Saturday, April 12, 2008

The Myth of Verified Voting

Guest Article by Nancy Tobi, Chair of the NH Fair Elections Committee

How GOP strategists & J. Abramoff transformed America's elections & the reform movement

In 1995, House Majority Leader Tom DeLay and Republican strategist Grover Norquist launched the "K Street Project." (i) Named for the Capital Hill street housing many lobbying firms, the Project gave lobbyists direct access to Washington lawmakers through weekly policy and strategy meetings. The most infamous K Street lobbyist was Jack Abramoff, who worked for the firm Greenberg Traurig. Abramoff, now in prison, took money from his American Indian tribe clients, and laundered it to Congressional Representatives in return for legislative and policy favors aligned with the Project's political agenda.

But this was not just any money laundering enterprise. Abramoff's dry cleaner was converting money to election fraud.

In 2002, the New Hampshire GOP received three $5,000 checks, just in time to pay $15,600 to a telemarketing company that jammed the phone lines of the Democratic Party's get-out-the-vote campaign in the morning hours of the election.
The three $5,000 checks? One each from two separate Abramoff tribal clients and the third from K Street loyalist Tom DeLay's ARMPAC.(ii)
The phone jamming trick, contributing to GOP Senator Sununu's narrow win, shows the magical rabbits that can pop out of a hat when Capital Hill lobbyists focus their attention on elections.

In its heyday, the K Street Project held election "reform" dead center in its crosshairs.
Project activities like New Hampshire's phone jamming, Ohio's "Coingate" and Tom Delay's Texas "PAC-gate", spun lobbyist money into election fraud gold. K Street masterfully laundered funds to influence election campaigns, policies, and processes around the nation. The Project functioned as one big money-laundering-for-election-fraud apparatus. K Street's most influential project was the 2002 sweeping election reform known as the "Help America Vote Act" (HAVA), whose architect, former Congressman Bob Ney, is also now in federal prison. (iii) HAVA was brilliantly subversive, spinning money into a sparkling, rich, complex and intricate golden gateway to perpetual election fraud.

HAVA's most benign outcome was to feed billions of dollars to an unsavory e-voting industry, including Greenberg Traurig's client, Diebold Election Systems.(iv) Its most insidious and dangerous outcome was the creation of the myth of verified voting and the Election Assistance Commission (EAC), a White House agency with unprecedented power over the nation's elections.

Election 2000 – Election Reform 2002

In the aftermath of Election 2000, the Supreme Court's Bush v. Gore decision(v) dealt one terrible blow after another to our nation's democracy. The subversion of the democratic process that began with this decision continued with HAVA and its agency of perpetual subversion: the EAC.(vi)

In 2002, the K Street-influenced Congress passed HAVA with great theatrical fanfare. The American people, still reeling from Election 2000, received it with a wholesale willingness to suspend disbelief.

"But when the smoke had cleared, a closer look revealed that HAVA had codified, rather than fixed, Election 2000’s largely unreported but most egregious trespasses of democracy (vii):"

  1. Electronic voter registration databases: In Florida 2000, up to 94,000 eligible voters – all identified as "Democratic-leaning"- were unjustifiably purged from electronic voter databases and not allowed to vote.

  2. Electronic voting machines: Florida 2000's electronic voting equipment mistabulated countless votes. In Volusia County alone, computers tabulated for Candidate Al Gore negative 16,022 votes.

  3. Presidential appointees with powerful authority to influence election outcomes: Florida 2000's vote count was stopped by the Supreme Court, effectively deciding the election for us.

HAVA alchemy transformed these three root causes of the Election 2000 catastrophe into the law of the land:
  1. Electronic voter registration databases: HAVA required every state in the nation to implement electronic voter registration databases.

  2. Electronic voting machines: HAVA mandated accessible voting equipment, specifically recommending and funding computerized touch screen machines.

  3. Presidential appointees with powerful authority to influence election outcomes: HAVA created the Election Assistance Commission, four presidential appointees with broad and ever-expanding powers over the nation's election systems.

Post-HAVA elections have delivered one disaster after another - from e-voting crashes, unequal distribution of expensive computerized equipment, registration database complications and abuse (viii), electoral lawsuits, and the multi-billion dollar e-voting industry's coups over the nation's democratic election processes (ix).

