Republican candidates resurrect a Kraken claim about testing labs

Ali Graeff, a Republican in Missouri, is running for state office under the banner that the 2020 election should be decertified. While that is unfortunately commonplace in today’s GOP, her reason for that claim is not. She does not bring up Dominion, or servers in Germany, Sharpies, or bamboo fibers from China—any of these outlandish claims that have captivated MAGA audiences for more than a year.

Her reason is so legalistic that it could have been conceived of by a Sovereign Citizen. Her campaign website, titled “No Mo Fraud“, launches directly into paragraphs about federal election agencies, testing labs, and their accreditations. No empty rhetoric about patriotism or critical race theory for this one.

Another Republican candidate, Colorado state representative Ron Hanks, is running for US Senate on a somewhat more typical platform with a typical campaign website. But his main issue is election denialism. He is an ally of the Mesa County clerk Tina Peters who was busted for unauthorized access to voting machines; Hanks himself was outside the Capitol on Jan 6. He has filed a lawsuit against the Colorado Secretary of State seeking a full audit of the 2020 election—seemingly, in conjunction with a Mike Lindell funded group—that also zeroes in on testing labs and their accreditation.

In yet another state, Arizona, hearings continued to be held on the 2020 election a full year after the election. At a recent Pima County hearing, the supposed lack of testing lab accreditation was brought up. Gail Golec, who posted that video on Rumble, is now running for Maricopa County Supervisor on a platform of “nullifying 2020“. She, too, is a Mike Lindell endorsed candidate.

Pima County hearing, December 13th, 2020

The point they make is hard to grasp at first because it is twice removed from the actual act of voting. Voting technology needs to be certified before it is used in an election. Some states use commercial testing labs to certify voting technology. But some states also mandate that those commercial testing labs must first be accredited by some very specific federal agencies that another federal agency—the Election Assistance Commission (EAC)—has selected as being the accrediting authority.

Well, say these candidates, the two commercial testing labs that were used during the 2020 election were not properly accredited.

Go down the chain then: therefore, the voting technology was not properly certified; therefore, elections that used them were not properly conducted; therefore, Trump is still President, quod erat demonstrandum.

This theory was recently given a two-parter article by Gateway Pundit, which in the right-wing world is like being under Klieg lights. The first article goes over their view of the missing accreditation in painstaking detail. The second covers a third testing lab that was used in Missouri. In May, Graeff went on a Dan Bongino produced radio show: Real Talk with Dr. Eric Nepute to go over these issues.

But Gateway Pundit, Graeff, and Hanks are all late-comers to the issue of accreditation of testing labs. This highly legalistic (and wrong) conspiracy theory was first aired at the end of 2020, a time when it seemed as though the nation was teetering on the edge of a nervous breakdown.

Sidney Powell’s Kraken lawsuits were such a fountainhead of conspiracy theories that for any wild claim made in the year since, it’s a good bet that the Kraken showcased a version of it. The theory about voting system test laboratory (VSTL) accreditation is no exception. Here’s how an anonymous affidavit in the Kraken lawsuits begins: “On or about October 2017 I had reached out to the US Senate Majority Leader with an affidavit claiming that our elections in 2017 may be null and void due to lack of EAC certifications. In fact,” it goes on to say, Senator Ron Wyden had voiced similar “discreet” concerns about EAC certifications in October 2017 in a letter to one of the testing labs.

I found the aforementioned letter from Sen. Wyden. You will be unsurprised to learn that Sen. Wyden did not, in fact, express concerns about EAC certifications. The letter was indeed written to Jack Cobb, the CEO of one of the testing labs, Pro V&V—but it dwelt on potential cybersecurity threats to election infrastructure, not any concerns about certification. But the affidavit cleverly insinuates Ron Wyden into the false claim.

The writer, as uncovered by a WaPo investigation, is Terpsichore Maras-Lindeman (Tore), a podcaster and charlatan extraordinaire. We saw in my last article how she twisted the scholarship of a team of cryptographers to imply that the election was stolen. The same affidavit dwells at length on voting system testing labs and their supposed lack of EAC accreditation. We will examine this claim in detail below.

Aside from this, she throws out a number of other dark insinuations: that the CEO Jack Cobb once worked for an aerospace contractor; that the Chair and the IG of the EAC were both appointed by Barack “Hussain” Obama, with the middle name thrown in for effect. On her podcast, she has repeated the lie that Sen. Wyden expressed concerns about EAC certifications, and claimed that EAC’s lack of quorum for a year means that the elections of 2018 and 2019 should also be null and void.

