DEFENDING DEMOCRACY OR DEMOCRACY DENIED?
LESSONS OF 2006
In the last year we’ve learned a lot about electronic elections. After one federal electronic election nationally just in the past month (and two in San Diego California in the past five months) we specifically know a lot more about how elections operate under a "paper trail/audit” regime than we did even just a month ago.
I’ve worked a lot as an election lawyer in San Diego County in the past five months. Just ask citizens and activists in San Diego if paper trails and audits work – they are having to litigate just to try to get at the paper trails in a disputed election from June 2006, much less the paper trails from the recent November election. The elections officials ran out of absentee and paper ballots as voters opted out whenever they could. Officials retaliated by not even starting to count paper ballots until the Thursday after the election, deliberately creating a second class status for paper, in which the Democratic candidate for Congress Francine Busby won, in favor of the electronic ballots which were effectively deemed, like preferred stock, entitled to be counted first on election day along with certain absentee ballots that also leaned Republican. Clearly, elections officials love the lack of accountability that electronic elections provide, but this puts them in direct conflict with the need of the people to supervise and oversee their own elections.
As one of the few lawyers in America who has litigated election contests involving electronic voting, it’s my opinion that the common results of any disputed electronic election will be (1) the officials will try to stall or prevent embarrassing information from getting out at any time when it would really matter, and (2) the paper ballots and paper trails will be suppressed and discouraged in favor of low-accountability and high-convenience electronic ballots, and (3) in all likelihood the statutes of limitation on election contests, which run in 10 to 60 days after the election, will expire long before the paper trails are accessed and fully analyzed. Moreover, many analysts are still hard at work on the November 2006 election, even with information that is readily available the analysis of the same takes time. Just out today is “Landslide Denied”, showing the Dems would have done better under a fair system, while the pundits inexplicably blame the exit polls for oversampling Democrats when a scientific approach requires, at the very least, both exit polls and elections to be scrutinized, the pundits simply assume the fault lies with exit polls and examine neither elections nor exit polls.
http://electiondefensealliance.org/landslide_denied_exit_polls_vs_vote_count_2006 With Congress poised to act swiftly in January, it’s time to revisit the Holt Bill (HR 550) in light of what has been learned in the recent federal election, especially the two federal elections in San Diego featuring touchscreens from Diebold, complete with paper trails and manual audits. In San Diego, the only main differences between the Holt bill and present California law are that a 2+% audit would happen under Holt instead of a 1% CA audit at present, source code would be disclosed under Holt, and Holt would strengthen the federal Executive’s role or the Administration’s role in elections by strengthening and making permanent the Election Assistance Commission (EAC).
I can't stress enough that we've essentially seen the (Holt) future in San Diego, we've litigated the future in San Diego, and it’s not good. Sleepovers are king and create deniability for the viruses or hacks that are never disclosed by escrowed source code. San Diego features exit poll discrepancies according to a Zogby exit poll www.bradblog.com/?p=3772 and the elections officials don't care, they just trumpet their checks and balances and meaningless tests and audits. These tests are all meaningless because it doesn’t matter what happens on a test day or test conditions, the only thing that matters is what the computers are told to do on Election Day.
In the end, and in several major and independent ways, the American people are really being taken for fools. They are being offered a few choices, but only so long as they give up on the one thing that we can never give up in a real democracy: public supervision of elections. The public supervision of elections that went the way of the dodo bird with electronic voting is an indispensable part of democracy, and an inalienable right of We the People.
This queues up the core of the continuing debate over Holt, whether a government of the people, by the people and for the people can deny public supervision of the sole channel of power transfer to the government, and substitute “paper trails” as a “reasonable and realistic” compromise. Paeans can and should be sung to political compromise, and the necessity for the same, but as to a few core principles, Patrick Henry’s words are more applicable “Give Me Liberty or Give Me Death.” Can we really live with invisible ballots and no public supervision of elections? Is it too much to expect to insist on a reversal of these conditions now, with a new Congress?
Within 24 hours, the website www.hr550.com will be up with this essay and a lot more info on this.
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"Political Realism" in Elections, Democracy, & the Holt Bill In 2006, the key issue in the debate on the Holt bill or HR 550 was what is "realistic" for election reform in the last Congress. Once again, this is the central point of disagreement in the new more Democratic Congress.
Self-identified "strategic" thinkers often favor Holt while more "purist" thinkers like "values" and "democracy" thinkers, together with those unwilling to compromise as much as Holt is perceived to do, stake out the anti-Holt position.
My own position has been that Holt is not "strategic" in any good sense of placing us in an advantageous position from which to fight for further reform, because Holt’s addition of paper trails are commonly understood by reporters and average citizens to be all the protection that’s needed…. Moreover, Holt advocates while consistently against touchscreen DREs have never shown us what the next steps are AFTER Holt even though they call Holt the first steps. Moreover, recent experience shows that paper trails won't and haven't worked in actual practice. Thus, the voter “confidence” in DREs that would be manufactured by Holt's formal name when and if it is enacted as "The Voter Confidence Act of 2007" is very ill advised and dangerous. Vigilance is always the watchword of liberty, not ‘confidence.’
