interview Part 2

Gessler: The way the campaign finance law for now, in the Republican Party use the bully pulpit to support that. Absolutely. And if there’s consensus within the Republican Party to do that, I’m absolutely on board with it.

HaA: Let’s move on to Dominion. We know Wayne Williams had brought in, basically forcing all of the counties to take Dominion. I did discover there was quite a bit of research and vetting done, starting at least in 2013, which is when you were Secretary of State. Who did you have evaluating the electronic voting systems?

Gessler: You need to understand the history on this. This will clarify all your questions and help you and your perspective. When I took office, we had, depending on how you counted anywhere three to seven systems.

It created a number of problems. One of the problems for example, Hart (Hart Intercivic) was, servicing, something like 40, counties, mostly small, rural. At the time [Hart] was acquired [it] was the only choice. [Hart] jacked up the price for these counties. So they were just dying on the vine. I still distinctly remember I met with Boulder County, early on, and we were talking about voter systems. They had gotten an attorney for their Elections Director at that time. (or their deputy at that time) had been a New York transactional attorney. He’d reviewed the contract. I remember talking to him about it. He [couldn’t believe] the Election Director signed a contract because it was such a terrible one way contract. That was Boulder, which is one of the bigger, more sophisticated counties. So when I looked into it, I realized that the counties, they didn’t have the economy of scale. They’d gotten jacked around on price. Then on the performance, it really wasn’t that good. I could go into all kinds of stuff about performance problems that we had. Well, one of one that was public. One it was public [it] had to do with Heart.

There’s a woman named Marilyn Marques, who is an activist, she since moved out of Colorado. And she told us, the problem you have is that all of those ballots, those serial numbers on the ballots, they can be traced back to the voter. [meaning] we don’t have an anonymous ballot. So we talk records recorders and they [disagreed].

[They thought there was no problem.]

Guess what, there wasn’t anonymity. And in fact, Maryland traced it to a problem that Hart has had in California where there wasn’t anonymity. Hart knew there hadn’t been anonymity. Marylin explained [if you run an equation on the data you can come to the votter ID number. We realzed she was right. ]. So we had to do an emergency rulemaking to prevent someone from correlating the actual ballot to be able to determine how people voted. So that was one problem. That’s a big problem. Yeah. Big problem. I could go into some other extent, but I really don’t want to. Let me just say there were deep problems. The other problem we had, because the variety of systems, depending on how you found it, some of these companies like the SNS, and whatnot had bought other companies.

HaA: In these voting system companies, if you trace it back [to where they started, back in the 70s] there are some differences. But it all comes back to the same type of core issues. Then you also have, a rotating staff going from government to these, voting machine companies that is well documented. And, in fact, there’s even cross pollenization within these companies [people moving from company to company]. So it looks on the surface, like there’s a whole lot of competition there. But, if you really trace it back, there isn’t. They’re all from the same ilk.

Gessler: I’m not sure I would entirely agree with you on that. I will say, after Bush versus Gore there was a ton of federal money that came in. So you have all these companies that came up with these systems and whatnot, and frankly, a lot of them weren’t that good. Right. [But once it was figured] out they weren’t that good. All the HAVA money had been spent. Alot of the new rules and regulations had been locked into place.

HaA: How much HAVA money did did Colorado get?

Gessler: I don’t know, exactly.

HaA: That was that was well before your time, wasn’t it?

Gessler: That was at least eight years before my time.

HaA: HAVA is a continuous flow of money, correct?

Gessler: No. It comes and goes, for example, during my four years, we never got additional money. We had a bank account, some of it on hand that we could use for certain things. But we never got additional HAVA [funds].

HaA: Can the Secretary of State take money directly from outside sources for ameliorating whatever election issues, equipment, or anything else?

