CalPERS Doubles Down on Its Illegal Election, Makes “Absurd” Claim That It Is Above the Law

September 30, 2017

CalPERS has just put out a document attempting to defend its election practices. It has only dug its hole deeper. Its memo is a tissue of lies. We’ve embedded it at the end of this document.

Among its ludicrous and verifiably false claims:

1. “CalPERS does not administer the voting process.” Sorry, but no one can fob off their legal responsibility by hiring a contractor. By that logic, CalPERS does not administer pension funds either since it contracts most of the fund management out.

2. CalPERS is trying to maintain that one of its election vendors, Integrity Voting Systems is certified by the State of California. As we showed in our post earlier today, it was IVS that was awarded a contract with CalPERS along with another vendor, Everyone Counts. As you can see for yourself by looking at the Secretary of State’s website, IVS has no certifications whatsoever and its parent, K&H Printing, is certified only to print and finish some types of ballots used in certified California voting systems. CalPERS is not using any of these voting systems for this election. It is thus utterly false to imply that the Secretary of State has certified anything that any of the election vendors is doing for CalPERS.

The only certification IVS has is a SOC certification from a mid-tier accounting firm and it applies to IT controls only, and not business processes generally. Thus the handling of paper ballots would fall out of the ambit of the certification, making it irrelevant to this election.

3. CalPERS falsely asserts that putting a signature on the ballot is legal when the California election code explicitly states otherwise. Per The CA Elections Code §14287:

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.

4. CalPERS has acknowledged that the paper ballots have already been processed, an admission that it has been violating its own election regulation which states that the paper ballots will tabulated on a date specified in the notice of the election, not on an ongoing basis. From CalPERS’ embedded memo:

The public can view the paper ballot process at IVS/Everyone County’s facility.
Public viewing is allowed Monday through Friday, 8:00 a.m. – 5:00 p.m. PST, from
September 1, 2017, to October 2, 2017.

5. CalPERS has flat out lied about the handling of the ballots, insinuating that they have been held in compliance with election law (why is that suddenly relevant?) in a secure cage. That is not the case. As board candidate Margaret Brown learned when she visited the Integrity Voting Systems facility on September 15, the ballots were not kept securely. She and her witness saw that were out in the open in a room that had one door propped open and a second door that opened to the parking lot. Proper handling of mailed ballots is for them to be kept sealed in a cage, and opened and tallied only at the close of an election, and then only in public. The notion that allowing the public to drop in at random times during an insecure process could ever amount to adequate oversight is insulting.

6. CalPERS is effectively claiming that it is subject only to the Public Employees’ Retirement Law, and not other parts of California law, including the California Constitution. That is absurd. CalPERS is subject to all sorts of California statutes in addition to the PERL, including the state civil service code, the state’s evidence laws, the Administrative Procedures Act, the Public Records Act, and the Bagley-Keene Open Meeting Act.

CalPERS cites a precedent to try to justify its absurd claim that it has unlimited authority to set its own election regulations. The court in that case did not rule on anything remotely approaching the issues as hand. The court in fact made clear that CalPERS was not allowed to change the method of election. The change at issue then was that previously, the candidate that got the most votes be deemed the winner, even if it was short of a majority. CalPERS changed its process to having a runoff if no one got a majority. The court deemed that that did not amount to changing the method of election and hence was permissible. The very fact that the court had to decide this question in fact means CalPERS does not have unlimited scope to change its election rules, which is the opposite of what CalPERS is trying to claim.

Board candidate Mike Flaherman sent this e-mail to CEO Marcie Frost and the board debunking CalPERS’ continued efforts to defend its travesty of an election. One of the key points he makes is that CalPERS own notice admits that it has changed election procedures midstream:


I just received the attached, updated CalPERS pamphlet about the election process. This document contains numerous factual errors, some of which I unpacked in my previous letter to you. I am also re-sending that letter as an attachment, given that I believe that some of the other candidates have not received it previously.

I am writing to you now, however, in response to two alarming additions to the text that have been made.  First, on p. 2, under the heading of “The Board approved the 2017 voting process,” the language has been changed to assert that the Notice of Election official election calendar, which was adopted into regulation [CCR §554.8(5)(b)], allows the ballot tabulation to occur anytime before November 10th, so long as balloting has been completed on October 2nd. This assertion is patently absurd, and I invite all readers to look at the official election calendar to see that it plainly states that “Paper, online, and telephone ballots will be tabulated” on October 2nd:

I call the attention of the board members, whom I have copied on this email, to the fact that your staff is now pointing a finger at you, claiming that “the Board approved” such a preposterous schedule, which you clearly did not.  I also want to emphasize the critical importance of adhering to a publicly-promulgated schedule, not as a matter of convenience for the candidates, but is a matter of election integrity. This is true because imposing an unalterable schedule of ballot tabulation, which contains no periods where ballots sit idle, significantly reduces the opportunity for ballot tampering.

I also call the board’s attention to the patently absurd argument, laid out in the email exchange below, where your staff claims legal authority for tabulating the ballots as late as November 9th. We see this over and over, where individuals asking that CalPERS faithfully administer the law are treated like adversaries in a legal proceeding. Bludgeoning the public with absurd legal arguments, as we see here, may seem to help in the short-term, but, I am certain, at great cost over the long term, as institutional credibility and support for CalPERS continues to erode.

The second change to the election information pamphlet is at the very end of it, where it describes the ballot tabulation process. It states in part:

Paper ballots have been converted to digital images, and will be tabulated by the Election Administrator [in La Jolla, CA] using the eLect Admin software. Hard copies of the paper ballots will remain in Washington state, until they are transfered [sic] to the California State Archives.

This statement acknowledges that CalPERS will tabulate facsimiles of the paper ballots, not the paper ballots themselves.  As I noted in my attached letter, CalPERS’ own regulations plainly call for tabulation of the paper ballots themselves [CCR §554.8(5)(b)]:

On the date specified in the Notice of Election at the location designated by CalPERS, the validated paper ballots shall be tabulated publicly by an independent, neutral agent appointed by CalPERS for that purpose.

In the world of election administration, the substitution of a facsimile or reproduction for an original paper ballot is treated as an inherent threat to the integrity of the votes cast on that ballot. Election regulations generally only allow reproductions or facsimiles in special situations, such as when a ballot has become mangled. The reason for such safeguards is obvious: the substitution of a reproduction for the original introduces the opportunity for mischief or mistake. That’s why your regulations read the way they do in requiring that the paper ballots shall be tabulated.

Your decisions regarding election administration shock the conscience. I urge you to reconsider before it is too late.


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