DRAFT OF GRAND JURY RESPONSE
I have responded to this report with inserted annotations in red italics to refute and question some of the
puzzling conclusions, assumptions and statements of fact by the Grand Jury.
I personally see this report as proof positive that our Colorado election system is broken almost beyond repair
and the citizens have nowhere to turn when an election is conducted with significant irregularities and legal
violations. The Attorney General chose to pursue the questions of election transparency and verifiability in the
most non-transparent system our country knows—the Grand Jury system. Evidence could not be submitted by
the affected parties, testimony could not be refuted and hearsay evidence was allowed. Knowledgeable
witnesses were not allowed to be interviewed or given a chance to testify. The Grand Jury reached conclusions
in secret about accuracy and verification of results that cannot be validated by the public or press through public
records. From all appearances, a shallow and superficial review of partial evidence formed the basis of the
Grand Jury conclusions.
It appears that the focus of the Grand Jury was almost exclusively on whether Clerk Myers manipulated the
election results to achieve her win in the election, rather than focusing on the larger picture of gross negligence
and intentional violation of many of her duties. The conclusion seems to be that unless there is strong evidence
supporting the fact that a clerk purposely threw an election to her own benefit, then all violations are acceptable
no matter the consequences to the process, other candidates or taxpayers.
The report attempts to lull us into accepting that the M650 was legitimately used in the election, but just subject
to the operational issues. The truth is that this machine was prohibited from use in this election for several
reasons. It was used, despite the logical prohibitions. Any results taken from the machine are subject to serious
question, given the problems with the machine’s reliability and security vulnerabilities.
It is unconscionable to declare the dozens of clear violations of statutes, constituting misdemeanors as
acceptable as “substantial compliance.” The statewide Grand Jury just told use that “anything goes” in
elections and anything will qualify as “substantial compliance.”
The following report is either seriously flawed in many material respects or the Grand Jury has much important
information that the public cannot access. Either way, the facts must be exposed to the public’s satisfaction. It
is just as unacceptable for the Attorney General to say, “trust us, your election was fine,” as it is for the Clerk to
say this without allowing citizens to verify the election information.
Canvass Board member Lisa Cyriacks should have been permitted to review this report as a witness. Her review
would have allowed the record to be publicly refuted. I asked to review the report, but was denied that
opportunity, despite being referenced in the report. (People named in a Grand Jury report have the statutory
right to review the report.)
If anyone finds errors in my annotations below, or would like to add information, please let me know. I plan to
share this information with the Attorney General’s office and the Secretary of State and other interested parties.
The bold red font with gray highlights are my impressions of some of the more outrageous claims by the Grand
Jury made in this report.
GRAND JURY REPORT
1. Scope of the Investigation
The 2010-2011 Colorado Statewide Grand Jury conducted an investigation into the events
surrounding the general election which took place in Saguache County, Colorado on November 2, 2010.
The actions of Melinda Myers, the Clerk and Recorder for Saguache County, election workers, Election
Systems and Software (ES&S), the Secretary of State's Office, and the Saguache County Canvass Board
were considered. The investigation focused on allegations of violations of the Uniform Election Code of
1992, §1-1-101, et. seq., C.R.S. ("Election Code").
There were numerous allegations filed under other applicable criminal code sections such as
destruction of public records and issuing false certificates which apparently were ignored in the
proceedings, while the focus was on the tabulation of the clerk’s and commissioner’s races.
The Grand Jury's investigation was conducted pursuant to §1-13-101, C.R.S. The Grand Jury
prepared this report upon determining that the release of this report is in the public interest. Specifically, the
Grand Jury heard credible testimony that many citizens of Saguache County expressed serious concern
over the results of the general election, particularly in regards to the reversal of outcomes in two particular
races. By this investigation and report, the Grand Jury seeks to address the related allegations of abuse of
authority by a public servant, misuse or misapplication of public funds, and misfeasance or malfeasance
with regard to a governmental function.
The Grand Jury seems to have missed the point that the concern was not merely about the “results,”
but the irregular processes underlying the election and the impact on election processes which have
2. Background Summary
The focus of the instant Grand Jury investigation involves multiple allegations of criminal
misconduct before, during, and after the Saguache County general election. The allegations arose after the
results for the Clerk and Recorder and County Commissioner races were reversed and new winners were
announced within days of the general election. The allegations suggested, in part, that the instances of
misconduct were possibly committed in order to change the results of the election in favor of the incumbent
Clerk and Recorder, Melinda Myers.
As detailed in this report, the Secretary of State's Office provided significant assistance to the Clerk
and Recorder of Saguache County and to her staff throughout the election and to present. The Grand Jury
heard testimony that the Secretary of State's Office regularly assists the counties of Colorado in complying
with state and federal regulations and statutes. Title 1 of the Colorado Revised Statutes, generally, gives the
Secretary of State's Office the power to oversee the elections of Colorado in order to ensure that the
elections are conducted pursuant to state and federal laws. The Secretary of State's Office regularly
provides trainings for election officials throughout Colorado.
The Secretary of State's Office endeavors to provide immediate assistance on election matters to
county officials throughout Colorado. The Grand Jury heard testimony that, despite limited resources, the
Secretary of State's Office maintains a "help desk" for incoming calls and regularly sends representatives
into the field to inspect and assist with elections. The Secretary of State's Office is in contact with county
officials on a daily basis, even during off-peak cycles.
The Secretary of State's Office receives complaints in most, if not all, election years. The Grand
Jury heard testimony that, due to limited financial resources, there are some counties that operate without
an election staff. The Grand Jury heard testimony that smaller counties, which may have fewer resour.ces
and less experienced election staff, face issues similar to those present in the general election in Saguache
County. The Secretary of State's Office received, and acted upon, complaints from several other counties
in 2010. These complaints were similar in nature to those complaints filed in relation to the Saguache
elections. At present, the Secretary of State's Office continues their involvement in the election matter in
Saguache County and plans to play a larger role in the next election.
The public record of 2010 other complaints does not appear to be “similar” in seriousness, scope
or impact to the Saguache complaints.
As for playing a “larger role,” in the next election, it appears that they have no statutory authority
to do so, as it will not be a general election. Even if they are somehow invited to “play a larger role” at
their option, the standards of compliance exhibited by the SOS staff recommendations provide little
confidence to the citizens that their election will be reliable.
The allegations of criminal conduct involve the felony offense of theft and misdemeanor offenses
under the Election Code, primarily involving §1-13-1 07 and §1-13114, C.R.S. Complaints were submitted
to the District Attorney's Office for the 12th Judicial District, which, due to a potential conflict of interest,
forwarded the complaints to the Attorney General's Office. Several complaints were also made directly to
the Attorney General's Office. As explained further below, these individuals submitted duplicate
complaints. There were approximately 20 separate allegations specified.
I personally submitted approximately 40 allegations.
3. Primary Election
The Grand Jury heard evidence that violations possibly occurred in connection with the primary
election, similar in nature to those subsequent allegations raised in connection with the general election.
The violations alleged in connection with the Saguache primary did not directly benefit any individual
candidate or result in the reversal of any races. Although the allegations from the primary election were not
the subject of this Grand Jury investigation, the Grand Jury did consider evidence of the primary election
relevant in understanding the process surrounding the general election. Evidence in connection with two
complaints from the primary election was considered by this Grand Jury.
Following the primary election, an unsuccessful Democratic candidate for local office requested and
paid for a recount of his race. He also filed a complaint with the Secretary of State's Office, alleging,
among other concerns, the mishandling of ballots and ballot boxes, improper voting equipment
certification, improper duplication of ballots, and questionable mail-in ballot certifications. After the
recount of the defeated candidate's race was completed, there was no change in the outcome and the results
of the primary election were confirmed. A representative of the Secretary of State's Office attended the
I have not been able to find any confirmation that the SOS Office attended the recount. If this
information is correct, the public should be made aware of this observation and receive a written report.
On September 20, 2010, with the general election still nearly a month-and-a-half away, the
Secretary of State's Office sent a request to Clerk Myers for a written response to the allegations contained
in the above-referenced complaint filed in connection with the primary election. According to testimony
provided by witnesses from the Secretary of State's Office, Clerk Myers admitted that she failed to keep
proper custody logs and the statement of ballots cast in the primary election, as required by rules and
statute. The complaint had. identified several significant issues that potentially could affect the legitimacy
of future elections, if not corrected. The Secretary of State's Office did not, however, impose any deadline
for a response or require corrective action prior to the upcoming general election. After the general
election, on November 16, 2010, Clerk Myers submitted a detailed answer to the Secretary of State's
A second complaint related to the primary election had been subsequently filed by a Canvass Board
member on October 25, 2010, alleging similar violations as those contained in the first complaint;
specifically, that ballots were kept in unsealed ballot boxes; that ballots were mixed up and not sorted by
precinct; and that tally sheets were not signed by all precinct judges on election night, as required.
The alleged violations and circumstances surrounding the primary election were relevant in
considering the issues that arose in the general election.
4. General Election Summary
Due to concerns about the issues raised in the two complaints filed in connection with the primary
election, the Secretary of State's Office sent a representative to observe election procedures performed
during the November 2, 2010 general election. The representative observed activities at six of the nine
Saguache County precincts and at the county courthouse, where ballots were tabulated. Based on the
above-described complaints, the representative focused specifically on whether the ballot boxes were
sealed and seal logs were completed. The Secretary of State's Office representative did not observe any
violations. Specifically, the representative reported that all ballot boxes were sealed and seal logs were
The SOS representative observed many violations of law on election day as noted in her report,
although she may not have observed violations related to ballot security.
