(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.
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.
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