Secretary of State battle misinformed election lawsuit


The Bend Bulletin

Twelve Oregon counties, along with Secretary of State Shemia Fagan, have been named as defendants in a federal lawsuit concerned with election security.
The 13 plaintiffs in the case, who are driven by the disproven theory that the 2020 election was stolen, say the counties and Fagan fueled “a profound crisis of confidence that constitutes de facto voter suppression and disenfranchisement,” in a suit filed in the U.S. District Court in Portland.
But the plaintiffs also want to monitor ballots in the Nov. 8 general election.
“It’s kind of a kitchen sink case,” said Ben Morris with the Secretary of State’s office.
“They’re throwing everything they can at us. All kinds of different things, including several arguments about things that don’t involve Oregon.”
Marc Thielman is the chief plaintiff in the lawsuit, which was filed earlier this month. The plaintiffs, who include state Sen. Dennis Linthicum, R-Klamath Falls, seek class-action status for the lawsuit. Thielman was a Republican candidate for governor prior to the May primary election. He was also the Alsea School District superintendent in rural, Western Oregon until he resigned after allegations of sexual harassment, gender discrimination and creating a hostile work environment.
Under Thielman’s guidance, the Alsea district bucked state requirements to wear masks during last winter’s COVID-19 surge, instead making them optional. That prompted the state to withhold federal relief money from the school district. Thielman advised the Redmond School Board to make masks optional. The board agreed, voting to defy state orders in February, before reversing course weeks later and voting to follow state requirements.
The issue
Thielman told The Bulletin he was concerned conservatives would cease voting after the results of the 2020 election, so he set out to get to the bottom of the controversy.
“When I got into this stuff, I did it because I wanted to show there wasn’t widespread election fraud,” Thielman told The Bulletin.
But much of the basis for Thielman’s claims of election insecurity have no bearing on Oregon elections, said Morris, of the Secretary of State’s office.
“There was no fraud in 2020. The proponents of ‘the big lie’ have never produced any credible evidence of widespread voter fraud, and we are very happy and confident with the vote-by-mail system we have in Oregon,” Morris said.
Thielman and the plaintiffs are asking each county to allow third-party experts to take three “forensic images” of ballot tabulating software throughout the Nov. 8 general election process. But election officials aren’t sure what exactly that means because the plaintiffs failed to define “forensic images” in the suit.
To give the plaintiffs what they want would go against existing Oregon law and would compromise the security of the election, said David Doyle, Deschutes County’s legal counsel.
Both the Secretary of State’s office and Doyle expect to oppose the suit and deny the request for “forensic images.” They plan to make a joint response to the lawsuit on Monday. Thielman said the plaintiffs intend to appeal if their request is denied.
Doyle interprets a “forensic image” as an electronic snapshot of the ballot tabulating machines. Taking such images would accomplish the opposite of what Thielman and the other plaintiffs are asking for, he said. The plaintiffs are alleging that the election computers could be susceptible to manipulation by outside agents, Doyle said. Taking such images would increase those chances.
“I think it’s important to note in this case, the plaintiffs aren’t suggesting that any fraud occurred or if it were to occur that it would be as a result of anything our elections folks did,” Doyle said.
Doyle said Thielman and the plaintiffs are basing their claims and fears of voter software manipulation on the case of Mesa County, Colorado, which doesn’t use the same software as any county in Oregon does.
“The machines are a black box. There’s no way of knowing what goes on inside them,” said Stephen Joncus, the attorney for the plaintiffs, who told The Bulletin he believes the 2020 election was stolen, citing statistical anomalies not outlined in the suit.
In Deschutes County, ballots go through a meticulous process that depends on both machines and human hands.
The path of a ballot begins in what Deschutes County Clerk Steve Dennison calls the sorting room. First, ballots are scanned into a sorting machine and organized by precinct. While other counties use automatic, electronic signature verification, Deschutes County ensures each signature on the ballot envelope is verified by human eyes. After being sorted into “batches” of 300-500 ballots, the envelopes are run through another machine to open the envelopes.
Election boards or observers, which are groups of 2-4 people of differing party affiliations, sit at tables and ensure that they receive the same number of ballots that the came from the sorting machine, Dennison said. They remove the ballots from their envelopes, flatten and count them, but they don’t look at the ballots. They could be processing their own and they wouldn’t even know it, Dennison said.
Ballots are then taken to a secure room nearby where a designated election staff run the ballots through the ballot-tabulating machines to count each vote. It is an isolated room with a window so election boards can see in and election staff can see out. It has limited access and an alarm system, Dennison said. The four computers in the room are air gapped and not connected to the internet.
“Anybody internally that would ever be exposed to ballots or our system have all taken oaths to uphold the Constitution of the United States and the Constitution of the State of Oregon,” Dennison said.
The ballot-tabulating machines run the Clear Ballot software, which is used in several counties across Oregon. The machines go through four tests throughout an election, three times before ballot counting begins and once afterwards to ensure they are working as they should, Dennison said. The tests check every position on every ballot for every precinct and precinct variation.
Election boards will begin their training and the ballot counting process on Monday, but results won’t be seen or available until Election Day on Nov. 8.
In Deschutes County there have been no known cases of election manipulation.
Ahead of the election, Secretary of State Fagan visited each Oregon county. She completed her series of visits earlier this month.
“In every corner of Oregon, the state of our vote-by-mail system is strong,” Fagan said in a prepared statement. “When I took office, I made it a goal to visit all 36 county elections offices to see their operations and hear directly from elections workers about the challenges they face. Our democracy is under attack, and our counties are the first line of defense.”