Washburn's World

My take on the world. My wife often refers to this as the WWW (Weird World of Washburn)

My Photo
Location: Germantown, Wisconsin, United States

I am a simple country boy transplanted from the Piehl Township in northern Wisconsin to the Milwaukee metropolitan area who came down "sout" in 1980 for college and have stayed in the area since.
If this blog is something you wish to support, consider a donation.

Tuesday, October 23, 2007

No Backups of Election Records

For 19 years (since the passage of 1987Act391) Wisconsin law has required election officials to make backups of the electronic records found on the removable memory cards of voting equipment. The specific statute, WI Stats. 7.23(1)(g) reads:
    7.23(1)(g) Detachable recording units and compartments for use with electronic voting machines may be cleared or erased 14 days after any primary and 21 days after any other election. Before clearing or erasing the units or compartments, a municipal clerk shall transfer the data contained in the units or compartments to a disk or other recording medium which may be erased or destroyed 22 months after the election to which the data relates.
I have been given a number of excuses over the last two years as to why required election records have not been created. The excuses are many and varied, but are all variations on the theme:
    "But, this is a new (procedure/form/requirement). The election officials are not used to following the new (law/regulation/recommendation)."
I thought for sure a twenty year old law has been followed all along or at least for the last five or ten years. But, being the trusting soul I am, I took Reagan's advice to "Trust, but verify".

I sent out open records requests to various municipalities in the state for copies of the electronic backups created pursuant to 7.23(1)(g) for both the scanners and disability devices for the september, 2006 and November, 2006 elections. So far only the City of Milwaukee and the Village of Germantown (via the county clerk, Brenda Jaszewski) have responded. Neither creates the electronic backups mandated by WI Stats. 7.23(1)(g). From the followup questions to the open records request (e.g "What records are you talking about?"), I don't think anyone in the state is creating the backups legally mandated by WI Stats 7.23(1)(g).

Since, I live in Germantown this is the only place where I have only pursued the matter further. On October 10, 2007 I turned the matter over Washington county DA, Todd Martens. As of Friday, October 19, 2007, offical statement of the office of the Washbington County DA is that the matter is under investigation and there is no further comment at this time. You may contact the DA's office at: 262-335-4311, for further updates.

Here is the original open records request to the Washington County Clerk and her response stating there are no such records in existence. By her own records, Ms. Jaszewski put data on to memory card 6131-DA-D1 on August 26, 2006. More data was added on September 12, 2006, (if nothing else candidate vote totals), and no backup was made before the data was destroyed on October 3, 2006 by Cathy Weston.

I have spoken with a top attorney who specializes in Wisconsin election law. He was unaware that there was a data backup requirement and mention that it is likely I am the first person in 20 years to have checked to see if this election law is being followed. There are a lot of citzen watch dogs (and WI SEB staff) who oversee the enforcement of Chapter 11 (campaign finance), but no watch dogs who double check on the enforcement of Chapter 7 (Election Administration).

Here is to being a Chapter 7 watch dog. Woof Woof.


Anonymous Anonymous said...

Why does the statute say 22 months? Is this based upon federal law? And if so, is this also a federal offense?

Tue Oct 23, 05:51:00 PM CDT  
Blogger John Washburn said...

No, it is not based on the federal statute for retaining records for federal elections. Yes, there is a separate federal statute USC TITLE 42->CHAPTER 20->SUBCHAPTER II->Section 1974
which mandates ALL election records for federal election be retained for 22 months. This is why 56 of 88 countys in Ohio are in so much trouble over the November 2, 2004 election. They destroyed all election records in about six months.

What I cited is state statute. the uniform 22 month minimum retention period was probably chose to be uniform and co-exist with the federal statute for federal elections.

But, now that you mention it the clerks in the several counties of this state and every other state may very likely have some federal exposure here.

Wed Oct 24, 06:46:00 AM CDT  
Blogger John Washburn said...

In the defence of the clerks in the state the Wisconsin State Election Board has apparently never enforced this statute and informed the clerks in the most incidental of ways.

The WI SEB has a retention schedule published and available to clerks. http://elections.state.wi.us/docview.asp?docid=2469. The data backup provision though is in the footnote.

Also, the state election board sent a notice in August, 2006 to every municipal and county clerk which included paragraph 7.23(1)(g) in the first paragraph. http://elections.state.wi.us/docview.asp?docid=9124&locid=47

So, Ms. Jaszewski and Ms. Edman in some sense of the word "knew" they needed to make backups of the memory cards. It was just that that information was not very prominently presented nor has the need been reiterated over time.

Wed Oct 24, 06:57:00 AM CDT  
Blogger John Washburn said...

But, haven't I heard somewhere that "Ignorance of the Law is no excuse"?

If I can be hit with that club, then turnabout is fair play.

Wed Oct 24, 07:00:00 AM CDT  
Anonymous Anonymous said...

So what is your solution?

Mon Nov 12, 10:01:00 AM CST  
Blogger John Washburn said...

Make the backups as the law requires and, if necessary, get equipment which supports this 20 year old requirement.

Mon Nov 12, 10:15:00 AM CST  

Post a Comment

<< Home