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The Freedom of Information Act is not Respected in South Carolina

Updated: Jun 29, 2023

South Carolina citizens sue to enforce the SC Freedom of Information Act

and obtain the 2020 Cast Vote Records:

By Guest Contributor, Laura Scharr Founder of SC Safe Elections June 29th 2023 Our elections belong to the citizens not the government (Full Stop). If we aren't able to get access to our own election data, how are we able to hold our government accountable? Government officials are servants of the citizens, not the other way around. SC Safe Elections has been analyzing information about our state’s election system and processes since the 2020 election. Our goal is to enhance confidence in our state elections. To date, we have evaluated the machines and their vulnerabilities, canvassed 8 counties, and observed the process in real time during our primaries and midterm elections. In furtherance of our goal to establish confidence in elections, we wanted to gain access, through the Freedom of Information Act (FOIA), to Cast Vote Records (CVRs).

Cast Vote Records are the electronic record of a voter’s selections: information from a scanned ballot image is transferred to a spreadsheet that shows all of the vote selections of an election in the relative order of tabulation. It is not in the exact order of tabulation (counting) as the information is randomized in batches of say 100 or 200, depending on the electronic voting system manufacturer.

Unfortunately, our Cast Vote Record FOIA requests were denied even though 27 other states and DC provide these records; some counties across the nation even allow them to be downloaded to anyone who visits their website.

The “red” state of SC will not allow their citizens access to the CVRs so that they can validate an accurate vote count. This is particularly troubling as our SC state constitution in Article II Section 1 states,

“All elections by the people shall be by secret ballot, but the ballots shall not be counted in secret.”

If our ballots are being fed into a tabulator that counts the vote and we can’t verify the progression of the count, isn’t that counting unverifiable and unable to be audited? Furthermore, our ballots are counted using a bar code on the ballot so we can’t truly verify our vote visually from the ballot - we have no idea if the bar code accurately reflects our choices.

Our State Election Commission (SEC) claims that there is Personally Identifiable Information (PII) on ballot images and that somehow the CVR report could be tied to a voter. However, there is no PII on the ballots; and in areas where there are only a few people with the same ballot style (the races listed on their ballot), these voters can be filtered out to ensure that no one can determine how someone voted. This is done in the other 27 states. Problem solved. Our expert witnesses can attest to these facts. In addition, our state FOIA laws don’t explicitly cite an exemption that would prohibit access to these records.

In August of last year our grassroots group filed a claim against the State Election Commission (SEC) and 8 counties to gain access to the Cast Vote Records for 2020 and to preserve the 2020 election data (the most recent election at the time).

The SEC and counties responded as follows:

  • They counter-sued us. Yes, Regular citizens are being punished for asking for our own data. They want to prevent us from ever gaining any access to any data from 2020 specifically. As my 20-something year old son recently stated, “makes you wonder what they are trying to hide.” Indeed. Why is the SEC fighting this lawsuit so hard? They have dragged this out for so long. Now it looks like we will be going to trial almost a year after this fiasco began, costing our small group tens of thousands of dollars while the defendants spend taxpayer dollars - to fight the very citizens craving information about our own elections. (FOIA law Section 30-4-100 in South Carolina states that, “the court shall establish a scheduling order to conclude actions brought pursuant to this chapter within six months of initial filing”).

  • Due to law-fare, the defendants have dragged this case out by delaying discovery and even denying the existence, knowledge, and location of CVRs as well as knowledge of the definition of PII (personally identifiable information). (In depositions they admitted they do have access to the data). To date, we have provided adequate discovery information to prove our case and have received little to nothing from their side.

  • Because the facts favor us, they have resorted to character assassination. They are insinuating that we and our experts are aligned with other election deniers and we are "trouble-makers". To wit, in our depositions they asked some of us: if we attended January 6th, if we believe that Biden is the president and if we ever met Mike Lindell. Nothing could be further from the truth. We have always been professional with our canvassing and poll observation efforts and have operated independently as individual citizens just wanting the truth about our elections. They are insinuating that we may have broken election laws by reporting broken seals on tabulator machines (the election director claims we were being disruptive and loud which is untrue. She also claimed there was a seal on the machine which is also untrue. The tamper resistant seal was in fact missing) – the lack of a seal would put into question the results of the election and the machine should have been immediately evaluated as the chain of custody was in doubt and the machine could have been tampered with. The seals protect the flash drive compartment at the top of the tabulator. By the way, they reported some of us to SLED and to DHS—and to national news outlets. This is the tactic they use to discredit and harm regular citizens who find problems.

