[EL] The Root Cause of Election Unrest is Non-transparency ... The Function of an Election

Fri Jan 8 11:54:40 PST 2021

“And counter-intuitive as it sounds, in a democracy the function of an election is not to pick a winner but rather to assure the voters and the losing candidate that they lost fair and square. That is what instills confidence in the election process.”

R, John M. Carbone, Esq.
 "Civility is manifested not only in what we do, but in what we choose not to do."  John M. Carbone John M. Carbone, Esq.Carbone and FaasseAttorneys at Law401 Goffle RoadRidgewood, NJ 07470 Office Phone     (201) 445 - 7100Office FAX         (201) 445 - 7520Personal E-Mail USSRECOUNT at AOL.COM In a message dated 1/8/2021 2:14:42 PM Eastern Standard Time, lehto.paul at gmail.com writes: 
This is a very important discussion with much interest shown. Thanks to the dozens who replied online or off. However, it is not time sensitive. And now we have new impeachment developments. If I may summarize below I will yield. And happy to answer off line.... It is an apropos thread though because what remains after we factor out disproved claims in 2020 is a widespread vote of no confidence in the system.  No confidence does not require evidence. Some folks here have expressed doubt that transparency in the first vote counts, if created, would satisfy all critics.  But it doesn't need to be perfect to keep the number manageable.  But with up to 70% of Republicans supporting challenges to the nontransparent system, it is worth giving transparency a try, no? The genie is out of the bottle and I've never seen anyone that has opened their own eyes to the problems of secret vote counting reverse their position and favor nontransparency.   So this is a one way street and a majority of Americans now have no confidence in current nontransparent voting systems.  Because "public confidence" is a pillar of the defense of elections, nontransprency is no longer defensible. We have to try something else to rebuild the confidence that is destroyed and the problems of the current system are an order of magnitude greater than any alleged problems with transparency. Let's give full transparency on first counts a chance.  Nontransparency has failed. It is the seed of the distrust of extra ballot drop boxes that are unmonitored, of observers being denied or kept at too great a distance, and for opposition to secret vote counting.  And transparency is anchored in the most sacred constitutional and inalienable rights. This position does is not anchored in any particular claims about particular election results or their accuracy. It is anchored in the fact that government lacks the power to legitimately destroy vote counting transparency through the mechanism of vendor contracts or statutes or other law purported to allow secret.vote counting. If my political opponent counts votes in secret that is a picture of oppression and some might say tyranny  If I desire to count votes in secret that is a picture of corruption. The very desire to act secretly to count votes is a corrupt desire no matter who possesses it.  Nontransparent election night vote counts are indefensible.  Paul Lehto, J.D. P.S. Without wishing to shut anyone down, I will yield to breaking news and other topics because this can be discussed later, unless folks wish to reply....   
On Fri, Jan 8, 2021, 6:47 AM Rick Hasen <rhasen at law.uci.edu> wrote:

That is exactly right.  Both were well within the margin of litigation, and at that point it is not just good lawyering but luck that determines the ultimate winner.  We could say the same thing about the current Iowa House race. The key is to have fair procedures to decide these close races (which is why I am somewhat concerned about the partisan House getting involved in deciding that Iowa race, for reasons Derek explained here:  https://electionlawblog.org/?p=119861).

Rick

From: David Becker <dbecker at electioninnovation.org>
Date: Friday, January 8, 2021 at 6:32 AM
To: Ilya Shapiro <IShapiro at cato.org>, Rick Hasen <rhasen at law.uci.edu>, Margaret Groarke <margaret.groarke at manhattan.edu>, 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’m not singling anyone out here, as many on both sides have done this, but can we, once and for all, stop using the language about “stealing” of elections? We are a nation of laws, and all of these elections were fully litigated in courts and reviewed by election officials. That goes for the 2000 Bush and 2016 Trump electoral victories as well as the 2004 Gregoire and 2008 Franken electoral wins. 

Don’t we have enough evidence of the damage such language can do?

David J. Becker

Executive Director and Founder

Center for Election Innovation & Research

1120 Connecticut Ave. NW, Suite 1040 

Washington, DC, 20036

(202) 550-3470 (mobile) | dbecker at electioninnovation.org

www.electioninnovation.org | @beckerdavidj 

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Ilya Shapiro <IShapiro at cato.org>
Sent: Friday, January 8, 2021 8:57:45 AM
To: Rick Hasen <rhasen at law.uci.edu>; Margaret Groarke <margaret.groarke at manhattan.edu>; 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) 

And that of course goes just as much about the false cries of “voter suppression” and Marc Elias’s legal machinations going back to the stealing of Dino Rossi’s gubernatorial win and Al Franken over Norm Coleman.

Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies

Publisher, Cato Supreme Court Review

Cato Institute

1000 Massachusetts Ave. NW

Washington, DC  20001

cel. (202) 577-1134

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Buy my new book: Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court

Cato Supreme Court Review:   http://www.cato.org/supreme-court-review

Watch our 19th Annual Constitution Day Conference, Sept. 17, 2020:

https://www.cato.org/events/19th-annual-constitution-day 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Rick Hasen
Sent: Thursday, January 7, 2021 11:08 PM
To: Margaret Groarke <margaret.groarke at manhattan.edu>; 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)

*CAUTION: External Email*

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 the 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.

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 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] 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

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. 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 ofknowledge.  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
906-204-4965 (cell)

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