[EL] The Root Cause of Election Unrest is Non-Transparency

Sun Jan 17 18:14:49 PST 2021

Justin, just a couple of comments from my 30 year of experience as an
election litigator and as a former AG representative on Arizona's committee
responsible for certifying election equipment. I don't believe the ballots
in use in Florida in 2000 can be described as "hand-marked paper ballots."
They were punch cards (which degrade as they are handled) and much different
that paper ballots marked by voters and scanned. Having litigated numerous
election contests and recounts, the shift to optical scan ballots was a huge
improvement in the ability to check the accuracy of the counting machines.
The notion of voters simply selecting their candidates on a machine with no
paper trail is frightening and, frankly, unacceptable when there are more
transparent, reliable, verifiable options out there. I have seen candidates
of all political stripes demonstrate distrust of results in close races.
States and election administrators should do all in their power to instill
trust in the results. 

As to the point about machines being better for those with disabilities and
for accommodating various languages. First, the use of hand-marked paper
ballots does not preclude making technological assist devices available. As
for ballot translations, the increased use of voting centers with the
ability to print each voter's precinct-specific ballot suggests the same
ability to print in a variety of languages.

True conspiracy-mongers will always find fuel. The vast majority of voters
need to have faith that the system of elections is professionally managed,
thoroughly tested, transparent, and secure. That is a reasonable ask. I was
fortunate to spend my career working in such an environment. 

Best, Lisa

Bonnett Fairbourn Friedman & Balint
Lisa T. Hauser
Counsel
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
(602) 776-5962
(602) 274-1100 (main)

-----Original Message-----
From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf
Of Levitt, Justin
Sent: Sunday, January 17, 2021 5:42 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] The Root Cause of Election Unrest is Non-Transparency

I believe that Stephanie made the point a few weeks ago that some
individuals with disabilities are not able to mark and review paper ballots
without assistance - which means that if you don't introduce technological
assistive devices, they no longer have a secret ballot.  Technology is also
able to accommodate a great deal of language flexibility that is quite
difficult (and quite expensive) to replicate at scale with paper.

And hand-marked paper ballots also gave us both Bush v. Gore and Coleman v.
Franken, and all of the ambiguities of humans marking papers.

I'm not suggesting there's a right answer here (though I have preferences).
And I do think it's important to foster transparency and security where
there aren't meaningful tradeoffs to doing so.  But here, there are a bunch
of tradeoffs.  And where the tradeoffs impose burdens on eligible voters who
are already underrepresented, or introduce other downsides of their own, and
where the claims of process breakdown aren't really caused by the
administrative process and may be unlikely to be fixed by the administrative
process, I've got significant second thoughts about reforms undertaken in
the name of "giving conspiracy-mongers less fuel." 

Justin 

-----Original Message-----
From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf
Of Steven John Mulroy (smulroy)
Sent: Sunday, January 17, 2021 2:57 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] The Root Cause of Election Unrest is Non-Transparency

I'm coming late to this debate, so apologies if I'm repeating what someone
has said. I just wanted to emphasize that  some of the disagreement is
unnecessary.  Of course it's the case that the voter fraud myth is being
deliberately stirred up by those who know better, and of course no election
admin reform will be able to completely take away public suspicion and
conspiracy theories among some part of society.  But it's also true that
more effective transparency will somewhat alleviate the problem, and is
better on the merits anyway.   

Most experts agree that the gold standard is Hand Marked Paper Ballots
(HMPB) with in-precinct scanners and Risk Limiting Audits (RLA). You don't
have to do a manual count of all ballots on election night; you do a RLA of
a statistically significant sample as a matter of course, and then a full
manual count if the RLA suggests it, or there are credible indications of
fraud or irregularities, or if the election is super-close. 

By this standard, there is real room for improvement.  About 2/3 of US
voters use HMPBs, which is great, but it should be 100%.  And even HMPB
jurisdictions don't all routinely do RLAs. Some do not do audits routinely.
Others do what they call 'audits,' but don't meet RLA standards.  And, some
jurisdictions use paper ballots, but not Hand-Marked paper ballots. Georgia,
for example, uses computerized Ballot Marking Devices (BMDs) to mark the
paper receipt which the voter is supposed to review for accuracy and then
feed into the scanner.  Because all computerized BMDs are subject to
glitches and hacking, and because  the BMD scanners almost always scan  a
barcode rather than the human-readable portion of the paper ballot, the
voter really can't serve as a check here.  At any rate, studies show that
most voters don't really carefully check the paper ballot anyway. 

Federal law should require universal HMPB w/ RLAs.  That won't shut up all
the conspiracy theorists, but it will help make the system less vulnerable
to their accusations. 

