Bombshell Paper Ballots Lawsuit

The Election of 2024 has now produced two lawsuits asking for a hand count, at precinct level, of paper ballots. The Libertarian Party of Colorado, yesterday morning, sued the Secretary of State and her deputy over the Password Leak controversy. They contend that changing the passwords on those scanner-tabulators isn’t enough. They demand that the State decommission those scanner-tabulators and count votes by hand at precinct level almost State-wide. Ironically they’re using the same doctrine the Democratic establishment used to railroad an earlier Secretary of State candidate into prison.

Colorado elections history

Colorado, like Washington State, is a mail-in ballot State. Every voter gets an official ballot, not a mere sample, in the mail. Voters may mail the ballot back, hand-deliver the ballot to their county registrar, or cast a vote in person. Obviously most voters vote by mail – and this could explain why Colorado is solid Democrat. (Or nearly so; recent polls show that Colorado will have more Republican votes this time than in years past.)

All Colorado counties feed these ballots into scanner-tabulators for counting. Each such machine has a Basic Input-Output System (BIOS) password. A person having this password can manipulate a vote count or even the machine’s copy of the voter database.

In August of this year, activists discovered a hidden “tab” on the Colorado Secretary of State’s website. (See this email from the Republican Party of Colorado.) Visitors to that “tab” could download a spreadsheet containing BIOS passwords for all the scanner-tabulators in 63 of 64 counties. But Secretary of State Jena Griswold would not remove that file until October 21, when activists made that fact public.

The basic password vulnerability came out in the trial of State of Colorado v. Tina Peters.

Ms. Peters was Clerk of Mesa County at the time. Somehow she copied some data prior to the completion of a “Trusted Build.” (See here for the procedure – by Dominion Voting Systems.) Any passwords she had were expired at the time. No matter. Authorities railroaded her into prison for nine years.

Latest in the Password Controversy

Brian Lupo of The Gateway Pundit has been covering this issue since October 30. But back in July, he reported something else: that scanner-tabulator (Dominion Voting Systems ImageCast) has WiFi capability.

Secretary Griswold appeared on a local television station, where the anchor came just shy of demanding her resignation over this. The anchor, Kyle Clark, reported today that Griswold knew for months that the passwords were exposed. She took steps only after the Colorado Republican Party publicized the security breach.

Election experts say the passwords alone weren't enough to compromise the election system, but Griswold's handling of the issue and track record of errors in office may undermine voter confidence in elections. pic.twitter.com/CxklAf4nVZ— Kyle Clark (@KyleClark) October 31, 2024

Griswold has yet to explain why she did not notify county election clerks that the passwords to their voting machines had been leaked. Clerks only found out when the breach became public. https://t.co/LEZ0JZHpK9— Kyle Clark (@KyleClark) October 31, 2024

Jim Hoft shared that detail, and a review. But that was only the beginning. Television Station KDVR-TV (Channel 31, Fox Broadcasting, Denver, Colo.) has taken an active interest. They reported that Colorado’s Republican Party demanded that Secretary Griswold resign. She refuses. On Thursday the station reported that the Trump campaign demanded a halt to processing of all mail-in ballots. These are, of course, paper ballots – and the Trump campaign wanted them all re-scanned. Of course, that would mean making another Trusted Build and conducting another round of Logic and Accuracy Testing. Griswold refuses that, too, saying that her deputy (Chris Beall) has had all the passwords changed.

This actually presents a legal problem. Election Rules did not permit changing the passwords after completion of a Trusted Build. So Deputy Secretary Beall issued a temporary rule to permit the password update.

IF THE SECRETARY OF STATE DETERMINES THAT ANY BIOS PASSWORD NEEDS TO BE CHANGED, THEN AN EMPLOYEE OR DESIGNEE OF THE SECRETARY OF STATE MAY BE TASKED WITH ACCESSING THE VOTING SYSTEM COMPONENT TO FORTHWITH CHANGE THE PASSWORD(S). THE EMPLOYEE OR DESIGNEE OF THE SECRETARY OF STATE MAY ALSO TAKE ACTIONS TO INVESTIGATE THE VOTING SYSTEM. ANY EMPLOYEE OR DESIGNEE OF THE SECRETARY OF STATE WHO PERFORMS A TASK IN ACCORDANCE WITH THIS RULE MUST FIRST PASS A BACKGROUND CHECK IN ACCORDANCE WITH RULE 20.2.1.

Note that the new rule says nothing about going through another Trusted Build drill.

Libertarians go to court: why not count the paper ballots by hand?