Post-election results showed that Carla Gomez and Steve Carlson, both Republicans, were the
unofficial winners of their races for County Clerk and Recorder, and County Commissioner, respectively.
The Clerk's Office posted the election results on election night.
It should be noted that precinct information was withheld, and election night required audit steps
were not performed on those preliminary results. The Conditions For Use of the M650 required special
audit procedures which were ignored.
On November 3, 2010, the day following the election, two election clerks began to review the
results and format the totals for the required submission to the Secretary of State's Office. Early voting
results matched perfectly and polling place votes were nearly 'perfect. When the mail-in votes were
examined, however, the clerks found that the totals were off by almost 200 votes. One of the election
clerks contacted the Secretary of State's Office about the discrepancy. The Secretary of State's Office
instructed the election clerk to re-tabulate the ballots.
SOS representatives have told the public on many occasions that Clerk Myers made the
recommendation and decision to “re-tabulate” the ballots.
The manufacturer of the central vote scanning machine, Election Systems and Software (ES&S),
was also contacted by Clerk Myers' staff about the discrepancy. At the time, it was unclear to the election
clerks what the cause of this discrepancy had been and whether it would affect the outcome of any races.
The re-tabulation occurred on November 5, 2010, and the outcome of the races for County Clerk and
Recorder and County Commissioner changed, with Clerk Myers and Linda Joseph, both Democrats, being
declared the winners of those respective races. Subsequent recounts consistently revealed similar results.
Hence, the victors declared on election night were found to have lost the election.
The implication is that multiple (“subsequent”) recounts were performed. This is not the case. One
machine recount was performed on November 29 with numerous errors and discrepancies and lost ballots
noted. The Canvass Board refused to certify this recount due to the numerous irregularities and lack of
On November 15,2010, two representatives from the Secretary of State's Office were present in
Saguache County. These representatives aided and supervised in the physical count of the total number of
actual ballots cast during the 2010 general election. Also present was a technical representative from
ES&S, two members of the Canvass Board, an attorney for the Republican Party and several election
watchers. The Secretary of State's Office confirmed that the results of the November 5 th re-tabulation were
accurate; Clerk Myers and Ms. Joseph had won their respective races.
The SOS had no basis to do confirm the results. They merely confirmed that the number of ballots
approximated the number of ballots originally counted, but somehow declared the tabulations of a totally
compromised machine as “accurate.”
Upon further review of the equipment, its system logs, and reports, the technical representative from
ES&S determined that nearly 200 ballots were not recorded during the initial vote tabulation on election
night due to an individual having loaded results into the wrong voting group, which resulted in the failure
to include votes and lowered the overall vote total. This is explained in further detail below.
On November 19, 2010, six members of the Saguache County Canvass Board, fulfilling their
responsibility under statute, met at the Clerk's Office. The Canvass Board certified the election by signing
the official Abstract of Votes Cast, and filed it with the Secretary of State's Office. Within three days, due
to concerns about the conduct of the election, the Canvass Board notified the Secretary of State's Office
that they wished to rescind their certification of the general election.
The Canvass Board signed the statement under the condition that they could rescind their
signatures on the following Monday, the actual deadline for the transmittal of the abstract. When they
attempted to do so, the clerk told them that the “condition” under which they signed was incorrect, and
that their signatures were considered valid and non-rescindable. The SOS accepted the canvass board
rescission and stated that the results would be considered as NOT certified. Secretary Gessler
acknowledges that to date, the results are still uncertified, as the signature rescission was accepted by his
5. Election Complaints
At the November 19, 2010 meeting of the Canvass Board to certify the election results, a
complaint was handed to a member of the Board one hour before the deadline to submit the election
certification to the Secretary of State's Office. Members of the canvass board were informed the evening
before the meeting that they would be receiving this complaint, and some were given a draft of the
complaint prior to the meeting. Members knew that Ms. Benns was standing by all day to deliver the
complaint, which may have actually been delivered earlier in the day than reported. The letter was
delivered by a local news reporter, although the letter appeared to be written and signed by a woman
named Nancie Johnson. It was later discovered that the reporter was the neighbor of Ms. Johnson, and that
the letter was actually written by a third individual, who had given it to the reporter. I drafted the
complaint, although edits and changes were made by others prior to Ms. Johnson’s signing the complaint.
I reported to the SOS on the following day that I had drafted this complaint for anyone who wished to sign
it. Ms. Johnson signed the letter, which made allegations addressed herein. The actual author, described
by witnesses as a "voting integrity activist," did not reside in Saguache County and did not have any
involvement with the general election. I did have involvement with the general election, in that I had
worked in the campaigns and made financial contributions to various federal and state candidates and
questions on the ballot. Poor quality results in those races impacted me just as they did citizens of
Saguache County. Ms. Johnson fully agreed with the allegations as written and delivered to the local
In January of 2011, the Attorney General's Office received seven formal complaints signed by
different individuals, primarily concerning the actions of Clerk Myers in relation to the general election.
All of the complaints were filed within days of each other. Nearly all of the complaints were identical to
one another and all of them either contained or referenced the same list of attached exhibits. Numerous
violations of the Election Code are alleged in the complaints. The Grand Jury determined that all of these
complaints, like the initial Nancie Johnson complaint, were substantially written by the voting integrity
activist, who submitted one of the complaints under her own signature. The Grand Jury is, however,
confident that each individual who signed a complaint was familiar with, and subscribed to, the allegations
6. Complications in the Reversal of County Clerk and County Commissioner Races
Many of the complaints revolve around the change in the outcome of the Clerk and Commissioner
races. The overwhelming evidence indicated that the change in results was directly connected to the vote
tabulation software provided by ES&S and human error connected thereto.
Clerk Myers has testified to the “software glitch” and this report above hints of a software issue. If
this has been proven, the public has a right to have details of this software problem.
The Grand Jury heard evidence that ES&S manufactured the M650 vote tabulation machine and
contracted to supply Saguache County with paper ballots for use during the general election. ES&S also
provided vote tabulation software and a laptop computer.
Saguache County has nine voting precincts. Some precincts have races and ballot issues that are not
voted upon by electors in other precincts, such as special district issues. Some precincts have ballot issues
that can only be voted upon by some of the electors in that precinct and not by others. As a result, it is
necessary to print different tailored ballots called "ballot styles." Saguache County had 25 different ballot
styles within the nine precincts. ES&S mistakenly printed these 25 ballot styles as 25 different precincts.
The clerk approved the ballot proofs and order exactly as they were printed by ES&S. By the time the
ballots were received and the error was discovered, there was insufficient time to correct the problem prior
to the election.
Accurately tabulating 25 disparate ballot styles presented a distinct technical problem for Saguache
County because the M650 tabulation machine could not combine the different ballot styles into final
election totals by actual precinct. Another complication occurred when ES&S assigned precinct numbers
for ballots that did not correspond with the actual Saguache precinct numbers. The clerk approved this
ballot style numbering system prior to ballot printing For example, precinct number 5 in Saguache County
was separated into two separate precincts by ES&S, numbered 13 and 14.
Compounding the complexity in tabulating 25 different ballot styles, Saguache County, like other
Colorado counties, had to perform separate ballot counts involving five different voting methods: Early
voting, mail-in voting, provisional voting, polling place voting (on Election Day) and UOCAVA voting
(for military and overseas electors). The Grand Jury found that this added to the challenge in producing
accurate results in an expedient manner.
In order to accurately count ballots for different voting methods, and to accurately tabulate votes
from the different precincts, ES&S offered to provide Saguache County with the laptop computer and
software that would process unsorted figures taken from the M650 and compile them together to obtain
total figures by actual precinct number, based on voting method (mail-in, polling place, etc.).
It appears that it was a violation of Title 1 and SOS Rules to attempt to run the M650 as a certified
system without going through the Unity system for reporting. The use of the Unity system during portions
of the election is described as optional and unofficial, and not even used after November 2, despite the
apparent legal requirement to use the Unity system with the M650.
The term "ballots," when used with regard to the number of ballots counted, always refers to a
single ballot page. All Saguache voters received a two-page ballot during the general election. Each ballot
page contained different candidate races and/or issues to vote on.
ES&S provided training on the laptop and software to an employee of the Clerk's Office, Christian
Samora, who also served as a sworn election clerk during the election. The process for transferring data
from the M650 to the laptop worked as follows: Ballots were scanned (counted) by the M650 and results
were stored in the M650's hard drive. This information, constituting raw data, was then uploaded into one
of five zip-disks that were marked according to the five voting types (mail-in votes, polling place votes,
etc.). The data from each zip disk was then downloaded into the laptop. This resulted in ballots being
combined into final totals for each voting method and for each precinct.
According to system logs, and verified by an ES&S technician who conducted a system review, at
approximately 1:00 a.m. on election night, all of the mail-in ballot results from all precincts (1-25) were
loaded onto the laptop. Computer logs show that the mail-in figures for precincts 13 and 14 (actually
precinct 5) totaled 724 ballots.
Immediately after the mail-in results were loaded, a zip disk with another voting method, the polling
place figures for just precincts 13 and 14, was loaded onto the laptop. Instead of being added to other
polling place figures, the polling place ballots were mistakenly loaded into the mail-in votes group. No one
has answered the question as to why there was apparently a separate disk for precincts 13 and 14 for mail
in ballots. Of the 5 zip disks created, why was one dedicated to mail ballots from one precinct that were
likely not physically batched together? There were 527 polling place ballots from these two precincts.
