McNinch files complaint over election arrests - KUAM.com-KUAM News: On Air. Online. On Demand.

McNinch files complaint over election arrests

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 by Ken Quintanilla

Guam - Political analyst and University of Guam professor Ron McNinch has filed a complaint with the Guam Election Commission over recent arrests connected to allegations of possible election fraud. McNinch's complaint stems from last month's arrest of precinct official Catherine Peredo and her husband John Peredo.

In his complaint, McNinch lists a dozen concerns believing there has been or will be a violation of the Help America Vote Act of 2002. McNinch believes the GEC did not adequately address Peredo's complaint and related concerns. As we reported, Peredo filed a complaint with the GEC after the general election, swearing under penalty of perjury through a notarized affidavit claiming to have seen pre-marked ballots in an ice cooler. She later recanted her statements saying she didn't prepare the complaint and that Bernadette Meno did. McNinch further raises issue at how the GEC does not appear to have a complaint form or process readily available on its website. The GEC had no comment on the complaint at this time. 

HAVA Complaint Regarding the 2014 General Election

1.       This document is sworn and notarized per the federal HAVA 2002 Requirements.  (6 GAR, Chapter 1,  Article 5, 1504)

2.       As required by the HAVA 2002, I am a person who believes that there has been a violation, or will be a violation of Title III of the HAVA Act. (6 GAR, Chapter 1, Article 5, 1503.) HAVA contains basic standards for election administration at state and local levels.

3.       Section 402 of HAVA 2002 requires an administrative  grievance process to address complaints. I am very concerned that critical portions of this required process either have not been implemented or have become fallow since the Guam Administrative Rules were developed to address these concerns. Also, there is an additional concern that complaints are not appropriately identified by the commission as falling under HAVA.   

4.       The GEC does not appear to have a complaint form or process readily available on its website, even though the Guam Administrative Rule suggests that there should be one maintained on the site. The cited section is 1504(b) “(1) The Complainant may use the form prescribed by the Guam Election Commission, which may be downloaded from the Guam Election Commission's website. Alternatively, the Complainant may use any other writing containing the information

solicited by the prescribed form.” There may be a number of plausible reasons for this such as changing website or servers since 2002, but it is important for the GEC to provide this information to the public. Since this information was not provided, I am following the format used in the HAVA Act and the GAR for this complaint. The GAR allows for complaints to be amended. (1506 c.) “[The record shall contain]  (1) A copy of the complaint, including any amendments; (2) A copy of any written submission by the Complainant; (3) A copy of any written response by any Respondent or other interested person;”

5.       According to the HAVA Act and the GAR, complaints are normally bound by a 60 to 90 day timeline.  The concerns in this complaint occurred on or about November 22, 2014 or about 47 days before this filing. Thus, I believe this filing is timely. (6 GAR, Ch 1, Art 5, 1505)

6.       HAVA 2002 Title III Concerns related to the 2014 Guam Election:

a.       HAVA covers optical scanning voting systems, such as the type Guam appears to use. (Title III.301. (a). 1. (A)). Guam uses a paper ballot as part of the process.

b.      A number of requirements and guidelines are required in Title III including 301.a.1 which cover voting instructions (B.ii), and privacy (C).

c.       Section 301.a.2 covers audit requirements of the voting system.

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d.      Section 302.b.2.e covers requirements that allow for voters and the public to complain about processes.

7.       On November 17, 2014, Ms. Cathy Peredo filed a sworn and notarized complaint to the Guam Election Commission regarding irregularities she felt she saw at the November 4, 2014 Guam General Election. Several of the parts of this complaint appear to be covered by the requirements in HAVA 2002.  I am concerned that the Guam Election Commission did not adequately address Ms. Peredo's complaint and related concerns. Thus, this complaints seeks to restate these complaints and concerns and inquire whether adequate remedies were found to resolve these concerns. I am also concerned that as the only sworn and notarized complaint among the 30 submitted, why didn't the GEC use the HAVA process to address it?

8.       The handling of Peredo's complaint raises several Title III concerns I want to complain about.

9.       The Title III concerns in Ms. Peredo's complaint include:

a.       Ballot security.  HAVA (302.b.2) requires that any election should be able to be audited. Thus ballot security and handling becomes an issue.  Ms. Peredo had concerns over ballot or ballot like material in a cooler.  I would like to know the outcome of the investigation of this concern. From reading materials provided on GuamPNC's Website, it appears that Ms. Peredo simply amended her sworn statement to reflect that the marked ballot she saw may have been a sample ballot. No determination by the GEC is offered on this question. However, the possibility that this may have been a sample ballot is a very plausible explanation. In the GAR, persons making complaints are allowed to amend these complaints. Why did the election commission label this otherwise routine complaint as a possible violation? My concern under HAVA is that this likely produces a chilling effect on citizen complaints. Section 402 requires a sound process.  The standard is simply that a complainant believes a violation had occurred or was about to occur. From all documentary evidence, this belief aspect was consistent.

b.      Voting out of designated area. HAVA requires ballot security (302.b.2) and  privacy (301.a.1.C). In Ms. Peredo's complaint there were concerns persons were voting outside of the approved areas. This was never addressed or explained in the record.

c.       Voter Instruction Concerns. Ms. Peredo's complaint also contained voter instruction concerns that are likely covered under 301.b.ii. What was the remedy or outcome of these concerns?

d.      If these points have been resolved and addressed, please update the public that this had a conclusion. The GEC should be able to provide remedies to some of these items for future elections.  For example, the media and the commission may require all sample ballots are in a color that is not used in the actual ballots.

