If possession is 90% of the law, then it stands to reason that it’s 100% of the chain-of-custody.
“Chain of who, what?” you ask. What is a “chain-of-custody”? In the context of elections, a chain of custody is the sequential order that election equipment, ballots, and voter records must be documented in order to ensure the integrity and trustworthiness of the election. It must be maintained in accordance with state, local, and federal laws, and nothing should ever be unaccounted for without an explanation.
To begin, the chain-of-custody is an essential process in ensuring a free & fair election.
Simply, it’s a legally binding paper trail. Elections officials know just how important this is, because when there’s a weak link, or a break in the chain, the repercussions can damage the reputation of a local election office or an entire state for years (and these days, not to mention enable an election to be called into question). That reputation is essential to trust–hard to acquire and easy to lose. So, the chain-of-custody is something no election administrator takes lightly. What’s worse, corrosion in the chain of custody casts doubt on the democratic process, and has the potential to jeopardize the safety of election officials, poll workers, and voters alike.
The Chains That Bind Us
There isn’t just one chain-of-custody in an election. There are dozens. Some go from the election office to the ballot printer to the voting supply issuance, others involve a transfer of a ballot tabulator from the election warehouse to the moving truck to the polling place, and yet another may be gathering absentee ballots sent in by mail or placed in a dropbox. What they all share in common is a need for a paper log that documents
- Precinct or voting center
- Point of origin
- Every transfer of possession
- All personnel involved
- The destination and
- An itemized list of what is transferred.
All seals or security enclosures get their own set of documentation as well.
In 2021, local jurisdictions in Georgia, Michigan, Colorado, and Arizona were affected by various undocumented breaks in the chain-of-custody when groups of partisan-motivated and self-appointed election “auditors” were allowed unfettered access to election and voting equipment, ballots, and incomplete or incorrectly filled out chain-of-custody documents.
While at least some of the “auditors” (i.e., let’s be honest, in this case: “suspects” in a criminal enterprise) had subject-matter expertise in legal data recovery and preservation (with expensive tools to match), statistics, cybersecurity, or digital forensics, it became crystal clear that they had limited working knowledge of the election administration process.
Perhaps the bluster and ineptitude were a well-rehearsed act to blend in with the misguided true believers that were irresistible click-bait for the media to exploit. In a stroke of luck for their well-intentioned but nevertheless illegal efforts, the roving groups of so-called auditors were able to recruit a handful of election administrators who had either gone rogue in being consumed by the fever of a false quest for truth, or were overly naive about the ulterior motives of the instigators.
The Havoc of Broken Linkage
At some point, the chains snapped. Tabulators, ballot marking devices, Election Management System workstations, electronic poll books, USB drives, servers, modems, compact flash cards were suddenly all fair game to access, sometimes without authorization from any of the proper channels.
They began to disappear into the dark of night, sneaked out in empty shopping mall parking lots, transferred at truck stops, disassembled in motels and short-term rental residences, and even remote cabins several states away from where the equipment actually belonged. Some equipment was returned within three weeks. Some would be missing in action for months.
If there was any official paper trail for the election equipment during their long, strange trip, it wouldn’t matter. The so-called “forensic auditors” believed they were under no legal obligation to begin or maintain any chain-of-custody documentation; that wasn’t their job. The parties who were legally obligated to maintain custodial control of all voting system components, along with accompanying records of the election, were the town and county clerks who neglected their duty to the voters in their jurisdiction. Those voters understand that their tax dollars will be used to cover the costs of the equipment, investigations, and billable overtime, and they are well aware of the unfairness of the situation.
None of the equipment that was “examined” can be used any longer with any trust or certainty, because nobody knows who was actually examining equipment and/or software; where testing took place; or even what time of day the audit took place, as system clocks in multiple tabulators were manually reset multiple times. And that expensive proprietary technology was returned with broken tamper-evident seals, physical damage, and falsified “official” ballots tallied in the machine’s protected count that were not on the proper ballot stock, or printed properly.
Less than a decade ago, the most brilliant minds working in the field of voting system security had to politely beg election officials and haunt eBay in order to access equipment for their original academic research. They were not well treated by most of the election administration and voting vendor communities, and their insights came at a significant cost of time, and talent that could easily have been applied to more lucrative pursuits.
The fallout from the recent Michigan fiasco is a slap in the face to the election security community (members of this organization included) who invested years of hard work and did everything they could to remain within the law, only to see their research misappropriated and weaponized by mercenary political operatives who traveled the path of no resistance and were granted unfettered access to voting equipment for months unchecked.
The damage done to the ever corroding chain of American democracy goes far beyond broken tamper-evident seals and damaged ports. A growing number –dare we report a majority– of Americans no longer trust the election process. The fear of foreign interference has been replaced by domestic and insider threats, and the genuine patriots tasked with election cybersecurity will need to leap through flaming hoops in order to be granted any type of access to a tabulator or source code. This is a chain we should never wish to break.
Those responsible for the hot mess that they have wrought, the linkages snapped all for a purported patriotic purpose of revealing evidence of a “stolen election” that was not, have ironically compromised the very thing they purported to want to protect. 😡 May those responsible have their days in court, their cases fully heard, their convictions fairly adjudicated, and then may they be met with the full force and extent of punishment the law allows.
At the OSET Institute and the TrustTheVote® Project, our mission is to perform the research and development necessary to ensure the democratic process and the equipment thereof is linked together by the VAST Mandate:
The chain-of-custody depends on those elements — from the public technology we’re working to produce, to the processes, protocols, policies and laws that protect the verifiability of election administration. For our part here, we can only exposes these issues and work to educate the public and demystify elections administration. Beyond that, its about nose-to-the-coding-grindstone. In all of it, our mission statement makes the mandate clear:
To increase confidence in elections and their outcomes, in defense of democracy, as a matter of national security.
We cannot do this alone, yet when we join our collective talent, determination and faith in the future, our own chain-of-trust will remain unbroken. One thing is for certain, as a great philosopher once wrote, and perhaps metaphorically apropos, never break the chain.
Please, join us.