Because of this mistake, the 527 polling place ballots from precincts 13 and 14 replaced the 724 mail-in
ballots from precincts 13 and 14, leaving the final total for that vote group 197 ballots short, which, in
reality, represents approximately 98 "votes." The Grand Jury determined that the failure to change the
category from mail-in to polling place before downloading the totals resulted in the undercounting of votes.
This resulted in Precinct 5 polling place ballots being counted twice and the mail-in votes not being
counted at all.
Computer system logs show that after the election count was complete, there were a total of 2,651
mail-in ballots from all precincts. However, the log from the central scanner (M650) on election night
shows that there were actually 2,848 mail-in ballots counted. The difference between those figures is 197
ballots, which is the same difference when comparing the mail-in totals with the polling place totals from
precincts 13 and 14. In sum, the voting totals at the conclusion of election night were missing the mail-in
ballots from precincts 13 and 14 (i.e. precinct 5).
Additional corroboration that the discrepancy came from loading figures from the wrong voting
group into another group is seen by the results obtained after a physical count of the total number of
ballots was conducted on November 15 and 16, 2010. All of the polling place ballots were counted by
representatives from. the Secretary of State's Office, and the total for precincts 13 and 14 was 527, which is
just one ballot less than the number that showed up in the mail-in totals on election night for those precincts.
As the ES&S technician stated in the report presented to the Grand Jury: "The cause was loading of
their Polling Places (Election Day) into the Mail-in group in replace mode. By replacing the totals in those two
precincts, the numbers went down for the group. Other than the one error loading the wrong group totals into
the Mail-in group, I did not see any procedural issues in my review of the ERM system log."
The ERM log generates many procedural questions upon even a cursory review. Why are there more
entries into the system than exits? Why do the timestamps show the clocks jumping backwards in time? Why
are there hundreds of entries at times that the public, election judges and video surveillance were not present?
Why was this not discussed or disclosed at the time of the ES&S visit? Why have the majority of the analytical
reports generated by the ES&S technician been withheld from public access?
Subsequent recounts of the mail-in ballots always produced the same final total2,848 ballots, which
exactly matches the amount that the M650's printed log showed on election night. This is untrue. The public
knows of only one recount of mail ballots and the results did not “match” as stated above.
When Ms. Gomez and Mr. Carlson were thought to have won their races, the figures from the vote
tabulation software showed only 2,651 mail-in ballots that were counted. When the 197 misloaded mail-in
ballots from precincts 13 and 14 were properly added to that, the total number was 2,848.
Three key factors explain why the addition of the Precinct 5 mail-in ballots changed the results of the
1. Witnesses testified that Precinct 5 was made up, overwhelmingly, of registered democrat
voters, and Clerk Myers and Commissioner Joseph are both Democrats. The Colorado SCORE
system shows that Precinct 5 has 670 registered Democrats and only 81 registered Republicans.
Also, after Precinct 5, the next largest precinct has 286 registered Democrats. The largest
number of registered Republicans in any precinct in Saguache County is 168.
2. There were far more total ballots cast (all voting methods) in Precinct 5 than any other
precinct, and the largest percentage of mail-in votes cast came from Precinct 5.
3. There were more mail-in ballots cast, by far, than any other voting method. There were
2,848 total mail-in ballots, 1,694 polling place ballots, 214 early voting ballots, 146 provisional
ballots and 14 UOCAVA ballots cast in the election.
As a result, Precinct 5 is potentially critical in determining the outcome of any election. Indeed, the
evidence demonstrated that this was the case in the general election of 2010.
The discrepancy was first discovered the day following the election, when two election clerks, while
reviewing election figures for preparation of a final report, discovered that the mail-in ballot totals were nearly
200 ballots less than the total number of mail-in ballots that were actually received in the Clerk's office,
suggesting that a large number of mail-in ballots were still unaccounted for. One of the election clerks contacted
the Secretary of State's Office and was instructed that are-tabulation of ballots would be necessary. The election
clerk also contacted ES&S and tried to resolve the problem, but without success. ES&S only advised that a re-
tabulation be conducted.
This is in conflict the with written ES&S report delivered to the SOS, which states, that they
recommended running one report from the M650, which successfully matched the Unity report and did not
hear back from Saguache until November 8, when they were informed of the “re-tabulation.” It appears
unlikely that ES&S recommended a “re-tabulation.”
The Grand Jury heard testimony and saw direct evidence that while this discrepancy was being
discovered by election staff, Clerk Myers, who had been injured earlier in the week, was lying prone on
the floor ,in another office after having taken medication. Clerk Myers was not aware of the discrepancy
that had been discovered. She was not involved in the initial communications with the Secretary of State's
Office or with ES&S. Clerk Myers was not informed of the vote discrepancy until later.
The election clerks did not realize that the discrepancy they were seeing might affect . the
outcomes of any races. Thus, on November 3rd, at approximately 4:30 p.m., Clerk Myers' staff faxed reports
to the Secretary of State's Office. At that time, Myers' staff still believed that correct report showed Myers'
opponent, Carla Gomez, had won by 15 votes and Linda Joseph's opponent, Steve Carlson, had won his
race by 27 votes. This would be later corrected, as explained below, by ES&S and the Secretary of State's
When such discrepancies are discovered, the canvass board should have been called in to monitor and
advise on remedial steps.
The "re-tabulation" recommended by the Secretary of State's Office differs from a "recount" of
votes, which is implemented when the vote margin between candidates or issues is small enough to fall
within statutory guidelines, mandating a recount. A recount can also be conducted when requested by a
specific candidate and said candidate agrees to pay for the expenses of the recount. A recount is the
counting of the individual votes cast in a particular case. Here, a re-tabulation was conducted. A re-
tabulation is the reloading of the ballot pages through the M650 in order to repeat the process of the entire
election, without regard to a particular race. A re-tabulation is done when a winner cannot be determined
in an election. This generally occurs because of a technological problem occurring which makes a final
tally of the votes impossible.
A “re-tabulation” appears to be a completely invented concept, with no basis in the law or rules.
There are no written procedures or protocol for such a “re-tabulation” which the Grand Jury indicates is
a standard, legitimate process. This is key to this case, in that if the statutory requirements had been
followed, Carlson and Gomez would have been the unofficial winners until the canvass board attempted to
certify the results and correct the errors. Depending on the results of their work under the statutes, the
losing candidates could have requested recounts and/or filed election contests. The illicit “re-
tabulation,” instead gave the advantage to the wrong candidates under the law. The challengers have a
difficult burden of proof in filing an election contest. Using an illicit process such as a “re-tabulation” to
shift the burden of proof to Carlson and Gomez was quite unfair. The Grand Jury attempt to pretend that
the process was legitimate and fair.
ES&S also recommended that all of the mail-in ballots from all precincts be re-loaded onto the
laptop. When the zip discs used on election night were re-loaded, precincts 13 and 14 (mail-in ballots for
precinct 5) were the only ones that showed changed results, and those results matched the re-tabulation
figures obtained on November 5th•
7. November 5th Re-tabulation of Ballots
The re-tabulation that occurred on November 5, 2010, at the direction of the Secretary of State's
Office, was witnessed by many people, including two Canvass Board members, candidates, election
watchers and several Saguache citizens. The M650 was tested by running a batch of ballots through the
system. Both Canvass Board members, who were also party chairs, certified the M650 was operating
The canvass board was not informed that the M650 was prohibited from use at all because of
security incidents, and that any counting was required to be totally manual. They were not told that the
test ballots did not conform to proper testing methodology. The canvass board was not told that the
machine had been unsecured and accessed in unauthorized ways, and that the audit logs were
unauditiable. (To expect a volunteer canvass board to know the intricacies of the law and testing
procedures is expecting too much. They must be able to rely on the compliance efforts of the Clerk.)
When ballots were processed through the M650 voting system on November 5,2010, the total
number of mail-in votes from all precincts matched the exact number that had been originally counted by
the M650 on election night, consisting of 2,848 ballot pages.
Based on the results of the re-tabulation, the Secretary of State's Office, ES&S and this Grand Jury
reached the following conclusion: When polling place figures had replaced existing mail-in figures in
precincts 13 and 14, the total number of mail-in ballots went down 197 ballots to 2,651. As a result, vote
totals for the two affected precincts, 13 and 14, decreased by 197 votes, from 724 to 527. After the mistake
was corrected, vote totals increased for those two precincts, thereby matching the original totals as
recorded and preserved on system logs on election night.
In the initial count, the re-tabulation, and each of the two subsequent recounts, the total number of
mail-in ballots was 2,848.
8. Ballot Counts and Recounts
A. November 15-16 Ballot Count
On November 15, 2010, the Elections Division (Division) of the Secretary of State's Office sent two
representatives to Saguache. These representatives were sworn in as election judges (which violates the
statutes.) and were to conduct a physical count of the total number of actual ballots cast during the 2010
general election. Also present was a technical professional from ES&S, two members of the Canvass
Board, an attorney for the Republican Party and several election watchers.
The ES&S technician concluded that the ballot tabulation from the November 2, 2010, count was
incorrect and that the re-tabulation done on November 5, 2010 was accurate. The basis for his findings is
described in section 6, above.