Today's Topics:

   1. Re: The Root Cause of Election Unrest is Non-transparency
      (Allowing People to Imagine Whatever They Will) (Smith, Bradley)
   2. Re: The Root Cause of Election Unrest is Non-transparency
      (Allowing People to Imagine Whatever They Will) (Rick Hasen)
   3. Re: The Root Cause of Election Unrest is Non-transparency
      (Allowing People to Imagine Whatever They Will) (Paul Lehto)
   4. Re: The Root Cause of Election Unrest is
      Non-transparency(AllowingPeople to Imagine Whatever They Will
      (Paul Lehto)
   5. Re: The Root Cause of Election Unrest is Non-transparency
      (Allowing People to Imagine Whatever They Will) (Paul Lehto)
   6. Re: The Root Cause of Election Unrest is Non-transparency
      (Allowing People to Imagine Whatever They Will) (Paul Lehto)
   7. Can we say elections are stolen? (Margaret Groarke)
   8. Re: The Root Cause of Election Unrest is Non-transparency ...
      The Function of an Election (John M. Carbone, Esq.)
   9. Re: The Root Cause of Election Unrest is
      Non-transparency(AllowingPeopleto Imagine Whatever They Will
      (RuthAlice Anderson)

----------------------------------------------------------------------

Message: 1
Date: Fri, 8 Jan 2021 14:46:16 +0000
From: "Smith, Bradley" <BSmith at law.capital.edu>
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)
Message-ID:

Content-Type: text/plain; charset="windows-1252"

"The problem is one of stoking passions through false accusations of
election regularities "

You have to admit, Rick's typo is funny. I envision Rick auditioning for a
"contributor" gig at Newsmax: "Let's put an end to these false claims that
our elections are legitimate! They're  cynical efforts to make Americans
enthusiastic about voting and democracy!"

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf
of Rick Hasen <rhasen at law.uci.edu>
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)

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<mailto: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<mailto: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<mailto: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<mailto:sfsinger at campaignscientific.com>>
wrote:

On Jan 7, 2021, at 4:54 PM, Fredric Woocher
<fwoocher at strumwooch.com<mailto: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://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.thoughtco.c
om%2fdifference-between-accuracy-and-precision-609328&c=E,1,VYBoKtvwqdlg0vJ0
ckzND2vLDJoSOiBtol27tbnDTMk7_nPbHm5csrl61u6cfFPYeT5vKaAlSgtQVIcpJPDu80nS48IU
OTqRd8tsyvsXWdtTLZBwdydSGSk,&typo=1>.

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<mailto: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<mailto:fwoocher at strumwooch.com> AND to our Senior
Legal Assistant, LaKeitha Oliver, at
loliver at strumwooch.com<mailto: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<mailto:john.k.tanner at gmail.com>>
Cc: Election Law Listserv
<law-election at uci.edu<mailto:law-election at uci.edu>>; Virginia Martin
<virginiamartin2010 at gmail.com<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://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.pdx.edu%2fpro
file%2fstephanie-singer&c=E,1,TGrr4GjWGjEyhHFWxcpQeRVFuGYdfCW9vZ7j320uOodseR
XY_YsS1fN4gzketkNaWthw3WBrD85ZQtzAwx43k4lT_FXwybagQkL82fpIQvyoejPc&typo=1>

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://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwisconsinelect
ionintegrity.org%2f&c=E,1,QLN_aTkF3J3INLQ5jL00H9kRr9o3B-DcK2JWMJkdbC-Tgilxju
xkC9EG9d3iadD9XXLQ11GeNYe-jwrbzCl6yomAmFaDSbW8Q8HbYgRO&typo=1>. 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-patr
iot/

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

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Message: 2
Date: Fri, 8 Jan 2021 14:47:47 +0000
From: Rick Hasen <rhasen at law.uci.edu>
To: David Becker <dbecker at electioninnovation.org>, Ilya Shapiro
        <IShapiro at cato.org>, 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)
Message-ID: <B6261785-85ED-47B5-A8F1-C40340640D10 at law.uci.edu>
Content-Type: text/plain; charset="utf-8"

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

Skype: ishapiro99

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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<mailto:law-election-bounces at d
epartment-lists.uci.edu>> on behalf of Margaret Groarke
<margaret.groarke at manhattan.edu<mailto:margaret.groarke at manhattan.edu>>
Date: Thursday, January 7, 2021 at 6:44 PM
To: Paul Lehto <lehto.paul at gmail.com<mailto:lehto.paul at gmail.com>>
Cc: Election Law Listserv
<law-election at uci.edu<mailto:law-election at uci.edu>>, Virginia Martin
<virginiamartin2010 at gmail.com<mailto:virginiamartin2010 at gmail.com>>
Subject: Re: [EL] The Root Cause of Election Unrest is Non-transparency
(Allowing People to Imagine Whatever They Will)