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. Oregon Secretary of State Shemia Fagan joined Dave Miller on Think Out Loud to talk about the situation in Clackamas County and how Oregon can avoid problems like this in the future.
This interview has been edited for length and clarity. To listen to Think Out Loud’s full conversation with Oregon Secretary of State Shemia Fagan, click the “play” button at the top of the page.
Dave Miller: 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?
Shemia Fagan: It looks like it. 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 [Tuesday]. And, I do want to take a quick opportunity just to thank all the election 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 doing this work. 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 13.
Miller: Two weeks ago, or a week and a half ago, it wasn’t clear that the county would meet that deadline. 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: 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. And within 24 hours, I reached out and offered assistance. The most immediate need 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.
So we inquired about the availability of resources to complete the work in Clackamas. Elections told us that they had sufficient resources. What we expected that they were doing was essentially doing math, right?
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, which is essentially 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. And 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 1st, which is this Wednesday. So they’re actually going to complete it early based on the benchmarks that we had given them.
Miller: When you asked [Clackamas County Clerk] Sherry Hall for her plan for how they would actually count the ballots on time, 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.
She complained to you saying that your request was taking her time away from what you really needed to do, which was focus on the election at hand.
It was a testy exchange, emblematic of the last couple of weeks here. I noted that you are the top elections official for the state, as a secretary of state, but Sherry Hall is an independently elected clerk in Clackamas County. What can you actually do?
Fagan: 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 from state law: “The county elections officer is the only elections officer who may conduct an election in this state.”
So, I have been committed from the beginning 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 … that still every room had a place for observers. And that was captured in their security plan and oversight.
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 is that Clackamas County is the only county in the tri-county [Portland metro] area with an independently elected clerk. While there are certainly benefits to having an independently elected clerk, I’ve been out visiting them 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 other 35 counties — one thing that is clear is that most counties, Multnomah County and Washington County, they have an appointed clerk who essentially has a boss, right?
Their boss is the county commission, who appoints them. And 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. In Clackamas County, that wasn’t the case. Again, I want to mention the leadership of Tootie Smith, and 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 Rep. Janelle Bynum [D-Happy Valley] 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, but Rep. Bynum has been focusing on increasing turnout amongst voters of color and immigrant voters. So 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. And as we just saw the results of this election impact not just local elections in Clackamas County, but something as big as a congressional election.
Miller: 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. But even before this delay in Clackamas County, polling shows that about 30% of people don’t trust, for example, the 2020 election results. I want to be clear: Trust is earned. My mission as secretary of state is to build trust, and, 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, and that’s unfortunate because the process the county used to fix the barcode issue, to duplicate those ballots, is secure and transparent.
While it has been slow and tedious, it is accurate and trustworthy. In the end, if that north star is to have accurate, secure elections, that is going to happen.
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