The conclusion was based on many unproven assumptions, not reasonable level of testing. All of
these conclusions are based on the assumption that the machine was secured, properly loaded with
certified software, properly tested and consistent in its tabulations, and that there had been no lost of
chain of custody of the ballots, nor impact from the judge’s alteration of the ballots with white-out and
marking pens. None of those fundamental assumptions are likely true.
The Division staff determined that the number of ballots cast matched the number of voters recorded
in the precinct poll books and the reports from the statewide voter registration system, identifying ballots
returned by mail. The Elections Division of the Secretary of State's Office prepared a report after the
November 15, 2010, ballot count and' stated: "After reviewing the physical ballots, the poll books, and the
reports from the· statewide voter registration system, the Division is confident that the ballot tabulation
from November 5,2010, was the correct tabulation." ("Report in Response to Election Complaints #55-10-
0014 and #55-10-0017" dated December 10, 2010, page 5.) Again the SOS report makes invalid
assumptions to reach their conclusions.
Clerk Myers had won the Clerk's race by 44 votes and Linda Joseph won the County
Commissioner's race by nine votes. Following the reconciliation of the ballot totals, there was a 59 vote
swing in the Clerk's race and a 36 vote swing in the Commissioner's race.
In a letter to the Canvass Board, dated November 23, 2010, the Director of the Elections Division,
Judd Choate, wrote, "[I]t is our belief that the inspection conducted by our staff November 15 and 16
resulted in a complete resolution of the questions regarding the ballot tabulation process." The work of the
SOS on November 15/16 has been discredited by their claims to the Best Practices and Vision
Commission, claiming work that they have not performed, and visits to Saguache to observe the
retabulation that they did not make. The AG’s office was made aware of the false claims. Their
statements should not be considered to have meaningful bearing on the conclusions on the validity of the
B. November 29th Recount Due to the continuing concerns of the voters, Clerk Myers and
Commissioner Joseph requested a recount of their individual election races and personally paid for the
recount. The report does not mention that this is in violation of the code, where only the losing candidate
may request an optional recount. Allowing Clerk Myers and Commissioner Joseph to control whether a
recount was to be performed or completed is improper. This recount was conducted by the Canvass Board.
Prior to the recount, a conference call was conducted with a representative of the Secretary of State's
Office, who provided instructions. The ambulance issue was recounted by hand, resulting in no change
from previous counts. This is incorrect. The numbers could not be reconciled by precinct or style of
voting. The totals appeared to match but the Canvass board refused to certify this result due to the many
process errors, mismatching precinct results, irregularities and unanswered questions.
Ballots for the two disputed races were run through the M650, but it was discovered that
provisional, UOCAVA and signature ballots were left out. The Canvass Board counted these ballots by
hand and the figures were added to the totals from the M650. The results were that the margin of victory for
both races, in favor of Clerk Myers and Linda Joseph, actually increased. The majority of the Canvass
Board refused to certify these results to the Secretary of State's Office.
The report tells a half-truth in the fact that the margins of victory increased, but fails to disclose
that ballots for the challengers were somehow “lost” and less votes were counted for the challengers than
they had been credited with in the official canvass. Obviously, when ballots for the challenger are lost, the
margin of victory increases. This should have been a sign go the Grand Jury that something was terribly
wrong, not that the results were validated. The report fails to note that there were errors noted in every
precinct, and almost every style of voting.
c. December 2 nd
On December 2, 2010, the Canvass Board convened to recount two separate races. The M650 was
The M650 system log does not appear to support the claim of ”testing beforehand.” Where is the
evidence of this testing? Even if “testing” the M650 was performed, the testing protocols had never been
followed and the machine was not allowed to be used in the election. If the M650 system log does not
document such testing, how can the Grand Jury have confidence in this machine or the testimony?
and after the recount there was no change in the results. Because of the recount, a new deadline of
December 2nd existed in which to file an amended abstract of votes with the Secretary of State's Office.
Two Canvass Board members signed the 'certification for the abstract and sent it to the Secretary of State's
Office by the statutory deadline.
I don’t believe there is any “statutory deadline” for reporting these local contest recounts to the
SOS office. This “false deadline” may have been created to put pressure on the canvass board.
The remaining four members of the Canvass Board sent a complaint letter to the Secretary of State's
Office on December 3,2010.
The factual summary provided above was presented to this Grand Jury over the span of several
weeks in the form of sworn testimony and admitted evidence. Based on these facts, the Grand Jury
analyzed the complaints alleged. The specific analysis is provided below.
9. The M650 Machine
A. Acquisition of M650 Electronic Vote Tabulating Machine
Saguache County owned two Acu-vote TSX (incorrect. The report is likely referencing Accu-vote
OS machines. County still uses the TSX machines.) vote counting machines prior to the 2010 primary
election. At the time of the primary, only one of the machines functioned properly. (Due to lack of proper
and required maintenance.) Since the one functioning machine was an older model, the printing of voting
results took longer than expected. At a public meeting held after the primary, Clerk Myers discussed
replacing the older machines with a newer machine in time for the general election. Clerk Myers planned
to use available federal funds for the purchase.
Saguache County had $34,000 available in federal Help America Vote Act (HAVA) funds, which
could be used to purchase vote counting equipment. If these funds were not utilized by the end of 2010,the
funds would be forfeited. The HAVA funds, combined with additional county money, were used to
purchase the M650 Central Count Optical Scanner from ES&S.
The clerk or Board of County Commissioners is required by statute to notify the SOS before making
a voting equipment purchase. The clerk violated this statute. The statute calls for the SOS to assist in
finding used or surplus equipment for such counties and help coordinate the purchase. Clerk Myers defied
this law and likely cost the taxpayers thousands of dollars of unnecessary expenditures.
The M650 is certified by the Secretary of State's Office.
It is certified only conditionally since 2007, requiring numerous security protocols and additional
record keeping which Saguache chose not to become informed of, or comply with. It also appears that the
M650 cannot legally be used as a stand alone voting system as Saguache intended, although this has to be
It is an approved vote tabulation machine used in other Colorado counties, and is generally
considered to be reliable.
Actually, the machine is only used in two other counties, (Jefferson and Mesa), with Garfield
having sold their M650 at a deep discount after a few elections. Jefferson and Mesa use the M650 in a
certified voting system as required under the law along with the Unity software, complying with the
Conditions for Use and reportedly adding supplemental controls of their own. This is in stark contrast to
the Saguache use of the M650.
Any cursory review of experts reports, including the well respected EVEREST report
commissioned the Ohio SOS, documents major vulnerabilities with the ES&S system and the M650. The
machine is not considered to be “reliable” by many experts.
As for reliability, the 2007 Colorado SOS recertification testing showed unacceptable results on
ballot counting, exceeding allowable error rates. How did the Grand Jury determine that the machine on a
stand- alone basis (without Unity) was certified by the SOS, and that it was “reliable? “
The Grand Jury did not find any credible evidence that would indicate that the purchase of the M650
involved any type of fraudulent activity or felony theft. The Grand Jury was presented with evidence of
checks paid and accounts credited in connection with the purchase of the M650. The records clearly
indicated that no theft was committed.
The market price for such a machine was well below $15,000 by 2010. The clerk paid $40,000 plus
$15,000 of maintenance and miscellaneous services.
The M650 was delivered on October 13, 2010, and several election staff workers were provided
with training on its use by an ES&S technician on October 20, 2010, less than two weeks before the general
B. M650 Testing and Security Lapses
The formal complaints raised three principal issues associated with Saguache County's use of the
M650: First, the machine was not properly tested in accordance with law prior to its use during the election;
second, the required "security plan" was not properly prepared and submitted to the Secretary of State's
Office prior to the election; and third, security seals were not utilized on the machine, as required by law.
1. Pursuant to §1-7-509, C.R.S., and in accordance with rules promulgated by the Secretary
of State's Office, particularly Election Rule 184.108.40.206, all voting equipment must be tested
prior to its use in an election by means of a "logic and accuracy test." Clerk Myers was
responsible for assuring that this test was conducted in conformity with State law and
applicable Secretary of State Election Rules. By her own admission, Clerk Myers failed
to do so. The Grand Jury found that only a partial logic and accuracy test of the machine
was performed prior to the general election, as directed by ES&S. The Grand Jury found
that a second partial test of the M650 was completed prior to the re-tabulation of ballots
that occurred on November 5th• At each test, two Canvass Board members, one from each
major party, were present and signed the test reports indicating the machine was
satisfactory. Evidence considered by the Grand Jury demonstrated that the M650
accurately tabulated ballots that were run through it on multiple occasions.
The public needs to see this ” evidence considered by the Grand Jury” given that no
legitimate testing has been performed in public, or made available through the public
record, and that the security breaches prohibited use of this machine in the election.
Witnesses have stated that inconsistent results are generated every time “live” ballots are
run through the machine. “Testing” a pre-printed vendor selected test deck is hardly a
meaningful test. The canvass board cannot be expected to know the testing protocol, and
examine the records to verify whether the trusted build has been properly installed.
2. Clerk Myers filed a completed security plan prior to purchasing the M650. The security
plan generally details the security, storage, transportation and training procedures that are
in place related to voting equipment that will be utilized during the upcoming election,
and also deals with other general issues related to the conduct of the election. Pursuant to
§1-5-615(5) and "Election Rule 43, however, Clerk Myers was required to file an updated
security plan for the newly acquired M650 vote tabulation system with the Elections
Division prior to the general election. She failed to so. By her own admission, Clerk
Myers failed to file an amended security plan after the purchase of the M650. She fully
acknowledged that it was her responsibility to do so.