But the false cries from election officials about ‘election deniers’ and ‘domestic terrorists’ are wearing thin, particularly when a recent Rasmussen poll indicates that 62% of likely voters believe cheating affected the 2020 election:

A majority of voters suspect recent elections have been affected by cheating, and believe officials are ignoring the problem:

The latest Rasmussen Reports national telephone and online survey finds that 60% of Likely U.S. voters think it is likely that cheating affected the outcomes of some races in last year’s midterm elections, including 37% who say it’s Very Likely.

Clearly, we are not the minority. Our goal is to assuage concerns that all citizens of South Carolina have regarding issues with elections, to enhance trust so that they know the vote is transparent, accurate, accountable and auditable. But how can we do that if we are denied the critical data which creates a chain of custody and trail for audit? This audit trail is mandated in both Federal and state law.

HAVA 301 (6b) and SC SECTION 7-13-1655. "Voting system" defined; (A) As used in this section, "voting system" means: (1) the total combination of mechanical, electromechanical, or electronic equipment, including the software, firmware, and documentation required to program, control, and support the equipment that is used to: (a) define ballots; (b) cast and count votes; (c) report or display election results; and (d) maintain and produce audit trail information….

The audit trail is just that… a Cast Vote Record.

Our SC Constitution states that all of the power is with the people. It gives us the right to challenge our government and even modify it if it is not acting in our best interest:

SC Constitution SECTION 1. Political power in people. All political power is vested in and derived from the people only, therefore, they have the right at all times to modify their form of government. (1970 (56) 2684; 1971 (57) 315.)

To be clear, we care about all elections and candidates and want free and fair elections for all. There are people on our team who have voted for Obama, Clinton and Bernie Sanders, others voted for Ron Paul and other Libertarian candidates, others voted Republican. We are a fully diversified crew. What we all have in common is the desire for elections that we can trust. We are having a hard time trusting our current system and it doesn't help when our election officials withhold the information we need to build that trust. We do, however, support and respect hardworking poll and election workers who are trying their best in a complex system.

The bottom line is, what should it matter if we are black, white, liberal, conservative, or you like us or not? What should it matter who we have discussed CVRs with or how we will use them after we receive them?

We are citizens of South Carolina asking for public records and we should be treated the same regardless of our backgrounds. Government works for the people and should never become power-hungry, tyrannical, or obstruct the ability for some citizens to obtain data--particularly essential data about how their vote was counted. Clean elections are the foundation of a strong republic.

Our agencies telling us everything is fine, isn't helping to inspire confidence. There needs to be accountability in our elections and in our state and federal agencies. Transparency is the cornerstone for enhancing trust. If we can’t rely on our government to favor transparency then we can’t trust their actions and results. Just like a child often can’t just be told what to do; they need to find out on their own. The people need to do their own independent research to ensure that the government is acting in their best interests. If you were an election official, wouldn’t you want to use all of the tools available to determine if your elections were accurate and free from irregularities? Wouldn’t you want to provide as much information to your citizens and partner with them so that they could feel better about the process and procedures? This information will also help local election officials better understand and address any issues with elections. Many of these officials aren’t able to do their job properly if they aren’t getting the proper information to audit elections accurately and comprehensively.

Disrespecting FOIA law and attacking innocent citizens who are just asking questions and gathering and analyzing data is not a good look. South Carolina can do better.

Copies of the pleadings and expert affidavits can be viewed here on the SCSE website.

(Laura Scharr worked for 10 years for Fortune 100 companies as an engineer and marketing executive. She is a certified financial planner and executive coach and ran her own financial coaching and planning firm for over 10 years.

After the 2020 election, she founded SC Safe Elections (SCSE) where she and her team have been investigating issues with respect to the election process from start to finish. In addition, she is a member of several national election integrity groups and is considered a subject matter expert. Laura is an Executive committeeman for her precinct in Lexington County and as a constitutional conservative she believes all the power comes from the people and fixing our elections is the only way we can protect our constitutional freedoms.)

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