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The "All or Nothing Approach:" Should It Apply To Democracy?

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EXECUTIVE SUMMARY / TIME MANAGEMENT CUES: In this essay, I go out on a limb and suggest that this is one of the most important articles and perspectives you will ever read about, though most of the ideas herein started with the American Revolution and are as much your ideas as they are mine. But to summarize in one sentence, this article applies to vote counting and voting systems the legal and political perspective of democratic rights. It shows that almost all of your meaningful rights in the area of voting and vote counting have been taken away, and Congress instead of correcting that is about to institutionalize it. A government, a Congress, a Judiciary or a local government that simply can not be bothered with the manual labor of counting your vote and every American's vote with openness, honesty, transparency and care, most surely can not be trusted to treat redblooded Americans with openness, honesty, transparency and care. In summary, this essay stands for the proposition that our fundamental obligation as Americans is to defend democracy, and that when it comes to respecting voting rights, "the "compromise" IS the same as the violation of the right." I hope that you will read it all, and if you do not think it is important and worth the few minutes to do so, I invite you to tell me why at my email address above.

Let's have a real talk about defending democracy. And voting rights. And how many of us must think that America really is unattractive as something to own or control, because we act like stolen elections are unlikely or impossible or at least nothing to think seriously about defending against. Worse than a sleeping sentinel, our government and especially our media have walked off the job of watch guard, apparently figuring there is no need to be vigilant when it comes to voting or liberty. And yet, virtually America's entire history can be told from the perspective of fights over the right to vote, who gets it, elections and their crimes and shenanigans.
In what is only the latest example of failure to take democratic rights seriously, a hard working and accomplished activist Steve Rosenfeld criticized other activists for an "all or nothing" approach/attack on Congressional legislation that he made in his Alternet article http://www.alternet.org/story/48967 supporting the Holt bill (HR 811) legislation. In general, the Holt bill keeps electronic voting but instead provides generally for a "paper trail and audit" system. Attacking "all or nothing" is attractive rhetoric since it is seemingly reasonable, slightly effective even. We typically don't want to be difficult, we'd rather "go along to get along."

There are exceptions, though, to this "go along to get along" approach that avoids being an "all or nothing" type.

One "goes along to get along" until you realize that we are dealing with the most important rights that BOTH the individual citizen can have (the right to vote, which protects all other rights) as well as the most important democratic right we all have (the right to have that vote counted properly and tabulated properly on a one person/one vote basis).

Rights, ahem, are "all or nothing" things. In fact, it is illegal and unconstitutional to even "BURDEN" those rights, absent narrow and compelling circumstances.

Steve Rosenfeld's argument proceeds from the statement that (paraphrasing) says "well, we've already got all these billions in machines in place so, we'll just have to tolerate secret vote counting on DREs and opscans, but if we look at an election result and it seems wrong we'll have no problem assembling a million dollar dream team of lawyers statisticians and computer experts to evaluate the election and its audit, then file suit or application for a full recount and pay those fees too….." (not his words, but mine, given the playful liberties Steve took with the position of other activists, the above placing words-in-mouth is fair, IMHO.)

The Holt bill, which I actually do oppose in any event and no matter what, keeps the first counts secret and leaves any corrections, if any, to post-election audits and recounts. As a lawyer and dare I say emerging expert in post-election litigation, I stand to make TONS of money if only this kind of election disputing got a little more popular with candidates. But, as we know, almost all candidates easily and soon concede within 24-48 hours of the election.

So, after conceding the secret hackable counts that nobody can see on opscans and DREs, we are behind the EIGHT BALL in an extremely serious way:

1. We have conceding candidates in high %'s of districts.
2. We have legal expenses that are huge that we wouldn't have if we had the sense to insist on protecting THE FIRST COUNT
3. We have computer expert expenses we wouldn't have if we had the sense to insist on protecting THE FIRST COUNT
4. We have statistician expenses we wouldn't have if we had the sense to insist on protecting THE FIRST COUNT
5. We have extremely short timelines and statutes of limitation,
6. We have elections officials, whether innocent (mostly) or corrupt (some), who, the last thing they want is lawyers and citizens "misunderstanding" "spinning" or discovering their mistakes and in any case putting the officials in the biggest media or internet fishbowl the citizens can find. THEREFORE, all elections officials tend to be slow in producing information and doing what they should, and have the semi-plausible deniability of "lots to do."
7. We have the "sore loser" moniker in the media, if we are challenging anything.
8. Candidates and their staff have already scheduled well deserved vacations starting 3 days after the election, and are exhausted and usually in debt or without money when the real battle is just starting, regarding the post-election audit or recount.
9. Even elections officials in the Democratic county of Cuyahoga Ohio, were recently sentenced to 18 months in prison for rigging the presidential recount in 2004 because they'd rather avoid working through Thanksgiving and avoid making their own first counts look bad, and avoid being in a media fishbowl through 2 full days of rigging and CYA maneuvers to make the first count look like the election officials did their job right the first time. One can never trust a human being to audit themselves, or blow the whistle themselves, so we can't trust the right to vote to post-election government audits, either. NO matter how perfect the statute is written, the people who perform the audit have conflicts of interest, and the very fact that the statute is published in the United States Code is a foolish public announcement of the method by which potential criminals will be investigated, so they can figure their way around any such audit.
10.. All of these burdens and expenses would not exist if we would have had the sense to insist on protecting THE FIRST COUNT, and rejecting garbage like Holt II that gives EVERYTHING to the secret counters and nothing to the citizens, except ILLUSIONS and EXPENSES .

