Oregon Secretary of State weighs in on Clackamas County election debacle

Thousands of Clackamas County ballots from the May 17 primary had to be reprocessed because misprinted barcodes left them unreadable by tabulating machines. According to the county clerk, the vote counting will continue until mid-June. The debacle is fueling conspiracy theories and caused confusion in the 5th Congressional District race, which the Associated Press finally called 10 days after the election. We hear from Oregon Secretary of State Shemia Fagan about the situation in Clackamas County and how Oregon can avoid problems like this in the future.

The following transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The vote counting in Clackamas County seems to be nearing an end. Out of about 116,000 total ballots collected, the county only has about 5,000 more to count. It’s a far cry from where things stood two weeks ago when tens of thousands of ballots had to be reprocessed by hand because misprinted barcodes left them unreadable by tabulating machines. At that time, local and state leaders were blasting county officials for their seemingly lackadaisical approach to the blurry ballots.

Shemia Fagan was one of those leaders. She’s Oregon Secretary of State, meaning she is the state’s top elections official. She called the counting delays unacceptable and said she was disappointed she didn’t see more urgency from county leaders. Fagan joins us to talk about where things stand now and how this episode could affect Oregonians’ faith in our elections going forward. Shemia Fagan, welcome back.

Shemia Fagan: Thanks, Dave. It’s good to be here.

Miller: So you put out some specific benchmarks for Clackamas County to meet in order to get the election results certified, or finalized, by the June 13 certification deadline. Are they going to meet that deadline?

Fagan: It looks like it, Dave. In fact, we’ve been told by Clackamas County – and from what they have on their public website – that we actually expect they should finish their counting today. I do want to take a quick opportunity just to thank all the elections workers and volunteers from the county and the state who have really pitched in to get this work done. There were 146 people at the elections office just on Saturday over Memorial Day weekend, just doing this work. And I think that the focus has rightly been on the Clerk and the failure to plan. I don’t want to miss the opportunity and the fact to just celebrate the Oregonians who stepped up when they were needed. It is really because of them that Clackamas is on track to certify this election about two weeks before the legal deadline of June 13th.

Miller: Which is great news, obviously. Two weeks ago…or a week and a half ago, it wasn’t clear that the county would meet that deadline. There was so much uncertainty about the pace of the copying and the scanning. What would have happened if they had missed the deadline that’s coming up?

Fagan: Every voter in Oregon has the right to have their vote counted and that’s in the state constitution. If they were not finished – again, we expect them to be – but, hypothetically, if they had not finished by June 13th, I would have used my authority as Secretary of State to order them to continue counting until every vote was counted. If I had to go and essentially get a court order to enforce that, I would have done that. Because, the most important thing here – the North Star here – is that every vote is counted and every voice is heard.

Miller: Mistakes happen. That’s just a reality of human life. In this case, there was a printing error that made the ballots unreadable by the scanner. What should have happened as soon as the ballots were found to be unreadable, or tens of thousands of them were, at least.

Fagan: We first heard about this on May 3rd – that’s the first time I heard about that. Within 24 hours, I reached out and offered assistance. At that time, the most immediate need that the county had from me was to help them set up this ballot correction process in a secure manner. Duplication, as I know that a lot of folks have heard, happens pretty much every election. Somebody might spill coffee or beer on their ballot, and that bar code is unreadable – but certainly never on this scale before.

We inquired at that time about the availability of resources to complete the work. Clackamas elections told us that they had sufficient resources. What they should have done – what we expected that they were doing – was essentially doing math. This is essentially a math problem. How long does it take to duplicate a ballot? How many ballots do we estimate that need to be duplicated? And that will give you the amount of people in shifts that you needed working to get that duplication done.

Essentially, [that is] what I have overseen for the past two weeks to get this done, is asking them for those benchmarks. It took them more days than we wanted to get us that plan. But – as you mentioned at the top of the hour, Dave – as soon as they gave us that plan, within hours, we turned around benchmarks for them that said, “Great. Based on the math you gave us, we expect you to do this many ballots per day and to have this complete.” The deadline we gave them was June 3rd…excuse me, June 1st, which is this Wednesday. They’re actually going to complete it early based on the benchmarks that we had given them.

Miller: You also offered people-help...people-power-help. Did they…either from the state or from neighboring counties. Did that end up happening? You mentioned 146 people working this weekend. Were those all Clackamas County employees or were people coming in from elsewhere?

Fagan: People were coming in from elsewhere, but I do believe the bulk of them were Clackamas County employees. I do want to give credit where credit is due. Chair Tootie Smith has really taken a leadership role here. She and I were in contact nearly every day in the weeks after the election, when we were…we obviously knew that we needed to work together to give Clackamas County elections the support that they needed. I believe the majority of those were from the county. We did have folks from our office.

I want to make a distinction, Dave. I had top elections officials dispatched every day, starting with the day before the election, at Clackamas County to do high-level observation to make sure that processes were secured, to answer questions. In addition to that, we had asked our staff, just at the Secretary of State’s office – folks who were in corporations, archives, elections, doesn’t matter their division – to go over and help on nights and weekends. I know that we also are HR-connected with Clackamas County’s HR to make that a seamless process to bring folks over. I know that we also had state people, but I do believe the vast majority of the folks that were there this weekend were Clackamas County employees.

Miller: As you noted, when you asked the County Clerk, Sherry Hall, for her plan on how they would actually count the ballots on time, you said it included the basic math about how many ballots there were and how long it was taking to process them. It took Hall a full week to even respond. In that response, she complained to you, saying that your request was taking her away…taking time away from what she really needed to do, [which] was focus on the election at hand. You responded by writing, “Sherry, with respect, all of the information we are asking for…to work with you, is directly related to the election.”

