By Robert Willmann
Persons not a part of the government have power to decide in only two functions in our local, state, and federal governments — as jurors in court trials and as voters in elections. Actually, today the outsider as decider has the final say in only one particular instance of the two: jurors who unanimously find a criminal defendant "not guilty".
Otherwise, a jury, if it is permitted to decide issues in the first place, is subject to further review and displacement in civil cases and after a finding of guilt in a criminal case. Votes, though made by secret ballot unconnected to the identity of the voter, are subject to review when the validity of the election is challenged in a civil court action. In deciphering an unclear ballot — perhaps the result of the voter writing an amusing and profane comment by a candidate’s name instead of properly marking the selection — the "intent of the voter" will be decided in court.
This review of voting by the judicial process is no longer relevant, as one stark fact must be made clear. No election can be assumed valid if electronic voting machines or any related devices are used. Every system has limitations, and the public got a look at some of them in the 2000 presidential election when in Florida the punch card system choked on its own design.
Predictably, the U.S. Congress, always inclined to jump aboard any noisy bandwagon, proclaimed that it just had to do something about the 2000 election mess, and passed a devious and dangerous piece of legislation called the Help America Vote Act of 2002, or HAVA. Introduced in the House on November 14, 2001, signed by the president on October 29, 2002, and known as Public Law 107-252, it seeks, by hook and crook, to shoehorn electronic voting machines into all 50 states [1].
While HAVA remained out of the public eye, a shiny and noisy object became the stimulus for attention: you have to bring a photo ID to the voting location before being allowed to vote, in order to "prevent vote fraud". States passed voter ID laws. Lawsuits were filed. Indiana led the way with a voter ID law that was challenged as being unconstitutional on its face in violation of the 14th Amendment to the U.S. Constitution. The case ended up at the supreme court. In split opinions, none of which had a majority of five votes, the court announced a judgment saying that the Indiana law was constitutional. However, without part or all of the opinion getting five votes, its value as precedent is limited [2]. The opinion "announcing" the judgment, from Judges Stevens, Roberts, and Kennedy, decided that "the evidence in the record is not sufficient to support a facial attack on the validity of the entire statute, and thus [we] affirm [the opinion of the court of appeals]". The concurring opinion of Judges Scalia, Thomas, and Alito tried to shut the door to challenges, saying that "petitioners' premise is irrelevant and that the burden at issue is minimal and justified".
With judges Scalia and Kennedy no longer on the court — having been replaced by Gorsuch and Kavanaugh — constitutional challenges in federal court to voter ID laws will ultimately probably have a difficult time. Now the route to take to attack voter ID laws is to use your state constitutions, some of which have better wording than the U.S. Constitution, and file your case in state court. Present your lawsuit based only on state constitutional provisions, "as an adequate and independent state ground".
The evidence of unqualified and fake voters showing up to vote is thin. In the Indiana case — Crawford vs. Marion County Election Board — the supreme court admitted that: "The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history". If you do find proof of fraudulent votes, such as dead people voting, what is the effect of that? Do you get a recount? a new election?
The fine print of your state's election laws will say whether you get a recount. In Texas, unless the percentage difference is met, or you qualify for a runoff, you might not get a recount [3]. You might have to go straight to an election contest [4]. And if you file a contest, you have to show that the outcome of the election is not the true outcome. If the reason is that unqualified and fake voters voted, you will have to prove that an equal or greater number of fraudulent voters voted than the number of votes by which you lost. During the last 20 years, if the margin of victory in any local, state, or federal election was wiped out by an equal number of phony voters, I would like to read about it. The number, if any, is likely to be small. The 2000 presidential election shuffle in Florida that put George W. Bush in the White House was not due to unqualified voters voting; it had to do with punch card votes that in some instances were hard to decipher.
