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September 2, 2008 at 20:57:55

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Promoted to Headline (H3) on 9/2/08:
CA Appeals Court Strikes Down Ten Percent Ballot Audit

by Rady Ananda     Page 1 of 1 page(s)

www.opednews.com

 

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An August 29th ruling by California's Fourth Appellate District Court bans Secretary of State Debra Bowen's regulation requiring a ten percent manual tally of ballots when election results fall within a half percent between victor and loser, and when the margin of difference between jurisdictions exceeds a half percent.  California will return to a one percent manual audit, as enacted in 1965.  The grounds for this decision rest on Bowen's failure to follow public notice guidelines required of all proposed "general" regulations that apply across the board.  Bowen also had the option of issuing this 10 percent audit regulation as an emergency, thereby avoiding public notice requirements.

After the 2007 scientific studies commissioned by Bowen confirmed that all the tested computerized voting systems could not be secured, Bowen decertified and conditionally recertified them, based on several conditions.  In October she issued her Post-Election Manual Tally Requirements (PEMT) as one of those conditions.  The County of San Diego (with other counties joining) sued on several grounds, including:

*  The regulation exceeded Bowen's authority (rejected by the Court);

*  A ten percent ballot audit is cost-prohibitive (also rejected by the Court); and

*  The regulation didn't undergo public comment and scrutiny (accepted by the Court). 

The Administrative Procedures Act (APA) mandates that regulations must undergo the following steps to become a legal directive: 

"The requisite procedures under the APA include providing public notice of the proposed regulatory action; issuing a complete text of the proposed regulation with a statement of the reasons for it; granting interested parties an opportunity to comment on the proposed regulation; responding in writing to public comments; and forwarding a file of all materials on which the agency relied in the regulatory process to the Office of Administrative Law, which reviews the regulation for consistency with the law, clarity and necessity."
General or Specific Requirement 

Secretary Bowen unsuccessfully argued that the ten percent ballot audit requirement was not a "general" regulation applying universally to all voting systems, and is therefore not controlled by the APA.  It only applies to specific voting systems (the easily hacked computers that the Top To Bottom Review studied: Diebold-Premier, Hart InterCivic, and Sequoia).  She also argued that because Los Angeles and San Francisco counties have more stringent audit requirements, the PEMT does not apply to them. 

The Court was unconvinced, claiming that because most counties in California use the easily hacked systems her regulation seeks to audit, it rises to the level of a "general" regulation and is therefore subject to APA.

Los Angeles is far and away the largest county in California, being nearly three times more populous than any other county.  San Francisco is the 12th most populous county. (Both based on 2006 statistics.)  Three other counties don't use the targeted systems: Lake, Madera and Sonoma.  

The Court traveled beyond the bounds of common sense when considering the popularity of the item being regulated.  Imagine fifty different snowmobiles are on the market, and three of them explode when impacted from the rear.  The state issues a regulation requiring those three snowmobiles be fitted with some protective gear that would prevent rear-impact explosions.  Clearly, this is a specific regulation.  Does it matter that those three snowmobiles happen to be the most popular?  How can 'popularity' enter into the definition of a general or specific regulation?

The Court's ruling further entrenches non-securable software driven voting technology to the detriment of the public and of democracy.   

Bowen may be well advised to reissue the PEMT as an emergency.  With two stolen elections behind us, a spate of expert reports corroborating that software cannot be made secure, and another election two months away, voters cannot rely on reported election results.  Apparently, they cannot rely on the courts, either.

 

In 2004, Rady Ananda joined the growing community of citizen journalists. Initially focused on elections, she investigated the 2004 Ohio election, organizing, training and leading several forays into counties to photograph the 2004 ballots. She officially served at three recounts, including the 2004 recount. She also organized and led the team that audited Franklin County Ohio's 2006 election, proving the number of voter signatures did not match official results. Her work appears in three books.

Her blogs also address religious, gender, sexual and racial equality, as well as environmental issues; and are sprinkled with book and film reviews on various topics. She spent most of her working life as a legal investigator for private lawyers, and five years as an editor. She currently serves as a senior editor at OpEdNews.

