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

[Paul Lehto]

Rick, a reasonable hypothesis of fraud, while it may not exist in 2020,
places the question of what the democratic will is directly into question.
That is, a good faith reasonable hypothesis of fraud *completely respects
the democratic will *but says the will of the people has been mistakenly
confused and the winning candidate is actually the Loser.

In such a case, respect for democracy requires that the claim be heard and
that officials actually be "strong-armed" into recognizing that the results
must change, all in the name of respect for democracy.

As a result, using the example of 2020 elections sets up a straw man in the
form of a weak or empty fraud claim and then - to the extent your comments
apply beyond the narrow example of 2020, begs the question of what the will
of the voters that ought to be respected is.

If you haven't had the time to, when you do have time, which I understand
may not be right now, I urge you to read the original post in this thread.

That post anchors the claim for first count complete transparency not only
in the constitutional right to vote that is preservative of all other
rights, but also in the inalienable right to alter our form of government.

State constitutions like Massachusetts make clear that nothing can alter
the rights to a transparent voting system the public can control, because
this control is necessary to guarantee and secure the right to vote even
against those election officials who would deny it.
Article IV.

The people of this commonwealth have the sole and exclusive right of
governing themselves, as a free, sovereign, and independent state; and do,
and forever hereafter shall, exercise and enjoy every power, jurisdiction,
and right, which is not, or may not hereafter, be by them expressly
delegated to the United States of America in Congress assembled.
Article V.

All power residing originally in the people, and being derived from them,
the several magistrates and officers of government, vested with authority,
[...] *are at all times accountable to them**.[This most certainly must
include voting systems, but without transparency accountability is
impossible]*
Article VII.

Government is instituted for the common good; for the protection, safety,
prosperity and happiness of the people; and not for the profit, honor, or
private interest of any one man, family, or class of men: Therefore *the
people alone have an incontestable, unalienable, and indefeasible right to
institute government; and to reform, alter, or totally change the same*,
when their protection, safety, prosperity and happiness require it

So on one side of this discussion, we have the need i have outlined already
to secure the most important rights we have at the times when they matter
the most.

On the other side of this equation, as seen by responders in this thread,
we have mere administrative convenience concerns like labor, time and long
ballots, all of which I have responded to. But if these competing concerns
cannot be balanced there is no serious question which concerns must yield
to the others. And we have also had a longtime election worker appear to
say that the administrative challenges are ones they can handle.

Secret or non-transparent vote counting is indefensible.  Essentially, only
fully transparent vote counting systems meet the minimum basic
qualifications for preserving our rights. As such, it is irrelevant if some
other system like electronic voting provides administrative convenience
because they do not qualify as systems that secure public rights to
accountability and transparency in voting.

Paul Lehto, J.D.

On Thu, Jan 7, 2021, 8:08 PM Rick Hasen <rhasen at law.uci.edu> wrote:

