[EL] The Root Cause of Election Unrest is Non-transparency(Allowing People to Imagine Whatever They Will)

Thu Jan 7 16:40:59 PST 2021

I have often thought that it would help if a staff person was available to answer questions posed by observers. When observers are left unattended and try to flag someone down to ask a question about something they see, the response is often dismissive or even hostile. Although election staff is often overwhelmed on election day, I believe making someone knowledgeable (and with good people skills) who is trusted by both parties to be with the observers would prevent a lot of misunderstandings and litigation. And if that person could provide an educational session to observers in advance explaining what they will see, that would be a plus.

I was an attorney on the ground in Broward County, Florida during the 2000 presidential recount and I can tell you that the election officials I encountered were very good about answering questions and quickly responding to perceived irregularities. It really made for a smoother process than in some other counties.  Lisa Hauser 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of RuthAlice Anderson
Sent: Thursday, January 7, 2021 5:10 PM
To: Paul Lehto <lehto.paul at gmail.com>; John Tanner <john.k.tanner at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>; Virginia Martin <virginiamartin2010 at gmail.com>
Subject: Re: [EL] The Root Cause of Election Unrest is Non-transparency(Allowing People to Imagine Whatever They Will)

Doesn’t it seem that many of the most widespread false allegations of fraud originated with transparency efforts such as streaming video of the ballot count. People without any idea what is happening in the room saw things they did not understand (cases under the table being opened with ballots) and found a malignant interpretation. 

It also seems that the poll watchers and observers were poorly trained. When I was a poll watcher before vote by mail, we had a fairly lengthy training on what to watch for and how to report it. We were advised not to talk about it because we could be wrong. 

RuthAlice

Sent from Mail <https://go.microsoft.com/fwlink/?LinkId=550986>  for Windows 10

From: Paul Lehto <mailto:lehto.paul at gmail.com> 
Sent: Thursday, January 7, 2021 3:55 PM
To: John Tanner <mailto:john.k.tanner at gmail.com> 
Cc: Election Law Listserv <mailto:law-election at uci.edu> ; Virginia Martin <mailto:virginiamartin2010 at gmail.com> 
Subject: Re: [EL] The Root Cause of Election Unrest is Non-transparency(Allowing People to Imagine Whatever They Will)

So on one side we have nontransparency in the voting system which breeds distrust which is then amplified by every partisan hope, fear, or piece of evidence, all the way up to an insurrection on ONE SIDE, 

...And on the other side we have some 75 year old who might be groggy.  And more hours to count. 

The balancing isn't even close, and I could add much more to the first paragraph but recent events are enough. 

The nontransparency is a fatal flaw in the current system, and a transparent system in the form of hand counted ballots is required to secure and guarantee the right to vote vis-a-vis situations of corrupt election officials, power outages and so on, and having tens of thousands of summonses workers nationwide who can personally attest based on their own observation and experience would restore public confidence.  

Paul Lehto, J.D.

On Thu, Jan 7, 2021, 3:43 PM John Tanner <john.k.tanner at gmail.com <mailto:john.k.tanner at gmail.com> > wrote:

Did you wakes up the 75 year old participants at 4 or 5 am and have them work for 12 hours?   On a ballot with 30+ offices and ballot measures?   

Sent from my iPhone

On Jan 7, 2021, at 6:38 PM, Stephanie Singer <sfsinger at campaignscientific.com <mailto:sfsinger at campaignscientific.com> > wrote:

I took part in a demo of the clicker method. I don’t know of any academic research, but from my experience the clicker method is far better. It makes sense psychologically — each person is focused on just one physical spot on the ballot, not needing to look back and forth. And in the demo we had several people tracking each candidate, and their tallies matched at the end (or perhaps were occasionally off by one). It was quick and easy and, with enough people clicking, convincing.

Stephanie Singer <https://www.pdx.edu/profile/stephanie-singer> 

Research Assistant Professor, Portland State University

Former Chair, Philadelphia County Board of Elections

On Jan 7, 2021, at 2:04 PM, John Tanner <john.k.tanner at gmail.com <mailto:john.k.tanner at gmail.com> > wrote:

One would think that “mark, mark, ... tally” would avoid differences, since there’s a check every 5th vote.  One would be wrong.  And then you have to go back and reconcile to find where the count got off — usually several tallies back.  I suspect the clicker would be even worse

Sent from my iPhone

On Jan 7, 2021, at 4:42 PM, Stephanie Singer <sfsinger at campaignscientific.com <mailto:sfsinger at campaignscientific.com> > wrote:

It’s undeniable that the counting happens at a time when everyone is exhausted. And thanks for pointing out the difficulties of oversight in primaries.

