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