Outsourced Elections and Secret Vote Counting

The Election 2000 media message was filled with butterfly ballots, pregnant chads (x), and video clips of Florida election officials staring at computer punch cards struggling to discern the "intent" of the voter.(xi) In 2002, HAVA's message was that paper ballots caused chaos in Florida, but HAVA would take care of that, distributing nearly $3 billion to the states to buy electronic voter registration databases and paperless touch screen voting machines. The number of American votes counted by computers went from 71.5% in 2000, to 84% in 2004, and 86% in 2006.(xii)This was a cataclysmic change for election systems, and six years later, election officials continue to struggle with the transformation of familiar and manageable low-tech elections to the complex high-tech theatre wrought by HAVA.

The destabilizing effect on America's mechanism of democracy has been substantial. Techno-elections have caused shortages of poll workers, who, with an average age of 72 years, are averse to the complexities of e-voting(xiii). America's elections are now plagued by general confusion and the inability of our public officials to independently administer our elections without corporate support services. Corporate employees now appear at our elections to assist poll workers in using their equipment, administer "fixes" for equipment malfunctions, and to hold vote data and election results in their black box secret vaults away from public scrutiny.

Each election cycle county and municipal coffers are emptied to meet the newly enriched and empowered e-voting industry's ever-increasing demands for programming, maintenance, upgrades and training.(xiv)

"What is going on here? A Republican House attorney, involved in the original drafting of HAVA, once remarked to me, “They are trying to complexify our elections to the point where citizens have no idea what is going on.” "

This is more than just a story of greedy corporations.

Swiftboating of Paper Ballots & Launch of Verifiable Voting

The truth behind the corporate media's 2000 "hanging chad" story is that Florida's much maligned "paper ballots" were really just the paper component (the computer punch cards and computer-scannable paper) of a failed computerized voting system, poorly designed and in some cases delivered on intentionally defective paper(xv).

Real paper ballots are pieces of paper with candidate names printed on them in legible human-readable letters, on which voters simply mark an "X" by the name of their candidate of choice. Real paper ballots counted by real human beings have no hanging chads obscuring voter intent.

Unlike real paper ballots, the ballots in Florida 2000, designed for computers to read, were confusing to human voters. Additionally, they were intentionally produced on defective paper to conflict with the computer operations.

But the nation remained distracted by hanging chads, and congressional magicians pulled HAVA's multibillion dollar e-voting coups out of their hats. Voila. America's elections were transformed in the blink of an eye.

From "Right to Vote" to "Opportunity to Verify a Voting Machine"

Technology-based elections are the keystone of HAVA. Through HAVA, K Street money modified elections for technology rather than voter needs. This continues to this day in nearly every proposal for post-HAVA federal election reform.
Nowhere is this better exemplified than in the now normative vocabulary of election reform: "verifiable voting."

HAVA states that a voting system must "permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted."(xvi)

HAVA's language is significant. When a voter marks a paper ballot with pen or pencil, he has no need to "verify" his choice. A voter only needs to "verify" his vote when it has been marked and/or counted by a computer.

HAVA intent was to technologize America's elections, even down to the terminology used to define voters' rights, transforming our constitutional right to vote into the opportunity to verify a voting machine's vote, and turning voters and election officials into quality control agents for the e-voting industry. Removing elections from the public domain, verified voting now centralizes power in the hands of technology experts and private corporations using proprietary trade secret software to count our votes.

HAVA initiated an ongoing program of government grants to fund a cottage industry of computer scientists and statisticians devising elaborate protocols to support the "verifiability" and "auditability" of technology-based elections.

HAVA's anti-democratic notion of "verifiable voting" has even diverted many voting rights activists from the fundamental and core principles of democratic elections: publicly owned and operated, fully observable elections with citizen controls over every aspect of the voting system. Many grassroots activists are now fighting for the opportunity to verify and audit voting machines rather than the right for fair and open voting and vote counting.

Despite the inherently false premise of verifiable voting, it has become the clarion call for 21st century election reformers in congress, the EAC, and grassroots movements alike.

Secret Vote Counting: Touch screens & Optical Scanners

After HAVA rolled computerized touch screen machines into roughly 40% of America's polling places, reformers clamored for "voter verified paper audit trails"(VVPAT)(xvii).

This reform would send more money to the e-voting industry to attach printers to their touchscreen voting machines. The printers would then display a receipt-like printout to voters, who could look through a window and "verify" their vote.