At least one better counting method has been developed and tested by Karen McKim of Wisconsin Election Integrity <https://wisconsinelectionintegrity.org/> . Each person in a group of observers has a hand-held clicker-counter (like the ones used to measure people flowing through turnstiles). The ballots can then be shown one after another, quite quickly. My understanding is that this is quite accurate and efficient.

The science and engineering of post-election tabulation audits for ballot scanners is progressing, but I haven’t yet seen a workable proposal for risk-limiting audits of precinct-counted ballots.

If you don’t count at the precinct at the end of the voting period, you have to solve the ballot custody problem, also quite knotty.

—Stephanie

On Jan 7, 2021, at 1:26 PM, John Tanner <john.k.tanner at gmail.com <mailto:john.k.tanner at gmail.com> > wrote:

I agree completely that the election process should include at all levels and locations poll officials and poll watchers appointed by both major parties — and by all diverse candidates in primaries and nonpartisan elections (easier said than done).   And posting the results at the polls and centrally is or used to be common.    But hand counted paper ballots?   I recall monitoring primary elections with hand counted paper ballots at relatively tiny precincts.  It takes forever, in part because of frequent differences in the counts  (often resolved by splitting the difference) and poll workers quitting fit the night and one (1) poll official taking the materials home to safeguard them.  In one MS primary election, the count wasn’t completed until Thursday evening , at which point I could finally go to sleep (after helping polish off some beer the senior attorney had bought).  There’s are reasons we use machines now. 

Sent from my iPhone

On Jan 7, 2021, at 1:59 PM, Stephanie Singer <sfsinger at campaignscientific.com <mailto:sfsinger at campaignscientific.com> > wrote:

A big Plus One to what Paul has written.

To move to the kind of resilient system Paul has described, we need to face head on the downsides of such a system. There are people in this country who physically cannot mark and review paper ballots without assistance (either from people or technology). And there are people of this country who cannot physically get to the polling place on the given day (e.g., overseas deployed military). 

Companies that manufacture and maintain computerized voting systems have exploited this downside for profit. 

I wonder what folks on this list think of proxy voting.

—Stephanie

PS: a relevant piece I wrote was published a few hours before all hell broke loose yesterday:  https://www.washingtonpost.com/outlook/2021/01/06/stolen-election-trump-patriot/

On Jan 6, 2021, at 2:46 PM, Paul Lehto <lehto.paul at gmail.com <mailto:lehto.paul at gmail.com> > wrote:

The short answer is voter-marked and hand counted paper ballots counted in precincts with results posted at the precincts as well as reported to the county or state. And also using a summonsing process to guarantee sufficient labor or add additional independent observers as needed. 

This way any group can verify the tabulation by looking at precinct posted results, and counts in precincts are monitored by all interested political parties plus individuals drafted by a process similar to jury summonsing. It is a labor intensive process but most people would much rather spend a day counting ballots than spend two weeks in a jury trial. 

If ballot counting is observed by multiple observers adverse to each other (the system used and assumed by the framers of the 12th amendment) out of a combination of people we might not trust to count ballots alone, we can nevertheless achieve a trustable result. 

We might also realize that the framers of the 12th amendment presupposed HCPB, and might come to understand that a joint session is subservient to the will of the people and able to make only the objections and corrections that vote counting clerks are able to make, not relitigate the entire election. 

More importantly, glitches, errors or frauds create observable evidence that can be accessed, and inaccuracies are isolated to the precinct level. Thus, if and when people tell stories about paper ballot fraud, that actually proves both that fraud can happen and that the voting system actually worked to create evidence of the problem and thus allow us to tell the story today. It is up to the administrative and legal systems - not the voting system - to actually prosecute or correct for the fraud or error. The voting system only needs to be transparent and create clear indelible evidence of voter intent. 

With a fully transparent vote counting process, I find that almost everyone I talk to is willing to pay the labor and time pricetag for the system, because of the rational confidence created in the results, and the fact that it is the best guarantee of our right to vote actually working if and when a criminal regime is in control of the vote counting process. Given that voting is our most important right, and given the Declaration of Independence recites that our government was setup for the purpose of securing and guaranteeing our rights, this is not too much to ask. The alternative is to have a voting system that is non-transparent and thus is vulnerable to failing completely at the very moment we need it the most - when criminality has invaded the governmental election processes. 