The report fails to point out that Clerk Myers failed to notify the SOS before the purchase,
failed to read or honor the Conditions for Use, failed to purchase a certified voting
system, failed to perform required “Acceptance Testing,” and failed to perform proper
“Logic and Accuracy Testing,” and “tested” only the vendor supplied software, not the
software actually used in the election. Yet, the Grand Jury concludes that Myers
“substantially complied” with the requirements.
Despite Clerk Myers' failure to comply with the notification requirement, the Secretary of State's
Office was, in fact, aware of Saguache County's purchase of the M650 vote tabulation machine. Michael
Hagihara, the Voter Registration and Election Management Manager of the Secretary of State's Office,
testified that Clerk Myers failed to comply with the requirement of filing an amended plan. He
acknowledged, however, that the Voting Systems Department of the Secretary of State's Office had sent
software, termed a "trusted build," to Saguache County prior to the general election in connection with the
new M650. Thus, despite the failure of Clerk Myers to comply with the requirement, the Secretary of
State's Office knew that the M650 would be used for the general election. To the knowledge of Michael
Hagihara, the Secretary of State's Office did not take a "proactive step" to ensure an updated security plan
was filed after the purchase of the M650, despite their knowledge of said purchase.
It is unclear whether the Trusted Build was properly installed. This needs to be investigated.
3. Rules also require that security seals be utilized on all vote tabulation equipment, such as the M650.
Seals, however, were not properly placed on the M650 during, or after, the Saguache County
general election. This was the responsibility of Clerk Myers and she failed to meet it. In addition,
this error should have been discovered by the observer from the Secretary of State's Office on
Election Day, who was there for just that purpose. Notwithstanding these oversights by both Clerk
Myers and the Secretary of State's Office, there was no evidence presented to the Grand Jury that
the absence of proper seals compromised the accuracy or integrity of the final vote counts produced
by the M650. Motion-activated video cameras recorded the activity within the room where the
M650 was placed. An extensive review of the video surveillance showed that, on the key dates of
November 2, 2010 through November 5, 2010, no one impermissibly accessed or tampered with the
The report fails to address “key dates” of October 20 through November 1, and all dates
subsequent to November 5, and why the video recordings were destroyed despite CORA request
being filed simultaneously with the recordings underway.
Conclusion: Clerk Myers failed to properly test and secure the M650 voting system. She failed to
provide an amended plan to the Secretary of State's Office. Clerk Myers acknowledged that these
requirements were her responsibility." The Grand Jury found that the failures by Clerk Myers did not affect
the outcome of the 2010 general election. Neither incomplete testing, the lack of a security plan, nor the
failure to follow proper procedures in the use of machine seals contributed to the change in vote totals.
The report seems to jump to conclusions without telling us how they determined that the results
were not impacted. The results have been inconsistent and with respect to the Ambulance District, the
outcome appears to be incorrect. It is unclear as to how the Grand Jury reached this conclusion on the
accuracy of the results.
In addition, as described more fully below, the Grand Jury found the involvement of ES&S and the
Secretary of State's Office to be a mitigating factor against criminal charges for these violations committed
by Clerk Myers. The Grand Jury determined that, in order to ensure the accuracy of electronic voting
systems, and to protect against potential election fraud in the future, the Secretary of State's Office should
exercise appropriate oversight and develop a reliable verification process to assure that complete and
timely testing measures and security procedures are performed by local election officials, as required.
10. Ballot Security
A. The Grand Jury heard conflicting testimony regarding the security of ballot boxes on Election
Day. The observer from the Secretary of State's Office reported that the ballot boxes at all precincts were
kept secured at all times with the proper seals and that seal logs were properly kept. However, the Grand
Jury also heard allegations concerning lapses in the proper use of seals, incomplete seal logs, and improper
access to ballot boxes by individuals without the presence of a witness. The surveillance video did not
reveal evidence of security breaches which impacted the election. Perhaps more importantly, the Grand
Jury found that the number of ballots kept in the ballot boxes corresponded with the number of ballots
counted by the M650, and total ballot numbers were consistent throughout the process, indicating that: 1)
ballots were not tampered with after they were put into the ballot boxes and, 2) additional ballots were not
added to the ballot boxes. Thus, final totals were not affected.
This seems like a superficial conclusion based on superficial and false assumptions. The ballot
numbers were not consistent through the process as the recount reported. What tests were done on
undervoted ballots and altered ballots to determine that the results were not impacted?
B. The Election Code, §1-7-508 (a) C.R.S., provides that a "true duplicate copy" must be made
whenever a voted ballot is improperly marked or "damaged." During their training prior to the election,
election judges were instructed by a representative from ES&S to review and mark the ballots in
accordance with the intent of the voter. The Grand Jury found that some ballots, which were unreadable
when fed into the M650, were reviewed and marked by election judges. Each ballot was looked at by at
least two judges and various markings were made on the ballots for the purpose of making them readable
by the M650. This process actually violated Election Rule 27 as well as state statute.
When representatives from the Secretary of State's Office witnessed the ongoing, improper
procedure, they immediately provided corrective instructions. There was no evidence that Clerk Myers
ever gave instructions to election judges about employing this improper procedure, rather, the instruction
came from the training provided by ES&S. No evidence was presented which would indicate that the
number of ballots containing the alterations actually affected the outcome of the election.
What evidence was sought? The public and witnesses have been precluded from reviewing these
ballots for such evidence, and no determination has been made whether bleed through of changed
markings or bleed through on “sticky dots” affected the tabulation, which is a common problem in optical
c. Allegations were made that both mail-in and provisional ballots were mishandled by the Clerk's
office. Specifically, it was alleged that a small number of envelopes for mailin ballots did not match the
number of mail-in ballots that were received; and, it was also· alleged that the provisional ballots were
improperly counted. It is unclear why the number of envelopes does not match the number of mail-in
ballots, but evidence was presented that showed the mail-in ballots, when initially received by the Clerk's
office, were scanned into the Statewide Colorado Registration and Election System (SCORE). The Grand
Jury heard evidence that the number of ballots scanned matched the number of mail-in ballots that were
counted by hand and by the M650 on multiple occasions. Which occasion of the M650 count of mail in
ballots is being referenced? There are inconsistent M650 results to compare to. How could the number of
envelopes on hand match all the inconsistent results?
With regard to the provisional ballots, evidence indicated that there were approximately 80
provisional ballots that were reviewed in the Clerk's office on November 4, 2010, by two election workers.
One of the election workers was a staff member of the Clerk's office. The review was not conducted
pursuant to election rules. Based on the review of the surveillance video and the relevant testimony, there
is no credible evidence that anything inappropriate occurred during the review of the provisional ballots.
The video is not detailed enough to reach that conclusion. It appears from other documents that at least 11
voters ballots were improperly excluded from being counted for county races during that private session.
Also, one election judge who was duplicating ballots was not approved by the party, and the process was
conducted in secret without allowing parties, candidates and watchers to be present. If not conducted in
secret, it is likely that someone would have stopped the disenfranchisement of 11 voters. Actual tabulation
of the ballots did not take place until November 16, 2010. On that date, a representative of the Secretary of
State's Office worked with election staff and verified that the number of provisional ballots counted was
accurate. A second Secretary of State representative, who physically counted the provisional ballots
alongside an election judge, also confirmed the final tally as being accurate. How was this possible, given
the fact that the SOS representative did not observe the duplication of the ballots which disenfranchised at
least 11 voters?
Conclusion: The Grand Jury found that Clerk Myers was not observed handling any ballots. She is
not observed in the surveillance video handling any ballots. Only election workers and the representatives
from the Secretary of State's Office did so. Based on this and other testimony, the Grand Jury found that the
ballots were handled properly during the election. Ballot numbers matched figures from poll books and
from the SCORE system. According to the Secretary of State's Office, ballot boxes were properly sealed
and complete seal logs were kept.
The very important memory cards were not sealed and seal logs were not kept.
Provisional ballots were kept secured at all times and there is no direct evidence that anyone tampered with
This is not consistent with other witnesses’ accounts.
Mail-in ballots were checked against the SCORE information. The only problem appears to involve sworn
election judges, apparently acting on instructions given to them by ES&S personnel, improperly marking
and correcting damaged ballots. ES&S does not purport to educate as to the election laws of each State in
which they operate, but their instruction here was a direct violation of Colorado law. As to the individuals
involved in the election, the Grand Jury found this to be a clear lack of training issue, which is the
responsibility of the Clerk and Recorder and the Secretary of State's Office.
Mail-in ballot counts were consistently accurate. Which count is accurate? There are inconsistent
counts. Since actual mail-in ballots were compared with voter information from the SCORE system, the
final vote results are reliable. Provisional ballots should not have been reviewed by the Clerk's staff on
November 4,2010, but the ballots which were ultimately counted by election judges and representatives
from the Secretary of State's Office were also verified against information from the SCORE system and no
discrepancies were discovered.
