INVESTIGATION FINDINGS RE: ELECTION COMPLAINT DATED SEPTEMBER25,2023

(reposted from the City Attorney's posted response which you can download here.)

 

The Office of the City Attorney (“Office”) is in receipt of a complaint dated September 25, 2023 (“Complaint”), filed with the El Paso County Clerk and Recorder (“County Clerk”) and forwarded to this Office by the County Clerk on September 29, 2023 (attached).

 

Pursuant to the Code of the City of Colorado Springs 2001, as amended (“City Code”) § 5.1.218(A):

 

Any person may file an affidavit or complaint stating the name of any person who has violated any of the provisions of this chapter or of the Colorado Municipal Election Code and stating the facts which constitute the alleged offense with the City Attorney. Upon the filing of an affidavit, the City Attorney shall investigate, and if reasonable grounds are found, the City Attorney shall prosecute the violation in the Municipal Court in the same manner as other ordinance violations.

 

While the Complaint was not filed as an affidavit and would not, therefore, trigger an investigation as set forth in City Code § 5.1.128(A), this Office chose to investigate the allegations set forth in the Complaint. The Office reviewed relevant documentation, including but not limited to the City Code, the Colorado Revised Statutes, the City’s mail ballot plan, and responses to Colorado Open Records Act (“CORA”) requests. Additionally, the Office conducted interviews of members of the City Clerk’s Office with personal knowledge of the information contained in the Complaint. Each allegation is addressed below in the order presented within the Complaint.

 

1. The Complaint alleges, “[t]wo deceased voters. This information begs the question of how that could happen.”

 

This Office finds that, pursuant to City Code § 5.1.115, the City Clerk received a list of registered voters from the County Clerk, who is charged with responsibility for maintaining the list. Based on the list provided by the County Clerk, City election ballots were mailed to registered voters. The City Clerk became aware of ballots sent to two deceased individuals through communications from Integrity Matters. The City Clerk determined one of the ballots was returned to the City via the United States Postal Service (“USPS”), indicating that the person listed on the ballot was deceased. As a result, that individual ballot was never processed and counted. The other ballot in question has been referred to the Colorado Springs

 

30 S. Nevada Avenue, Suite 501 TEL 719-385-5909 FAX 719-385-5535

Mailing Address: Post Office Box 1575, Mail Code 510 . Colorado Springs, CO 80901-1575.

 

Police Department at the request of the City Clerk for investigation and potential criminal charges. Any alleged election violation resulting from these ballots being returned would be specific to the individual returning the ballot. This Office found no evidence to substantiate reasonable grounds that the City Clerk’s Office violated any provision of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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The City Clerk did not refer this to the Colorado Springs Police, Dr. John Pitchford had to and did so on X date.  County Commissioner Steve Schleiker also filed with the District Attorney's office on X date.  Strangely, the "investigation" was not begun until X date.  The City Attorney's office took no action until multiple attempts were made asking for answers.

 

2. The Complaint alleges, “[a] bizarrely low signature sensitivity setting of 25, on a scale of 0-99, when the County uses 55.”

 

This allegation was addressed by the City’s response to Integrity Matters’ Colorado Open Records Act (“CORA”) requests regarding this allegation. This Office finds that the County Clerk does not use the same automatic signature verification software system as the City. It is beyond the scope of this investigation to compare or determine the appropriateness in software settings for different types of automatic signature verification programs. This allegation does not set forth reasonable grounds that a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code occurred.

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Integrity Matters asked for further explanation of how the signature setting is so low.  It's irrelevant that the systems were different, and we are not certain that the software itself, in fact, is not the same in spite of the brands being different.  Most importantly, the scales are almost identical.  There's no logical reason for the signature verification setting to be half the sensitivity that the county uses and is the only explanation for dead voters (at least 1 signature made it through and an investigation will likely show more).  

 

3. The Complaint alleges, “[t]wenty-six thousand four hundred voters (over 25% of the total) had never voted in a Municipal Election in 2011.”