10.   At the November 22, 2014 hearing, this grievance was addressed in a public meeting and Ms. Peredo's complaint was characterized as “recanted” or “rescinded.” Section 302.b.2.e covers requirements that allow for voters and the public to complain about processes. Did the actions and process of the commission at this meeting follow the general format of other election related complaints? If not, why? Also, the commission members appear to discourage complaints in their handling of these points in Ms. Peredo's complaint. Under 302.b.2.E, persons

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should be welcomed to complain and the commission needs to address each concern in a non-discriminatory manner and with neutrality. The commission appears not to handle sworn complaints appropriately and this is a concern.   " The Chairman expressed concern that a violation is at hand as the complaint is notarized and noted that the complaint has questioned the Election Commission and the process of the election. The Chairman recalled that the Commission was being accused over the coolers and that it is in the responsibility of the media to portray the facts accurately." Nov 22 2014 Draft GEC Minutes.

11.   Further, under 1506d, I would like to request a public  administrative hearing on these Title III questions. The commission has between 10 to 90 days to conduct this hearing. The rules for this hearing process can be found in the Guam Administrative Rules covering elections.

12.   Finally, as a concluding point, I do not believe there was election fraud or systemic irregularities in the 2014 Guam General Elections. I think the GEC and its staff did an admirable job. But I am very concerned about awareness of HAVA 2002 principles and the manner complaints are handled. The public has a very fundamental right to complain. They also have a fundamental right to make notarized and sworn complaints as provided in HAVA. The public should not fear if they complain to election commission about election related concerns they have.

Sincerely,  _______________________________________

                                Ron McNinch

Cc: Guam Attorney General

       US Attorney – Guam

       Guam Legislature

Signed/Notarized/Sworn Block 

****

Working Draft of Recommendations

Feedback and Recommendations

A.      There does not appear to be an elections complaint process or set of instructions and forms on how to complain on the GEC website. The only complaint process detailed is the federal HAVA process, which voters can easily confuse with routine complaint processes. The HAVA process can be found at the GEC website in the rules section.  Recommendation: Update the GEC website to provide critical information on how to complain. Ideally, citizens could complain using the website itself. HAVA Complaints, which must be notarized and sworn, should be distinguished from routine complaints.

B.      The only complaint process in the Guam Administrative Rules for Elections pertains to HAVA 2002 Complaints.  The rules should be updated and amended to better reflect other types of election complaints.  Further, there should be a uniform process in the rules for addressing both types of complaints. In current practice, it appears that a subcommittee handles most election complaints. This should be memorialized and developed by a formal rule process. Recommendation: Update the rules to reflect how routine complaints are made, routed and processed. Once formal rules have been made, update the website to reflect the amended process.

C.      Due Process concerns regarding complaints. From the records, some complaints were provided a normal due process taking several weeks. In the Peredo Case, it appears it took the commission just five days to process from the point of filing to an open referral for potential criminal conduct to the AG. This includes an internal investigation phase. As an experienced investigator, this rush to process signals a critical concern. There should be a specific and rational set of steps used by the commission to verify and handle complaints. The commission also appears to have made a set of ill founded conclusions in its rush to process. A rational objective review process is better.  Recommendation: When the rules are modified and update, provide for due process steps for complaining individuals to participate.  

D.      Compliance with 4 GCA 43116. It appears that some board members may be unfamiliar with HAVA 2002 and related developments in the field of elections.  From its minutes, the GEC appears very unfamiliar with the use of notarized sworn complaints.  Complaints should be welcomed from the community and the process used to address them should be sound and uniform.  Recommendation: Have annual training to cover all updates of election related laws and policies per 4 GCA 43116(d). This should have included a clear coverage of the HAVA 2002.

E.         Marked Sample Ballots. The common problem of marked sample ballots should be addressed. Recommendation: Use a unique color when sample ballots are printed.

F.       Administrative investigations require technical skills and a sense of detachment on the part of investigators. In the Peredo case, a seasonal employee complained. Commission level formal complaints made by internal actors should not be processed or investigated by internal processes. An external evaluator should have been asked to look into this. For a number of reasons, this was an unusual complaint and this type of complaint may be new.  Recommendation: Investigate commission level formal complaints using external reviewers from the OPA, etc…


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