Yet the "realism" debate points to the true issue: Is it realistic to agree to something and give up full fledged democracy for a few more years, on the grounds that taking an alleged first few steps with Holt will help us later? Is Holt a step forward, and does it land us in a strategically wise place to fight from?
San Diego, where I lived much of the last five months and served as attorney, would pronounce the Holt-like paper trail and audit system applied to Diebold TSX touchscreens a complete failure. If the question is whether Holt will improve the situation or place us in a better position to fight from, I’m one of the lawyers who might be asked to execute that fight, and the answer to the answer is an emphatic No: Holt does not and would not improve our position.
Much more promising for democracy is this:
If we articulate our arguments in their more "pure" democracy form, then we connect with democracy and the Constitution and most importantly, and we suddenly start benefiting from 92% public support numbers in the Zogby "92% poll" support for public witnessing of vote counting, instead of suffering from the probably less than 10% who even have a clue what VVPAT stands for and what's a good audit and what's not....
The real political reality is that 92% of the American public wants the right to "witness vote counting" and "obtain information about vote counting" which are the exact concepts tested in the Zogby poll. See
http://www.bradblog.com/?p=3307 Holt provides NEITHER of these universally supported democratic values in any form, it instead simply deceptively substitutes "paper trails" as a feel good non-solution. Paper trails on DREs solve absolutely nothing for two major reasons: (1) Something like 75% of people don't check the paper, and the errors on that paper are made into sacred "voter verified" fraud and error, and (2) Even those who do check a SECONDARY paper trail miss many errors. Paper trails simply are not a failsafe mechanism nor even a meaningful check and balance. Yet Holt would congratulate us all by calling this law the "Voter Confidence Act of 2007" and the media would suggest that we all go back to sleep singing "happy trails", having achieved "paper trails." Activists who persist will be defined as disgruntled radicals always coming back for more.
It's hard to think of anything more dangerous or worse than creating false confidence on top of DREs, with their secret vote counting. IN fact in San Diego, the paper trails and audits have yielded little new information, zero timely new information, but they have increased the confidence and naiveté of reporters, who specifically mention it as a reason to have confidence in DREs.
If we want to talk about political reality talk about these realities: (1) even the weakest politician can run on and win with 92% numbers. What is Holt's problem? The Zogby poll insists on VISIBILITY so the public can supervise... (2) Who in their democratic right mind would accept the continued elimination of the public's ability to supervise its own elections as ACCEPTABLE? There are many polls that make fun of the public’s lack of knowledge about civics, but here we have clear evidence that the public is nowhere near stupid enough to give up observation of vote counting, and yet the geniuses in Congress itself (or some of them) are said to claim that it is politically “unrealistic” to believe that Congress must serve and support the values of 92% of the American public, with even support across all political parties.
Given that Holt would continue under the banner of "voter confidence" the complete inability of the public to effectively supervise or oversee its own elections, and would hand more money to the corporations who have privatized our elections and made vote counting their private property by allowing them to sell paper trail machines at something like a thousand dollars apiece more, and would centralize control of our elections in the Bush administration by further strengthening the EAC, anybody that favors Holt without major misgivings and apprehensions is questionable. Holt’s proponents admit as much, and smartly raise the banner of strategic compromise and realism.
I am arguing in the rather unique area of elections from a rather unique perspective:
The more “uncompromising” position on election transparency is supported by virtually everyone in the United States, so why in the world would we not want to be more “uncompromising?”Ultimately, isn’t
it very unrealistic to think that a truly democratic system can resist the wishes of nearly 100% of the public for very long, when and if the issue is clearly and consistently brought to the fore? On the other hand, if you talk in terms of Holt's technical debate about acronyms like VVPAT, DREs, EACs sampling protocols and ABCDEFGs, the public education necessary is so large that it may seem Holt is all we can accomplish. The very technical approach of Holt also insures that our sights are set too low.
However, when we realize that HAVA and HOLT by extension attack the very foundations of democracy and destroy them (publicly supervised vote counts) there is no acceptable compromise on that principle, because it is the very foundation of democracy and freedom: Government with the people in charge, 'of the people, by the people, and for the people."
Without publicly supervised vote counting, or alternatively with secret vote counting, we have nothing in terms of democracy, and any bones we are tossed upon that foundation are pure illusions that gain us nothing in terms of legitimate democratic elections.