Gessler: Only if the legislature approves of it. So there’s, two things in the process. You get authorized money from the legislature. Under my tenure very little, because ours was all businesses, business before everything. But if you need to get general fund money, you have to you have to get authorized money. Here’s the money, then what the legislature has to do for all of your money, wherever you get it from it has to be appropriated, [whcih means you have to get permission] you have to be allowed to spend it. So in other words, even though I may have $8 million, that I received the first six months of 2013, or whatever, for some business fees. I can’t spend any of that without legislative authorization. Which is appropriation. So when you talk about outside money there’s a category called gifts grants. I could receive those only if authorized by law and appropriated by the by the legislature, although the answer is yes, but the legislature has to approve receiving outside money.

HaA: On the county level, are the County Clerk’s able to receive outside money in grants? Can they separately apply for grants and get money to help them [with their elections]?

Gessler: I don’t entirely know the answer to that. There’s a huge controversy going on right now nationwide, that Jeff Bezos basically gave a half billion dollars. To a lot of a lot of, yeah, Democrat or in the county clerk’s to boost turnout democrat areas, and a lot of that violated the relevant state laws.

HaA: Wasn’t it Zuckerberg using his CTCL (Center for Tech and Civic Life) non-profit organization?

Gessler: Yes, Zuckerberg. I know, there’s a lot of money given to Democrat controlled jurisdictions to boost turnout.

HaA: There are strings attached to that money. For example having more un monitored ballot boxes in certain areas. So the Secretary of State can’t take this outside money, without it going through the legislative process appropriations etc. but County Clerk’s can? *Four Colorado counties including Broomfield and Adams did take CTCL grant money in 2020.

Gessler: I don’t know. I’m doubtful that they can. I just don’t know for sure.

HaA: When you were evaluating these voting systems, what methods did [your team] use to validate whether or not these were legitimate companies? That the machines were working? Texas turned down Dominion, because it didn’t meet their standards. I’m wondering how did Dominion get approved in Colorado?

Gessler: So let me let me back up a little bit. So what I launched was called a UVS which was a uniform voting standard, to ensure that every all the equipment that we got met a certain standard. There’s a lot of bad equipment out there. And frankly, the vendor base is very small. Part of the reason the vendor base is very small as this is a lousy industry. Commercially, it’s lousy. They don’t spend much money, you have to go throu gh the ASE certification, which takes years and burns time and money. It’s very factured. It’s a lot of companies, they have to go to each county individually for each sale, so it’s very hard. It’s not a good industry to be in. As a result, there’s not a lot of r&d in this industry. That’s a big, fundamental problem with the industry. There’s not a lot of r&d. The ATM machine that you get your money out of has far more r&d and costs a heck of a lot more than critical voting machines you vote at. So what I kicked off was the Uniform Voting System. I convened experts to start evaluating and start coming up with a set of criteria based in part on what was available, and based upon what we wanted. They began the process of looking at this equipment and looking at the machinery. I wanted to get it done by the end of my tenure. The Clerk and Recorder group that I put together essentially came back with a useless recommendation to me. It was basically a recommendation that [The Clerks and Recorders] wanted to think more thoughts about it. I had long conversations with my staff, because [I thought that was unacceptable], we’re gonna get this done. [Then everyone needed more time]. I finally relented and said, okay, I’ll give it more time. We kicked it past the 2014 election, because you can’t really do much during the middle of that. Then the whole thing landed in William’s lap . And then that’s about it.

HaA: How come you had to start evaluating machines? Did you want to bring in electronic voting machines? Was it mandated by law? What was the deal? What was the genesis of all that?

So as far as the machinery goes, Colorado, had pretty much made the decision, which I agreed with, was to go to all paper ballots. It says a DREs and I have not actually litigated DREs in the past and dealt with some of those things. So DRS is like direct recording electronic equipment. It’s like a little screen a touchscreen, where you touch who you’re going to vote for machines. A touch screen then it records it. You could have a voter verified paper trail. The voter hits a button and it prints out a receipt, essentially, of your vote. You can see the receipt and see how the equipment interpreted [my] vote.

HaA: The machine I used [this election] is an ICX machine. What happens is with those types of touch screen machines is it prints out a non human readable receipt. It’s a huge issue, because there’s no way for a voter to actually be able to tell what their vote was. It’s a bunch of code. Barcodes. We were told in Election Judge training all the ICX machines do is count how many votes were cast in the machine. Nothing else.