 

This is not an allegation that would constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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It's a fact that, when coupled with the copius irregularities, should trigger a foresnic investigation.  The City Attorney continues to betray her duties to protect the public and uphold the state standards for elections (find a statement from state code to insert here.)

 

4. The Complaint alleges, “[n]umerous Chain of Custody problems” including:

 

a. “1,199 ballots slumbered somewhere.”

 

This allegation was previously addressed by the City’s response to Integrity Matters’ CORA requests. The Office finds that, following election worker training conducted by the City Clerk’s Office on the morning of March 13, 2023, ballot pickups occurred in the late afternoon of the same day. The ballots were transported in sealed ballot transfer boxes to the City Administration Building (“CAB”) between 4:30-5:00 P.M. The sealed ballot transfer boxes were stored overnight in a secured room in the City Clerk’s Office in the CAB, and then subsequently unsealed and processed the next day. There is no evidence substantiating a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Someone is being dishonest.  We have a text from Ms. Sallie Clark, a mayoral candidate, on May 4th, 2023, who was also questioning results and asked Ms. Johnson about this.  Ms. Johnson's reply was, "That's impossible."  

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Furthermore, there is no chain of custody (evidence) that supports this nor do the video cameras show it.  Since Ms. Massey claims to have investigated this, she must have clearly seen this in their own data.  Once again, Ms. Massey betrays her oath to the public to "insert language about the job of City Attorney and/or language from state law regarding insuring fair elections).

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b. “397 votes have no transit logs.”

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This Office finds that the total number of ballots tallied on the transit logs plus the ballots received by the City Clerk’s office from the USPS reconcile with the total number of ballots processed for the election. There are no reasonable grounds to substantiate a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Ms. Massey clearly did not do a thorough investigation.  Below are the dates where there are discrepancies between the transit logs and the count reported in the summary by the City Clerk (transit log numbers-City Reported Totals):

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Give that the City Clerk failed to give us X number of ballots representing X number of votes, the first times, it's pos sible she has more transit logs that were not produced in the CORA request; however, that does not account for the numberous discrepancies that also exist where there are more ballots reported than log totals show.  Once again, Ms. Massey clearly did not do a thorough investigation abrogating her duties (insert chief legal attorney duty to uphold law and state legal duty to uphold election).  The Attorney General must investigate both Ms. Massey and call for a forensic audit into the 4/4/2023 election.

 

c. “Three hundred nine ballots that have no location for a net of 88 votes, at a minimum, now are reported without any possible transit log.”

 

This Office finds that there is no evidence substantiating this allegation and there are no reasonable grounds to substantiate a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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See above chart.  Same answer.

 

d. “Seventeen ballots collected on 3/29/2023 from the UCCS drop-box were not logged into the City Clerk’s Office until the following day, 3/30, on the log.

 

The City Clerk reported 0 ballots on 3/29 at that location.” This Office finds that any ballot pickups received after approximately 5:00 PM remained in sealed ballot transfer boxes and were stored overnight in secured room in the City Clerk’s Office in the CAB. The ballots were then unsealed and processed the following day. There are no reasonable grounds to substantiate a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code. 

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Where is the evidence of chain of custody to prove this?  This is an unacceptable response with no evidence to prove this claim.  

 

e. “Every transit log had an error, missing a date, time, illegible signature, no transit seal number, etc.”

 

This Office finds that there were 767 ballot transit logs completed during the April 4, 2023, election. Each log has multiple data entry areas on the sheet for location, date, time, signatures, and seal numbers. Ninety-six of the 767 ballot transit logs had one data element missing in one section. Sixty-three logs were missing date/time in one area, 23 were missing a signature in one area, 8 were missing one signature and a date/time, and 2 had seal numbers not written in the assigned box but the numbers were written on the log. Based on the remaining data on each log sheet and the totality of the circumstances, the City Clerk’s office concluded that ballot security was met. The evidence indicates that none of the missing data on any of the transit logs would constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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We have 767 logs too which means point 4b and 4c cannot be due to missing ballots.  A team of people methodically reviewed each and every ballot multiple times.  You can see the actual data entry for EVERY SINGLE FIELD ON EVERY SINGLE BALLOT.  The summary of those totals is markedly different than Ms. Massey's claims.  Once again, Ms. Massey clearly did not fulfill her obligations.....yada yada yada, repeat call for AG investigation.