Voter ID laws are being passed and validated when no proof is presented that they solve a problem or that the problem exists that affects election results. If the number of bad voters is shown to have exceeded the winning margin, you can get a new election. If the number is less than the margin of victory, you still lose, even if some of the votes are by ineligible voters. Promoters of ID laws say opponents must present people who have not been able to get an ID, while they, the proponents, do not have to show that fraudulent voters are causing false election results. Reasonable scenarios of ID laws preventing voters from registering or voting are easier to imagine than those in which fake voters take the time to con their way into meeting the registering requirements, or are given a conterfeit voter registration certificate matching the voter list, or bluff their way in as a dead person, and are convinced to go to the polls and vote in large numbers.
Furthermore, voter ID laws are not neutral and do not only address the identification of a voter at a polling place. They also can have a negative effect on a person's ability to exercise the fundamental right to vote. There is a state interest in deterring and detecting voter fraud, but there is an equal state interest in making sure that all persons who may be qualified to vote can do so without forcing some people in society to jump through hoops when less restrictive alternatives may exist–
In the case of Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966), the Supreme Court ruled that Virginia could not condition the right to vote in a state election on the payment of a poll tax of $1.50 (one dollar and fifty cents). Read some of the Texas requirements for voter ID, and you might see that paying a small poll tax, which has been ruled unconstitutional, is less of a burden than the bureaucratic requirements for identification —
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.63.htm#63.0101
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.63.htm#63.001
The midterm elections on Tuesday, 6 November 2018, are general elections. If some election numbers are so close that a candidate wants to contest the result, we will have some real entertainment, because election contests for a U.S. House or Senate seat are ultimately decided in the House (for representatives) and in the Senate (for senators), and not in the states!
Article 1, section 5, clause 1 of the constitution provides that each House of Congress shall determine its elections, returns, and qualifications [5]. The House also has a federal law that applies to its election contests — Title 2, U.S. Code, sections 381-396 [6]. This 22-page paper from the Congressional Research Service describes election contests in the House–
https://digital.library.unt.edu/ark:/67531/metadc29688/m1/1/high_res_d/RL33780_2010Nov04.pdf
House rule 10, clause 1, (k)(12) gives the Committee on House Administration authority in contested elections [7]. Senate rule 25(n)(1)(4) puts authority in the Committee on Rules and Administration for contested senate elections [8]–
As the old saying goes, "The people who vote decide nothing. The people who count the votes decide everything". HAVA does better than that. The people who vote do not even vote; the electronic voting machine’s executable computer program does. And the local election officials don’t even count the votes; the computer program in the tabulating computer does.
An electronic voting machine is simply a computer. And a computer is basically electrical engineering and binary math (the base 2 number system). Computer programmers write source code that is converted by an executable program called a compiler into a binary program the computer can execute (a compiler is probably used rather than an interpreter). In addition, inside the computer are more executable programs, hard-wired into one or more chips that are sometimes called hardware microcode.
Within this system, the potential for fraud is unlimited. HAVA’s use of “non-Federal laboratories” to certify the voting system hardware and software is worthless. No one knows if the source code observed at the “laboratory” is the same source code that is compiled later at the voting machine company, or whether it or the executable program was switched before placement in the voting device.
Then it gets deeper. Even if the source code is perfect and not tampered with, a deviously designed compiler, when it converts the source code into an executable binary program, can put traps and other changes in so that the resulting executable program is not what the source code anticipated it would be, as explained by Ken Thompson, a wonderfully creative thinker and one of the inventors of the C programming language and the Unix computer operating system–
https://www.archive.ece.cmu.edu/~ganger/712.fall02/papers/p761-thompson.pdf
The foundation for assuring the integrity of any system is auditing and cross-checking. The U.S. Congress put the following in Title 3 of HAVA, with its warm and reassuring caption, "Uniform and Nondiscriminatory Election Technology and Administration Requirements"–
"[Section 301(a)(2)]. Audit Capacity.
(A) In General. The voting system shall produce a record with an audit capacity for such system.
(B) Manual Audit Capacity.
(i) The voting system shall produce a permanent paper record with a manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall be available as an official record for any recount conducted with respect to any election in which the system is used" [9].
Notice the cunning wording. The "audit capacity" is for "such system" and not for each individual voter’s ballot. The permanent paper record is for the whole system, meaning the vote totals as created by the electronic voting machines and tabulating computers. You get a printout of the computer’s totals. You do not get a printout of each ballot verified by each voter, to be saved locally for a real recount.