This second basis alone of "Secret Vote Counting" fully justifies the complete eradication of electronic voting done under trade secrecy. We simply can not build upon such corrupt foundations. Think of it this way: Your political enemy counting votes in secret is the picture of tyranny, while your political friend counting votes in secret is the picture of corruption. No credibility exists when secret vote counting is used, and in many ways we make a mistake in moving on to ANY other issue, which is probably going to be less clear-cut and comprehensive than this objection is. To be sure, if you were involved in these last 2006 federal elections, you know for sure the people are no longer in charge. Yet accepting THAT as political "reality" may constitute something like treason in a real democracy, because it involves tolerating, condoning and affirmatively accepting conditions under which We the People are clearly removed from being in charge, which is the very core definition of real democracy. Though I take no joy in using that word and don't generally wish to do so nor will I say it to anyone personally, if this is not treason in a democracy (once one specifically knows that it continues to remove We the People from being in charge) then what would be treason? In bringing up this point in this particular way, I only wish to stress that this ability to oversee elections is extraordinarily important, and can not be the subject of compromise if you want to call our system a democracy. I agree that it is counterproductive even if true to throw this term around with respect to any specific individual, and in fact individuals who feel personally attacked will cling to their unwitting anti-democratic assumptions all the more fiercely. Functionally, my bringing this up forces the issue of whether we really believe that the public must be in charge of elections. If so, we can not possibly favor a Holt bill that fails to restore public supervision of elections.
When it comes right down to it, we have no right to tolerate DREs or saddle future years or future generations with their invisible voting. They must be ended, now.
The test or the sine qua none of democracy is not elections per se (some dictators and aristocracies have them) but the recognition that the people are the source of all legitimate power and authority.
In that light, who will dare to deny We the People the right to supervise the one and only channel of power from the people to the government: elections?
Who would dare to argue that the government or its chosen vendors could count the votes in secret that determine the government's own tax power and political power?
Who would dare to suggest that the people could not in fact be allowed to supervise their own democratic elections, when We the People are the indisputable boss of this country and the government is the servant?
Who could but laugh when the government servants purport to tell the masters We the People that they need not be troubled with their supervisory duties any more, and the government will handle the writing of its own paycheck from beginning to end?
We must, now, laugh at any one who denies We the People the full rights to witness vote counting and obtain full information about vote counting (92%), or else we will be forced to cry instead about the permanent death of democracy. The American People may have a better recall of the Three Stooges’ names than the names of the three branches of government, but they are operating at a genius level when they answer, at 92% rates, that the public must keep its eye on those elections. From this, and only a very few other core principles, there can be no compromise if we desire to remain free. Because a tyrant will have no difficulty whatsoever faking electronic elections to perpetuate itself, elections must always, and perpetually, remain intact and publicly supervised before it is too late.
But even if you don't feel as strongly as I do, the principles this country was founded on compel this.
Even if you don't feel as I do, the Holt bill's "protections" of paper trails and 2% audits won't actually protect us from anything.
"If you feel as I do" (to echo the movie V for Vendetta) a democracy is when "the government fears the people, instead of the people fearing the government." Today, which is feared more?
I fear that the principles of legislative compromise, SO OFTEN RIGHT, are in this particular instance involving the foundations of democracy, dead wrong. No matter how you feel about the present government, no United States government need fear its own citizens except through legitimate elections, and with electronic secret vote counting even if it is replete with paper trails and purported audits, true tyrants are safe. This should make any liberty-loving patriot tremble.
Some things are not the subject of compromise or "realism" under the American way. "Give me liberty or give me death" said Patrick Henry.
Every single time someone denies We the People the right to observe our vote counting and obtain information on it, we should ask the question again
"Who would DARE to deny We the People full supervision of their own elections?" If no one would dare to do so, then there should be no opposition to repealing HAVA and restoring full public supervision of election vote counting. On the other hand, if you get a specific answer to this question of someone who would deny the public full supervision of their own elections, then you've found what the Founders called the Tyrant and what we today would call an abuse of power.
The ultimate political reality in light of the 92% is that Tyrants and abuses of power regarding elections can never survive in America unless activists and citizens unwittingly give them political cover. If we but force everyone to identify their core principles in elections, the Tyrants, the abusers, the vendors, and the excusers hang themselves from the highest tree.
To win, the election integrity movement only needs to do one thing, and do it repeatedly and well: Continually argue for full democratic supervision of elections by the people, and conversely denounce secrecy and non-transparency. Then, to oppose public oversight of elections is immediately exposed as anti-democratic, and the debate is won in favor of democracy and public supervision before it even begins.
Who will dare to deny We the People this most basic inalienable democratic right?
Ask every politician and election official in the country this question, on camera, on the record. I believe you’ll start to see some “movement” in high places.
Ask reporters this question, point out secret vote counting, and then give this quote from Joseph Pulitzer:
"There is not a crime, there is not a dodge, there is not a trick, there is not a swindle which does not live by secrecy. Get these things out in the open, describe them, attack them, ridicule them in the press, and sooner or later public opinion will sweep them away."
We have the 92%, the great strength of democracy and the great weakness of secret vote counting all pointing in our favor simultaneously. We can only lose if we are not persistent, or if we allow the subject to be changed to acronyms instead of defending democracy. When we defend democracy and public supervision of elections we can take anyone who stands in the way of that to the cleaners.
---Paul Lehto
Attorney at Law
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