CalPERS candidates say votes no longer secret

(UPDATE: David Miller defeated Michael Flaherman for an open at-large CalPERS board seat. Current CalPERS board member Michael Bilbrey will be in a runoff election with Margaret Brown. See CalPERS news release for details.)

Instead of signing the envelope that contains the mail-in ballot, CalPERS is requiring voters in an election for two board seats to sign the ballot — a change prohibited by state election law protecting voter secrecy, two candidates say.

Signing the ballot itself is an unusual step that creates a record of the candidate chosen by the voter. Signing only the ballot envelope, the usual procedure, protects privacy by showing that an authorized voter has cast a ballot, but not which candidate was chosen.

The California Public Employees Retirement System made the change in paper ballots while switching to a new system, three years in development, that allows online and phone voting in an attempt to increase voter turnout.

Two candidates running as “watchdogs” (endorsed by outgoing maverick board member J.J. Jelincic and facing union-backed candidates) say requiring voters to sign ballots suppresses the vote through fear of disclosure and reprisal by employers or unions.

A spokesman said CalPERS is confident votes will remain private under the new system. He said the voter signature was switched from the ballot envelope to the ballot to cut handling costs, saving $155,000 in this election.

About 1.5 million active and retired CalPERS members are eligible to vote in an election for two at-large seats on the 13-member CalPERS board. The election may cost $2.6 million, the CalPERS spokesman said.

In voting that began Sept. 1, mail-in ballots are opened in a contractor’s facility in a Seattle suburb, scanned into an encrypted file, and sent via internet to another contractor’s office in La Jolla, where electronic tabulation will be held tomorrow (Oct. 3) after voting ends today.

Michael Flaherman, who is running against David Miller for Jelincic’s open seat, said in a letter to CalPERS last week that requiring a voter signature on the ballot is a “departure from democratic norms” that also is unconstitutional and prohibited by state law.

He said California Elections Code 14287 states: “No voter shall place personal information upon a ballot that identifies the voter. ‘Personal information’ includes all of the following: (a) The signature of the voter.”

In addition, Flaherman said, California Elections Code 19205 states: “A voting system shall comply with all of the following: (a) No part of the voting system shall be connected to the Internet at any time.”

A CalPERS fact sheet given to the candidates said: “Neither the California Constitution nor the PERL (Public Employees Retirement Law) require CalPERS elections procedures comply with California elections law.”

The fact sheet cited, among other things, special protection given public retirement boards by Proposition 162 in 1992. Unions sponsored the constitutional amendment giving public pensions control of their operations and funds after the state made a “raid” on pension funds.

Margaret Brown, one of three candidates trying to unseat board member Michael Bilbrey, said in a letter to CalPERS that union members would be deterred from voting if they fear their failure to support union-backed candidates could be revealed by a ballot that is no longer secret.

“Requiring voters to sign the actual cast ballot has a chilling effect on voter participation, which is down by 22.3% to-date,” Brown’s letter dated Sept. 23 said, referring to the most recent election for an at-large board seat.

About 138,000 votes were cast in the last at-large election, the CalPERS spokesman said. By the end of last week, the CalPERS website showed votes in the current election totaled 116,355 — mail 92,443, online 21,226, and phone 2,686.

New CalPERS ballot with voter signature and bar code
(Source: Naked Capitalism)

The changes in the CalPERS voting system were first publicly reported on the Naked Capitalism website by Yves Smith on Sept. 13 in an article titled: “CalPERS Runs Unconstitutional, Tamper-Friendly Election with Non-Secret ballots.”

As the controversy grew, CalPERS staff met on Sept. 20 with candidates for the board seats and representatives of the voting system contractors, Integrity Voting Systems and Everyone Counts.

Flaherman said in his letter that the contractors revealed during the meeting that voter secrecy also was being compromised by a barcode that had been moved, along with the signature, from the ballot envelope to the ballot.

Under close questioning, he said, the contractors “acknowledged that in order to cancel and replace lost ballots, which CalPERS regulations require, the contractors must associate the barcode serial number of each ballot with the identity of the voter.”

Flaherman said that “directly contradicts” a CalPER staff member’s statement to the board that the barcode, as in the past, is just demographic data used for reports after the election, such as age, employer, gender.

The CalPERS fact sheet said the contract with IVS/Everyone Counts states that the barcode “must be generated randomly and must not reflect any personal data about any individual voter.”

Voter secrecy is further undermined, Flaherman said, by the refusal of the CalPERS general counsel at the Sept. 20 meeting to rule out making ballots available to the public after the election in response to Public Record Act requests.

“All prospective voters should understand that it is CalPERS’ position that it may very well allow the executed ballot containing their signature and candidate selections to be inspected by their employers, labor unions, or the candidates themselves,” he said.

The CalPERS fact sheet said: “Paper ballots that have been tabulated are boxed and sealed with permanent security tape and stored in a secured warehouse. All materials are shipped to California State Archives, where they will be stored for two years before being destroyed.”

Asked last week if the stored ballots could be viewed through a Public Records Act request, the CalPERS spokesman, Brad Pacheco, said it’s his understanding that CalPERS would have to give permission and any request would be evaluated by its legal team.

Brown said in her letter she visited the Integrity Voting System facility in Everett, Washington, where CalPERS mail-in ballots were opened daily and scanned. Ballots with no signatures were “out stacked” or set aside.

“The scanned ballots and the out-stacked ballots are stored in boxes in a small room with a class storefront,” Brown said. “The room is not secured, as I visited that room and found the door to it propped open. As a result, the ballots are not secure.”

