SoS Ysursa (left) and Rep. Rusche (right)

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Yesterday’s post referred readers to House Bill 415 introduced in the Idaho Legislature by Rep. and Minority Leader John Rusche.  Rusche proposes adding a new chapter to Idaho Code, Title 34 pertaining to elections.  The stated intent of the proposed legislation is to get people to vote by mail.   But the conveniences offered by voting by mail, at least as Rusche proposes it, will make Idaho’s elections far more vulnerable to election fraud.

Yesterday’s post explained how Rusche would allow elections officials to open the mailed ballots as much as five days before the election.  The danger in that practice is obvious:  A compromised election worker or an unauthorized guest with access to the opened ballots could discern roughly how close a particular race or issue might be.  Having that information would help someone decide if the benefit of manipulating the election outweighed the risk of being caught, prosecuted, and punished.  Early opening of ballots for convenience is a bad idea.

Today’s post will explain how Rusche wants to roll back state election law to what it was just about 13 months ago when the election law changes passed in 2009 took effect.

Rusche is batting two-for-two in the really bad idea department.

Prior to January 1, 2011, Idaho municipal elections were conducted by the respective municipalities.  Alternatively, they could choose to contract certain actions pursuant to Idaho Code § 67-2332.  Some Idaho cities, including the City of Coeur d’Alene, contracted with their respective county clerks to have some of their election functions administered by the county clerk’s office.

For purposes of this post, I’ll focus on the Coeur d’Alene city elections and mainly on the November 2009 City general election, because Rusche’s proposed legislation has Coeur d’Alene fingerprints all over it.  They belong to Mayor Sandi Bloem, Councilman Mike Kennedy, and City Attorney Mike Gridley.

In 2009 and for more than 20 years before that, Coeur d’Alene had contracted with the Kootenai County Clerk to administer the city general elections.   Up until the city election of November 2009, there had been a few fairly close elections in Coeur d’Alene, but there had been no election contest.  That changed with the November 2009 general election for three council seats.  One of those elections had the challenger within 5 votes of the incumbent out of 6,325 votes cast.  After a preliminary investigation revealed violations of election law and exceedingly sloppy election administration by the then-Kootenai County Clerk, an election contest lawsuit was filed.   The resulting investigation and subsequent trial confirmed the original investigative findings and disclosed more.

As a result of the election contest lawsuit in Coeur d’Alene, Kootenai County voters were awakened to the importance of having a diligent, competent County Clerk who would follow the law as passed by the Legislature rather than work with the City to try to find ways to bend it.   In the November 2010 general election, voters ejected the incumbent County Clerk and elected former Post Falls Police Chief Cliff Hayes.  Hayes took office in January 2011 just days after the election law revisions passed in 2009 took effect.

One of his most visible changes was to suspend the practice of using city halls as satellite voting locations.  The outcome of this decision was reported in the Coeur d’Alene Press news story headlined Vote here, only on August 21, 2011.   One of the reasons for suspending the use of all satellite voting locations except for the County Elections Office (about a six minute drive from Coeur d’Alene city hall) was to ensure security of voting materials.   So, if as the article said, Coeur d’Alene City Hall is just as secure as the County Elections Office and the City Hall satellite voting ballots in 2009 were sealed and held overnight under lock and key, what’s the problem?

On page 3 at paragraph 4 of the 2009 Coeur d’Alene City – Kootenai County election agreement, it states, “The City shall have no responsibility for security or protection of the County’s supplies or equipment.“  So if the City of Coeur d’Alene provided supposedly “secure” space for the overnight storage of voting materials as the Press article suggests, the County Clerk improperly delegated and the City improperly assumed responsibility for securing and protecting perhaps the most important component of the election:  voted ballots and the materials from which falsified ballots could be created.

Why would City officials assume that risk in apparent violation of its agreement with the County?  Why wouldn’t the City have simply instructed the County to secure the critical voting material at the County Elections Office 6 minutes and 1.9 miles away each night?   Why was then-County Clerk Dan English and his Elections Office Administrator Deedie Beard willing to leave that sensitive material in the City’s control and custody in apparent violation of the agreement with the City?  Why would the Mayor and Council want that material left at City Hall rather than properly secured at the County Elections Office?  If there were to be an election contest (as it turned out there was), then the former County Clerk’s acceding to the wishes of the Mayor and City Council and storing materials at City hall creates at least the appearance that someone at City Hall could have tampered with the ballots and affected the election results.

It is exactly this circumstance that Representative Rusche’s proposed legislation would recreate.  Under the present law, the County Clerk has sole responsibility and authority for the security of election materials.  Rusche would allow mayors and city councils to decide to accept that responsibility and authority since under his proposed legislation, they could choose to reopen satellite voting stations with all the attendant security risks.  And for what?  Some presumed but as yet unproven additional convenience?

Rusche’s legislation, House Bill 415,  is poorly written to the point of being confusing.  Note that in his proposed legislation on page 4, beginning at line 20 and concluding at line 24, he writes:

Pursuant to section 34-1401, Idaho Code, all municipal elections shall be conducted by the county clerk of the county wherein the city lies, and elections shall be administered in accordance with the provisions of title 34, Idaho Code, except as those provisions are specifically modified by the provisions of this chapter.

Yet Section 34-1401, Idaho Code, begins:

Notwithstanding any provision to the contrary, the county clerk shall administer all elections on behalf of any political subdivision, subject to the provisions of this chapter, including all special district elections and elections of special questions submitted to the electors as provided in this chapter.  [emphasis added]

But in his proposed legislation beginning on page 3 at line 43 and concluding on page 5 at line 6, Rusche inserts a “provision to the contrary” precluded by Idaho Code § 34-1401.  His proposed Chapter 26 conflicts with Chapter 14.

Under the election law changes that took effect on January 1, 2011, it has never been more convenient for Idaho voters to vote by mail.   Under the present law, voters can register by mail, easily request absent elector ballots by mail, and vote their ballots by mail.  They can vote in-person absent elector ballots at the County Elections Office, and they can vote in person at a polling place on election day.  Voters can already do everything Rusche’s legislation proposes.

Representative Rusche’s ill-conceived legislation would not appreciably add to the convenience, but it would measurably increase the risk of election fraud by involving more people under fewer controls in the election administration process.  It is also very likely to confuse and confound at least some county clerks who only 13 months ago were required to adjust to a new set of election laws and accept additional responsibilities.