Update 8/19: The Secretary of State sent out a press release at 7:18 pm on Friday saying the following:
" As the State’s Chief Election official, I continue to be excited about our upcoming Primary Election on Tuesday, August 20th,” Secretary of State Chuck Gray said. “I appreciate the work of the county clerks. I want to thank all of the county clerks who conducted their public tests of voting equipment in accordance with Wyoming law. Specifically, I want to thank county clerks who have and are making efforts to retest their equipment in accordance with Wyoming law to ensure compliance with W.S. 22-11-104(b)(iii). Voting is a crucial aspect of our republic, and I am proud of our efforts to ensure we are ready for election day. I am excited for Tuesday’s Primary Election.”
The Wyoming GOP came out a similar statement the same evening.
"The Wyoming Republican Party extends a heartfelt thank you to the many County Clerks and their election officials across the state for their positive and diligent response to our inquiries about voter machine testing.We commend those who identified issues and took immediate action to correct them. We truly appreciate your dedication to ensuring the integrity of our elections."
It’s standard practice for voting equipment to be tested before an election. This year was no different. About two weeks before the primary all 23 county clerks in the state went ahead and tested their voting equipment. But this time at least three counties' results were not in accordance with a line in the Wyoming Election Code, according to the Wyoming GOP. They provided evidence for Goshen, Laramie and Albany counties, but claim other counties also were in violation.
The Wyoming Republican Party filed a lawsuit against the Laramie County Clerk for not adhering to the line in the election code.
Secretary of State Chuck Gray sent a letter out to all county clerks Aug. 12 requesting that every county whose voting equipment failed to comply with the election code during the public tests should retest the equipment.
So what is this law? What did the machines do wrong? And can we trust that voting will be secure and just in the upcoming election?
The election code line
Let’s start with what’s in the state election code referred to as WY Statute 22-11-104(b)(iii). It reads, “…during the test, a different number of valid votes shall be assigned to each candidate for an office, and for and against each measure….” Essentially, it calls for a different number of votes to be assigned to each candidate when testing voting equipment.
This law has been on the books for a while and it turns out that a couple of other states have a similar code, including New Jersey, Pennsylvania, Michigan and Ohio.
To understand why this line is so important, I called Pamela Smith,the president and CEO of Verified Voting, an organization that promotes responsible use of technology in elections. Smith is aware of this law and said it's actually really important.
“The important thing is that when you're testing [voting equipment], you need to be sure that it's correctly capturing votes. So when you prepare to test it, having different numbers of votes for a particular candidate that you insert and then expect to find in the results will tell you that,” Smith explained.
Smith pointed to an incident in Pennsylvania last year as an example. It was a judicial retention question whether voters wanted to keep multiple judges.
“The way the question was worded, you could say yes to the first one, yes to the second one. You could say no to the first one, no to the second one,” she said. “ [Election officials] tested for those kinds of answers, but they failed to test for what would happen if someone said yes to one and no to the other. As a consequence, there was a mis-programming that wasn't caught.”
County officials in Pennsylvania said that the machines ended up with a correct count, though it made for a confusing day.
It’s for that exact reason the law exists to make sure the computer is programmed correctly and can capture all potential results. So what happened in Wyoming?
“It's possible that there's no mis-programming at all, just that the ballots didn't have the right marks on them, and didn't have enough variance to be able to find any errors,” she said.
Smith said the good news there is that it’s a really easy fix: redo the ballots, making sure there is a variance of numbers and put them through the machine.
“There's still a little time to redo these tests to prepare for the upcoming election. There's no reason to think that the equipment has been misprogrammed, but this legal requirement does make sense to have these different numbers,” Smith said. “So doing the test again with a correctly prepared ballot for the test should show the functioning of the equipment.”
How three Wyoming counties reacted
If this is the issue that Wyoming counties are dealing with, it comes down to redoing or adding more varied ballots to another test. Wyoming Public Radio reached out to the three counties that the Wyoming GOP specifically called out. Those were Goshen, Albany and Laramie.
Insert screenshot of ballots here:
- Goshen County
Goshen County Clerk Mary Feagler said over email that the original test deck of ballots were created on ES&S software, the company contracted for all Wyoming counties’ voting equipment. Some additional ballots were created by the public and employees, which were also processed in the initial testing.
“When we realized that we had to do more testing in order to comply with the statute to make sure that no candidates in a race had the same number of votes, we ran the original L&A [logic and accuracy] test deck [of ballots] that we received from ES&S with the ballots that I marked to make sure all of the votes in each race were different,” Feagler said.
The second test of the voting equipment took place on Aug. 13. The chairman of the Goshen County Republican party and a member of the city counsel were there to observe. When asked to see the results of the second test, Feagler sent Wyoming Public Radio a FOIA request to fill out.
- Albany County
Albany County conducted the official test of Albany County's electronic voting system on June 27. The test decks of ballots were created on ES&S software. Clerk Kayla White said in light of the Wyoming GOP lawsuit against the Laramie County clerk, she reexamined the official test results and found some offices with candidates had the same number of valid votes. So White prepared a new test deck of ballots with more ballots to make sure there was more variance. On Aug. 11, a second test of a couple of the voting machines were held. White said there were no errors found in that test. Members of the Republican Party were present.
However, on Aug. 13, White was notified that the Wyoming Republican Party intended “to file legal action challenging Albany County's testing and certification of its electronic voting system and that some individuals were contemplating filing a complaint seeking criminal charges against Clerk White if she did not retest every individual voting machine.”
So a third test of all official voting equipment was held on Aug. 15. Members of the Republican Party were present. According to White, there were no errors in this test either.
White told Wyoming Public Media that “the testing our office did this year is consistent with how the Albany County Clerk’s Office had previously conducted its testing.”
- Laramie County
The Laramie County Clerk didn’t reply to multiple requests for comment. In a press statement, County Clerk Debra Lee denied any errors in the test and said, “the county maintains full confidence in the accuracy and operation of all our voting equipment.”
However, in the letter that the Secretary of State sent to county clerks requesting to redo the voting machine test, he said that Laramie County agreed to retest their equipment. We are unaware of the outcome of those results.
How elected officials reacted
For some Wyoming elected officials, this whole issue is just being blown out of proportion.
“I don't think there is a failure,” said Senator Cale Case (R-Lander). “It does appear that in Laramie County the sample ballots had the same number of votes for both candidates . That is somewhat contrary to state law, but certainly that's something that can be rectified. I don't think there's any evidence that the number of votes that came out of being counted was wrong.”
Case has been in the state legislature since 1993. He’s certified election results and is the chairman of the Senate Corporations, Elections, and Political Subdivisions Committee.
When asked whether Wyomingites can be confident in voting on Tuesday, he replied, “I have so much confidence in our system in Wyoming. Mostly though, my confidence is in those county clerks and their staff that work so hard to make sure that elections are perfect in Wyoming.”
Wyoming Public Radio reached out to the Secretary of State’s office to see if they received certified results of a second test from the three counties previously mentioned but they didn't respond by the time of publication.
The primary elections are on Tuesday, Aug. 20. Polls open at 7 a.m. and close at 7 p.m.