Tore is a skilled charlatan. She reads widely and delves into obscure texts that her audience would normally have little use for. Then, using the jargon of these obscure texts, she turns their meaning around to make insane claims that her audience is woefully unequipped to see through. To make this particular claim Tore delved into a little-known federal agency, the EAC, and a little known 2002 law, called the HAVA Act.

The election of 2000 hung on the fate of butterfly ballots and whether punched out “chads” hung on or fell off. In response, Congress passed the Help America Vote (HAVA) Act in 2002. It mandated a technological overhaul of outdated voting systems in the states. It also created an Election Assistance Commission (EAC) to be a repository of knowledge of best practices and standards for voting systems.

Among other things, the EAC accredits testing laboratories as being capable of evaluating voting systems as being up to federal standards. There are only two such accredited labs in the US: SLI Compliance and Pro V&V. Both, according to the EAC, have been accredited for years, and never been out of compliance.

But it’s not that simple. It’s a layer cake of accreditation—where each layer is a federal agency or program. EAC accredits VSTLs. But before it can do that, it expects the lab to first pass accreditation by NIST: the National Institute of Standards and Technology. NIST, in turn, has chosen its National Voluntary Laboratory Accreditation Program (NVLAP) to perform the evaluation.

So the layer cake goes like this: NVLAP evaluates VSTLs. If they pass, NIST accredits them. If accredited by NIST, EAC confers upon the VSTL the label of an accredited testing lab for voting systems.

However, elections in the US are run by the states, not federally. So, the EAC does not require that voting equipment be certified by one of these VSTLs—it is voluntary. A state must follow its own laws about certifying voting equipment. States come in four flavors in terms of how closely they hew to EAC’s standards. Some, indeed, do require an EAC-accredited VSTL for certification—others don’t.

Tore’s affidavit is a firehose of theories about the testing labs, while Gateway Pundit states it baldly: “Per a thorough review of election regulations, not a single election voting machine in the 2020 election was certified by an accredited voting machine company according to US law“.

They base this claim on a few publicly available facts. I checked their claims with a former EAC employee who is intimately familiar with HAVA rules surrounding VSTLs. This person explained to me that the Kraken/Gateway narrative is based on several misunderstandings. Here are the claims.

Claim 1: Gap in accreditation:

One of the two testing labs, Pro V&V, had a gap in accreditation from February 24th, 2017 to February 1st, 2021. If you scan EAC’s VSTL webpage about Pro V&V, you see a certificate dated 2/24/2015. The “effective through” date is two years from then, which comes to 2/24/2017. After that, you don’t see an accreditation certificate until 2/2/2021.

Claim 2: Accredited longer than the mandated two years:

The other testing lab, SLI Compliance, had the opposite problem: it was accredited for two long. It got a certificate dated 1/10/2018, but it was dated to be effective for three years. They point to some text in EAC’s VSTL program manual that states (section 3.8) that “a grant of accreditation is valid for a period not to exceed two years.”

Claim 3: Not signed by the Chair of the Commission

Both EAC-issued certificates were signed by EAC’s Executive Director Mona Harrington. They point to section 3.6 of the VSTL program manual that states “the certificate shall be signed by the chair of the commission.”

Claim 4: Lack of EAC quorum

In 2019, two new EAC commissioners were confirmed by the Senate, which restored the quorum they had lacked for a year. Tore claims that this implies they could not have completed accreditations for VSTLs in 2018, therefore, elections in 2018 and 2019 were not properly certified. She touches on this in her affidavit, and has made this claim repeatedly on her podcast.

Claims about states:

The two candidates make claims about their own states: Graeff claims that in addition to the two testing labs mentioned above, 71 Missouri counties used NTS Huntsville, a lab that has never been accredited by the EAC. While Hanks says that while Colorado’s voting system were supposedly certified by a federally accredited Pro V&V, it actually wasn’t accredited at all.

The facts:

It was explained to me that the Kraken/Gateway crew is conflating some distinct things.

There are two separate accreditations in question: the NIST evaluation of competence, and the EAC’s acceptance of that. The NIST evaluation needs to happen every two years. The EAC is also supposed to do an audit every two years to make sure the labs remain in compliance. However—and this is a key point that the Kraken/Gateway crew miss—EAC’s accreditation, once granted, is not lost unless voted upon by the EAC’s commissioners, even if the compliance audit is missed.

