But where single officials like the Waukesha County Clerk
singlehandedly control hundreds of thousands of votes, these margin of
victory rules for recounts are both archaic and inappropriate. The
number of "just found" precincts by the Waukesha clerk just happens to
be just over the amount necessary for an automatic recount. With
computerized counts, errors can just as easily be in the hundreds or
thousands of votes.
Confidence or trust is something that must be earned at each election,
not an ex ante immunity from accountability for election results or
officials. HEre's a personal litigation example of why margins of
victory are inappropriate standards for triggering inquiries:
I did an election contest in Kentucky around 2006. I represented
about an entire slate of Republican challengers. Even the very
competitive candidate who lost by just two votes in the last election
mounted an equal or better campaign, with no intervening
controversies, and lost by 2-1. So did the most popular sheriff in
county history (in terms of vote-getting) who came out of retirement
to run against a newbie sheriff lose by more than 2-1. It turns out a
Kentucky statute provides that an election contest MAY NOT be filed
and is prohibited if the margin of victory is 2-1 or more.
It is possible that all of my clients did in fact lose, but they
didn't all lose by 2-1 margins. The point here is that in electronic
elections, once a person sets out to cheat, they can just as easily in
most cases steal thousands or tens of thousands of votes as they can
steal one or two votes. In computerized elections, the margin of
victory in and of itself is irrelevant to a real determination of the
winner, except to the extent that archaic statutes force it to be
relevant (which makes the margin of victory very relevant as a legal
"technicality" (no pun intended)).
Automatic recount statutes based on margins of victory wrongly
presuppose the hand counted paper ballot era, in which errors or
frauds were necessarily small and therefore had to be numerous to add
up to a certain margin statewide. This presumption just ain't so any
more, especially after HAVA helped institutionalize computerized
elections in 2002.
Paul Lehto, J.D.
On 4/8/11, rhasen@law.uci.edu <rhasen@law.uci.edu> wrote:
If this margin holds up after the statewide canvass, then absolutley. If for
some reason the margin shrunk dramatically, I'd take the same position as I
took when Justice Prosser was slightly behind: a recount request is
appropriate, but inflammatory rhetoric, and unsubstantiated claims of fraud
(which now are emerging from some on the left) should be condemned. I've
already made this point in an update to my post, in some listserv messages
sent yesterday and in some tweets sent while traveling.
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "JBoppjr@aol.com" <JBoppjr@aol.com>
Date: Fri, 8 Apr 2011 06:58:49
To: bev@blackboxvoting.org<bev@blackboxvoting.org>; Hasen,
Richard<rhasen@law.uci.edu>
Cc: election-law@mailman.lls.edu<election-law@mailman.lls.edu>
Subject: Re: [EL] Wisconsin/more news
Click here: Recount Gives
Prosser a Lead in WI (for now) | ConservativeHQ.com
<http://www.conservativehq.com/node/2048>
This is an example of the errors that can occur and why recounst are
available and appropriate.
But now that Prosser won, I wonder if Rick will call for the defeated
liberal candidate to give up? Jim
In a message dated 4/7/2011 2:20:37 P.M. Eastern Daylight Time,
bev@blackboxvoting.org writes: There is no inherent virtue in "confidence in
the election process" without
accountability and public right to know. Rick Hasen states that
unsubstantiated
claims of fraud undermines public confidence in the electoral system, and
that
"litigation could undermine public confidence in both the judiciary and
Wisconsin's electoral process."
This kind of argumentation is not just undemocratic, but dangerous. This
nation
was built on the concept that DIStrust of government is healthy, with both
public Right to Know and an accessible judicial system helping to protect
the
public from its own overreaching government.
Current electoral processes violate public right to self-governance by
conducting crucial components of the election in secrecy. When essential
parts
of the election are transferred to the government to perform in concealment
from the public, the structure of the democratic system changes.
There are four crucial areas where the public must be able to see and
authenticate (who CAN vote, who DID vote, chain of custody, and the count).