The human need for hand counts of valuable things is witnessed every day when counting our own cash at the bank teller window or at the ATM. There is just no substitute for hand counting when we deal with something valuable AND there is incentive for one or more parties to count inaccurately, as exists in elections. 

It would also have the added benefit of bringing statutes back into line with reality, such as the requirement of a 0.5% lead or less to trigger a recount. That kind of narrow window makes sense with HCPB, but with electronic elections if there is fraud it is the same amount of effort to create a lead outside the recount margin as there is to win by just a few votes. 

And it would also bring back into alignment the call for public confidence and acceptance of the results. That is a call for rational acceptance of the results if counts are transparent but is a call for a faith that losers find hard to develop when counts are nontransparent. 

Paul Lehto, J.D. 

On Wed, Jan 6, 2021, 2:10 PM David Mason <dmason12 at gmail.com <mailto:dmason12 at gmail.com> > wrote:

What sorts of systems, policies, and procedures would you recommend to achieve this level of transparency?

Dave Mason

On Wed, Jan 6, 2021 at 4:34 PM Paul Lehto <lehto.paul at gmail.com <mailto:lehto.paul at gmail.com> > wrote:

Obviously, things have gotten out of hand, but what is the root of the problem?  

The problem is that we do not have a voting system that the LOSERS of the election can believe in based on the transparency of the process. If we want peaceful transitions of power the system needs to lead to results trustable by the "sore losers."  

While people need to be held accountable for illegal actions, going forward, instead of designing our voting systems with gaining the consent of the governed among the losing side, we instead demand "public confidence" in nontransparent computerized counts on pain of charges of undermining democracy.   

This lack of transparency in vote counting is the SEED to which either facts or fevered dreams can attach, and typically our partisan affiliations and the media sources we select predetermine what information we will receive and what conclusions we will draw.  

I have predicted this would eventually happen for over a decade.  I was quoted in Politico a couple weeks ago about Trump activists because I was active in investigating the 2004 elections after serving as one of Kerry's "army" of lawyers (who were actually just assisting people to vote).  https://www.politico.com/news/magazine/2020/12/19/2004-kerry-election-fraud-2020-448604  This article sought to find out what those who questioned 2004 thought of those who questioned 2020.  A variety of opinions emerged.

 In Politico I was quoted as saying the election disputes are the equivalent of a religious war where both sides assert their strongly held beliefs on the basis of faith rather than on the basis of knowledge.  All people must necessarily have beliefs rather than true personal knowledge about the vote count results because the counts themselves are nontransparent, being done on computers, so that literally no one has personal knowledge the results are correct. Even election officials lack the kind of personal knowledge we expect from any admissible affidavit, Instead, officials believe them to be correct based on logic and accuracy tests and such but they don't really KNOW.  Experts can add numerous circumstantial reasons to support that belief, but our opinions remain in the territory of trust and confidence rather than hard facts and  knowledge. 

The election results are simply the conclusions.  I've been entitled to every data source any expert in court relies upon for his or her conclusions, except in election law, where the computers are generally deemed inaccessible.

Our present system merely urges public confidence in those conclusory results, which is the same as urging trust or faith. As a result, the opinions on all sides about the election results amount to statements of political religious faith, and thus we have what amounts to a religious war in which various sides insult the faith of the other side, eventually leading to violence as we see today.

Transparency is strongly effective at getting rid of conspiracy theories because when facts are present, no theories, conspiracy or otherwise, are necessary or possible.  Transparency would likely not reduce Republican support for objections from Rasmussen's 73% released today down to zero, but it would critically drop it below fifty percent at the very least.  And that is the difference between peaceful transitions of power transitions of power that are not peaceful.

Trump supporters may not be able to prove fraud, but the reverse is also true: Biden supporters can't prove Biden win, except with a full hand recount and good chain of custody and no ballot box stuffing.  The solution is to get it right on election night with a transparent counting system that the large majority of losers can RATIONALLY trust.  Not faith-based elections like we have now.

-- 

Paul R Lehto, J.D.
PO Box 2796

Renton, WA 98056
lehto.paul at gmail.com <mailto:lehto.paul at gmail.com> 
906-204-4965 (cell)

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