The language on this is pretty clear in chapter 5 of the program manual, Revocation of Accreditation: “Pursuant to HAVA, a VSTL may have its accreditation revoked only by a vote of the EAC Commissioners.” No such vote has happened, this is why EAC has sent out multiple clarifications that neither of these labs have ever been out of compliance.

What of the Pro V&V certificate with dates that show a gap of three years?

Well, a couple things happened. One, the EAC made an administrative error in that period by not issuing a certificate, even though the 2018 compliance audit was completed. Two, Covid pushed out the 2020 compliance audit to 2021.

Importantly though, these certificates are known as being merely “vanity” certificates, not legally determinative. The date of expiration on it is just as legally meaningless. In fact, in later versions, this is why the date of expiration has been removed entirely. It was causing just this sort of confusion.

As for having an Executive Director’s signature instead of the Chair: here, too, the Kraken/Gateway crew is confusing two entirely separate processes.

A vote of EAC commissioners is needed only when a VSTL is accredited for the first time. For Pro V&V this happened in 2015, and for SLI Compliance this happened in 2007. Gateway Pundit quotes from the program manual’s section 3.6.1 to suggest that the Chair’s signature is needed: “The certificate will be signed by the Chair of the Commission”—but that entire chapter 3 deals with intake of a newly accredited VSTL.

Overview of Chapter 3. This chapter deals with “Applicant Laboratories” i.e., applying to become accredited

As for the lack of a quorum during 2018: since a quorum is needed only while accrediting a VSTL for the first time (in fact, the initial accreditation of Pro V&V was held up for a couple years due to lack of a quorum), contra Tore, it does not mean VSTLs automatically became non-accredited due to lack of quorum. In fact, it means the opposite—EAC could not have voted to remove an accreditation during that period.

Now about the states. As I said above, states vary in whether they require their voting systems to be certified by a federally accredited testing lab. Both Colorado and Missouri’s laws only require testing to federal standards, not necessarily by a federally accredited testing lab.

It turns out that EAC has been fielding these doubts for a while. This is why they have put out clarification after clarification after clarification, and a new clarified version of the manual. But the conspiracy theorists would not be worth their salt if they were batted down so easily. They see the clarifications as a conspiracy too, and do not accept the explanations. Instead, they darkly cast EAC’s attempts to clarify as an attempt to belatedly change the rules.

Clip from Raffensperger announcement, CNN, November 20th, 2020

In summary, the voting system testing labs were not out of EAC compliance and have never been.

But it’s worth exploring how these Kraken theories, tinged with Sovereign-Citizen-like legalistic analysis, got going. Pro V&V would have been an obscure company performing a role few people even knew existed, but for one thing: Georgia Secretary of State Raffensperger chose Pro V&V for Georgia’s post-election voting machine audit. It concluded on November 17th 2020.

Georgia uses Dominion ballot-marking devices across the state. Some early glitches in Georgia on election day had already set off wild conspiracy theories about Dominion machines stealing votes from Trump. In the midst of that, Raffensperger announced that the Dominion machines had been audited by a federally-accredited testing lab called Pro V&V and come up clean.

One can see why he touted their federal accreditation—it was a way of putting doubts about Dominion to rest—but then the doubts instantly turned to the federal accreditation itself.

A MAGA crowdsourced effort to delve into Pro V&V set off. One can still see signs of it on this archived Twitter search. It culminated in two research threads, one from an anonymous account (that I have a hunch about), and one from Epoch Times journalist Jeff Carlson, and his bylined article in Epoch Times (now removed, archived). It is a useful milestone because one can see them groping for an insinuation against the testing lab that will stick.

They found some raw material in a recent declaration in the Curling v Raffensperger lawsuit, where experts had raised doubts about the competence and depth of Pro V&V’s testing. The Epoch Times article then goes on to examine conflicts of interest between Dominion and Pro V&V. In the middle of a paragraph examining public websites, it wonders whether Pro V&V’s accreditation is “truly expired” or whether the EAC website isn’t reflecting it correctly.

Five days later, that musing about certificate expiration had blossomed into a fully confident claim that Pro V&V lacked accreditation. It was showcased prominently in an affidavit filed as part Sidney Powell’s lawsuits filed in five states. The rest is history—and one hopes it remains that way.

[Update 6/21] On Twitter, Gail Golec asked me to prove what I’m saying is true. Assuming she is asking about testing lab accreditation, I’ve threaded a response to her here.

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