August 1, 2007 Dear Secretary of State Bowen:
August 1, 2007
Dear Secretary of State Bowen:
As you know, you are statutorily authorized to conduct this top to bottom review for the purposes of assessing the suitability of computerized voting systems for use in California . As an election lawyer with some litigation experience in California elections, I wish to offer the following comments supporting complete decertification of all electronic voting systems in use in California for the reasons stated below, particularly emphasizing your own inability (on account of vendor resistance and delay) to even complete and accomplish your own duties of inspection and review as a direct result of vendor opposition and reluctance to produce any and all information required.
In general, it is impossible for these computerized voting products to meet Calif. Elections Code section 19205, and particularly section (c) which requires that those systems be safe from fraud. It is completely undisputed that all bets are off if there is a criminal insider as an election official. This alone means that no system can be considered "safe from fraud" since insider crimes like embezzlement are traditionally the top crimes in working environments. The key section provides
19205. The Secretary of State shall establish the specifications for and the regulations governing voting machines, voting devices, vote tabulating devices, and any software used for each, including the programs and procedures for vote tabulating and testing. The criteria for establishing the specifications and regulations shall include, but not be limited to, the following:
(a) The machine or device and its software shall be suitable for
the purpose for which it is intended.
(b) The system shall preserve the secrecy of the ballot.
(c) The system shall be safe from fraud or manipulation.
While the regulations adopted under the above can provide more detail, they may not veer or vary from the requirement that systems be "safe from fraud or manipulation." Indeed, of all the problems established in the red team reports, precisely NONE of those risks can be eliminated, perhaps a majority can be "mitigated" or have their risks reduced some, and a few resist even reasonable mitigation attempts. When none of these problems can be removed, these voting systems simply can not be "safe from fraud or manipulation" as required by law. Mitigation means less risk, but doesn't mean "safe" as required by law.
Specific points supporting decertification in addition to the above are as follows:
1. It is clear that the Secretary has authority under Elections Code section 19203 to "make all arrangements for the time and place to examine voting equipment proposed to be sold in this state." You made those arrangements, you know the manner in which they were not complied with was numerous and egregious. This alone prevents you from forming a belief that you have properly inspected those voting systems such that you can approve them. You would be speculating as to software not provided or reviewed, and information withheld. Thus, the information required to be provided by vendors is insufficient to form a finding that the systems comply with California. Accordingly, this alone requires decertification.
2. Under elections code section 19205, the software is required to be suitable for the purpose intended. However, all vendor contracts of which I am aware routinely disclaim the implied warranties of merchantability and fitness for a particular purpose. This constitutes a signed statement for each vendor DENYING that their voting systems will work for their usual purpose (the general legal definition of merchantability warranties) and it constitutes DENYING that the systems will work for the particular purpose intended, namely elections in California Counties (the general definition of fitness for a particular purpose). These denials are, standing alone, sufficient evidence not only to decertify, but to conclude beyond any doubt that the manufacturers themselves do not believe in and do not stand behind their products, and do not in fact think they are suitable for the purpose of California elections in a way that is meaningfully relevant to the public's goals of transparent and accurate elections. See my legal white paper on this at http://www.wheresthepaper.org/ZeroGuarantee0707.pdf
3. The security papers adopted by the Secretary as contractually or legally demanded by vendors constitute significant if not total (in some instances) restrictions on the discretion of the Secretary to inspect and evaluate voting systems. These requirements, be they from trade secrecy or contract, constitute additional conditions blinding the eyes and limiting the ability of the Secretary to do her job and support the public interest.
4. False Statements and Fraud by Vendors. http://www.sequoiavote.com/bAVCEdge.php states as follows, and has so stated since at least August 2004, and constitutes a warranty and representation that inheres in the contacts Sequoia signed, since it is an express warranty it is not waivable:
The AVC Edge® provides nothing less than 100 percent accuracy, privacy and security.
The Audit Trail provides an unalterable electronic record of all votes cast during an election
For reasons clearly established in the Top to Bottom and red team reviews, this statement is false and fraudulent. This constitutes an independent basis for rescission of contract under the law of fraud and false pretenses because the records ARE alterable, and the systems are NOT 100% accurate, private, and secure.
5. History of Inaction. I personally sued Sequoia in April 2005, on issues including the "yellow button" that, pressed twice, allows unlimited manual voting. Sequoia has proven an intense pattern of recklessness by taking no action on this, despite all the notice one could possibly have of this problem See www.votersunite.org/info/lehtolawsuit.asp (choose "complaint" near bottom)
6. Diebold represented to the NH Ballot Commission on videotape that they would do whatever the California SOS required. They did this to obtain a NH approval. Obviously this was a false statement. Diebold, and all other vendors, are NOT LISTENING nor do they sincerely wish to have their code vulnerabilities corrected. This is an additional reason, in the nature of "other good cause" sufficient for decertification.
7. Decertification can and should be sought also under Election Code section 19214.5. (a) [...] for an unauthorized change in hardware, software, or firmware to any voting system certified or conditionally certified in California." This should include a prohibition on doing business in California for 3 or more years, and refund of money under subsection (4).
8. Local elections officials are also prevented by vendors from doing a proper inspection every two years, and this is supporting cause for decertification under Elections Code section 19220. The elections official of any county or city using voting or vote tabulating equipment shall inspect the machines or devices at least once every two years to determine their accuracy. IT IS IMPOSSIBLE To determine accuracy under conditions of secret vote counting or trade secret software. Most certainly any TIMELY determination of this accuracy, prior to certification of the election result is not possible, especially when local elections officials claim to be too busy to provide whatever very limited information they do have access to. Here again, it is impossible for the Secretary of State, or any rational human being, to form a rational belief that a complete top to bottom review has been had. Secret vote counting defeats this entirely.
Please decertify the non-transparent, secret vote counting software from all vendors, as it completely prevents and defeats the required democratic accountability of elections. Whenever the private power exceeds the government power, as FDR specifically noted, we have met the definition of fascism. To approve any of these systems is to accept that private power of corporations is greater than the public interest in transparency, since they insist on secrecy in vote counting. I do not believe that you could, consistent with your oath of office, allow any vendors to continue to do business, since you would be violating your duty to uphold the Constitution and laws of the state of California and its people, in favor of corporate power, and implicitly finding that power superior to the sovereignty of California. This is impossible, if we remain a democracy.
Very truly yours
Paul R Lehto
Attorney at Law
Paul R Lehto, Juris Doctor
This is substantially similar to the email submitted August 1, 2007 with the exception of the addition of two paragraphs involving section 19205 that assist the general reader with clarity and context, plus a couple typographical errors corrected.