Part of the reason we have to do that is that a lie. This principle paper ballots collides with the principle of disabled voting. I know some counties have used sort of electronic ballot markers, which, you know, you hit the touchscreen, and then it marks the ballot for you. And then it comes out when you take the ballot or passport and put it in [the ballot box]. So part of the problem, why we still have some of that legacy stuff, even though I say we’re all paper, and it should be all paper. I’m surprised there was one of those.

HaA: The ICX machine does produce a piece of paper, (your completed ballot). It’s a plain piece of paper from a normal printer, (not special paper like mail in or in person ballots) but it’s encoded data. It doesn’t fills in circles for you, like a normal ballot, so can see what’s going on. The ballot it produces is all encoded. Non-human readable.

Gessler: Interesting. So I was under the impression we only have the [past types of machines]

HaA: Anyway, those types of equipment are primarily for disabled voters.

HaA: Disabled voters have to be able to read their ballot too.

Gessler: You’re preaching to the choir there.

HaA: How do these machines get approved in the early stages, if you knew that they printed out encoded, non human readable ballots?

Gessler: I think their legacy?

HaA: In the evaluation that wasn’t caught?

Gessler: I don’t know all of it. The evaluation, the goal for UVS as I had envisioned it, is if and when counties wanted to upgrade their equipment, they would have to follow the uniform voting system standard.

HaA: It’s my understanding that you you as Secretary of State evaluates the pool of acceptable vendors. You launched the UVS. Then it’s up to the County Clerks to decide which machines they want to buy. In that evaluation, it seems like some of the issues we’re dealing with now with electronic voting would have cropped up. Wouldn’t it have wouldn’t have hit somebody’s radar that for example the printout of these ballots is not human readable?

Gessler: I cannot entirely speak to that issue, because it happened after I was in office.

HaA: You were doing the evaluation, right?

Gessler: No, I had kicked off the process to start the evaluation. Begun to do it. Developing standards that we wanted equipment to meet, but that was only partially completed or I should say, only partially done. Before I had to suspend it, so that we could conduct the election.

HoA: Did your office get voting machines? Did you actually get the machines? Was that part of your process of evaluation, or it didn’t even get to that point yet?

Gessler: I didn’t even get to it. But the goal was not necessarily to get machines, the goal is to say, any machines you get county has to meet the standard. There’s a subtle difference there. But it is a it’s a meaningful difference, but that the actual decisions and conclusions and analysis was done after I left office. So I can’t speak to it. I can’t say this is what we do what we didn’t do. I didn’t follow it very closely [after I left office].

HaA: You just did the standards. You got the RFPs. You didn’t test any equipment, you didn’t run it through any paces, didn’t do any code analysis, nothing like that didn’t see any contract, preliminary contracts that might have covered some of the issues around voting machine companies saying, No, you can’t look at the code, because it’s our IP.

Gessler: I didn’t really dive into that. I do believe the office look at the commercial viability of the company, as part of this analysis. Making sure they wouldn’t go under or go bankrupt. Here’s the hard truth. The hard truth is that there are four vendors in the entire country. So I know the ultimate standard allowed to two choices. Dominion, and Clear Ballot. Two counties chose Clear Ballot.

HaA: Yes, two counties had to sue Wayne Williams to avoid being forced to use Dominion.

Gessler: Fair enough. I’m not familiar with those details. Not that I’m trying to avoid it. I just don’t know.

HaA: in those initial analyses, What did you like about Dominion?

Gessler: It wasn’t at a stage where an analysis of Dominion ever came to me.

HaA: I see, you never got that deep into it. During the UVS development process, did you ever consult County Clerks?

Gessler: No.

HaA: How closely does the Secretary of State work with The Colorado County Clerk’s Association?

