UPDATE: Florida litigation on voting issues, from Black Box Voting

[BevHarris]

There's a loophole that we'll need to get corrected in elections law, because it is blocking reasonable efforts to audit, confirm, or litigate elections in the U.S.

In most states, you can't request a recount or contest an election based on statistics. Even in Florida, where statistical evidence is permitted, the use of statistics is iffy in a court challenge. As soon as one expert sets it up, another can be counted upon to knock it down.

Recently, for example, attorney Lowell Finley came to Florida to pursue the option of contesting the Florida election. According to Florida law, contesting the Kerry election in Florida would require evidence that over 380,000 votes would be in doubt. Statistical evidence cited 260,000 votes in question -- but that study, the Berkeley study, is now being refuted by the Irvine study, and likelihood of prevailing in court on back-and-forth statistics is unlikely.

Even if that statistical information had been sufficient to prove 260,000 votes at risk, this would need to be supplemented by another 120,000 votes from other counties in the study. This kind of information could have been available, had counties complied with the Nov. 2 public records request filed by Black Box Voting. Unfortunately, most counties did not comply in a timely manner, and many refused to provide the information at all.

The audit data we obtained in Volusia County is another matter. Here, we have established plenty of evidence sufficient to take an election into contest. Volusia County, by itself, may have put some 30,000 presidential votes in question.

To get evidence comparable to what we have in Volusia County, basic audit diagnostics must be provided by the county in a timely manner. (To view the audit diagnostics we sent to every county in the country on Nov. 2, just after the polls closed, go to http://www.blackboxvoting.org and scroll down to an article titled "Are we insane? Voting without auditing?")

Now, here's the problem: All of the largest Florida counties stalled the records request past the filing deadlines. Some did it skillfully, by being out of the office, saying they didn't receive it, saying people were out of town...some did it clumsily, telling us to go jump in the lake.

The bottom line is: Most votes in Florida, and nearly all votes in Ohio, could not be audited because the secretary of state (Ohio) or the key county officials (Florida) would not part with the basic public information needed to launch a proper audit. While we will get the records, we will not get them in a timely manner.

This needs to be changed. Black Box Voting is in the process of setting up voting machine citizen audit protocols, and we plan to launch a major national citizen education effort to show people how to do both diagnostic audits and fraud audits using the public records tools available to all of us.

National elections cannot be compromised very easily without problematic local officials. A true cleanup is going to have to take place county by county, and we will need all of you to do it.

I know we have been slow to put some of our volunteers to work on real auditing. That is because, if you don't know exactly what you're doing, you'll get your butt kicked.

A citizen audit group is now working on Holmes County, Florida, and of course Volusia is in full swing (I'm about to do another post on the lawsuit filed yesterday requesting that the Volusia County election be set aside).

This is a problem that can be solved, but we need more teeth in legislation to require counties to produce audit materials immediately after elections, so that citizens groups can have at least 7 days to analyze the information and follow up on discrepancies and ommissions. Right now, elections officials can stonewall and there are no consequences, if they do it skillfully.

(For those who do it unskillfully, stay tuned. We aren't done with 'em.)

For those of you waiting on Ohio, it is certainly frustrating. Kenneth Blackwell is certainly the 2004 equivalent of Katherine Harris. He has set a state policy of obstructiveness, making it almost impossible to get the kind of information needed to prove the counting was correct.

Doing the auditing correctly, especially in coordination with local citizens groups, can produce fireworks. Volusia County now has its hands full.

Bev Harris