Brown also said she is concerned about the lack of a paper trail for internet and phone voting and the security of transferring the entire CalPERS member database to Everyone Counts in La Jolla.

Six of the 13 CalPERS board member are elected by CalPERS members, two appointed by the governor, one by the Legislature, and four are state office holders: treasurer, controller, human resources director, and personnel board representative.

If none of the four candidates for the seat held by Bilbrey gets a majority, there will be a runoff election. And if that happens, Brown and Flaherman both said the voter signature and barcode should be moved back to the ballot envelope to restore secrecy.

Old CalPERS ballot (Source: Naked Capitalism)

Reporter Ed Mendel covered the Capitol in Sacramento for nearly three decades, most recently for the San Diego Union-Tribune. More stories are at Calpensions.com. Posted 2 Oct 17

12 Responses to “CalPERS candidates say votes no longer secret”

  1. JenniferHu Says:

    While I understand CalPERS need to save money again it is done in the wrong place. Ballots are to be secret.
    The cost to do a do-over will cost even more. Only staff and board members will have free access to ballots in any of their many closed sessions.
    This election is vital to All CalPERS members seeking true representation. The current board spends little time reading materials before a meeting and rely almost entirely on committee chairs interpretation of information, staff reports, and department heads opinions. The legal counsel gives interpretations that silence members getting information and speaking time. One board member (appointee) complained when speakers asked for 4 mins to discuss an important and complex topic that he did not want to be at the meeting all night listening to speakers. I suggest that member resign immediately so they can attend to the “way more important things” than their governor assigned task.

  2. whyab2833 Says:

    Ed,

    You quoted multiple times from my letter to CalPERS about the legal problems with the voting procedures, but you inexplicably left out my most crucial point, which my letter highlighted prominently.

    Article II, section 7 of the California constitution contains four words. They are: “Voting shall be secret.”

    CalPERS is pretending that this constitutional issue has not been raised by me and others, and instead is choosing to knock down straw man arguments that nobody is making. I don’t understand why you too choose to ignore the most important legal problem with the ballot process, which is that it is blatantly unconstitutional.

    -Michael Flaherman, candidate

  3. CalPERSon Says:

    I’m hoping somebody will go to court and ask a judge to toss this election as unconstitutional and order a do-over with secret ballots.

  4. SeeSaw Says:

    Every statistic under the sun is studied after local, state, and national election ballots are processed. The voter signs the envelope so that the canvasser can check to make sure the signer is a registered voter. With the name being connected to the CalPERS the ballot, it is obviously easier to keep track of the ballots and ensure that all who vote are CalPERS members. I sincerely doubt that there is any ulterior motive involved with the process. Let’s not make life any harder that it already is.

  5. CalPERSon Says:

    SeeSaw: “I sincerely doubt that there is any ulterior motive involved with the process.”

    Sorry, it doesn’t work that way. When something is unconstitutional, it’s unconstitutional. It doesn’t matter if the motives were good or not.

    This ballot suppressed my vote. As soon as I saw the signature block on the ballot I ripped it up and threw it out. It’s not a legitimate election as far as I’m concerned.

  6. SeeSaw Says:

    @CalPERson I don’t go with opinion vs.fact. If a judge declares the election unconstituional I will accept such decision.

  7. SeeSaw Says:

    @CalPERson Your vote would have been counted in the total for the candidates of your choice. I don’t understand why you think your vote was suppressed, except for, of course, the fact that you tore your ballot up. The one who suppressed your vote was you.. I’m sure your signature would have been checked to be sure you were a CalPERS member–just like with mine. Let’s see now what CalPERS does with the runoff election. I would think it will get some legal advice on whether or not to elliminate the signature line from the ballot.

  8. CalPERSon Says:

    SeeSaw: The one who suppressed your vote was you..

    No. CalPERS (unintentionally) suppressed my vote by presenting me with a ballot that violated a fundamental and basic principle of American voting: the secret ballot. You seem eager to brush this principle away to defend CalPERS. Maybe that works for you; not me. I took a stand and I’m sticking to it. I’m sure I’m not alone.

  9. SeeSaw Says:

    @CalPERson We choose our own battles. The fact that CalPERS has my signature on my ballot is not even reason enough to have a water-gun fight.

  10. S Moderation Honestly Says:

    Michael, is this an initiative, referendum, or recall election?

    If not, Article II, section 7 does not apply.

    ARTICLE II VOTING, INITIATIVE AND REFERENDUM, AND RECALL [SECTION 1 – SEC. 20] ( Heading of Article 2 amended June 8, 1976, by Prop. 14. Res.Ch. 5, 1976. )

    SEC. 7.
    Voting shall be secret.

  11. SeeSaw Says:

    I would think that a candidate in CA actually traveling to the State of WA to view the actual room where ballots are kept is a little far-out.

  12. CalPERSon Says:

    S Mod — Article II Sec 7 is not restricted only to initiatives, referendums, or recalls. The word “Voting” encompasses regular elections as well. If CalPERS wanted to defend their non-secret voting they could argue that their polling of the membership doesn’t constitute an ‘election’ as defined in Art. II.

    Is it an ‘election’? Seems to be a gray area. A CalPERS election isn’t a general election that the whole population votes on yet it affects the administration of public funds that impacts the state budget as a whole. Kinda hoping this does go to court because the legal arguments and decision would be interesting to read.

    Legal or not, to abandon the secret ballot was a spectacularly bad judgment call by CalPERS board and staff.

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