ES&S provided the M650 and the laptop for the Saguache election. They were under no duty to
instruct Clerk Myers and her staff as to the State laws and rules of election procedure. ES&S provided the
partial logic and accuracy test with delivery of the M650, while a full test is required under law. The
report fails to mention that the “partial test” was using the wrong software. This differed from the
certified software presumably used for the election. Representatives of ES&S explained that compliance
with the laws of each individual State is not their responsibility. As Clerk Myers readily admitted, it was
the responsibility of Clerk Myers. Although ES&S was not legally obligated to provide legal instruction,
their representatives should not have provided any instruction in violation of State law. ES&S did advise
Clerk Myers' staff to mark damaged ballots. These instructions were in violation of the Election Code. The
Grand Jury found that the question should have been referred to the Secretary of State's Office. The Grand
Jury considered the role of the ES&S as it may have applied to the errors and omissions in connection
with the general election and to the extent their involvement served to mitigate the violations committed
by Clerk Myers.
11. Canvass Board Complaints
A. Post-Election Audit
A primary complaint lodged against Clerk Myers is that she interfered with the duty of the Canvass
Board to "perform" the mandatory post-election audit. Contrary to these allegations, state law does not
require a Canvass Board to conduct such an audit. State law only requires that a post-election audit be
"observed" by at least two Canvass Board members, §1-7-514(4) c.R.S. Despite the requirement that two
observers be present, the post-election audit was performed without any Canvass Board member present.
The assumption is flawed in that the law does indeed require the canvass board to perform an
investigation of complaints and address discrepancies in a report as part of the post election audit
function---a duty that Clerk Myers directly interfered with.
The Grand Jury ignores the critically important point that the election audit “failed” the audit and
the error rate exceeded the allowable threshold. Additionally, escalated auditing was required because of
the vulnerabilities of the M650, even before the unacceptable audit error rate was experienced. Clerk
Myers ignored both requirements, did not contact the SOS for audit escalation instructions, and ultimately
did not sign the audit report, but coerced the canvass board to do so by misinforming them of the
reporting and testing requirements.
The Grand Jury determined that an e-mail from the Secretary of State's Office resulted in Myers'
failure to include the Canvass Board members. Based on the email.an election worker who oversaw the
audit, and Clerk Myers, who did not participate in the audit, believed that only election staff workers were
supposed to perform the audit. The sender of the email, a representative from the Secretary of State's
Office, stated, "The post election audit requires the county election officials to do a manual hand count of
all races...." (Emphasis added.) Myers interpreted the term "county election officials" to mean her staff As a
result, she excluded the Canvass Board from the audit.
The document that the SOS staff member sent also references the code section and SOS Rule
REQURIING canvass board observation and the face of the document stated at least 3 requirements in the
audit that CANVASS BOARD members must perform. The excuse that the email imprecise language trumps
the official forms and statements sent to Myers is ludicrous. Canvass Board members ARE county election
The Canvass Board met at the Clerk's office on November 19,2010, one day after the audit was
completed, for the purpose of reviewing the Abstract of Votes Cast and to sign the associated Certification
document. The Canvass Board reviewed the poll books and other election documents over an entire day.
Additionally, they were provided the opportunity to review the audit and the abstract of votes prior to
signing the certification document. As explained above, the Canvass Board signed and submitted the
certification of the results. (ONLY after being told that they had the weekend to rescind and reconsider.) A
few days later, they sought to rescind the certification. Absent any statute or rule regarding the impact of a
statement of non-certification, the Secretary of State's Office moved forward with the results and original
certification from the Canvass Board. (This is a half-truth at best. The SOS in fact ACCEPTED the
rescission of certification and today acknowledges that the local races have not yet been certified.) The
Canvass Board or any registered elector could have filed an election contest or a complaint against the
Secretary of State's Office. The Canvass Board did not do so.
This highly insulting sentence alone should be grounds for the public’s rejection of this report! An
election contest requires substantial legal expense, in this case likely far exceeding $25,000. The standard
for filing a contest is that the result will change. Given that the Clerk refused to allow access to many
necessary records, no one could “prove” that the result would change to clear the threshold for an election
contest. For the Grand Jury to suggest that the private citizen volunteers should have personally paid for a
lawsuit where they were being precluded from obtaining the necessary threshold evidence is an undeniable
sign that our system is broken.
What is the basis for the Grand Jury’s suggested filing of a civil complaint against the SOS? The
SOS had no official duty in the local election contest. The Grand Jury suggesting that the volunteer citizens
file lawsuits against the government funded SOS on some theory of failure of duty is an absurd and
insulting response. The citizens did what the election code allows when there is a violation ---1-13.101
gives citizens the clear direction to file complaints with the District Attorney or Attorney General, which is
what happened in this case, and citizens are being told that they should have funded difficult and expensive
private legal actions instead.
B. Hand Count of Ballots
Since the Canvass Board members were not able to observe the post-election audit, and because of
the other concerns about election procedures, they sought to conduct a hand count of the two affected
races and a special district issue referred to as the "ambulance issue." It is alleged that Clerk Myers
"refused to allow Canvass Board members (election officials) to manually count ballots...." Evidence
presented to the Grand Jury indicated that Clerk Myers did, indeed, instruct the Canvass Board that a hand
count of ballots was not permitted, but Clerk Myers' position was based on information relayed to her by
the Secretary of State's Office. Clerk Myers was informed that Election Rule 14.3 requires that a recount
must be conducted in the same manner that occurred when ballots were originally .counted on election
night unless the vote margin is sufficiently small enough to warrant it. A hand count of the ambulance
issue was only allowed because the vote margin was small enough to require it. After the Canvass Board
completed recount, the margin of victory was the same.
The reality which the Grand Jury absurdly chooses to ignore is that the M650 was always
prohibited from being used.----for the original count or for the recount. To blindly require that a recount
be run on a non-compliant, prohibited machine because the original count was illegitimately run on it
The “margin of victory” may have been the same, but the details could not be reconciled, including
the precinct results and the number of property owner ballots. That is why the board refused to certify.
C. Johnson Complaint Letter
A third complaint by the Canvass Board was that Clerk Myers "interfered with the Canvass Board's
duty to investigate the Nancie Johnson complaint ..." As described earlier in this report, the Canvass Board
came into possession of a complaint letter signed by Nancie Johnson on November 19, 2010. The
complaint raised issues related to the operation of the M650 and other issues. Section 1-7-514 (2) (b),
C.R.S., requires that the Clerk and the Canvass Board investigate complaints that contain evidence pointing
to a problem with voting equipment. Clerk Myers became involved because the Canvass Board had
received the complaint just an hour before Clerk Myers was required by law (§1-1O-103, C.R.S.) to
transmit the Abstract of Votes to the Secretary of State's Office. (Some members of the board had seen the
draft complaint the evening before. Many knew that the complaint was being held by Teresa Benns in the
room awaiting their acceptance of it. The deadline for transmitting the abstract of votes was NOT one hour
away, but 3 days away.—November 22. Myers apparently misled the board to put undue pressure on them.
) Clerk Myers immediately contacted the Secretary of State's Office for advice. She was informed by the
Secretary of State's Office that concerns about the M650 contained in the complaint letter had been
"addressed" by the Secretary of State's Office during their ballot review on November 15 and 16,2010.
Clerk Myers was also told that Ms. Johnson could file an elections complaint with the Secretary of State's
Office if she had other concerns. Clerk Myers communicated this information to the Canvass Board,
retrieved the complaint letter, and returned it back to the reporter who had initially delivered it to the
Canvass Board per the direction of the Secretary of State's Office.
Conclusions: A. The Grand Jury found that Clerk Myers should have been familiar with and implemented
the provisions in state law which requires two Canvass Board members observe the post-election audit. The
Grand Jury found, however, that in light of the written communication from the Secretary of State's Office
received before the audit began, it was reasonable for Clerk Myers to believe that she was complying with
required audit procedures by just having election staff perform the audit. The Grand Jury determined that
the e-mail received from the representative of the Secretary of State's Office was, at the very least, vague.
The Grand Jury must have chosen not to look at the complete communication sent by this staff
member, which is very specific in the duties of the Canvass Board in participating in and observing the
audit. The statement is not vague in any way, when the entire communication is read.
B. The Grand Jury concluded that the Canvass Board's insistence on being allowed to
conduct a hand count of the disputed races was not supported by law, and Clerk Myers used good
judgment in contacting the Secretary of State's Office for guidance. She was correct in informing the
Canvass Board that a hand count was not allowed under .. .
applicable law. As stated above, the evidence showed, however, that Clerk Myers and Commissioner
Joseph requested and offered to pay for a recount, and agreed that it would be performed by the Canvass
Board (section 8, above).
Again the Grand Jury reaches an absurd result to suggest that a machine which was not qualified to be
used to count the votes and had been subjected to documented security breaches must be used in a recount.
If the machine had been damaged by smoke or fire or water after the initial count, apparently the Grand
Jury and Myers would insist that the Canvass Board use the machine anyway for a recount?
The Grand Jury failed to see that the recount cannot be legally requested by “winning” candidates, which
puts too much control in the hands of those candidates to stop the recount, or challenge the recount as
illegitimate if they do not like the results. Clerk Myers was informed of this, but chose to do it in the face of
clear law against it. Rather than address this irregularity, the Grand Jury seems to applaud her for
sponsoring the recount. When Steve Carlson attempted to request the recount, he was reportedly told that
Myers was the sponsor.
C. Clerk Myers had an obligation to make sure the Abstract of Votes Cast and the certification by
the Canvass Board was transmitted to the Secretary of State's Office by the statutory deadline on November
This is incorrect. The statutory deadline for transmission the STATEWIDE contest (not local
contest) was November 22, 2010, allowing the clerk and canvass board 3 full days more to resolve
discrepancies and investigate the complaint. (CRS 1-10-103 (1) )
The statutory deadline for reporting the COUNTY contest results to the SOS which this report is
focused on was November 18, before Clerk Myers even called the canvass board meeting.
