REPORT: 8-5-24 Second Congressional District recount

August 5, 2024

Subject: Second Congressional District recount report

Introduction

On Thursday, August 1, 2024, the Office of the Lieutenant Governor was made aware of an issue in the electronic adjudication module of Election Systems and Software’s (ES&S) ElectionWare software. Tooele County Clerk Tracy Shaw discovered the problem while reviewing the Congressional District 2 (CD2) recount results. Washington County Clerk Ryan Sullivan later found the same error. This error, known as a commit results error, and the associated discrepancies were limited to the recounts performed in Tooele and Washington County; other CD2 counties were unaffected.

The purpose of this report is to describe the commit results error, provide a timeline of events, and outline steps taken to ensure that no other counties experienced the error or had discrepancies in their recount results. 

Adjudication and the Commit Results Error

Adjudication is one of the steps county clerks follow when processing ballots. Occasionally a scanner may be unable to determine how an individual intended to vote their ballot. When this occurs, the ballot is sent for adjudication. Adjudication is the process of determining a voter’s intent on the ballot. Utah election officials adjudicate a limited number of ballots each election according to the process outlined in statute (See Utah Code 20A-4-105). Once ballots are adjudicated, election officials “commit” them to the election, meaning that the software adds the adjudicated ballots to the overall vote totals. 

Tooele County: While committing results for the CD2 recount, the Tooele County Clerk’s Office received an error message that the ballots had failed to commit. The county was able to clear the error message and proceeded to commit the ballots; the system no longer showed any ballots that needed to be adjudicated, and they appeared to have been properly committed. However, only a portion of the adjudicated ballots had actually been committed to the results.

Still unable to reconcile results, the Tooele County Clerk’s Office conducted a hand count of the CD2 race in one precinct in an attempt to reconcile those numbers with the results in ES&S’s software. On Thursday morning, August 1, the county clerk and an onsite ES&S technician identified that the electronic adjudication, specifically the commit results error, was the cause of the discrepancy. 

ES&S promptly notified Ryan Cowley, the state’s Director of Elections. Director Cowley then performed an analysis of Iron County’s database to determine if the county had been affected. It had not. Director Cowley then instructed the Tooele County Clerk on how to perform the same analysis. The analysis showed the discrepancy between the votes recorded in Tooele County’s ElectionWare database and Tooele County’s reporting module of the database. After speaking with ES&S, they confirmed with Director Cowley that this was an appropriate and effective method to identify an affected county. ES&S, with approval from the Lt. Governor’s Office, provided instructions to all county clerks in CD2 on how to determine if the error had occurred within the software in their county.

Washington County: Washington County experienced the same error as Tooele County. When a discrepancy was discovered in their election results, it was quickly traced to the same electronic adjudication commit error. Washington County delayed the board of canvass meeting to further investigate the discrepancy and ensure the county’s vote recount totals were correct. Iron County also delayed the board of canvass meeting to further investigate and ensure the final vote count was correct. 

Thursday afternoon, Director Cowley contacted each county clerk to discuss the issue and verify the county’s vote count against the count in ES&S’s software. On Friday, August 2, staff from the Office of the Lieutenant Governor worked with each county clerk who used electronic adjudication in CD2 to further verify that the commit results error had not occurred in their system during the recount. The checks performed by the Office of the Lieutenant Governor revealed that Tooele and Washington were the only counties impacted.

Independent analysis was performed by staff in the Office of the Lieutenant Governor and the county clerks. ES&S completed their own analysis and cleared each of the following counties: Davis, Garfield, Iron, Juab, Kane, Piute, and Sevier. ES&S was on site for electronic adjudication in Tooele and Washington Counties. (Note: Beaver and Salt Lake Counties do not use ES&S. Millard and Wayne do not use electronic adjudication). 

Tooele County was able to incrementally adjudicate their ballots and confirm that all adjudicated ballots were included in their results as certified by their board of canvass on Friday, August 2, 2024. The instructions used to successfully commit results in Tooele were shared with Washington County who started the adjudication process again on Friday, August 2. Washington County again encountered problems with adjudication on Friday afternoon, paused their recount, and restarted the electronic adjudication process with on-site support from Deputy Director of Elections Shelly Jackson and ES&S. The full adjudication was completed without the error on Saturday, August 3. 

Impact of the Commit Results Error

Tooele County: 55 adjudicated ballots were added to the recount tally in CD2 that were not included in the final June Primary results. Colby Jenkins received 37 votes and Celeste Maloy received 18 votes. This resulted in a net gain of 19 votes for Colby Jenkins.

Washington County: 36 adjudicated ballots were added to the recount tally in CD2 that were not included in the final June Primary results. Colby Jenkins received 26 votes and Celeste Maloy received 10 votes. This resulted in a net gain of 16 votes for Colby Jenkins.

As part of this review, Director Cowley asked ES&S to provide a public accounting of the issue and submit a preliminary report. Their report will be sent separately. Additionally, ES&S issued the following statement through Katina Granger, Senior Manager of Public Relations:

“During the recount of the 2024 Utah Primary second congressional district race, two counties reported receiving an error message when committing electronically adjudicated ballots to the reporting module. In simple terms, this is the process used by election officials to save final ballot decisions for those ballots that required additional review because they could not initially be interpreted due to incomplete or stray marks by the voter.

Upon inspection of the election database, it was confirmed that the adjudicated ballots were correctly counted and recorded; however, had not successfully saved to the reporting module. The issue was corrected by identifying the adjudicated ballots that did not save properly, clearing out those ballots, and re-loading them in smaller batches, resulting in accurate and reliable results.

Currently, ES&S is working with the State and each jurisdiction participating in the recount to audit all databases involved in the recount.”

Conclusion

Based on the analyses conducted by clerks, staff, and ES&S, the Office of the Lieutenant Governor is confident that the results of the recount are correct. However, this issue is significant and merits further attention. Director Cowley recommended the following actions to Lieutenant Governor Deidre Henderson: 

1. The State of Utah should discontinue the use of electronic adjudication in any county using ES&S software indefinitely.
2. The Office of the Lieutenant Governor should conduct a thorough review of all systems and results in ES&S-supported counties that used electronic adjudication in the June 2024 Primary Election. The objective of the reviews will be twofold:  

• Identify if the commit results error was present.
• If the issue was present, identify any discrepancies in the number of votes. The results of the review will then be published.

3. The Office of the Lieutenant Governor should conduct a review of processes and analyses that could be implemented to strengthen existing procedures. The goal of this review will be to ensure that not only this issue but any other issues will be timely detected before canvassing results in future elections. 

The Office of the Lieutenant Governor thanks county clerks for their dedication, integrity, and commitment to ensuring that Utah’s elections are accurate and conducted in accordance with statute. A special thanks to Tooele County Clerk Tracy Shaw and Washington County Clerk Ryan Sullivan, and their staff for their professionalism and attention to detail.

Ryan Cowley
Director of Elections, Office of the Lieutenant Governor