This article co-written by Bob Fitrakis
Nine Republican governors have the power to put Mitt Romney in the White House, even if Barack Obama wins the popular vote.
With their secretaries of state, they control the electronic vote count in nine key swing states: Florida, Virginia, Pennsylvania, Ohio, Michigan, Iowa, Arizona, and New Mexico. Wisconsin elections are under the control of the state's Government Accountability Board, appointed by the governor.
In tandem with the GOP's massive nation-wide disenfranchisement campaign, they could -- in the dead of election night -- flip their states' electronic votes to Romney and give him a victory in the Electoral College.
Thankfully, resistance has arisen to the disenfranchisement strategy, which seems designed to deny millions of suspected Democrats the right to vote. The intent to demand photo ID for voting could result in some 10 million Americans being disenfranchised, according to the Brennan Center at New York University. Other methods are being used to strip voter rolls -- as in Ohio, where 1.1 million citizens have been purged from registration lists since 2009. This "New Jim Crow" -- personified by groups like True the Vote (New York Times Article) -- could deny the ballot to a substantial percentage of the electorate in key swing states.
This massive disenfranchisement has evoked a strong reaction from voting rights activists, a number of lawsuits, major internet traffic and front page and editorial coverage in the New York Times.
But there has been no parallel campaign to guarantee those votes are properly counted once cast. Despite serious problems with electronic tabulations in the presidential elections of both 2000 and 2004, electronic voting machines have spread further throughout the country. In Ohio, former Secretary of State J. Kenneth Blackwell awarded a no-bid state contract to GovTech -- a well-connected Republican-owned company which no longer exists -- to help count Ohio's vote. GovTech contracted with two equally partisan Republican companies: Smartech for servers and Triad for IT support (Push and Pray Voting).
Electronic voting machines with ties to Republican-connected companies have proliferated throughout Ohio. Federal money from the Help America Vote Act has helped move electronic voting machines into other key swing states in substantial numbers that are not easy to track.
The machines can quickly tabulate a winner. But their dark side is simple: there is no way to monitor or double-check the final tally. These partisan Republican vote-counting companies have written contracts to avoid transparency and open records laws.
American courts have consistently ruled that the hardware and software used in e-voting machines is proprietary. For example, California's Public Records Act (CPRA) contains a Trade Secret Exemption. The courts in California apply a "balancing test" to determine whether the Trade Secret Exemption applies, but the contracts with voting machine vendors are written in such a way that the court usually has no other choice but to side with the vendors and the state and county election officials who inked the contract. High priced attorneys like Daniel McMillan of the Jones Day firm are often hired to "clarify" the law for the court.
In a filing with the Voting Systems Procedures Panel of the California Secretary of State's office during the 2004 election, McMillan hammered out a "Stipulated Confidentiality Agreement" that states in part that a public records request by a voting activist "contain[s] confidential proprietary or trade secret information" and thus, is not a public record.
Also that year, McMillan showed up in Georgia on behalf of the infamous Diebold Election Systems company and invoked the Peach State's Trade Secret Exemption to the open record law. McMillan wrote: "If information constitutes a trade secret under the Georgia Trade Secrets Act, the government agency in custody of the information has a duty to protect the information" from public scrutiny.
McMillan goes on to argue that there's also a Computer Software Exclusion that, "To the extent that any request is made for Diebold's computer program or software, such a request would not be a valid request for a public record." Diebold's attorney cited the concern that "...it makes it easier to sabotage and hack the system and circumvent security features" if there's transparency.
That same year in Ohio, Diebold's secret pollbook system "accidentally" glitched 10,000 voters in the Cleveland area from the registration rolls. During the 2004 election in Toledo, thousands of voters lost their votes on Diebold optiscan machines that were improperly calibrated or had the wrong markers. How the the calibration and markers work are trade secrets.
So, even the election boards that buy them cannot access their tabulation codes. The bulk of the major e-voting machine companies are owned by Republicans or by corporations whose roots are difficult to trace. WHILE WE STILL HAVE TIME by Sheila Parks of the Center for Hand Counted Ballots (Article) warns that we enter the 2012 election with no reliable means of guaranteeing that the electronic vote count will be accurate.