The Libertarian Party of Colorado – and Jim Wiley, their candidate for Congress in the Third Congressional District – are not satisfied. They don’t care for a re-scanning of the paper ballots, new Trusted Build or no. So they filed a petition with the District Court of Denver County, demanding radically different action.

The case of Libertarian Party of Colorado et al. v. Griswold and Beall, Case No. 2024-cv-33363, is available here.

Reports on the lawsuit are available from KDVR-TV and the Colorado Politics newsletter. The complaint acknowledges the removal of the BIOS password spreadsheet on October 24. (Tellingly, the Secretary notified no one until the breach became public.) But it also details the seriousness of the security breach:

The passwords were located on hidden sheets within the spreadsheet and were not encrypted or otherwise protected. BIOS passwords allow a person to access and gain control over Colorado’s voting systems, which includes the ability to manipulate those systems and election results. Such access would allow that person to remove any trace of use by overwriting the system logs necessary for a subsequent audit. In allowing these passwords to be available to the public, the Secretary has breached her duty to ensure that Colorado’s upcoming General Election is fair and accurate.

According to the complaint, Colorado law calls for revocation of the Secretary’s access after this breach. Colorado Revised Statutes Section 1-13-708(2) clearly reads:

Any person who knowingly publishes or causes to be published passwords or other confidential information relating to a voting system shall immediately have their authorized access revoked and is guilty of a class 5 felony.

Instead, Deputy Secretary Beall, on his own authority, issued that temporary rule. The Libertarians also alleged that this file had been up since June, before the Colorado primaries.

The complaint also revisits the “crime” for which Tina Peters is now languishing in prison. After that episode, this same Secretary of State decommissioned 41 scanner-tabulators in Mesa County. Taxpayers had to buy brand-new scanner-tabulators after that. For Secretary Griswold to get away with exposing those passwords, and for any of those machines to stay in operation, constitutes selective application of the law.

Actual demand to count paper ballots by hand

The existence of human-readable paper ballots is the one thing that could give the Libertarians the relief they seek. In Colorado, voters mark paper ballots by hand. What one marks by hand, another can read and count by hand.

Given everything Secretary Griswold and Deputy Beall have done wrong, the Libertarians demand that the court:

1. Shut-out Secretary Griswold and her entire office from having anything to do with the election,
2. Decommission every scanner-tabulator, the BIOS password of which was on that spreadsheet,
3. Hand-count all paper ballots in the 63 counties with the affected machines,
4. Declare Deputy Secretary Beall’s “temporary rule” null and void, and
5. Order an Attorney General’s investigation into the initial security breach and password publication.

The plaintiffs also are requesting a hearing on Monday (November 4). Late this morning the Libertarian Party of Colorado announced that they have their hearing on the docket.

🚨 Hearing Scheduled 🚨for our lawsuit against Jena Griswald
Monday, 1:30 pm MST
Denver district court on Bannock, division 275— Libertarian Party of Colorado (@LPCO) November 2, 2024

A similar cases

This is the second such case from the Election of 2024. The Chairman and Deputy Chairman of the Board of Elections of Waynesboro, Virginia filed the first. The Staunton News Leader carried that story. The two officials allege, citing Article II Section 3 of the Virginia Constitution, that anything other than counting paper ballots by hand, at precinct level, in the view of the public or at least of credentialed poll watchers, is unconstitutional. They reason that a scanner-tabulator, with its proprietary software, conducts a secret count. The relevant article reads:

In elections other than primary elections, provision shall be made whereby votes may be cast for persons other than the listed candidates or nominees. Secrecy in casting votes shall be maintained, except as provision may be made for assistance to handicapped voters, but the ballot box or voting machine shall be kept in public view and shall not be opened, nor the ballots canvassed nor the votes counted, in secret. Votes may be cast in person or by absentee ballot as provided by law.

Thus far no county registrar has provided any update on that case. If local precinct chiefs receive an order to count votes by hand, they can, because the ballots involved are also paper ballots. (In your editor’s jurisdiction, Chiefs supervise a count of physical ballots, to account for every ballot supplied. But they would not tally the votes without a court order.)

These cases illustrate the greatly enhanced attention activists are paying to election integrity in this cycle. The infamous Stairstep Graph, and the spectacle of people waking up to find a different declared winner than everyone anticipated, is alone responsible for the hyper-alert status.

No one realistically expects Donald Trump to “carry” Colorado. But decisive cases typically come from corrupt jurisdictions, the leaders of which have grown complacent. This has happened in Colorado, and has started a process that could result in a return to the paper ballots with which American elections began, more than two centuries ago.