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Massachusetts primary ballots were not destroyed

September 28, 2020 GMT

CLAIM: Massachusetts destroyed over 1 million ballots and committed election fraud. Ballot images that must be saved for 22 months are nowhere to be found.

AP’S ASSESSMENT: False. Physical ballots have not been destroyed. They are being stored for 22 months as required by federal law. Massachusetts election officials do not capture and preserve ballot images when they tabulate votes. They are not required to do so.

THE FACTS: No Senate ballots have been destroyed in Massachusetts, according to Debra O’Malley, a spokesperson for Secretary of the Commonwealth of Massachusetts William Galvin.

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The ballots, as required by law, are still under seal in each of the 351 local election offices,” O’Malley told The Associated Press.

A federal statute requires election officials to preserve for 22 months “all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting” for elections for federal races.

Yet even as state election officials have made clear physical ballots have been preserved, Dr. Shiva Ayyadurai, who lost in the Massachusetts Republican Senate primary earlier this month, is making the misleading claim that the state committed election fraud by destroying over 1 million “ballots.”

In a tweet that was picked up by the right-wing site,The Gateway Pundit and has been shared on Facebook, he wrote, Massachusetts Destroys Over 1 MILLION Ballots in US SENATE PRIMARY RACE committing #ElectionFraud. MA Elections Attorney confirms to #Shiva4Senate ballot images - used for counting votes - that MUST be saved by FEDERAL LAW for 22 months are nowhere to be found!”

O’Malley called Ayyadurai’s Sept. 24 tweet election misinformation.

In an email exchange with the AP, Ayyadurai did not dispute that election officials have preserved physical ballots. His argument is that state election officials acted improperly by not preserving ballot images when the ballots were counted and scanned -- and that ballot images should be considered “ballots.”

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“Pursuant to chain of custody, the ballot image IS the ballot, and destroying these ballots is illegal by Federal Law,” Ayyadurai wrote in an e-mail.

Massachusetts election equipment does not capture and preserve ballot images when it tabulates votes, said O’Malley. State statutes bar anyone from re-examining ballots outside of a recount, post-election audit or court order. “Because of those statutes...our certified tabulator vendors are instructed to turn that functionality off on equipment used in Massachusetts,” O’Malley told the AP.

Charles Stewart, an elections expert and political science professor at the Massachusetts Institute of Technology, said federal law does not require the preservation of ballot images, just physical ballots.

“Newer generations of scanners are capable of capturing ballot images or a similar thing, called the cast-vote record,” Stewart wrote in an e-mail. “Neither is addressed in federal law. Very few states make these available to the public, even when they have been captured by the scanning equipment. One can disagree with this as a policy choice, but there’s nothing illegal, or even uncommon, about it.”

Harvard Law School professor Nicholas Stephanopoulos disputed Ayyadurai’s allegation of election fraud. “I don’t see any credible fraud allegation here, just a question of compliance with records-keeping requirements,” he told the AP.

In the Sept. 1 primary, Ayyadurai received 39.4% of the vote, losing to Kevin J. O’Connor. A total of 272,649 Republican voters cast ballots in the Senate primary, with 104,782 votes going to Ayyadurai and 158,590 going to O’Connor, according to final votes published on the Massachusetts Election Statistics website.

Ayyadurai is running in the general election as a write-in candidate for the Senate.

O’Malley confirmed to the AP that Ayyadurai did not request a recount before the deadline. Once the deadline passed, however, he made a records request to see ballot images from the election.

The secretary of state’s office provided the AP with an email written to Ayyadurai by Michelle Tassinari, director of the state’s elections division, on the morning of Sept. 24, before he wrote his tweet.

In that message, Tassinari explained that the state did not collect ballot images. “The approval of digital scan equipment in Massachusetts specifically prohibits the capturing of ballot images,” read her email.

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This is part of The Associated Press’ ongoing effort to fact-check misinformation that is shared widely online, including work with Facebook to identify and reduce the circulation of false stories on the platform.

Here’s more information on Facebook’s fact-checking program: https://www.facebook.com/help/1952307158131536