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Virginia's Elections Are UNCONSTITUTIONAL?!?!

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Message Mark Adams JD/MBA
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Yes, Virginia, your elections are unconstitutional, and frankly, no one in power gives a damn! So what? It must not be that important if no one in power thinks that Virginia’s elections should be conducted as required by its Constitution. That’s just some old G** damned piece of paper, right? The law doesn’t matter any more, does it? Those people that wrote that old fashioned Constitution didn’t know any thing, did they?

Well, those quaint old concerns about the dangers of counting votes in secret are shared by most Americans, just not the ones who hold on to power right now. Many more will get a personal experience and learn why most are concerned about how our elections are conducted. A Zogby poll from August of 2006 shows that at that time, 61% had heard about problems with computers counting our votes and that 92% of Americans are intelligent enough to understand that counting votes in secret is dangerous. The other 8% must think that there is some benefit to them if they are thinking at all.

This extraordinary level of concern is why nearly 10,000 Floridians participated in exit polls conducted by Project Vote Count on January 29, 2008 at 30 precincts in 10 counties across Florida. Thousands more mailed in affidavits to make sure that their votes were counted accurately. These concerned citizens signed affidavits to show how they voted to make sure that the machines counted accurately.

If those in power in Virginia didn’t want to follow its Constitution when conducting elections, why didn’t they just tell the public that they were amending it to allow votes to be counted in secret. Oh, that’s right. Most people are smart enough to realize that whoever is in control of the secret vote count might just lie and subvert the will of the voters. Of course, that couldn’t happen right here in the good old USA at least not again like in 2000, 2004, 2006, and 2008. Oh, yeah, it might just happen every time that those in power want to abuse the public and stay in power anyway.

But wait, the news would tell us if someone was cheating and rigging elections, wouldn’t it? Well, did it tell you about the unbelievably big differences between the results in the hand counted precincts and those in the machine counted precincts in the New Hampshire primary or did it just tell you that the exit polls were wrong? Did the press tell you that computers count votes in secret? Did it tell you about the Zogby poll showing that everyone with half a brain knows that counting votes in secret is dangerous? Did it tell you that Virginia’s Constitution prohibits counting votes in secret and that those in power were just planning to ignore the Constitution when it came to elections in which you might just want to kick them out of office? No? I wonder why? Could it be that the mainstream news media is all owned by a small cartel that wants to keep you in the dark?

So, I say that Virginia’s elections are unconstitutional, but how could that be? No one else is saying anything about it. Well, Article II, Section 3 of the Constitution of Virginia states, "Voting shall be by ballot or by machines for receiving, recording, and counting votes cast." But it also states, "Secrecy in casting votes shall be maintained, except as provision may be made for assistance to handicapped voters, but the ballot box or voting machine shall be kept in public view and shall not be opened, nor the ballots canvassed nor the votes counted, in secret."

An "election reform advocate" has pointed out that the Virginia Constitution allows machines to count votes, and he says that as a result, the prohibition against counting votes in secret is meaningless. Of course, the members of Virginia’s Legislature and its State Board of Elections as well as its Governor also must believe that Virginia’s Constitutional prohibition against counting votes in secret is meaningless since they are allowing all of the votes cast in Virginia to be counted in secret.

Anyway, I pointed out to the self-anointed "election integrity advocate" who also claims to be a "paralegal" that the basic rule of statutory or constitutional construction is that the law should be followed in a way which gives all provisions full force and effect if possible. As a large percentage of the members of Virginia’s legislature are attorneys, you would think that they would know and follow basic legal principles, wouldn’t you? Maybe they were just too busy to bother reading Virginia’s Constitution even though they have sworn to protect and defend it, maybe they just didn’t think about how machines count, or maybe they didn’t want you to think about it.

In this instance, it seems difficult to give both Constitutional provisions full force and effect because machines are allowed to count the votes, machines count in secret, and counting votes in secret is prohibited. So, it would seem that either the Constitutional provision allowing machines to count votes should be ignored or the prohibition against counting votes in secret should be ignored.

However, both provisions can be given full force and effect if the votes are cast on paper ballots which are counted on optical scanners for convenience, and then those paper ballots are also counted by hand in public. Of course, this seems a little burdensome and inconvenient, but when the Virginia Constitution was revised to allow counting votes on machines, apparently no one understood that machines count in secret, or did they want to count the votes in secret without bothering to mention it to the voters?

Anyway, the principles of Constitutional interpretation which are expressed in thousands of cases and legal texts require both Constitutional provisions to be given effect if possible. Of course, the provision allowing ballots to be counted on machines is optional, not mandatory, while the prohibition against counting votes in secret is mandatory. Therefore, Virginia could fully comply with its Constitution by returning to casting votes on paper and counting them in public. This would save millions of taxpayer dollars and keep a hacker from fixing an election, but it would also save millions of taxpayer dollars, money which could be used for lobbying, junkets, fact finding missions, etc., and some people might just get voted out of office!

Of course, most votes cast in Virginia will be cast on touch screen voting machines which are also known as DRE machines. There is absolutely no ballot to ever count in public if a touch screen is used for voting. It’s just vapor without paper. You just must have faith in the machine. It wouldn’t lie, would it? It would malfunction, would it? It couldn’t be hacked, could it? Just believe, have faith, and trust in the secret vote count printed out by the machine. The vote count that no one in government even bothers to check.

Well, the Federales wouldn’t just pass a law requiring touch screen voting without any Constitutional authority would they? Read Article I, Section 8 of the Constitution of the United States and think about the respect, or gross lack thereof, which has been shown for that Constitution lately. Also, you might want to read Article I, Section 4 which specifically provides that the States have the power to regulate the time, place, and manner of conducting elections.

So, how can the Federales require the States to conduct elections? Well, they can require the States to comply with the Fourteenth Amendment’s equal protection clause, but that doesn’t give them the power to mandate secret vote counting. So, why would they try to do it? They wouldn’t want to cheat to stay in power, would they? Oh, that’s right. The public is just a little unhappy with them too, aren’t we?

Another principle of construction in our system of government is that all state law must comply with the Constitution of the United States. The 10th Amendment to the United States Constitution states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Does the United States Constitution allow our votes to be counted in secret on machines or does it require something a little more trustworthy than just having faith that some machines counted accurately and weren’t hacked? Well, the United States Supreme Court has not yet heard a case in which this issue has been directly presented, but it has heard a few cases about the right to vote which have set precedent which should guide us on this issue.

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Mark Adams JD/MBA Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

I am active in the election, judicial and media reform movements. I obtained the first injunctions getting a third party candidate into debates, and I have handled more Congressional election contests than any other attorney. I practiced (more...)

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