All material offered here is the property of Rady Ananda, copyright 2006, 2007, 2008, 2009. Permission is granted to repost, with proper attribution including the original link.

"In a time of universal deceit, telling the truth is a revolutionary act." Tell the truth anyway.  

 

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7 comments

Politically, I lean Libertarian. When discussing issues, I will slam Dems and/or Republicans.

Now, when it comes to really irritating me, just make an unfounded charge; I will call out whomever makes the charge if there are no facts to back it up! Another version of this is when I see something that is just plainly silly/ridiculous.

An example could be something stated which could be very easily disproved. Another example, and I see this frequently: Rather tha...

to see more of bio, click on member name

steve scheetzPolitically, I lean Libertarian. When discussing issues, I will slam Dems and/or Republicans.

Now, when it comes to really irritating me, just make an unfounded charge; I will call out whomever makes the charge if there are no facts to back it up! Another version of this is when I see something that is just plainly silly/ridiculous.

An example could be something stated which could be very easily disproved. Another example, and I see this frequently: Rather tha...

to see more of bio, click on member name

I am flat out amazed!


Here is a REAL STORY about a REAL ISSUE, and nobody is discussing it...  Our RIGHTS, as a FREE PEOPLE, to govern ourselves is being ripped away from us by people who can change the count to whatever they want it to be!

It is the one lesson our government has taken away from Venezuela and Chavez.  Let's rig the elections to make sure we can keep our phoney jobs so that we can rake in lots of cash from our corporate sponsors!

 This is positively TRAGIC!  People, instead of paying attention to what is real, they are paying attention, and writing about a concocted story about whether Bristol Palin was pregnant...... or not.....

Conspiracy theories....  We all know that the news media has an agenda, and it is driven by their huge corporate sponsors.... 

Here is a question..  I wonder if the people, who are blindly following what the Daily Kos spewed out about Palin, will continue to blindly follow the Daily Kos when it is learned that the story was manufactured???

The answer, as sad as it is, is that YES....  most of the blind followers will remain in the dark yet continue to follow, accepting whatever excuse is offered..   "Oh we had to do it because....."  or "We needed something because..."

Meanwhile, we are losing our rights to determine who is actually sent to "REPRESENT" US!

Ciao, CZ

by steve scheetz (4 articles, 0 quicklinks, 2 diaries, 734 comments) on Wednesday, September 3, 2008 at 7:30:06 AM
 


In 2004, Rady Ananda joined the growing community of citizen journalists. Initially focused on elections, she investigated the 2004 Ohio election, organizing, training and leading several forays into counties to photograph the 2004 ballots. She officially served at three recounts, including the 2004 recount. She also organized and led the team that audited Franklin County Ohio's 2006 election, proving the number of voter signatures did not match official results. Her work appears in three boo...

to see more of bio, click on member name

Rady AnandaIn 2004, Rady Ananda joined the growing community of citizen journalists. Initially focused on elections, she investigated the 2004 Ohio election, organizing, training and leading several forays into counties to photograph the 2004 ballots. She officially served at three recounts, including the 2004 recount. She also organized and led the team that audited Franklin County Ohio's 2006 election, proving the number of voter signatures did not match official results. Her work appears in three boo...

to see more of bio, click on member name

keepin' it real

thanks Steve... there was a huge debate among OEN members on whether to cover BabyGate... I'm ambiguous about it.

but these continual judicial decisions backing software driven voting systems sends me right thru the roof. 

the repression tactics at the DNC and RNC chill me to the bone...

I agree we need to get back to message and ignore the distraction issues. To OEN's credit, we're covering ALL the stories... and maybe that's why I agree with covering BabyGate (within certain bounds).  As long as we're covering ALL the relevant stories, we're doing our job as journalists.

Turns out Hurrican Gustav was the big distraction that few bought.

by Rady Ananda (133 articles, 300 quicklinks, 38 diaries, 1229 comments) on Wednesday, September 3, 2008 at 10:06:02 AM
 


Brent Turner is an election integrity activist. He has founded numerous activist groups- He is an Oxford graduate currently living in California.
Brent TurnerBrent Turner is an election integrity activist. He has founded numerous activist groups- He is an Oxford graduate currently living in California.

