Vote of No Confidence in E-Voting Merger: Talking with Democracy Warrior Nancy Tobi

There's nothing to celebrate here. Diebold is not going out of existence. It is morphing and becoming stronger and more dangerous. The ES&S-Diebold merger shines a big old spotlight on an inconvenient truth: In America, our elections are controlled by private interests that count our votes in secret and then expect us to believe them when they tell us the election results they've cooked up for us.

The fact is that, with or without this merger, in America today more than 90% of our elections are run and controlled by private corporations.

In other words, more than 90% of our elections are no longer free, open and public elections.

Once I spoke to a Secretary of State from the Midwest, who told me of a longstanding state law that said if, for any reason, public election officials did not show up, citizens were authorized to hold the elections themselves. This law ensured the continuation of our democracy and the constitutional mandate for governance under the consent of the governed. Unfortunately, the law was being repealed because ordinary citizens can no longer run their own elections; the computerized systems are too complex for ordinary citizens to be able to use without the "assistance" of corporate employees.

I should mention, too, that usually those corporate employees are completely anonymous. They come in in the middle of an election, make changes to the voting hardware and software, and nobody even knows who they are, never mind what changes they are actually making.

I filed a public records request asking the New Hampshire Secretary of State for the names of all private employees who "serviced" faulty or defective election equipment and software during our last general election in 2008. I was provided with an email from the Diebold vendor stating that he simply did not want to provide the names of his employees. And that was that. Apparently it was completely okay with the NH Secretary of State to allow anonymous people to intervene in our elections with no public oversight. Common sense tells us this is ridiculous.

The law backs us up. Our privatized system of elections is wholly illegal in and of itself. Concealed vote counting is illegal. Privatizing essential governmental functions is illegal. On and on it goes.

The antitrust nature of the proposed Diebold-ES&S merger is one of many items on a virtual Chinese menu of legal and constitutional violations in our current system of privatized elections.

The Office of Management and Budget in 1999 released its legally binding interpretation of statute in a memo called "A-76 Transmittal Memorandum #20" regarding what is and what is not a "non-delegable" governmental function.

The OMB states: "It is the policy of the United States Government to....retain Governmental Functions In-House. Certain functions are inherently Governmental in nature, being so intimately related to the public interest as to mandate performance only by...Government employees."

The OMB memo goes on to define what falls under these non-delegable governmental functions:

"The act of governing; i.e., the discretionary exercise of Government authority."

I can't think of anything more clearly falling under this definition than our elections, which are the ultimate insurance for maintaining the act of governing.

I applaud Bev Harris, of Black Box Voting, for filing an antitrust complaint against this proposed ES&S-Diebold merger. Even with the Chinese menu we have at hand, it's been impossible to find dedicated public servants or legal experts to help challenge our illegal privatized elections. So Black Box Voting has plucked one item off the menu, and they have a strong case.

The antitrust complaint points out that this merger would give a single corporation the power to effectively shut down our elections. I would add to this, that a single corporation would control our election results, counting our votes in secret, with no public oversight.