The point is that the SOS/Grand Jury reliance on the excuse that the deadline was hours away not
allowing the canvass board to investigate or resolve imperfect local returns is completely inaccurate and a
distraction from the issue of the fact that Myers, through her gross negligence, prevented the canvass
board from timely undertaking their complete duties.
Although the Canvass Board was required to review the Johnson complaint letter, as was Clerk
Myers, she acted on the advice of the Secretary of State's Office when she retrieved the complaint and
proceeded to direct the Canvass Board to complete the certification process. Ironically, because the statute
imposes a joint obligation on the Clerk and Recorder to investigate complaints along with the Canvass
Board, the advice from the Secretary of State's Office had the effect of essentially preventing Clerk Myers
from fulfilling her statutory duty to investigate. Despite the fact that the Secretary of State's Office had, to
its satisfaction, resolved the problem concerning the M650, State law still required both the Clerk and the
Canvass Board to investigate the complaint. Both failed to do so.
The complaint addressed issues far beyond what the SOS had addressed in their review. To dismiss
the complaint as “already addressed” without even reading it speaks to the goals of the SOS in this case.
The evidence demonstrated that, at key stages, Clerk Myers and members of her staff were,
appropriately, engaged in almost daily communications with the Secretary of State's Office in order to
gather information and to seek advice connected to issues that arose after the general election. The evidence
also demonstrated that the Secretary of State's Office provided a tremendous amount of support to Clerk
Myers, in the form of telephone conversations, e-mail communications, and site visits by personnel from
the Secretary of State's Office. The evidence further demonstrated the significant burden on the Secretary
of State's Office, particularly during the election season, to provide advice and support to the entire State of
Colorado. Through the efforts of the Secretary of State's Office, election officials receive support all
throughout the State of Colorado.
The Grand Jury understands that the Secretary of State's Office is obligated to "supervise the
conduct" of primary and general elections, §1-1-107 (a), C.R.S., and to "enforce the provisions" of the
Election Code, paragraph (b), supra. Additionally, the Secretary of State's Office must "inspect...and review
the practices and procedures of county clerk and recorders...in the conduct of primary, general, and
congressional vacancy elections..." paragraph (2) (b), supra. While there is evidence that the Secretary of
State's Office made extensive efforts to perform its advisory and inspection role, and properly acted in a
supervisory manner, some significant mistakes were made.
Note that the SOS stated jurisdiction does NOT include county and special district races, meaning
that the Saguache citizens have no reason to expect monitoring of the SOS in the 2011 election.
The Grand Jury considered the role of the Secretary of State's Office as it may have applied to the
errors and omissions in connection with the general election and to the extent their involvement served to
mitigate the violations committed by Clerk Myers. The Grand Jury firmly believes that the involvement of
others must be considered in any analysis of her possible criminal conduct. The Grand Jury found that the
Secretary of State's Office:
1. Failed to require Clerk Myers to respond to, or implement corrective measures for
the potentially serious allegations from the primary election prior to the 2010 general
2. Did not ensure that a complete logic and accuracy test had been performed on the M650,
did not determine whether or not appropriate training was conducted with regard to the voting
system that would be utilized during the general election and, similarly, failed to ensure that an
updated security plan was completed and submitted prior to the general election;
3. Did not observe, and took no action to correct, the missing security seals on the M650;
(or the Unity laptop or the memory cards.)
4. Incorrectly informed Clerk Myers that the Canvass Board did not have to take action on
the Johnson complaint alleging that there were problems with the M650;
5. Sent an email to the Clerk's office, which stated that "county election officials" were
required to conduct the post-election audit, when in fact, the Canvass Board should have been
included in that process; and
Canvass Board members ARE election officials and the complete SOS communication was clear
as to their required involvement. (The Grand Jury chose to focus on one sentence rather than
the entire thread of communications.)
6. After witnessing and correcting the improper alteration of ballots by election judges,
failed to ensure that a review of the affected ballots be conducted and/or proper duplicate
ballots be prepared pursuant to election rules.
To its credit, the Secretary of State's Office recognized that there were "a number of county processes
and procedures that are not in compliance with Election Rules and state statutes," and identified several areas
where it would provide assistance and training to assure that the Clerk and Recorder's Office complies with
applicable statutes and rules in the future. (December 10,2010 Report). The Grand Jury found that the assistance
and training, however, will only be effective if the Secretary of State's Office exercises its oversight function
and could put into action appropriate enforcement measures to assure compliance.
The Grand Jury heard credible testimony that the Secretary of State's Office possesses the ability to
bring an injunctive action to compel corrective action. For example, the Grand Jury learned that Secretary of State's
Office can request that an election official comply with the law. Absent such compliance, the Secretary of State's
Office can bring a civil action to compel compliance. Short of criminal prosecution, however, the Secretary of
State's Office lacks the ability to seek sanctions or impose some form of punishment, such as, a fine upon a
county which has failed to comply with the Election Code.
In addition to reviewing the actions of Clerk Myers and the Secretary of State's Office, the Grand Jury
also considered evidence that the Canvass Board exceeded its authority in certain instances. The Canvass
Board took on a broad investigative function, although its duties are essentially ministerial. Pursuant to statute,
the Canvass Board's primary duties are to certify that the Abstract of Votes Cast is accurate, assure that the
number of votes counted does not exceed either the number of votes cast in the election or the number of
qualified electors in the County, and to observe the post-election audit. (§ 1-10-101.5 and §1-7-514(4),
C.R.S.). Here, the Grand Jury determined that the Canvass Board attempted to overstep their appointed
This accusation is particularly untrue and offensive. In prior paragraphs the Canvass Board is
criticized for not investigating the legitimate complaint filed as required, and not filing an election contest
or complaint against the SOS, but now criticized for overstepping their “ministerial” duties. The duties
and legal requirements of the canvass board go far beyond the “primary” duties the Grand Jury claims. A
search of the term “canvass board” in the statutes and rules will reveal dozens of significant duties
required of and authority granted to the canvass board.
The Grand Jury states that they reviewed evidence of the board exceeding its authority, but they
fail to tell us what this could possibly be, given the breadth of canvass board duties for correction of
errors, and investigation of complaints under the statutes.
At the time the election was held, two Canvass Board members had been appointed which was the
minimum number required.
This is inaccurate. According to Clerk Myers, the intergovernmental agreements with the special
districts require the appointment of representatives as canvass board members. It is likely that the canvass
board representatives were required to be appointed long before the election took place, not immediately
before the canvassing activities on the 19th.
After complaints were raised following the recount of ballots on November 15 and 16,2010, Clerk
Myers took the initiative to appoint four additional Canvass Board members, including individuals who
had voiced concerns and made complaints about the handling of the election. The Grand Jury found it
unlikely that, if Clerk Myers intended to tamper with an election, she would appoint four potential
adversaries to a board with oversight responsibilities and powers.
See above response. This is not the option of the Clerk to appoint canvass board members
according to statements previously made by Clerk Myers. In fact it is likely that her appointment of the
canvass board was severely delinquent. (I have only reviewed one intergovernmental agreement. It
indeed called for a canvass board member. This was not Clerk Myers’ “initiative.”)
Furthermore, the Grand Jury notes that Clerk Myers, because she was a candidate for re-election,
appeared to have properly distanced herself from many of the election procedures that occurred on election
day and afterwards. Nothing prohibited her involvement in the election in which she herself was a
candidate. Ideally, the Clerk and Recorder would have the staff and resources in place to run the election
without any involvement from the Clerk and Recorder. The financial resources and knowledge required to
run an election made this impossible. To the extent Clerk Myers was involved, the Grand Jury heard
evidence and decided that such involvement was minimal and consistent with that of other individuals in
her position throughout the State of Colorado.
The Grand Jury found no evidence that Clerk Myers ever used or tampered with the M650, entered
ballot boxes, touched or tampered with ballots or conspired with anyone to do so. Additionally, Clerk
Myers was not involved in the discovery of the discrepancy with the ballot figures. Other sworn election
workers discovered the problem, and an employee representing the out-of-state vendor, ES&S, made the
more exact determination about how the ballot figures were incorrectly tabulated.
The Grand Jury is convinced that the results ultimately reached in the Saguache County General
Election involving the two disputed races for County Clerk and Recorder and County Commissioner were
How did the Grand Jury explain the discrepancies between the recount and the canvass of
November 19 for the local races to reach the conclusion that the recounted totals were accurate? The
public deserves access to this information.
What about the other contest in question? What was the Grand Jury’s conclusion?
While there were several deviations from prescribed procedures, none of them, individually or
collectively, affected the outcome of the election.
The public also deserves to see the evidence that would prove this, given that it is not provable
from the available public record. In fact, the available public record would indicate that the Ambulance
results were indeed incorrect.
The Grand Jury finnly believes that the results ultimately reached reflected the intent of the voters.
Based on all of the evidence and testimony, the Grand Jury believes that Clerk Myers and Linda Joseph
were the legitimate winners of their respective races. For Clerk Myers to have tampered with the results
from November 2nd in order to achieve her own victory, she would have had to manipulate the computer
data to create the many false errors outlined above. At the time, she was lying prone on the floor of her
Anyone could have created an altered result at a variety of times, and a variety of means not
merely one afternoon when the clerk was “on the floor.” The conclusion is insulting in its superficiality.