The
public nature of these four components vary from state to state and
municipality to municipality. However: If government insiders place
themselves
in position to conceal any of the above four crucial areas from the public,
they put themselves in position to control the outcome of the election if
they
so choose, operating in secrecy and out of public view, and in such cases
there
is certainly no reason the public should be "confident." You cannot
substitute
trust of government insiders for public controls.
Wisconsin was the first state in the nation to have a Freedom of Information
law, passed in 1848, fully 118 years before our federal Freedom of
Information
law. It wasn't the first recognition that self-government requires Right to
Know, though. Sweden passed a Freedom of Information law in 1766, ten years
before this nation was even founded, and the trend of newly democratic
nations
is to build public freedom of information laws explicitly into their
constitutions.
Wisconsin's current implementation of election procedure does not allow the
public to authenticate the original count by comparing input to voting
machines
with their output, though incorporating such a procedure would cost very
little
and would be a meaningful way to restore one component of public controls.
Minnesota's so-called "audit" (which is not an audit, but an after-the-fact
count, lacking the necessary process management examinations performed in
real
audits); at any rate, this after-the-fact count takes place after chain of
custody has been removed from public authentication.
The 2009 German high court decision was prescient in that it stated that "no
after-the-fact procedure" can be substituted for public right to
authenticate
the original count.
That ability for the public is not currently available in Wisconsin, so
there is
no basis for "confidence" in the original count. In fact, I would contend
that
advocating "confidence" without honoring public right to authenticate the
count
is not responsible.
The Germans were able to achieve their high court decision validating public
right to authenticate the original count only after a certain amount of
public
education was done, and also with a less dishonest set of academia in the
computer field. (German computer guys testified that the system can NEVER be
secured from insiders, and thus refused to even engage in "security"
argumentation for computerized vote-counting; our own academia in this area
is
compromised, having accepted millions in grants and built a little side
industry paying themselves to evaluate, study, and help with the
non-audits.) I
realize that in the USA we have not yet built the public awareness
infrastructure needed to restore public controls. But we should begin
thinking
along those lines, at least.
By the way, a real audit evaluates management procedures. Election ballot
spot-checks after the fact are missing the management report and are
therefore
not audits at all. The same compromised computer guys, who have absolutely
no
expertise in auditing, designed some of the false audits built into election
law. This was, I contend, an act of academic malpractice, since they imputed
to
themselves expertise in an area they had no training whatsoever in. Any
auditor
will tell you that when an audit misses the mark on the management report,
it
doesn't matter if the numbers match up. In other words, without the
management
report portion of the audit, you can't know if the ballots being counted are
the real ballots.
I witnessed a 100 percent hand count of ballots in the New Hampshire 2008
presidential primary, but it failed chain of custody. (Ballots were
delivered
in open boxes; Manchester Ward 5 boxes arrived after transportation in Ward
6
boxes, and vice versa; certain sets of ballots were left deliberately
overnight
in an unlocked room, while others were taken to the vault; employees were
caught on videotape after hours with open ballot boxes and tins of solvent
under the table...) I cite this example not to shout "fraud!" but to
illustrate
that without an intact and public chain of custody, you have NO IDEA what it
is
you are counting. An after the fact ballot count with a broken (or
non-public,
unevaluated) chain of custody is not an audit and should not be used to
create
"confidence."
Now as to James Bopp's comments, they are closer to the mark except that
judicial oversight, in the current system, does not actually "insure" that
the
election is bona fide (though it can help) and "reassuring the public" is
not
the goal. Meaningful public controls are the goal, and without that it is
reckless to reassure the public that its elections are either public or
democratic.
Bev Harris
Founder - Black Box Voting
http://www.blackboxvoting.org
* * * * *
Government is the servant of the people, and not the master of them. The
people, in delegating authority, do not give their public servants the right
to decide what is good for the people to know and what is not good for them
to
know. We insist on remaining informed so that we may retain control over the
instruments of government we have created.
----------------------------------------------------------------
This message was sent using IMP, the Internet Messaging Program.
_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law
--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026 (cell)
_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law