Audits

This is tragic-   Yes we need high audits-  but this " back-end" count, though good as a possible deterrent, is no substitute for getting the " first count" correct. As Kenya and Zimbabwe teach us, if you don't get the first count correct with voter confidence intact, the voters light fires while the audit drags on. This is why our focus must always be on the first count. Since we currently use electronic systems for at least tabulation, we must fight to keep corporate secrets out of the electronics by utilizing open source, transparent systems. Also, we must obviously avoid the current practice of " remaking" the ballots and increase all oversight within our chain of custody

by Brent Turner (1 articles, 0 quicklinks, 0 diaries, 94 comments) on Wednesday, September 3, 2008 at 11:08:41 AM
 


Former Lawyer, current Business Consultant,history buff, Christian, father of 2 sons and a supporter of democratic government.
ArchieFormer Lawyer, current Business Consultant,history buff, Christian, father of 2 sons and a supporter of democratic government.

Court

I've seen many a judge exhibit extraordinary legal knowledge but not show one bit of common sense. This is what happened here and it shows a lack of judicial ability. After all judgements are not produced in a vacuum. They create unsought for results in the real world.

by Archie (0 articles, 0 quicklinks, 0 diaries, 1338 comments) on Wednesday, September 3, 2008 at 2:34:38 PM
 


John Ervin is a freelance writer who has written extensively about voting fraud and corporate crimes and he has been the radio guest of Jim Hogue at www.wgdr.org, where he also made his solo debut, a year ago Bastille Day, singing all 7 verses of La Marseillaise. As a member of the American Federation of Musicians (local 4) he has performed as a concert pianist for the French; and he has also recorded for EMI and in broadcasts for the BBC and with the Cleveland Orchestra as a member of its choru...

to see more of bio, click on member name

muservinJohn Ervin is a freelance writer who has written extensively about voting fraud and corporate crimes and he has been the radio guest of Jim Hogue at www.wgdr.org, where he also made his solo debut, a year ago Bastille Day, singing all 7 verses of La Marseillaise. As a member of the American Federation of Musicians (local 4) he has performed as a concert pianist for the French; and he has also recorded for EMI and in broadcasts for the BBC and with the Cleveland Orchestra as a member of its choru...

to see more of bio, click on member name

lack of sense, lack of good

It's not the lack of common sense, but the contempt of common good, and the lack of "having the back" of fellow citizens.  Judges are bribed wholesale these days, or these judge-made laws for corporations would never be on the books.  The corporations "lobby" the judges and remove our electoral defenses, one by one.  But it's still in the courts where our greatest advantages lie, currently, so Bowen needs to counter-sue, directly, and make sure she has HER back, so that she doesn't become another Kevin Shelley casualty.  ~John Ervin

by muservin (4 articles, 0 quicklinks, 0 diaries, 73 comments) on Thursday, September 4, 2008 at 12:29:33 AM
 


I am a senior citizen tremendously interested - and alarmed - at the way the world is turning.
Jean BraunI am a senior citizen tremendously interested - and alarmed - at the way the world is turning.

CA Appeals Strikes Down Ten Percent Ballot Audit

I hope I'm not abusing a privilege by posting this proposal twice, but I really think it is the right answer to all kinds of present problems...


By the power of original jurisdiction in an election fraud lawsuit against the President
and a writ of mandamus within that lawsuit, the Supreme Court (minus Bush appointees
Roberts and Alito) could, before November, order all Boards of Election to guarantee
election integrity with public audit and, in view of the home foreclosure crisis, Election
Day registration.


Dear Friends at OEN,


The advantage of a writ of mandamus from the Supreme Court to the nation's Boards of
Elections is that any Board that does not insure true election with a public audit will be in
contempt of the Supreme Court, and, if the writ mandates Election Day registration in
recognition of the mortgage foreclosure crisis, numerous impediments to the right to vote
can be truncated.