 

f. “99.6% (764 of the 767) transit logs had illegible signatures, making it impossible to track the chain of custody transparently.”

 

This Office finds that there is no legal requirement for election judges’ signatures to be “legible.” Election judges are appointed by the City Clerk and are known to the Clerk and City Clerk’s Office staff. This Office finds that this allegation does not constitute a violation of the provisions of Chapter 5 of the City Code or the Colorado Municipal Election Code.

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Once again, Ms. Massey clearly did not investigate this issue.  If she had, she would have seen that the signatures were in many cases literally a scratch and impossible to identify.  Furthermore, the point of the legal chain of custody provision is so that there is transparency in the processing of every vote.  It seems clear from the above discrepancies that even the City Clerk had problems identifying and attributing the ballots as evidenced by the bevy of discrepancies outlines above.  Ms. Massey violates her oath....yada, yada yado.  Call for AG.

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g. “The ballot drop-box location needed clarification on 7 of the 767 logs, representing 309 votes.”

 

This Office finds that there is no evidence substantiating this allegation and that there are no reasonable grounds to find a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Again, Ms. Massey's investigation is a farce.  The evidence is in her own transit logs and data which she clearly did no investigte.  Here are some of the data.  More detail can be found in the spreadsheet which she had a link to

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Location unclear on 7 out of 767 pickups

Date/Location/Transit Judge 1/Transit Judge 2/Prepare Time/Date/Transfer Time

3/14/2023, PPSC (Centennial or Rampart?),Illegible,Sibley Savoy?,12:58:00 PM,3/14/2023,1:07:00 PM

3/14/2023,RBD?, entered then crossed out by a different person and changed to Leon Young,J something,Illegible,12:54:00 PM,3/14/2023,12:54:00 PM

3/31/2023,687280,Illegible,Illegible,10:23?,3/31/2023,10:23?

4/3/2023,PPSC,Illegible,Jan Blosser?,8:41:00 AM,4/3/2023,8:41:00 AM

4/3/2023,PPSC,Illegible,Jan Blosser?,1:10:00 PM,4/3/2023,2:46:00 PM

4/3/2023,PPSC,Shannon W?,Illegible,12:36?,4/3/2023,12:40?

4/4/2023,PPSC,Illegible,Jan Blosser,9:23:00 AM,4/4/2023,9:23:00 AM

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Ms. Massey continues to show she made zero effort to investigate the facts with data she has in her possession.  Insert line about her failing her job and call for AG.

 

h. “110 of the 767 transit logs accounting for 12,271 votes needed signatures.”

 

This Office finds that a total of 767 ballot transit logs were used in the April 4, 2023, election. Of those 767 logs, 23 were missing a signature in one area. The transit logs had more than one signature area and based on the remaining data on each log sheet and the totality of the circumstances, the City Clerk’s office concluded that ballot security was met. This Office finds that the Clerk’s Office’s conclusion was reasonable and that this allegation does not constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

 

Just an absolute falsehood.  Check the database and click the "missing signature" tab for the detail.  Again, Ms. Massey has this evidence in her possession.  The mountain of errors she continues to ignore or obfuscate clearly show she has violated her duties to [insert sentence and call for AG].

 

i. “Transit judges signed for the City Clerk receiving the ballots on 371 of the 767 pickups, representing 37,138 votes. The City Clerk should be signing these; that’s the point of that designation on the form.”

 

This Office finds that there is no legal requirement for the City Clerk to sign ballot transit logs. Transit judges are election workers/judges/City Clerk staff and are assigned other duties while not performing transit duties, to include opening and verifying sealed transit boxes as needed for the City Clerk’s Office. This allegation does not constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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The purpose of having two signatures for the City Clerk's office to sign for the ballots is obvious.  One cannot check oneself in as it would break the chain of custody.  It's the entire point of having a chain of custody.  [Insert the sentence about violating duties and call for AG.]

