New York-- The Buck Stops Here: Reflections on the Rule or Law and our Election System

Pull the Plug on E-Voting, Part 2, http://www.opednews.com/articles/opedne_bruce_o__061026_pull_the_plug_on_e_v.htm, Open Source Voting Considered Harmful, http://www.opednews.com/articles/opedne_bruce_o__061027__22open_source_voting_.htm.

And for those who have been misled to believe that adding a voter verified paper trail to the DRE is going to make a meaningful difference, it can't. Regardless of whether a DRE has a paper trail or not, a malicious code could be installed on the voting machine and "...that the code could easily be configured to "disappear" once its work was done, leaving no trace of tampering; the electronic and paper records produced by the voting machine would agree– and both be wrong". See Technology Review: How to Hack an Election in One Minute http://www.technologyreview.com/Infotech/17508/,

That leaves DRE evidence inadmissable. There's no one to cross examine, probe, ask – how were these votes counted? That's because the counting of the votes is concealed within the inside of a computer. There are some questions we could ask about how that computer was programmed, who tested or certified it last, but not only would that not give us enough information to pass muster in a court of law (see the O'dell articles above), the voting machine companies assert trade secret proprietary ownership rights over that information and won't reveal that evidence for further examination. Incredibly the proprietary rights of the corporation have already been upheld in some of our courts in this country.

How can our votes and our elections be owned by private corporations with the right to withhold information about how the computer's been programmed and the votes counted? How can American citizens be required to vote in a way that leaves the outcome of the election in question?

Let's say I'm in charge of elections in my district and we have no machines. The election is challenged and I'm called to testify how the election is run so as to be able to prove the accuracy of the vote count. I explain that we have every voter fill out a paper ballot and put it in a ballot box, which votes are then counted at the end of the day. It's very secure. We have very honest people in my district. I can't give you all the details of how the votes are counted, nor is it possible for me to establish who else may have had access to these ballots, nor can I say for sure that someone didn't get access to the ballot box and change the votes, but I'm sure that kind of thing doesn't go on in my district. A court is obviously going to toss out the results of that election and well it should. The evidence and the results from a DRE run election is no different. In any self-respecting courtroom these voting machines would be recognized as violative of our right to be self-governing and an unconstitutional way to run an election.

Elections Counted by Optical Scan Computers Can Not Be Proved Accurate by a Computerized Tally

Voting on paper ballots that are counted by Optical Scanners is not really any better than voting on a DRE because the Optical Scanner is just a computer and as such can be readily hacked as well. The computer tally produced by the Optical Scanner is as unreliable as the computer tally from the DRE (be that the electronic DRE tally or the verified paper trail). All of them are a function of computer software and all are vulnerable.

The only way to prove the Optical Scan computer counted the votes correctly is by verifying the machine count by hand- with a manual hand count. In a court of law, only the paper ballots could satisfy the Best Evidence Rule. However, in order to get to those paper ballots, not only would we need to pass legislation that permit and protect a full recount in every situation (and laws that prevent the swearing in of any candidate as long as the election is contested so as to not moot out the results of a recount), but chain of custody issues would have to have been dealt with in advance or those paper ballots would be inadmissible in court.

In the courtroom, documentary evidence (the paper ballots) would have to be authenticated (ie. proven to be genuine, not a forgery). That would require a procedure by which a designated person had physical custody of the paper ballots from the opening of the polls on election day until the time of the trial or could establish proper, reliable, documented custody of the ballots. To be properly authenticated in court a human being would have to be able to testify how the ballots were collected on election day: how the ballot box was secured, the identity of all those who handled the ballots, how they were counted and tallied, the security conditions for the handling and then storing of the ballots, the manner in which the ballots were transferred to subsequent custodians, etc. If the chain of custody is broken, the evidence is inadmissable.

In hand counted paper ballot precincts (which exist in other democracies and used to exist here, pockets of some are still operating in this country) this is precisely how the votes are handled. The entire process may even be videotaped. The reliability of the process can be proven and the accuracy of the count established. But in Optical Scan precincts, where the computer is responsible for counting the votes, the chain of custody provisions will not survive scrutiny applying our rules of evidence. Obviously we could implement a proper hand count system that would satisfy our rules of evidence and have the Optical Scanner check that. But as long as the job is delegated to the computer in the first instance, the machine count will never be legally provable. The only means of verifying an election counted by an Optical Scan computer is by a manual hand count in which the actual paper ballots are counted as described above, including the existence of a proper chain of custody. In other words, the only way to prove the accuracy of any election, if we insist on the level of scrutiny we require in our judiciary system, is through human beings using their own hand with their own eyes.

These rules of evidence, the product of hundreds of years of experience with truth as the judicial goal, would not permit the introduction of a weapon in a robbery if this chain of custody could not be established. We as a society have determined these rules are necessary for the preservation of a just system. They should be equally applied to the jewel thief as to those who would steal that which we have proclaimed to be inalienable. Certainly something as sacred as our ballot should be subjected to no less.