All of this, of course, occurs in a larger elections context in which election criminals have three huge advantages that no other criminal really ever gets: (1) They know in advance the limits of the investigation because they are published, and (2) successful election criminals become insiders who get to set or alter future election security policies (and there will surely have to be policies on how even a "perfect" audit statute is implemented), and (3) The constant talk in newspapers and from election officials that we should trust them, and that "public trust" is the most important thing in elections, when in fact the most important thing is checks and balances and public oversight, i.e. institutionalized distrust, not trust.

Now take these three unique advantages of known investigatory techniques, likely insider status, and constant media trust-talk, and consider the fact that the elections stakes are for the world's richest country and sole military superpower. In light of these extremely high incentives to cheat, consider the fact that the average person will send only their like-minded friends to an unscientific Internet poll to "vote it up" for their side, which is the moral equivalent of stuffing the ballot box. Of course, most of us do this so that the most just side wins the unscientific poll, but we are acting intentionally to make the poll even more unscientific. Well, election cheaters to the same, they create "justice" for the side they believe in, and they create inaccurate and unscientific results in the process. So, Election criminals are just like you and me, in other words, they just are creating more "justice" by making the right side win than you and I do in our small-time Internet polls.

Given the highest stakes in the world, the highest cheating incentives in the world, published clues to criminals on how they will be investigated, a universal tendency on the part of all humans to stuff the ballot box to help the more just side (in their opinion) win, and the fact that successful election criminals and their friends become election insiders, we have a problem with election security don't we? We need TWO WAY security that protects from insiders as the biggest risk and also protects from outsiders. Everyone who votes has a bias and a motive to mess with your sacred right to vote. And, if your individual right to vote is sacred or very important (take your pick), then the counting of the individually sacred votes of all 122,267,553 Americans that got their votes counted in the 2004 presidential election, is approximately 122,267,553 times more sacred or 122,267,553 times more important than the individual's right to vote - which all by itself can not be burdened or compromised in almost any case.

So, what does Holt propose concerning the FIRST COUNTS, these counts that are 122,267,553 times more powerful than the merely SACRED in our democracy?

Holt institutionalizes secret first counts on optical scans and touch screens by offering paper trails on touch screens it deceptively calls "ballots" and Holt also substitutes post-election Illusions of 3% audits instead of 100% open counting on election day, and urges us to imagine the statisticians (government workers) rushing in to save the day by proving the government's own first count numbers to be wrong, when we've always had a post-election option like this called recounts and their track record of expense, untimeless and inadequacy is so legendary that even the Holt bill knows something has to be done about 100% recounts, but Holt comes up with an even more modest 3% post-election audit in place of first count checks and balances, and tells all of us non-scientists and non-statisticians that science and statistics will save the day so we needn't worry about a 97% reduction in the already-inadequate recount "right." America has over 13,000 counties, do you think we have that many statisticians willing to serve, spread evenly over every American county....? Forget it, the Holt bill is not based on actually THINKING nor is it based on the perspective of DEFENDING DEMOCRACY, a stated reason we launch Middle East wars.

So why is it so difficult for politicians to honestly talk about DEFENDING DEMOCRACY via public oversight, since even a political bird-brain in America knows that Arthur Anderson couldn't audit Enron, but Holt has government appointed auditors auditing the government's election numbers, which is tantamount to Enron auditing Enron? The public is the ONLY party qualified to oversee elections, because the public is the sole source of legitimate power as the "boss" in democracy, the government is the servant, and all the servants have huge conflicts of interest, getting all their money and power from elections themselves, and naturally wanting to defend their first-count reputation, not attack or correct it.

The above is the gauntlet of destructive processes your RIGHT to vote is subject to, culminating in the complete destruction of the right via secret vote counting, leaving us with absolutely no basis for confidence in our election results other than pure trust --- the very thing the checks and balances in our system were designed to avoid. The Founder John Adams wrote: There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty. It seems to follow, then, that the right that protects all other rights, the right to vote, ought not to be processed in secret or counted in trade secrecy.

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Paul Lehto practiced law in Washington State for 12 years in business law and consumer fraud, including most recently several years in election law, and is now a clean elections advocate. His forthcoming book is tentatively titled DEFENDING (more...)
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