While no one is accusing Clerk Myers of tampering with the results, jumping to the conclusion that the
results of the election are correct because a tabulation anomaly can be explained and Clerk Myers was
not near the tabulation machine on video tape is a conclusion based on apparently disconnected evidence,
and few facts.
Based on the extensive computer records, video surveillance, and the sworn testimony of witnesses,
the Grand Jury is convinced that the election results are accurate.
If the Grand Jury has records of any type that reasonably test the results of the election against
what was reported, the public deserves to see this evidence of accuracy, which has been hidden from them
The Grand Jury also found that irregularities and deviations from strict compliance with the Election
Code do occur, and have occurred, in other Colorado counties during elections, and are not considered
The public and press must be informed of the evidence that was given to the Grand Jury. If indeed
the severe violations of the code, gross negligence, and misuse of a voting system are not considered
“unusual” in Colorado elections, the system is broken beyond repair. The public deserves to see the
evidence the Grand Jury has on this serious public policy matter .I am unaware of any Colorado elections
with this magnitude of problems The Grand Jury obviously has information that has not been made public
concerning massive election irregularities. .
General elections typically involve multiple polling places, numerous election workers, the
management of voting equipment, and thousands of ballots of different types. The many provisions
contained in the Election Code, along with manifold election rules and different voting methods, are
detailed and complex. They present a substantial challenge to anyone endeavoring to conduct a general
election without any mistakes. The Grand Jury heard testimony that smaller counties, which may have
fewer resources and less experienced election staff, face issues similar to those present in the general
election in Saguache County.
In recognition of the inherent challenges of conducting an election free of any error, Section §1-1-
103(3), C.R.S., states that, "Substantial compliance with the provisions or intent of this code shall be all
that is required for the proper conduct of an election to which this code applies." The Grand Jury found that
this legal standard is, and has been, applied throughout the State in other circumstances similar to those
which occurred in Saguache County.
It is distressing that the Grand Jury found that using a prohibited machine for vote tabulation that
had not been properly tested and none of the conditions for use had been met was “substantial
compliance” with the law. Mail in ballots violated the law resulting in no testing of eligibility for voting in
district questions. Provisional votes which should have been counted were not counted. The post-election
audit failed in not only the process, but the resulting error rate. The clerk cannot support the number of
property owner ballots counted with voter names. An illicit “re-tabulation” was performed, flipping the
burden of proof of the “winner” and the “challenger” in the ensuing legal process. The differing results
of the recount and the original canvass results have not been reconciled. Yet, the Grand Jury believes that
this election was run with “substantial compliance.” The public deserves to see on what evidence this
could have possibly been based.
The results of the 2010 general election were a product of the votes of the citizens of Saguache
County, and were not affected by individual violations of the procedural rules by the Clerk and others.
It appears that the Ambulance District and the resulting tax were affected in that citizens are
being improperly taxed for a measure that did not win. And other taxes which were not properly
certified. If the Grand Jury has evidence that supports their conclusions that the results were correct, the
citizens deserve to see it.
Clerk Myers and her staff committed the violations outlined in this report. The Grand Jury found,
however, that the election "substantially complied" with the provision of the Election Code. For the reasons
explained in this report, the Grand Jury finds that the actions complained of do not rise to the level of
criminal conduct requiring that charges be pursued. The decision against criminal charges was based on a
thorough review of the evidence and testimony, including the mitigating factors described above, as well as
common election practice throughout the State of Colorado.
The determination to prepare and release this Report has been made by the affirmative vote of at
least nine grand jurors.
Date: 06/06/2011 JUN I () 2011
RE: The State Grand Jury, 2010-2011 Term, Investigation into the Saguache
To: The Attorney General's Office and The Court W
I respectfully submit this response to the "Report" I reviewed on 06/02/2011 concerning the Saguache
I am extremely disappointed that once again our elected officials have not been properly held accountable
for egregious behavior and we the citizens bear the penalty of poor governance.
The Report, and the findings of the Court, indicates that through limited testimony and investigation that
evidence of fraudulent behavior and/or wrong doing did not exist OR does not rise to the level for the criminal justice
system to take appropriate action as set forth in Statute. Given the reasoning set forth in the Report one may
conclude that by running through a red traffic signal without causing an accident will be overlooked by law
enforcement. This happens many times every day on our streets and roads, does not cause a traffic accident, and
does not affect the lives of others. To lessen the rate of these occurrences, shouldn't this behavior be discouraged
and to do so society must penalize those offenders?
The Report also does not consider that the election has not been properly reviewed by anyone because of
the lack ohransparency by our Clerk and Recorder. What is she hiding? Hopefully Gessler vs. Myers litigation will
finally allow a review of all election data and materials bringing forth the truth and finality to our 2010 Primary and
General elections. The Citizens of Saguache County have insisted in a review and have only been stone walled by
Clerk Myers. Why?
The Report focuses on a few inconsistencies, forgivable human errors, ill advice, and seemingly concludes
that the investigation into the overwriting of data results resolves the fact that the election results were accurate.
No one here in Saguache County believes that all the answers reside in that one finding. Most citizens, without
doubt, have been convinced that the data overwrite indeed did happen. But what about the long list of other "head
scratchers" that have been hidden or destroyed by Clerk Myers? I feel confident that the Report has severe
deficiencies relative to a true analysis of the entire election.
It is readily provable that no less than dozens of violations of election law and prudent procedures were
knowingly violated by Clerk Myers leading our citizens to once again have this sinking feeling of being
disenfranchised for our very right of knowing that our votes counted the very way we cast them.
What about future elections? If Clerk Myers and the Secretary of State's Office repeat these violations in
future elections will there be any penalties? I certainly fear that the Report, with its lack of accountability sets a
dismal stage for our future elections. The arrogance and total disregard for citizens concerns will be compounded
by the absence of consequential penalties handed down by this Court.
What standard, if any, should elected officials be held to? What standard has Clerk Myers and the
Secretary of State's Office Staff been held to? Clerk Myers has managed many elections here in
Saguache County and continues and consistently defies citizen's complaints, concerns, laws, policies and
Citizens are fully aware that if they are not pleased with the performance of elected officials, then vote them
outl What happens when the citizens feel they did just that? It is unimaginable that the truth about elections is not
verifiable by the citizens of Saguache County, The State of Colorado and the United States of America. A thorough
review by the secretary of State and or the Citizens is the only method to maintain integrity in the sacred election
processes. The electorate has been deprived of this rightl The Courts Report fails to uphold the very fabric of our
I am not writing this because of my unsuccessful bid to be County Commissioner for Saguache County. I
served the State of Colorado as a public servant for 28+ years and understand the importance of fairness,
transparency, equality, honesty and integrity. I continue to value these virtues not only for myself but for all the
citizens of Saguache County. I am deeply saddened by the Courts Report and further have deep sympathy for all
the good people who have tried and seemingly failed to make a difference in our beloved democracy and the
integrity of voting.
In conclusion, Justice has not been served!
I respectfully ask the Court that the Report AND my response be made public record. Thank you for your
attention to my concerns AND for your year of service and hard work for the people of the State of Colorado.
Respectfully, Steven M. Carlson
On June 6, 2011, Melinda Myers had an opportunity to review the Grand Jury Report in regards to the Saguache County
General Election of 2010. The review took place at the Attorney General's Office at 1525 Sherman Street, Denver, CO 80203.
Following the review, Ms. Myers expressed her desire to file a response for the Court's review. She chose to submit her
response while present at the Attorney General's Office and was provided with a laptop for that purpose.
Her review of the Report and her drafting of her response will have been conducted in private. When the review is
completed, she will notify us and the document will then be printed for her signature. The following is her response:
Overall, the report by the Grand Jury was extremely accurate, detailed and got to the heart of the issues, shining a light the
many questions which have swirled around this election. I was encouraged to see the conclusions so well explained, and hope
that we can finally put this election to rest and the citizens of Saguache County and the State of Colorado can have confidence
the will of the voters has been reflected correctly.
Two clarifications need to be made:
1. The Grand Jury stated that the review of Provisional ballots by our office should not have
occurred. In fact Provisional ballots must be vetted to discern if each ballot is eligible to be counted, either in whole or
part. The voter's information on the outside of the envelope must be reviewed and checked through the statewide
registration database, (SCORE). 1f the voter is only eligible to vote the State and Federal races, the ballot must be
duplicated by judges for only those races so it can be scanned during the counting process. Under Colorado Election
law and rules, a small county like Saguache may conduct this review using only election staff. In light of the controversy,
I decided to call in two Election Judges, one from each party to conduct the review along with my election clerk. No
ballots were counted and the only provision envelopes that were opened were the ones that needed to be duplicated.
2. The Grand Jury stated the recount by hand of the ambulance district question was allowed
due to the narrow margin of the outcome. However, the Canvass Board was advised by both my office and by email
from the Secretary of State staff that they were not to conduct a hand count. The Canvass Board took it upon
themselves to ignore these instructions and hand count the ballot question.
I would like to thank all the public officials from the Attorney General's office and citizens who served on the Grand Jury for the
exhaustive investigation of this matter. Elections are complicated difficult undertakings as this report shows and public
awareness of this reality can only help make elections better in the future.
This represents my full and complete response. I am signing below in the presence of Deputy Attorney General Michael
Dougherty and Investigator Michael Jones.