Compromising Our Democracy: Why HR 550 Proponents Have it Wrong

[Land Shark]

In response to a piece I did not know would go on opednews critiquing HR 550 ("the Holt Bill") some responses have stressed the importance of compromise or an incremental approach (these two can come separately or together). "Let's not let the perfect be the enemy of the good", they say. We will come back for more, they promise....

Nobody's disclosed where lily pad#2 and lily pad#3 are (if Holt is lily pad #1) and with something as important as democracy going on, you'd think the plan would be clear, so we can calculate jumping distances between pads. But the following piece attacks head on the question of whether compromise is appropriate on PROCEDURAL matters, unlike the routine legislative compromise we see on SUBSTANTIVE matters. Can something be 50% fair in procedure, as a compromise??

These issues are magnified to the nth degree when we purport to compromise on the integrity of democracy itself. One important reason NOT to compromise, is that democracy overall is so much believed in and so powerful in rhetoric, that only a failure to articulate it, or a failure to be patient, could prevent its ultimate restoration. However, if we push ourselves into a technical position of arguing on a statistical basis for a less flawed audit than the Holt audit, most activists don't have the time, and Joe Q Public will not light a candle for lily pad#2, beefed up audits. But that is where all the eggs are laid, in the audit basket, because the Holt paper records are totally impotent on DREs unless the audit actually proves something.

and when we MOST NEED THE AUDITS TO COUNT, the big boys will throw all kinds of resources at the audits, and it will fail big time. it will be Florida 2000 all over again, the DREs announce the purported "winner" based on electronic results, then the audits purport to show something, but their flawed nature is overturned in court, with support from Febble and OTOH, who along with the majority of other statisticians are forced to admit the audits were flawed....


REKINDLING THE FLAME OF DEMOCRACY

Written as An analogy to the compromise bill offered by Holt (HR 550)

Adding paper trails to touch screen voting, or getting rid of it entirely?

by Paul R Lehto, Attorney at Law

[email protected]



If someone puts their hand into your pocket without your permission (sorta down your pants, in a way) and then starts "compromising" and negotiating a settlement of sorts with you in exchange for taking their hand only HALF way out, you are absolutely correct to reject their "reasonable" offers and demand that they remove their hand.



Now, I'd say that the voting system vendors have their hands in the pocket of democracy. You know what I'm talking about, that's why you're an activist. Do we negotiate with them for paper trails, and other measures that are half way measures, even if they totally lived up to their advertising?



Why are we going to compromise and settle for half measures? What justification is there for that? Or will we tell them to get their hands out of the pocket of our democracy, immediately?



This sounds strident, and uncompromising, but let me address that fear of being "radical" and seemingly "uncompromising" HEAD ON. Just a few more sentences.



This is not really for me a question of pragmatism and "one step at a time". My county already got rid of paperless DREs, so I know it can happen without legislation.



Litigation is the most effective approach, not legislation. Or direct action. Both New Mexico and Washington State ditched touch screen DREs, but they had litigation support. Litigation is also the most appropriate approach because litigation addresses *current* wrongs, while legislation fixes "new" problems.



DREs are already wrong. They were wrong from the beginning.



I don't think we're stronger with false assurances of 'paper trails' under Holt that reassure the distracted but good faith citizen who doesn't even know the audits are compromised like all activists admit. But again, this is not a matter of strategic compromise of the usual type. As a lawyer I compromise cases almost daily and I’ve worked in a state senate for a little while, so I know the importance of strategy and progress in little bites.



The problem is, democracy is ours to protect and defend, but it is not ours to play with.



Rather, we've got NO RIGHT to compromise in our day what others built over centuries.



Rather, if any person has ever died for our democracy, what right do we have to compromise with regard to it, today?



If in fact we are fighting for democracy on our own soil, what basis do we have for thinking that Americans would somehow lose a battle for democracy on their own soil?



What answer do we give when the Star Spangled Banner asks us the question at the end:



O Say Does that Star-Spangled Banner yet Wave,

O'er the Land of the Free and home of the Brave?



Will a land of free and brave citizens, in touch with their history, their Declaration of Independence and their moral sense, fight to get their democracy back in tiny little steps? If they EVER would take little steps, it would be regretfully, and not proudly as if their position knew of no reasonable alternative, all other positions being "deluded".



No, the Founders and Framers that we learn about but often never internalize thought quite strongly that there are certain things you just can't do to a people, certain rights that are inalienable and nonwaivable.