The harmful part of human nature saddles us with the ongoing burden to protect ourselves from ourselves. History teaches that the desire fraudulently to determine the winner of an election despite the will of the voters has not been eliminated from the genetic pool that serves the United States.
Texas was the epicenter of the notorious 1948 runoff election in the Democratic Primary for the U.S. Senate between Lyndon Johnson and Coke R. Stevenson. A true post-election drama starring not only the candidates but the Parr family of Duval County (for Johnson) and legendary Texas Ranger Captain Frank Hamer (on Stevenson’s side) finally ended when a federal district court judge’s order keeping Johnson’s name off the general election ballot was set aside. His 87-vote margin in the primary came from votes in Duval and Jim Wells counties, as a “corrected” vote total emerged in Jim Wells County from around 203 names added to the voter sign-in list, appearing in the same handwriting, different ink from the rest of the list, and in alphabetical order. The sign-in sheet said that those voters showed up to vote in alphabetical order! A solid victory in the general election sent “Landslide Lyndon” to the Senate, and as vice president he became president when John Kennedy was assasinated. But LBJ had learned his lesson about rigging elections in his unsuccessful bid for the Senate in 1941–
"Cong. Lyndon B. Johnson, in a special election for a U.S. Senate seat vacated by death, had taken on Gov. W. Lee (Pappy) O’Daniel – and apparently had the election won. But the state’s liquor magnates, wishing to get the tee-totaling O’Daniel out of the governor’s chair and out of the state had stealthily 'negotiated' with the machine bosses in South Texas and East Texas for additional votes when they saw how close the race was. From apparent victory, Johnson dropped practically overnight to a 1,311-vote defeat.
"For Lyndon Johnson, the 1941 experience was an object lesson in Texas vote-return management. The secret in a really close election, as Johnson had painfully learned, was to withhold complete returns in counties where you are leading. This way, you kept the opposition guessing as to how many votes they needed to produce to win. And it provided you with a bit of protective camouflage if you must go shopping for post-election votes in the border country yourself " [10].
Voting fraud was not stopped by using mechanical voting machines, with their large size, curtains, and one-lever voting option for a political party. Dick Gregory, a black comedian and active participant in the United States civil rights movement, ran for election against Mayor Richard Daley of Chicago in 1967 as a write-in candidate. In a memoir, Gregory explains —
"The Black guy was so ashamed over the bet that he asked me if I would meet him at the Tiger Lounge, a Black-owned tavern in Chicago, so that we could talk. When I met him, he took me to a warehouse where they kept the voting machines. He showed me something that night that changed my views on our so-called democracy. The Black guy unscrewed the back of a voting machine and showed me that you could tamper with it.
" 'The reason Daley wants you on the ballot,' he said, 'is he is worried about being humiliated by you in the Hyde Park / Kenwood area.' Daley knew that the people living in that area were sophisticated enough to know all about write-in voting. The guard continued, 'They want your name to appear on line four and Daley’s name would be on line five. They are planning to take a wire and hook it around line four and line five, so that when people vote for you it will register to Daley.' I left that warehouse wiser and remained a write-in candidate" [11].
The opportunity to rig electronic voting machines and penetrate the companies that produce them goes without saying. Voting data compiled over the years by political parties and organizations and placed in computer databases has been cross-referenced to the extent that boundaries can be drawn for a candidate’s geographical area that will virtually ensure the election of a person affiliated with a particular political party. The same data that can predict voting results by precinct and zip code encompassing certain streets can be used to be sure that false results produced by electronic voting machines do not look too obviously rigged.
In 2009 the German Constitutional Court prohibited the use of electronic voting machines in elections after considering a challenge filed regarding their use in the 2005 election of the sixteenth German Bundestag. The ruling was based on the requirement of German law that all essential steps of an election are subject to the possibility of public scrutiny; the essential steps of the voting and of the determination of the result must be able to be examined by the citizen reliably and without any specialized knowledge of the subject [12]–
https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2009/bvg09-019.html
Lyndon Johnson had to go shopping for his fraudulent votes in the 1948 Texas special primary election, the shenanigans were discovered, and there was an election challenge. But electronic voting machines highly centralize the opportunity for misconduct. The machines permit manipulation outside the knowledge of all candidates, opinion pollsters, financial contributors, block walkers, the creators of political advertising, election officials, courts, and all others involved in the political process.
