Judge Erickson: Secretary of State Gorbea Should Acknowledge Her Mistakes

Who is responsible for ensuring the accuracy, reliability, and transparency of elections in Rhode Island? The short answer is that we all are. We serve as poll workers, clerks, canvassers, checkers, and runners, as provided by law. In many ways, the unique high quality of elections in this country is because we, as citizens, are there every step of the way.  Local boards of canvassers, for example, are required by law to be bipartisan. At the top of the pyramid, however, it gets a bit murky.

 

Rhode Island’s elections are the responsibility of both the Secretary of State and the Board of Elections. One is chosen in a partisan election, the other by the Governor to lengthy terms to reduce the impact of any one person or party on the makeup of the board. There is, however, no guarantee of bipartisan representation.

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Traditionally, the role of the Secretary of State was purely ministerial. The Secretary was responsible for the maintenance of a statewide voter list, compilation and printing of the ballots, and the publication of election laws.

 

That started to change in 2015, when the Secretary sought and obtained control over the process for procuring voting equipment. That was a mistake because it left two different agencies with the responsibility for administering the actual election and required the Board of Elections to use whatever equipment the Secretary chose to adopt, both for scanning of regular ballots and voting by disabled individuals. Unlike the Board, the Secretary is not bound by the open meetings law in making decisions such as this.

 

The paper ballots we use and the optical scanners that record the votes are prepared and procured by the Secretary. The devices to record the vote of disabled voters were procured by the Secretary. The vendor supplying all these machines was chosen by the Secretary.

 

Section 17-19-4 of the election law is specific.  “The secretary of state shall be responsible for the coding and layout of all computer ballots to be used in each election under contract, including the printing of the ballot and the preparation of the device to ensure that the ballots are compatible with the device…” The Board is only responsible, under law, for the ballots after they have been “prepared,” which does not happen until after a voter finishes using the assisted voting device for the disabled. That machine prepares a ballot, which is then run through the optical scanner.

 

The recent controversy deals with the device that prepares the ballot. The ballot information (both English and Spanish) was sent from the Secretary to the vendor who loaded the information into the machines. It is the Secretary’s responsibility to ensure that the ballot preparation device was properly loaded with the correct names. No one else’s. The entire proofreading process is legally vested in the Secretary as part of the ballot preparation process. The Board has neither the resources or legal authority to proofread the ballots.

 

The same section of the law makes it clear that the testing the Board conducts is limited to a very specific (and public) set of procedures. The Board tests that the hard drive is working. That the ballots are correctly being counted. That all scanners are reset to zero for all candidates.

 

Frankly, the equipment was not tested enough before rolling it out this year, but that decision was apparently made for political reasons.  This issue could have been resolved by collaboration between the Board and the Secretary, working as partners to resolve issues as they arise, as they should and usually do. But when the Secretary is on the ballot, and the legal counsel for the office of Secretary of State is engaged in political advocacy for her election, it seems all bets are off, and they must throw someone under the bus.  The Board was a convenient scapegoat. I, for one, have had more than enough of politicians undermining confidence in the election process and democracy purely for their own personal political gain.

 

The Board, over the years, has made its share of mistakes, as have I. Twenty years on the bench will humble you if you think we are perfect. As they said in judicial college (a real thing), “on a good day, half the people go away mad.”

 

No one is perfect. No one gets it right all the time. My definition of a leader is a person who acknowledges mistakes, minimizes the damage, corrects the problem, and moves on. The Secretary has not shown leadership in this case. She has used very inappropriate language and made false assertions in order to minimize the damage to her campaign. I understand how that works, but it is still wrong. And it still undermines democracy.

 

A renowned model railroader, Steve has also been a State Representative, District Court judge, and most recently, Vice Chair of the Board of Elections. He is active in multiple organizations promoting better mental health programs and teaches mental health law in a joint Brown Medical School/Roger Williams Law School program for forensic psychiatrists. His first trip to observe the Board of Elections was when he was 18.

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