In any truly defective or defrauded election, many election officials (whether to protect their jobs OR to protect themselves if they are involved in the fraud) in fact resist production of paper trails and all other information. In actual election contests, it is often difficult or impossible to get at "paper trail" information of any kind. (Co-author Lehto, an attorney that has been involved in both federal and state election contests, has found this to be true in every election contest example he knows of or has been involved with). For a check and balance to be most effective, it must be triggered before election results are released for the first time.
Auditing as Described in H.R. 550 Won't Work
Interestingly enough, at the prescribed 2% audit in H.R. 550 lacks the statistical power to detect even half of likely errors. If the district is a congressional district (H.R.550 has 220 cosponsors in the House, a companion in the Senate is being proposed by Senator Dianne Feinstein) as opposed to a statewide district like governor or Senator, this is particularly true.
Beyond this statistical failure, the whole notion of 'audits' is misleading in all elections, because of the unique nature of ballot secrecy laws. To truly audit you must trace back to the original source of the data, which in elections is the voter herself, but secrecy of the ballot prevents re-connecting voters with their ballot to confirm its accuracy, thus you can not ultimately or truly audit anything in elections to determine whether it has changed since it was voted by the voter. Only a RIGOROUS chain of custody that is truly reliable can save a secret balloting system from near total unreliability. Electrons in computerized voting can not possibly provide such a rigorous chain of custody.
H.R. 550's 2% or more audit provision presents legal challenges as well. H.R. 550 includes an extra requirement that the paper totals from an audit TRUMP the electronic totals and replace them if they conflict. This, however, makes the "audit" the functional equivalent of a partial recount in its scope and effect. Partial recounts are unconstitutional under Bush v. Gore, as Al Gore found out by requesting that only certain counties be recounted. Does anybody doubt that in 2008 the Supreme Court will have no trouble seeing the similarity of 2% audits that trump results and partial recounts, and rule accordingly? Blurring the lines between audits and recounts creates an open playing field for the litigiously inclined who may prefer judicial selections over elections when determining who will hold the reins of power in the country. While these types of challenges will not be met in smaller elections, they are likely to come up and be fully litigated when it counts the most: in close elections, at the national and Presidential level.
Imbalance of Power
It was against the dangerous centralization of power that the Patriots of American history arose in revolt and revolution. By making permanent and strengthening the EAC, H.R.550 pushes us to a dangerous brink. It's a simple matter for the White House to stack the EAC with crony appointments, leading to any number of dangerous decisions about our elections. With technological elections in place, it also puts the "keys" to the codes programming our elections in the hands of the incumbent administration, precisely the folks (of whatever party) who are most likely to throw elections so they can stay in power. The Founders were adamant about not allowing an aristocracy or self-perpetuating class to rule this country.
H.R. 550 calls itself the voter confidence act but the biggest problem is confidence itself. We need distrust and observation throughout the whole voting process, because only THAT, in the end, brings about a trustable result. "Confidence" is necessary only for a fraud, not for a reliable result.
Transparency and Citizen Oversight
The only solution to the problems caused by HAVA is radical transparency and observation, combined with the robust checks and balances that are available, if and when they are used, by a physical paper balloting system. Although fraud or incompetence in elections has occasionally caused the proper checks and balances to not be in place in paper balloting systems, at least with paper the average payoff per election crime is low and evidence is created. Whereas, with electronic voting the average payoff is high, little or no evidence is created, making the prospects of undetected fraud unprecedented in our history as a democracy. As previously mentioned, the Zogby poll in August 2006 showed 92% of the public supports a system in which the public can view and witness vote counting and obtain information about it, as opposed to one which does not allow that because of trade secrecy. This also happens to constitute strong support for a system that keeps the damage to the integrity of the election to a minimum when it does occur.
Even a weak politician can run on 92% numbers, from any political party. Every politician should favor election integrity. The notion that we need to sacrifice transparency in favor of legislation reinforcing all that is wrong with HAVA in order to be "realistic" with H.R. 550 is entirely bogus, entirely undemocratic, and an abdication of the integrity of our system.
Again and again, the same mistake is made; a conflict arises between some consideration of convenience or administration of elections and election integrity or public oversight itself, and in nearly all cases, it is determined that election integrity should be sacrificed. For example, when the question of hand counting paper ballots comes up, the objection of long ballots requiring significant counting labor is raised, it is simply assumed that the answer is that the integrity of the election must be sacrificed, and rarely is it considered that the ballot is too long or perhaps the ballot should be shorter with an additional election each year. While many other examples of sacrificing our democracy could be given, the bottom line is that it is hard to imagine what could possibly be worth sacrificing our democracy for.
The sine qua non of democracy is not elections per se, it is the fact that all legitimate power comes from the people. In light of this, there is simply NO consideration that has the weight necessary to sacrifice public supervision of elections and public observation of elections, particularly the concern for vendor profitability or election official convenience. The HAVA-caused elimination of public oversight and official accountability via computerization and privatization ultimately means the end of government "of the people, by the people, and for the people" if the people can not fully understand and check the legitimacy of their own elections. As such, HAVA, and anything that attempts to put a shiny coat of confidence on HAVA, must not be tolerated by democracy-loving Americans.
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