Gessler: Depends on the Secretary of State. With me, I worked very closely, my office, I should say, worked very closely. We were very keen to provide this service to the County Clerks on an operational level. A help desk. There were four full time employees on it. If a clerk said, Hey, I’m having problems doing this or doing that; we sought to be very responsive, very proactive. On a policy level, I clashed with the clerks quite a bit. You know, I clashed with them a lot – Vote by Mail. I started off, shall we say, on the wrong foot in three ways. One is in 2010. Remember, I’m running for office. This is during legislative session. They all want to do vote by mail, and I’m against them. So that was not good. They didn’t like me there. Second, during that time, Marilyn Marx, remember I mentioned her name? She started her activism, because she ran for mayor in Aspen. Aspen had an IVR. This is something you put on your radar, frankly, it’s the voter run off system. She thought that the math was wrong the way they did it. In fact, I think she was right. And so she wanted to get a copy and this was after any protest period. She wanted to get copies of the ballot under the open Records Act, in order to be able to do her own evaluation and to be able to say, hey, Colorado, this was all screwed up, or Hey, Aspen this is all screwed up. Aspen denied her the ability to do that. So she had to sue Under the open records law, and she wound up suing a whole bunch of people, including Pam Anderson and JeffCo. Well, I support I thought that she was right. I thought that these ballots should be available under CORA. And of course, Clerks and Recorders thought she was wrong. So that was a point of contention between me and the Clerks and Recorders, and that was before I even took office! [just on that policy issue]. Then when I took office, there was a problem in Sawatch County with Clerk, Melinda Meyers, I think her name was, if I remember correctly. So what happened there, she has a big old ES&S machine, which frankly, was the wrong machine for the accounting ES&S it oversold it to her. And on election night, two of the Republican Commissioners and the Republican Clerk and Recorder were winning. And then all of a sudden there was a change, and they were losing. Everyone accused her, or at least all the Republicans accused her of goosing the election. So they accused her of changing the tabulation. They say you can’t use those tabulation results. She said, No, it was a glitch in the machine, we didn’t make a change. So that’s what happened. I say we’re going to go down there and do a hand review. So when I talk about doing the hand review, or review of Dominion I say order a review you could do a Clear Ballot review, and they want to cooperate. I’ve done this before. So I went down there to do that. And one of my guys said sure, great, come down, you’ll see that everything was on the up and up. And then we will get this done we’ll restore confidence in the elections. And if there’s a problem, we’ll know about it. The day I’m supposed to go down, she says, No, I’m not gonna do it. For two days. So I have to file a lawsuit against her to get access to it. And in the lawsuit, guess who intervenes on her side, The Clerk and Recorders Association, as an entity intervenes on her side intervenes are provided an amicus brief I think they intervene, saying, No, the Secretary of State has absolutely no authority to do this type of review. This is illegal. And they need to just sit down shut up like everyone else. And so I had to sue her for that. And obviously, Clerks and Recorders were unhappy with that. And as a result, I won. And we did do the review. But we didn’t like before. And by the way, what happened with review is there actually was a glitch that night, and she used all the recommended advice of an ES&S technician. I think the results changed by like one vote, but the overall winner was the same. But I’ll tell you the good thing about that. All the Republicans calmed down, because they said all right, it was fair. We looked over their shoulders, it was open process that was fair. There were a number of sort of problems for Clerk Meyer had in her administration. And as a result, she wound up being recalled. So I got off, shall we say on the wrong foot with the C&Rs of course from the beginning. But on a continuing basis, I had various disagreements with them on a policy standpoint. So I worked very hard to provide very good service on an operational level. I made sure that my policy differences with the Clerks never affected the ability and the capability of running an election. If they needed help, my office was there.

HaA: In general is the relationship between the Secretary of State and the CC&Rs because the County Clerks really have the control over election administration?