They said "Don't Tread on Me" in a flag, We can Say "Don't Glitch on Me" for there is a similar intrusion on the sovereignty of the people suggested in both.



Patrick Henry said "Give me liberty, or give me death." Empty words? Or the promise of someone who knew that real freedom, as Cicero said, is "participation in power". Like elections, for example.



This past Saturday, after explaining to EAC commissioner Ray Martinez that mere purchase contracts for DREs were purporting to take away democratic rights to observe the vote count, I asked: By what right or authority are these rights taken away? Martinez answered that he didn't intend to do that, Congress didn't intend to do that, and the federal government didn't intend to trump our rights to observe. He suggested bringing it up with the state legislature. So I asked him why I would have to bring it up with the legislature when nobody bothered to pass a law taking away these democratic rights in the first place? He said in pertinent part "I don't have a good answer for you."



The next business day, Commissioner Martinez resigned from the Election Assistance Commission, citing "personal and family reasons". A thinking person, and Mr. Martinez fits that bill" would and should resign rather than preside over the coming train wreck of HAVA combined with an EAC litigation cram-down of DREs based on misrepresentations about what HAVA really requires, that has in the end the direct effect of eliminating the transparency and thus the procedural integrity of democracy.



In the end, democracy has made us no promises of substantive justice, only a procedural promise. That is, there's no promise that the more just side will win the election, because any such promise would require the elimination of freedom in order to guarantee the correct result. No, democracy seeks the "consent of the governed" through elections, because ONLY CONSENT can be a basis for ruling in a land of free and equal citizens. Consequently, if there is no procedural integrity in elections, there is no legitimate government. And, if the elections can't be verified or reproduced, science itself will tell you that they do not exist within the realm of what science will call truth or proven.



So, without procedural integrity, our governments are not legitimate. Democracy is rendered void. Should we fight for legitimate government, pay off the vendors to take their hand half way out of the pocket of democracy?



How much better it would be to read some Winston Churchill, and to promise to fight in the mountains, to fight in the hills, to fight in the seas, and if the country should last a thousand years, that perhaps people would one day say, this was one of their finest hours.



Success is the ability to go from one failure to another with no loss of enthusiasm. Winston Churchill.



We need to risk failure. But in doing so we find our greatest power.



If we are fighting not just for ourselves but for others, what process do we go through to justify a compromise of their rights? You mean, so that WE HAVE AN EASIER TIME OF IT, STRATEGICALLY?



So that we feel better for our successes and don't have to feel bad for so long?



Maybe, just maybe, we are fighting for democracy, and that makes us freedom fighters too. Get used to being tough, and then in that moment, we'll start to get used to winning. it's just that us "first activists" and "second wave activists" will have to get used to the idea that the false gods of easy success can easily lead us away from keeping our eyes on the prize. That occasionally there are things that can not be compromised, or should not be.



At the end of the day, if we are extremely clear about what we are about, we are not trying to move mountains here, because NO ONE will step up to defend secret vote counting.



NO ONE made the decision to institute the radical nontransparency we so object to. The EAC didn't, the Congress didn't, and the federal government didn't.



We are simply tasked with the job of reversing an invalid and void action of the government. Except it's not an "action" it's a side effect. We need ghostbusters, not bunkerbusters. We are trying to break a weak hypnotic spell. It is not that hard to do, but in a democracy enough people have to have the same belief at the same time to get the momentum, and after that it can not be stopped. Early activists must resist despair during these early building periods.


We must be sure that if and when we do commit ourselves on behalf of democracy in anything like a partial step, we must be SURE that it does not make us worse off. I respect both sides of the Holt HR 550 debate, but I think the appropriate question is whether we are 100% sure HR 550 doesn't put us in a worse position to fight from, and that it doesn't make the DRE conquest "kinder and gentler" and therefore help to lengthen its life.


I believe in compromise, but in this particular instance, if you believe as I do that this IS truly about democracy, we really have no choice but to fight our way through this wet paper bag and have the dignity and courage to own democracy, to actually feel it, and then in that moment we will have the courage and strength to invite the trespassing vendors in the temple of democracy to remove their hands from the pockets of democracy.


When their greedy paws are finally and completely out, then they can kiss our ass as well. And we will have done something in our time, like other people did something for us, in their time. They paid it forward. Surely we can too, on both sides of this debate, pay it forward and rekindle the flames of democracy.


Paul Lehto

Attorney at Law

[email protected]