Reflections on the Rule of Law and our Election System
This past Wednesday I was at court (that's what I do when I'm not doing this). The Appellate Division, First Department (second highest court in New York State) is housed in a room which says- we are a nation that exalts the rule of law. I was feeling confident: the Law was on my side. My adversary's brief had been filled with dumb arguments; the kind that made me think when I'd read it that being dumb has apparently become fashionable or why else weren't these guys more embarrassed to take certain positions. During oral argument I realized, to my horror, that many of those dumb arguments seemed credible to some of the justices of the Court. Not the same Appellate Division of my earlier career. Still, even as the system has eroded over the years, my expectation was still that justice would prevail. That's because enough of the time the courts in New York State respond accordingly. That is to say there's enough of a functioning system to believe in.
I know we've traveled far from the early days as young legal services attorneys, sure that the courts would vindicate the rights of the individual; the poor, the voiceless. We had reason to be hopeful. It was the days of the Warren Court, of Justices Douglas and Brennan- outspoken defenders of individual rights. A court in which justices like Blackmun, a lifelong Republican, could rise to the position and evolve to be the author of Roe v Wade.
Not so the present Supreme Court which has dishonored the ideals of this country. Six short years ago that Court thwarted the will of the people and handed the presidency to a loser.
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to the confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent. – Justice John Paul Stevens 12-12-2000
And then, as I returned home from Court having put aside my thoughts about the dumbing down of America and those 5 old men on the bench who should have been humiliated, I read with horror how far we'd really fallen. Gonzales v. Planned Parenthood and Gonzales v. Carhart; five more men, two of them hand-picked by the loser – in disregard of science and legal precedence, issued a decision which defies common sense and established law and confirms Justice Stevens' dissent in Gore v Bush.
New York has not plunged so far. We still have judges capable of critical thought and reasoning. We have elected officials in New York who continue to strive for our highest ideals as a nation whose founding documents include the Declaration of Independence. As a citizen of New York I still have hope which I don't feel at the moment as a citizen of the United States. (I may be a little down about how court went Wednesday, but maybe, I told myself, this is just what it feels like before you get to the Court of Appeals (highest court in the New York).) And that's the point – in New York there's still the possibility that justice will be done.
New York is the last hold out: The only state to not have decided which way it will divest its citizens of their right to consent to a government of their choosing. Every other state has purchased either DREs or Optical Scan systems, both of which count the ballots in secret, preventing the people from observing the count and thus depriving us of the ability to control our own elections. I've been so busy approaching this issue as a regular citizen I had forgotten what a quarter of a century's worth of litigating has taught me is unquestionably wrong with this picture. An election, in which votes are cast or counted by computer can never be validated in a court of law. The accuracy of the vote count in any challenged election could never be proven because all that remains after a computerized election is insufficient evidence which, under the rules of evidence, would never be admissible.
When the federal government is laughing with disdain at every right of the people it was charged with securing, New York still holds promise.
Elections Counted by Computers Cannot Withstand Challenge in a Legitimate Court of Law
Rules of evidence have always required the best evidence because anything less is not sufficiently dependable to establish the truth. Thus an original document is required by the Best Evidence Rule. Hearsay evidence is rejected because of its inherent unreliability: can't be cross-examined; the demeanor of the witness can't be observed by the trier of fact. The need to be able to observe with one's own eyes (the eyes of the jurors or the judge) is considered so essential that incompetent hearsay evidence will be excluded in the interests of truth-seeking and justice.
Rules of evidence are premised on the search for accurate, reliable, demonstrable truth. The Best Evidence Rule (which requires in most circumstances the production of the original document) is predicated on the assumption that the trier of fact might not be able to detect fraud or error in a copy of a document. Hearsay evidence (evidence not based on direct knowledge) begins with the assumption that the evidence cannot be trusted and therefore must be subject to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal [judge or jury] to estimate it at no more than its actual value” Wigmore on Evidence.
The Proof That Our Votes Were Actually Counted as Cast Cannot Be Established by the Evidence Produced by a DRE
If an election is run on a touch screen computer (DRE) there's absolutely no evidence that could withstand scrutiny in a court of law. The only proof of the vote count is the computerized tallies produced by a computer. Can't cross-examine the computer. Testimony from the last computer software programmer who may have had access to the machine isn't going to solve the problem because we can't really know who that might be. That is precisely the problem of voting on computers: they're only as good as the last person who had access to them and they are capable of being hacked without detection by malicious codes. Malicious codes are designed to leave no trace. So even if the computer programmer takes the stand, there is nothing he/she could say that could prove the machine(s) had not been rigged. There is no way to effectively scrutinize or analyze the computer's tally and no way to get at the truth.
Other computer scientists could testify about what they can determine after the fact, but there will never be anyone who can testify with certainty that a vote tabulation system is secure because there's no such thing as a tamper-proof system. No amount of testing can prove software is safe. The millions each state wastes on testing and certification is just that: a waste. See Bruce O'Dell's