Gessler: It depends. Under me I created the accountability for election system on the Secretary of State website. I actually got financial data which the Clerks hated, I had to fight with them, tooth and nail to get. Just a huge fight. So with me, it was contentious on a policy level. What they said to themselves was, well, we love Gessler’s staff, we don’t like Gessler. Part of the reason they loved my staff was because I made sure that that we gave them the love they needed. Wayne had much closer relationships, and friendly relationships with the CC&Rs. Soon a policy level he didn’t have the types of disagreements that I did. He also used a substantial amount of state money to go above and beyond the normal reimbursement rate to help CC&Rs. So, he had a very good relationship. With respect to the current Secretary of State, it is not a good relationship.

HaA: No, we know that. Let me ask you about CORA. There are many complaints about geting CORA documents on election integrity. Does that fall into the purview of the Secretary of State? Does the SoS administer all CORA requests? And the disbursement or fulfilling CORA requests?

Gessler: No, every agency administers that themselves. If a CORA request for voting records that goes through the Secretary of State. The custodian of records is in each department. If there’s a request that comes to the Secretary of State and Secretary has custody of those records, then yes, the Secretary of State has to produce those records. If someone’s to come to the Secretary of State and says, I want records from the Department of Motor Vehicles, the SoS is not the custodian of those documents, go to the DMV.

HoA: One of the issues that Colorado voters had, especially when working on election integrity, there was difficulty getting data and records based on our CORA requests.

Gessler: I have a pending lawsuit, I have a pending lawsuit right now against Secretary of State. That’s been going on for a long time because the judge is not willing to make a proper decision on it. Under open Records Act. This Secretary of State has been incredibly, incredibly closed off very obstructionist. If you look under me, the democrats sued me on everything they could. But, not under CORA. Reason why is, my theory was this office is an open book. That’s the way it should be. Of course we couldn’t produce personally identifying information. But beyond that, pretty much everything here is an open record. That’s how it traditionally has functioned. That’s how I treated it as well. This Secretary state is a huge departure from like decades of practice, to the office of being an open book.

HoA: Do you have any advice for how to combat this if we do need to get records from Secretary of State, an obstinate SoS?

Gessler: It’s public relations, embarrassing her works to an extent. The media will suppress much of that, because they like themselves a very left wing Secretary of State. And lawsuits. That’s about it.

HoA: So to fight for election integrity, it’s under many’s impression that we can work with and within the GOP to get money for these lawsuits and to support action. Now, I’m understanding that that’s not the case, from how you see it as the job of the State GOP Party to help with this type of activity. That money should be going to candidates?

Gessler: Not necessarily, I didn’t necessarily say that. What I the the question that I answered for you was around ballot initiatives. The official party is not committed to funding ballot initiatives. With respect to these types of issues with election integrity, should the party be paying for lawsuits, and things like that? I think the answer is a big maybe. I will be frank with you. I’ll be somewhat skeptical on the ability of the party to do that. I’m an attorney. I earned my living this way. I brought half dozen dozen law for lawsuits in my time with it. I’ve litigated on this one, I’ve got ongoing cases and my clients are. The Secretary has been obstinate and the judge won’t make a decision within year and a half. These lawsuits cost a lot of money if you’re going to pay an attorney. I filed a lawsuit against the health care exchange, because they were jerking me around. This was a relatively simple case law. They fought tooth and nail. The legal fees were around $95,000. I eventually got them back, two and a half years later. The last cycle, the state party raised $1.9 billion for a two year cycle. I think that’s okay. Three core lawsuits at that level is going to knock out 15-30% of the GOP state budget. It’s gone. Meanwhile, candidates are saying, hey, you’re not giving me data? Hey, you’re not giving me service? No one’s gonna answer the phone call. Why can’t you give me money for my campaign? Isn’t that what you’re supposed to do? I would say, I’d love to give you money for your campaign, but I just spent a quarter million dollars on this court lawsuit on the Secretary of State. So that one day, we may be able to get documents that may enable us to do some analysis that may enable us to do XYZ. Even though, you know, a nonprofit could raise that money under completely unfettered campaign finance law. Non profits could get one person, to donate $100,000, and boom, lawsuit is taken care of. Whereas for me, I have to spend two months out of my life, saying, Hey, can I have $1,150? And I have to get $1,150 or $2,700 1001 50s? For the candidate? I would have spent two months of my life raising money for that one lawsuit.