Such a writ would involve minimal change. HAVA already mandates the paper record
with the manual audit capacity. A voter receipt would simply require a duplicate copy of
what the machine has registered. It should cost nothing to have an interested public
observe the counting, posting and reporting of votes at every precinct.


Books, articles, websites, films and at least one thousand page lawsuit have documented
election fraud.


They were powerful forces that won Bush vs Gore in 2000, considering the specious
argument that counting the ballots discarded by chad-gorged machines would violate the
one man-one vote Constitutional prescription. A national mobilization would be needed
to counter those forces in a The People vs The President of the United States lawsuit.
However, with an aroused citizenry and the machinery provided by the Internet
revolution, it should be possible to do this.


What is needed is a prepared lawsuit, a website for establishing support pledges of names
and money, and a widespread initiation of the true election movement. A suggested letter
is below. Please consider taking on this very important chance to win American freedom.


Peace,
- Jean G. Braun, South Euclid, Ohio






Letter to Americans




As he made clear in his Democratic nomination acceptance speech, - " ... I argued for more resources
and more troops to actually finish the fight against the terrorists who actually attacked us on 9-11 ..."-
Barack Obama is one with John McCain in fundamental support of the war on terrorism.

Dear Friends,


Currently, the nation has the presidential choice between a major party candidate who supports the
war on terrorism, and a major party candidate who supports the war on terrorism. While the
conventional wisdom posits that no independent or third party candidate can be elected, many
Americans are realizing that that is true because the election process is controlled by only two
parties. Electronic machines which control the movements of ships millions of miles out in space can
only too easily be programmed to give predetermined voting results.


It is a fateful time. American warships carrying weapons of mass destruction sail the seas.
Foreclosures and bankruptcies offer opportunity for a wealth and power elite to buy up more wealth
and power for pennies on the dollar. Deficit spending by government means crushing price inflation
for the people. The nation urgently needs to hear independent voices with independent solutions.


An "original jurisdiction" - meaning the Supreme Court would be the first to try a case, (as in
Florida, 2000) - election fraud lawsuit on George W. Bush, has been prepared and a summary posted
at www._______________. In addition to petition for a writ of mandamus ordering all Boards of
Election to guarantee election integrity (** See below), the suit demands monetary compensation in
the amount of $____________________for all U.S. citizens who, by election fraud, have been robbed
of their Democracy birthright.



If sufficient grassroots names and money support such a lawsuit, it can be successfully filed, but a
national mobilization is needed.


If you wish to see this lawsuit succeed, please:


1. Forward this or a similar letter to an address in each of eight institutions in your State:
Third party; peace and justice organization; university or school; business; union; church; civic or
other organization; city government.


2. Canvas your own organization or list, asking members to pledge their name and any
amount of money. Total these and post the number of pledged names and the "bundled" amount of
pledged money in the designated space on the _______________ website.


3. After the filing of the lawsuit, follow further instructions regarding names and funds.


With guarantee of election integrity, "no strings" candidates with needed voices to add to the
national dialogue will have an unprecedented opportunity to be heard. Needless to say, the more
quickly mobilization is achieved, the more quickly a true election movement can succeed. Thank you
in advance for your action.


(Signed)



** Election Integrity by Public Audit must involve the right to vote, integrity of the vote, integrity of the
counting and integrity of the reporting.

Right to Vote: Especially because of the home foreclosure crisis, Election Day registration can be a
simple adjustment of the logistics of provisional voting.
Integrity of the Vote: Supermarket and other retail machines have, for years, guaranteed the integrity
of a transaction by rendering a receipt which can be compared to the official record. Discrepancies
should result in monetary fine of the BoE, to be rendered to the offended voter.
Integrity of the Counting: can best be verified by a public witness to the counting, including receipt
comparison, at every neighborhood precinct, immediately after the polls close.
Integrity of the Reporting: can best be verified by immediate public announcing and posting of
precinct level totals at each precinct, enabling each candidate to count his/her own votes.

by Jean Braun (0 articles, 0 quicklinks, 0 diaries, 29 comments) on Friday, September 5, 2008 at 12:11:22 PM
 

 

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