But VVPAT, corporate controlled and proprietary, denies citizens the opportunity to oversee how their vote is being recorded and counted. Computer scientists remind us that a computer can easily be programmed to display one thing, record another, and count something altogether different. To make things worse, the display window in many of the VVPAT machines is inadequate for voters to even read the print out. Studies soon showed that between 10-20 percent of VVPAT paper records are unreadable and unusable for the purposes of "verifying" the votes in a recount. Other studies showed that only a very small percent of voters "verify" their vote in this manner.(xviii)

Ultimately, many VVPAT reformers abandoned the cause.

Today many reformers would willingly exchange all touch screen voting machines for optical scanners using voter marked paper ballots. I myself have, in the past, advocated for just such a solution as a great way to reintroduce voter marked paper ballots into every polling jurisdiction in the nation, itself a step in the right direction.

But I had to step away from that position. Because optical scan technology, like the touch screens, keeps the count itself secret and proprietary. Citizens and candidates are denied access to the count, even when the computers perform such bizarre tabulations as were seen in Florida 2000's negative vote count for candidate Gore.

Corporate controlled, trade secret optical scanners, like their touchscreen brothers, turn public votes into privatized election data.

Democratic Elections: Core Principles

Many voting activists continue to fight for optical scanners. But the fight for verifiable voting is, in fact, nothing more than a fight to continue the outsourcing of our elections to private corporations using secret vote counting technologies. To fight for verifiable voting is to perpetuate the subversion of our democratic elections. Secret vote counting is the antithesis of democracy. When you rationalize the use of secret vote counting in America, you ignore the core principles of democratic elections as defined by the Founders. These core principles define democratic elections as those with citizen controls, that are publicly owned and operated, in which the entire voting system (with the exception of the secret ballot) is fully observable. You can not inject privately controlled secret vote counting into this equation. It does not add up.

I recently asked a national organization supporting voting rights through legal action to help eliminate privatized secret vote counting in New Hampshire. My appeal was rejected because New Hampshire uses paper ballots and optical scanners, and they would never take a case that "prosecutes optical scanners" when they were fighting to replace touch screen machines with optical scanners in so many other parts of the nation.

That same organization sent observers to the New Hampshire 2008 Primary recount, and one has to wonder if they still believe quite as strongly in the myth of verified voting after that experience.

In New Hampshire, many officials and politicians point to the state's accessible recounts to justify the use of secret vote counting technology to count 84% of New Hampshire votes on election night. This is just another manifestation of the myth of verified voting. The logic behind this is that it is somehow excusable to allow secret vote counting on election night because, theoretically, you can always count the paper ballots by hand in a recount. But how does this play out in real life?

In the 2008 Primary recount, as the verified voting teams launched their NH recounts, the citizen voting rights activists decided to test the core principles of democratic elections. National activists came to New Hampshire to observe the recount, focusing on the ballot chain of custody, as the paper ballots were transported from New Hampshire cities and towns to the state capital for the recount. After all, they reasoned, what good is "verifying" the vote, if you can't be sure the vote you are verifying is the actual vote that had been cast on election night?

What the citizen observers discovered was that verifiable voting is as mythological as the unicorn. They discovered they could not, in fact, verify that the votes being verified were the votes that had been cast on election night because there was virtually no oversight on the ballot chain of custody. Boxes of ballots had to be delivered from cities and towns to a central location for the recount. But the state did not allow for citizen controls at all in this process. (xviiii)

The state obstructed citizen observation of the ballot deliveries by transporting the ballots in state vehicles at high speeds that eluded their citizen chaperones. The state delivered the ballots under cover of darkness preventing citizen oversight. The state utilized K-9 police units with fiesty barking police dogs to prevent citizens from approaching as ballots were unloaded from state vehicles to the centralized recount location. And the state broke its own law by not providing secure ballot containers to the cities and towns, resulting in ballots being stored and transported in cardboard boxes, often broken open and unsealed, often cluttered with miscellaneous labels and writing, and for which it was impossible to detect whether or not any tampering might have occured.

And who's to say what might have occured with those torn and abused cardboard boxes of ballots in the days and weeks they were left unattended in the locked but unsecured closets of New Hampshire's old town halls?

The verified voting scenario in New Hampshire's 2008 Primary recount is starkly different from a real democratic election, such as those held in 45% of New Hampshire's polling places, where the votes are counted on election night, by hand, with at least one public observer for every one counter, using proper counting methods to reconcile all the numbers (number of voters checked in, number of ballots cast, number of uncast or spoiled ballots, number of blank ballots started with, etc.).