HoA: Right.

Gessler: I think it makes sense for the Republican Party to publicly push for things, you know, bully pulpit, obviously, with respect to Dominion. I am particularly well placed to be able to try to help provide advice and figure things out. And along the lines, I tell people don’t spend time looking at the Dominion code. I mean, look, I get it, you can, you can do that. But they’re going to get an expert to sit there saying the code is fine. And you’re going to say the code isn’t.

HoA: But we can’t even get access to the machines, the code, the data we need to prove without a doubt what we have statistical evidence proving now.

Gessler: So don’t worry about that. What I’m telling people is review the balance.

HoA: There’s a problem. With a Dominion machine it’s part of a process. So there’s several choke points within the process of using electronic voting machines where fraud can happen. One of the main places is that data input. One is when the voter inputs [voting] data into a machine. Good example, an ICX machine, there’s no way for us to tell whether or not the information that a voter put in was actually output accurately because things can happen within the machine. That’s just one spot. The code can be set to adjust that data. So knowing how many votes how many votes are actually cast is only part of the issue.

Gessler: How many votes are cast via ICX machine?

HoA: I don’t know. In the voting center I worked in we were told to steer people away from the ICX machines because those ballots were harder to process. Let’s use a different case if volume is a concern. At the point where all the ballots going into the tabulation machine to be counted. That is the same situation as a person inputting their their ballot information. It’s human controlled input into a machine that is coded in a completely opaque way. We have no idea what’s happening with the algos in that machine. In fact, different machines can be using different firmware and software.

Gessler: So here’s how you approach that. I’m just telling you, this is how this is the best you can do, absent to controlling the legislature and the Governor. This is the best you can do. I’m gonna tell you what the best is. You get the valid images, valid image, and in an ideal world, all right, you have to listen to me. You’ve got to listen to me. You count the ballot images, okay? And ideally, you’d have if we can get clear about what to do with it, you don’t have to do all that with personnel, hundreds of 1000s of hours of manpower to do. All right?

HoA: What if you have all the man hours that can be devoted to election integrity?

Gessler: If you want to do a hand review. But Clear Ballot is going to do as good of a job as a hand review and there’s a substantial amount of work, there’s a substantial amount of academic literature out there and experiential evidence that shows machine counts are generally more accurate than human counts. I’m telling you, I’ve done the human count before. I’ve managed the human counts as a Secretary of State. So if you want to research that you can, but the evidence demonstrates that human error is generally greater than machine error. Now, I’m not saying you can’t have machine error. And I’m not even saying that you can’t have systemic machine error. And I’m not defending and saying Dominion is perfect, I’m not saying any of that. But what I am saying is there is a lot of human error that occurs in the system. And that’s very difficult to manage. So if you think that a hand review is absolutely perfect, it’s not, it’s got to be carefully managed, if you can get a Clear Ballot system, to review the images. And I understand I’m just talking about images yet, which is why I’m asking for your patience. is what you do is you review those images. And if you have two separate independent systems, that’s a pretty good measure that if they come out the same, it’s a pretty good measure. Now you’re gonna say and you’re about to say that, well, the images can be forged or goosed, Okay, I understand that the CC&Rs are required to keep all of the paper ballots. Then once you’re in now you have access under court to the paper ballots, but you only have access according to the conditions at the clerk’s test for that in law. So what you would do is you would take your take a sample as big of a sample as you want of images, and you get your statisticians goobers to say you’re going to be able to do this with a 99 or 100% confidence. If you don’t want to do a sample, then you got to figure out the manpower, which is 1000s of hours. Take the images and you pull out every single ballot and you compare it to the image. That’s how you find out so first you do the count with the images. Because you know, you can do that the clerk can’t stop you from doing that. But the clerk can stop you from pawing through all the ballots and counting them separately, but you still have access to them even if it’s individually. Now let us be realistic. It’s gonna take 1000s of man hours to do that 1000s of man hours to do that.

The final installment of the Gessler interview will be published soon.