>
>
> Well put. The principal problem is not primarily in how elections are run
> (although that is part of the problem). The problem is one of stoking
> passions through false accusations of election regularities and attempts to
> strongarm those with a formal role in the vote tabulating and counting
> process  to reverse the democratic will.
>
>
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Margaret Groarke <margaret.groarke at manhattan.edu>
> *Date: *Thursday, January 7, 2021 at 6:44 PM
> *To: *Paul Lehto <lehto.paul 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)
>
>
>
> I have found it interesting that, after a presidential election in which
> states had to figure out how to run an election in a pandemic (and did an
> admirable job), and there were 60 lawsuits brought challenging the results,
> and in which two months after the election we have the losing candidate
> still not conceding and instigating an invasion of the Capitol building,
> there was very little traffic on this list. When I explained to people that
> Donald Trump and Rudy Giuliani's allegations of various things were false,
> I would sometimes note that, on a list of election law professors and other
> elections experts, which runs the gamut politically, there were no reports
> of fraud or other wrongdoing discussed.
>
>
>
> And now, the day after the invasion, there's a debate about whether we
> should hand count paper ballots. More amazing.
>
>
>
> I read Rick Hasen's *Election Meltdown* this summer, and I've been
> thinking in particular about the chapter on overblown rhetoric, which I
> think is closer to the real problem here. Counting huge piles of paper
> ballots by hand will not eliminate the distrust of the election system.
> Distrust of the election results was deliberately birthed and stoked by
> elected officials -- people like Kris Kobach, Rudy Giuliani, Donald Trump
> and Ted Cruz. They can use whatever raw material is at hand. If there are
> no photos of election workers pulling ballots out of a suitcase (I guess
> they would prefer that ballots be left unsecured on a table top), they
> would use a photo of an election worker buried behind mile high stacks of
> paper ballots. If three people count a pile of ballots by hand and get
> slightly different numbers, that will be headline news.
>
>
>
> Georgia had paper ballots, which were counted by a machine (and by hand,
> actually). Nevertheless, as late as Saturday, as we all know, the president
> was continuning to allege that there was malfeasance in the election. I
> live in NY, and served as a poll worker for the first time this year (I
> thought as a political scientist interested in elections I was long past
> due). We use optical scan ballots -- paper ballots, marked by the voter and
> counted by a machine. Should you need to do a manual recount it would be
> possible, although I doubt it would be more accurate or more transparent
> than the scanner.
>
>
>
> It is late, and I am feeling very depressed and worried for our democracy
> today, and so I am not going to attempt to propose a solution to this very
> serious crisis. But I don't think going back to paper ballots counted by
> hand is the solution.
>
>
>
> On Thu, Jan 7, 2021 at 9:17 PM Paul Lehto <lehto.paul at gmail.com> wrote:
>
> Professor Schultz:
>
>
>
> I think I can speak on behalf of almost all of the leaders of the 2004
> elector challenge regarding Obio in Kerry v Bush and say *YES that the
> transparency of HCPB would allay all of our concerns *to have a
> transparent system of vote counting with good chain of custody.
>
>
>
> I was personally involved with the Rossi Gregoire hand recount case in
> Washington state from 2004 but I know all the people involved on the
> presidential side.and i know they favor HCPB but of course i don't
> represent them.
>
>
>
> But Professor Schultz references the Trump 2020 effort which was able to
> grow much faster and had a President instigating behind it.
>
>
>
> Here's the problem, *you will never be able to put the genie back into
> the bottle now that tens of millions of people have seen the
> nontransparency *and the many procedural dismissals that don't reach the
> merits. They may have little evidence or even "no evidence" but their
> movement amounts to an emphatic vote of no confidence in the nontransparent
> voting system.
>
>
>
> We speak here of the voting system so within that scope I cannot deal with
> ngoing disputes about the Electors Clause for example. That has nothing to
> do with voting systems or se. But if there are processes, (as there are),
> to have legal claims heard and decided after a full transparent airing of
> all arguments, that safety valve of being heard goes a very long way toward
> keeping the peace, even if it doesn't settle every dispute.
>
>
>
> I took the time to call and talk to one mid-level attorney on the Trump
> side. We did not agree on voter ID for example, but we were in complete
> agreement on the need for transparency and that both sides could agree on
> full transparency and getting rid of the nontransparent machines.
>
>
>
> What the Trump 2020 movement is, even if stipulated to have zero evidence,
> is *an emphatic vote of no confidence *in the current electronic systems.
> You don't need evidence per se on a vote of no confidence.
>
>
>
> Against that complete failure we are supposed to balance the convenience
> of some labor avoidance or the inability to wait any more time after a two
> year campaign?
>
>
>
> Paul Lehto, J.D.
>
>
>
>
>
>
>
> On Thu, Jan 7, 2021, 5:33 PM Steve Klein <stephen.klein.esq at gmail.com>
> wrote:
>
> Professor Schultz,
>
>
>
> I appreciate you breaking the mold of "this never would have happened if
> we had [campaign finance, election, human nature] reform," but I daresay
