Wasco County suit takes aim at Midterm election counting in Oregon, Nation

Ballot Tabulator

By Tom Peterson 

The Wasco County Elections Clerk and the Board of Commissioners have been named in a civil suit alleging that voter tabulation machines have not been properly certified and the plaintiffs have asked for an injunction, calling for a hand count in the Midterm election. 

The suit, filed in state court in Wasco County - the seventh circuit - was submitted on Friday, Oct. 27, according to court records. Or, 11 days before the election.

If the suit is found to have merit, it could have resounding consequences for Oregon as well as nationally as tabulators are used in many locations and speed the process of elections throughout the country.

The suit alleges that Pro V&V, the company that certifies the Clear Ballot Count 2.2 tabulators being used in the current Wasco County elections office, was not accredited by the Federal Elections Assistance Commission (EAC).

The suit is being brought by Plaintiffs Jennifer Rae Gunter of Wasco County, Christina Lynn Milcarek of Marion County, and Chelsea Anne Weber of Clackamas County. They say the use of the tabulators is “violating their protected first amendment right, disenfranchising, marginalizing, and diluting plaintiffs cast votes.”

“There is a glaring lack of EAC accreditation for Pro V&V (Voting System Test Laboratory VSTL) to test Clear Ballot Group Clear Vote Voting System,” the suit states, (Clear Count 2.1 and Clear Design 2.1 in 2020, and ClearVote 2.2 in 2022, and all Clear Ballot systems used since February of 2017) and subsequently approved for use by the Oregon Secretary of State in Oregon elections based on the purported accreditation of the VSTL's…”

Nothing could be further from the truth, according to Wasco County officials.

Kristen Campbell

The suit has no merit, said attorney Kristen Campbell who provides legal services to Wasco County.

Pro V&V has “never been revoked, never lost accreditation, and did receive accreditation in 2021,  and Wasco County’s version of Clear Ballot was certified,” she said this morning, Nov. 2.

“I have absolute confidence in our tabulation,” she said, “because all the steps have been taken to ensure it.”

Pro V&V is headquartered in Huntsville Alabama and has tabulators in 13 states, according to its website. And 15 Oregon counties use the Clear Ballot tabulators, according to the Oregon Secretary of State website.

The suit alleges that the Federal Voting System Test Laboratory Program Manual, which was written from federal statute to provide clear guidelines, was not followed. The suit specifically states that Pro V&V did not receive its two-year accreditation as is required by the manual.

Campbell disagreed. 

“Federal law provides that EAC accreditation of a voting system test laboratory cannot be revoked unless the EAC Commissioners vote to revoke the accreditation,” Campbell said, quoting the statute, “The accreditation of a laboratory for purposes of this section may not be revoked unless the revocation is approved by a vote of the Commission.” 52 U.S. Code § 20971(c)(2). The EAC has never voted to revoke the accreditation of Pro V&V. Pro V&V has undergone continuing accreditation assessments and had new accreditation certificate issued on February 1, 2021.”

The plaintiffs claim the suit was filed “to restore and preserve the integrity of Oregon elections during the election of November 3, 2020, primary election held on May 17, 2022, and all elections since February 2017 therein, and the upcoming election set for November 8, 2022.”

County Commissioners, who were also named in the suit, said they were confident in the current county election process.

“To all my knowledge Wasco County follows all the rules and regulations put forth to us by federal and state statutes,” said Commissioner Steve Kramer this morning, Nov. 2. 

Commissioner Kathy Schwartz

Commissioner Kathy Schwartz also said she had confidence in Wasco County Clerk Lisa Gambee and her ability to properly get the vote counted.

The suit asks for an immediate injunction prohibiting the use of the Clear Ballot Count tabulators and a paper count to be conducted.

However, Circuit Court Judge John Wolf has essentially directed the case to federal district court in Portland and effectively stopped proceedings at the state level for now. 

This case is stayed (meaning stopped) until such time as the case is remanded by the District Court or this court is notified the matter is resolved, Wolf’s order reads. 

“Voters can rest assured these results are accurate because we audit them every time,” said Ben Morris, spokesperson with the Secretary of State. “Post-election audits are conducted by hand and verify the voting machines are working correctly.”