It was a bureaucratic exchange, but it was a testy exchange, emblematic of the last couple of weeks here. To me, it brings up the big question of how much power you actually have in this situation. I noted that you are the top elections official for the state as Secretary of State. But, Sherry Hall is an independently elected clerk in Clackamas County. What can you actually do?

Fagan: Dave, the law gives the Secretary of State a fine line, but a bright line in elections authority. Oregon law is very clear. It provides that the County Clerk is the only elections official who can conduct county elections. In fact, literally, that’s a quote: The county elections is the only elections officer who may conduct an election [in] this state. That’s a direct quote from Oregon State Law.

I have been committed from the beginning, seeing this through, to act within my maximum authority to provide detailed legal instructions. Security plan review is something that we have done. We essentially helped them rewrite their security plan to make sure that…expanding the room that they have needed, that every room had a place for observers, and that was captured in their security plan…and oversight. As you mentioned, Dave, we also offered extensive personnel support and will continue to do that to make sure that Oregon voters have this accurate and trustworthy result.

I think it’s important here for your viewers to know that the Secretary of State now…I care deeply about democracy, and the rule of law, and I value local leadership. With those commitments…now, that may not always be the case. When I saw my legal authority, I was committed to acting within the maximum legal authority, Dave. I was also equally committed to never step over that line, because I will not set a precedent that makes it easy for a potential future Secretary of State who maybe is not as committed to democracy as I am to wrestle local control away from our county elections officials.

Miller: The Oregonian editorial board has called on County Clerk Sherry Hall to resign. Do you agree?

Fagan: Sherry Hall is up for reelection in Clackamas County this November. The Clackamas County voters are going to decide that, Dave. My North Star is, and has been, to help her land this plane. As of today, she is the only person legally authorized to land this plane, and we need to do that by June 13th. That’s what I’m solely focused on. I’m not going to say or do anything that complicates that relationship and makes it more difficult for me to help her land this plane by June 13th.

Miller: Could changes at the state level ensure that something like this doesn’t happen again?

Fagan: One change that I think legislators are going to consider, Dave, is that Clackamas County is the only county in the tri-county area with an independently elected clerk. And while there are certainly benefits to having an independently elected clerk…I’ve been out visiting them – in fact, that’s where I was over Memorial Day weekend. I was visiting Harney, Malheur, Baker, Union, and Wallowa County Clerks to talk about them and hear how their elections went, which went smoothly in all 35, 36 counties.

But, one thing that is clear is that [in] Multnomah County and Washington County, they have an appointed clerk who essentially has a boss. Their boss is the County Commission who appoints them. If something like this would have happened in Multnomah County or in Washington County, then the county would have had direct authority to oversee that person and to give them directives. In Clackamas County, that wasn’t the case. Again, I want to mention the leadership of Tootie Smith...I really appreciated her support…but, she and I both didn’t have authority over Clerk Hall because she is independently elected.

I know that Representative Janelle Bynum has been very concerned about how this is going to impact the perception of our elections and trust by voters of color…we’re trying to increase that turnout in Clackamas County, everywhere in the whole state. Representative Bynum has been focusing on increasing turnout amongst voters of color and immigrant voters. I believe the legislature will probably give serious consideration to whether they should change the law, whether Clackamas County should have an appointed clerk the way that Multnomah County and Washington County do, just because it’s such a large county. As we just saw, the results of this election impacts not just local elections in Clackamas County, but something as big as a congressional election.

Miller: Well, I want to turn to that last point, though: Questions about faith in our system, because it’s become a mainstream talking point among Republicans that the 2020 presidential election was stolen. It’s obviously…that’s the big lie. How worried are you that this debacle could play into conspiracy theories from whatever side that undermine faith in Oregon’s processes?

Fagan: Most Oregonians trust our democracy. I want to start there, Dave, because I think it’s important to recognize that. Even before this delay in Clackamas County, polling shows that about 30% of people don’t trust, for example, the 2020 election results. That was before this. I want to be clear, trust is earned, and my mission as Secretary of State is to build trust. Let’s be frank, the missteps by Clackamas County in this instance…they’re going to be a setback. There’s just no denying that. You can’t have weeks of negative headlines about an election without eroding trust. That’s unfortunate because the process the county used to fix the barcode issue, to duplicate those ballots, is secure. It’s transparent. I can confirm that I will be certifying accurate election results when I do my certification, which is 10 days after the county’s on June 23rd, I’ll do my certification.

The public who have observed the process…while it has been slow and tedious, it is accurate and trustworthy. I think it’s important that, while this was absolutely an unacceptable delay…and I want to be clear about that…frustrating to no end to Oregonians caring about these elections in Clackamas County. In the end, if the gold star of elections is that the North Star is to have accurate, secure elections, that is going to happen. I want to be clear about that. We vote on paper, and I’m [going to] be conducting post-election audits – not only in Clackamas County, Dave, but in all 36 counties. I essentially have them pull off randomly selected batches off the wall and they have to hand-recount all of those ballots. Of course, in Clackamas, that’s going to include the matched-up, duplicated ballots to make sure that those are exactly like the computer tallied them.

We’re going to have accurate, secure elections that can be proved with a post-election audit here in Oregon. Even with a mistake as large as this one in Clackamas County, vote-by-mail works to produce secure, accurate elections.

Miller: Shemia Fagan, thanks very much.

Fagan: Thanks, Dave.

Miller: Shemia Fagan is Oregon’s Secretary of State.

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