> you've found something even more quixotic with the alternative.
>
>
>
> No, no, before you all pile on, I'm with you: let's make eliminating t*he
> anxiety about losing one's job* a cornerstone of the regime. No
> cost-benefit here. And... Mexico will pay for it. Or something.
>
>
>
> On Thu, Jan 7, 2021 at 8:25 PM Schultz, David <dschultz at hamline.edu>
> wrote:
>
> Hi folks:
>
>
>
> Let's be real.  Do any of you really think that more transparency  or
> other  small fixes like this to the election system  will ease election
> unrest?  If you do then you must also think that the fact that widespread
> voter fraud does not  exist will convince people that it does not exist.
> Whatever you mean by election unrest has deeper sociological and economic
> roots than adding more transparency.  Let's begin to think about the gross
> economic inequalities that plague our system, or the  shodding  health care
> system, or perhaps the anxiety  about losing one's job as the roots for
> why  people are politically angry.
>
>
>
> On Thu, Jan 7, 2021 at 7:13 PM Stephanie Singer <
> sfsinger at campaignscientific.com> wrote:
>
>
>
> On Jan 7, 2021, at 4:54 PM, Fredric Woocher <fwoocher at strumwooch.com>
> wrote:
>
>
>
> I’m sorry, but this is just silly.  In a jurisdiction like Los Angeles
> County, it would take weeks to count all the ballots for a single
> county-wide election, much less for the scores of contests that are on each
> primary and election ballot.
>
> It depends on the level of involvement by citizens. The number of ballots
> is directly proportional to the number of voters.
>
>  And the result would be less accurate than a machine count.
>
> Now that more and more jurisdictions are doing risk-limiting tabulation
> audits, we are starting to have more data about accuracy. Without that kind
> of check, the best we can say is that machines more reliably get the same
> answer each time than people using the hash method. That’s at best a
> statement about precision, not accuracy
> <https://www.thoughtco.com/difference-between-accuracy-and-precision-609328>
> .
>
>
>
> We already have a transparent system:  If the election is close enough
> (and even if it’s not), you can do a manual recount of the ballots and
> check the results against the machine count.
>
> Depends on who “you” are, and what state you’re in. And depends on what
> your state means by “manual recount”. In a Florida “manual recount", the
> paper records people get to hold in their hands and evaluate with their
> eyes are only the ones identified by the computers as having an undervote
> or overvote.
>
>
>
> And do really think having the votes counted by multiple people with
> clickers is going to yield a uniform outcome that will convince the people
> who listen to Donald Trump, Rudy Giuliani, and the Krakens that the vote
> count was accurate when their preferred candidate loses?
>
> Depends on the level of involvement. If there were a culture of serving
> and observing, there’s no reason to think we’d be worse off than we are
> now. There’s nothing like taking part in a bit of election administration
> to wake people up to the complexities.
>
>
>
> Fredric D. Woocher
>
> Strumwasser & Woocher LLP
>
> 10940 Wilshire Blvd., Ste. 2000
>
> Los Angeles, CA 90024
>
> fwoocher at strumwooch.com
>
> (310) 576-1233 x105
>
> Direct: (310) 933-5739
>
>
>
> *IMPORTANT NOTICE**:* Pursuant to the Governor’s “Stay at Home” Order,
> Strumwasser & Woocher LLP is CLOSED TO THE PUBLIC.  *Packages requiring
> signatures will be returned undelivered – do not serve papers by this
> method.*  While our office is closed, *Strumwasser & Woocher LLP consents
> to electronic service in all of its matters*.  Please serve by electronic
> mail to *fwoocher at strumwooch.com <fwoocher at strumwooch.com>* AND to our
> Senior Legal Assistant, LaKeitha Oliver, at loliver at strumwooch.com.  We
> reserve the right to object to any notice or delivery of any kind if not
> actually received by counsel before all statutory deadlines.
>
>
>
>
>
>
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Paul Lehto
> *Sent:* Thursday, January 7, 2021 3:53 PM
> *To:* 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)
>
>
>
> 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> 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> 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> 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> 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> 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> 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> 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> 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> 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, t*he
> 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
> 906-204-4965 (cell)
>
>
>
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> David Schultz, Distinguished University Professor
> Hamline University
> Department of Political Science,
>
> Department of Legal Studies,
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> Department of Environmental Studies
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> My latest book:  Presidential Swing States:  Why Only Ten Matter
>
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> https://rowman.com/ISBN/9780739195246/Presidential-Swing-States-Why-Only-Ten-Matter
> FacultyRow SuperProfessor, 2012, 2013, 2014
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> *Margaret Groarke*
>
> *Professor, Political Science*
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> Phone: 718-862-7943
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> Fax: 718-862-8044
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