Paper ballots, marked and counted by hand with the best security procedures from modern technology we can think of, provide the best hope [13]. And the financial cost is the smallest. High definition video cameras today can track a ballot box from the polling place to the location for counting votes, doing recording and real time broadcasting in parallel, making ballot box stuffing difficult or almost impossible. Voter identification can be most thoroughly processed when a registration card is obtained, which in many cases perhaps could have a photo on it.
Voter registration lists are public and so are the polling places on election day. Anybody and everybody can watch and check every move made because everything, except the voter privately marking a paper ballot with a pen, is out in the open. This approach creates a structure for full audits and recounts and puts the process completely in plain view.
The voting process in the U.S. is upside down. Electronic voting machines are embraced and promoted through HAVA when they allow sophisticated and undetectable voting fraud. And inadvertant errors when writing computer software can happen, causing wrong results. In spite of that, the possibility that a voter not eligible to vote might show up at a particular voting location is trumpeted as the probable end of democracy, when such fraud, if it happens, has a likelihood of detection.
The funny part of it all is that even if fake voters go to the polls in huge numbers and con their way into a voting booth, their fraud is meaningless if the real fraud monsters — electronic voting machines — are rigged or compromised, because the machines will produce their altered result whether the voters are eligible or not.
Just like stuffing ballot boxes, rigging electronic voting machines requires that people do the bad acts to make it happen. But do not forget the words of Ken Thompson.
Hoping to use one of their two independent powers, people going to the precinct voting places face a new reality, possibly as sinister as it is bizarre.
Voters no longer mark their ballots. Local election officials no longer count them. Devices created and programmed out of public view do it. No recount is possible. Any fraud is undetectable.
The perfect crime, except it is not a crime.
It is all legal, or so the U.S. Congress tries to say.
See you later, Sucker.
[1] Help America Vote Act of 2002, Public Law 107-252
https://www.congress.gov/107/plaws/publ252/PLAW-107publ252.pdf
https://www.congress.gov/bill/107th-congress/house-bill/3295/text/pl
https://www.congress.gov/bill/107th-congress/house-bill/3295/all-info?r=68
[2] Crawford et. al. vs. Marion County Election Board et. al., 533 U.S. ____, Nos. 07-21 and 07-25 (2008)
https://www.supremecourt.gov/opinions/07pdf/07-21.pdf
[3] Texas Election Code, sections 212.022 and 213.011
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.212.htm#212.022
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.213.htm#213.011
[4] Texas Election Code, sections 221.001 and 221.003
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.221.htm#221.001
https://statutes.capitol.texas.gov/Docs/EL/htm/EL.221.htm#221.003
[5] https://www.archives.gov/founding-docs/constitution-transcript
[6] Federal Contested Election Act; Title 2, U.S. Code, Chapter 12
https://www.law.cornell.edu/uscode/text/2/chapter-12
[7] https://rules.house.gov/sites/republicans.rules.house.gov/files/115/PDF/House-Rules-115.pdf
[8] https://www.rules.senate.gov/rules-of-the-senate
[9] Section 301(a)(2) of HAVA is now Title 52, U.S. Code, section 21081
https://www.law.cornell.edu/uscode/text/52/21081
[10] Dudley Lynch, "The Duke of Duval: The Life and Times of George B. Parr", pages 53-59 (1976)
[11] Dick Gregory with Sheila P. Moses, "Callus On My Soul", page 122 (2000)
[12] German Federal Constitutional Court, judgment of 3 March 2009 on electronic voting machines
[13] The issue of blind persons and those handicapped and unable to mark a paper ballot with a pen can be addressed by machines tailored to that purpose, which might be designed as a mechanical device with a printer and not a computer, or, if an electronic machine, it could be built to print a paper ballot capable of being counted visually.