New Hampshire's e-voting proponents are dead wrong when they claim that verified voting rationalizes secret vote counting. The truth is, nothing rationalizes secret vote counting unless you want to have a form of government that is quite other than the democratic republic that is our American birthright.

Which brings us back to the core principles of democratic elections. Both the New Hampshire and the Massachusetts Constitutions, the two earliest constitutions in the nation, drafted by the nation's Founders and predating the United States Constitution, include a requirement to count the votes in open meeting. In open meeting. That means, where everyone can observe the count. Black box vote counting, where anonymous programmers working for private corporate interests, often with partisan ties, using proprietary trade secret technology, does not meet this constitutional requirement.

Verifiable voting is nothing more than a myth perpetuated by the e-voting industry and locked into place by K Street lobbyists. An audit, a recount, a computer receipt.... None of these are adequate substitutes for the right to vote and to have your vote counted publicly and fairly and honestly.

We could not get any farther from the Founders' vision.


(i Think Progress, "If You Don't Know About the K Street Project, You Don't Know Jack", January 13, 2006.
(ii Marshall, Joshua, "Three Years Later, GOP Can't Shake Taint of '02 Tactics," The Hill,, October 20, 2005 and Cohen, Adam, "A Small Time Crime with Hints of Big Time Connections Lights up the Internet," New York Times,, April 17, 2006.
(iii) Rolling Stone, "Editorial, A Call for Investigation," June 1, 2006.
(iv) BlackBoxVoting.ORG, "The Road to Boondoggle was Paved with Good Intentions," January 30, 2007.
(v) Cornell University, Supreme Court Collection, George W. Bush, et al., petitioners v. Albert Gore, Jr., et al.
(vi) Tobi, Nancy, "The EAC Certification Ponzi Scheme" , October 3, 2006.
(vii) Tobi, Nancy, "The Gifts of HAVA to American Democracy: Time to Ask for a Refund", October, 2005.
(viii) Wolf, Richard, USA Today, "Legal Voters Thrown off Rolls," January 2, 2008.
(ix) Fitrakis, Bob and Wasserman, Harvey, What Happened in )Ohio, New Press, October, 2006.
(x) Jones, Douglas, "Chad-From Waste Product to Headline", 2002.
(xi Jackson, Brooks, CNN, "Hanging Chads' often viewed by courts as sign of voter intent", , November 16, 2000.
(xii) Brace, Kimball Election Data Services, Overview of Voting Equipment Usage in United States, Direct Recording Electronic (DRE) Voting (.pdf format) and 2006 Voting Equipment Study.
(xiii) Drinkard, Jim, USA Today, "Panel Cites Poll Workers' Age as Problem", August 9, 2004.
(xiv) Myerson, Rosemary , "Comparison of Operating Costs", February 8, 2005, and Voting Machines, Voting Machine Issues, Costs, click here
(xv) Breslauer, Alan, BradBlog, "Dan Rather Reports Video: 'The Trouble with Touch Screens' Will be Huge Trouble for Sequoia, ES&S and Maybe the Republicans from the 2000 Election!" , August 15, 2007.
(xvi) Help America Vote Act of 2002 Public Law 107-252, Section 301
(xvii) Hall, Joseph Lorenzo, UC Berkeley School of Information, "Design and the Support of Transparency in VVPAT Systems in the US Voting Systems Market," , 2006.
(xviii) Caltech-MIT Voting Technology Project, May 2005, and Lehto, Paul, "Ultimate Nightmare for Democracy, High Confidence Yet Total Fraud" , May 21, 2007.
(xviiii) BlackBoxVoting.ORG

Nancy Tobi is co-founder, former Chair, website editor for Democracy for New Hampshire (DFNH), and Chair of the NH Fair Elections Committee. Nancy is the author of numerous articles on election integrity, including "The Gifts of HAVA: Time to Ask for a Refund," "What's Wrong with the Holt Bill," "We're Counting the Votes: An Election Preparedness Kit," and "Hands-on Elections: An Information Handbook for Running Real Elections, Using Real Paper Ballots, Counted by Real People". Her article about election reform fallacies is included in the April 2008 book "Losers Take All" edited by Mark Crispin Miller.

Nancy believes in the principles embodied in our Constitution, and that groups like Election Defense Alliance and DFNH can play a unique role by empowering ordinary people to do extraordinary things.

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