 

j. “Twenty-seven instances where the City Clerk reported totals do not match the transit logs.”

 

This Office finds that there is no evidence to substantiate this allegation and that there are no reasonable grounds to substantiate a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Ms. Massey clearly did not do an investigation or this would be clear.  See the chart above in 4b.  The total is actually higher.  It's 30 instances where the City Clerk reported totals that do not match the tranisit logs.  It's absolutely inexcusable that Ms. Massey claims no evidence.  Again....[insert sentence about violating duties and call for AG].

 

k. “A fraudulent log at the CAB on 4/4/2023 showed 387 votes, yet the chain of custody ballot box video shows it not opened at 7:06pm or any time near that as the log claimed.”

 

This Office finds that the 387 CAB log referenced in the Complaint was correct, however another CAB log of 336 ballots at 7:01 P.M. was misidentified and should have been attributed to the Powers DMV location. This mistake was identified by the City Clerk and does not constitute reasonable grounds to substantiate a violation of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Ask John how he wants to respond to this.

 

l. “Multiple instances of the transit seals to “lock the ballots in transit” were not used.”

 

This Office did not find that transit seals were missing. As a result, there are no reasonable grounds to substantiate a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Absolutely incorrect!  Ms. Massey has this data.  Their own video evidence shows this.  We provided two examples initially and have now found even more examples identified by "NEW" below.  Utterly false.  [Insert statement about violating duties and call for AG]

 

5. The Complaint alleges, “42% of the votes cast had no ballot box video coverage, which State Laws mandate a spart of the chain of custody of the ballots.”

 

This Office finds that neither Chapter 5 of the City Code nor the Colorado Municipal Election Code requires “video coverage” of ballot boxes. Nevertheless, as an extra security measure, the City Clerk requested the County Clerk turn on the cameras at each drop box location. The County Clerk turned the cameras on and a greed to send the City all video footage of the April 4, 2023 election. Neither the City Clerk nor any City employee had the ability to access or control any camera operated or owned by El Paso County. The County Clerk informed the City Clerk that if a Mayoral run off was needed, the video footage of the April 4, 2023, election would not be available until after the completion of that runoff election. Once the run off election of May 16, 2023, was completed, the County Clerk sent the City Clerk’s Office two hard drives with the video footage, along with a note indicating the days and times when the County Clerk’s cameras were not functioning.

 

There was no video footage of the days/times when El Paso County’s cameras were not functioning. The City Clerk had no knowledge of this until the video footage was received from the County Clerk. This Office finds that this allegation does not constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Discuss with John what the best response is to this.

 

6. The Complaint alleges, “53%of the election night transit judges are the who-is-whoof the Suthers senior administration with many of the top fire officials, including husband and wife teams, such as Fire Chief Randy Royal and his wife.”

 

This Office finds that this allegation does not constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code.

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Discuss with John.

 

7. The Complaint alleges, “[r]efusal to allow mayoral candidate Kat Gayle, who came in fourth ,meaning she has standing, to inspect the ballot return envelopes.”

 

This Office finds that this allegation does not constitute a violation of the provisions of Chapter 5 of the City Code or of the Colorado Municipal Election Code. The City Clerk communicated to Ms. Gayle that she has the right to inspect her own return ballot envelope, however Colorado state law, specifically CORA at C. R. S. § 24-72-204 (8)(a) prohibits the City from allowing Ms. Gayle to inspect any other ballot return envelopes.

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Discuss with John.

 

Based on the evidence obtained through the investigation, this Office concludes there are no reasonable grounds to find any violations of Chapter 5 of the City Code or the Colorado Municipal Election Code and declines to prosecute any allegations of violations against the City Clerk with respect to the Complaint in Municipal Court.

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SUBMITTED: November 14,2023