Back   OpEdNews
Font
PageWidth
Post a Comment
Original Content at
https://www.opednews.com/articles/opedne_paul_r___060410_the_holt_bill__28hr_55.htm
(Note: You can view every article as one long page if you sign up as an Leader Member, or higher).

April 10, 2006

The Holt Bill (HR 550): Dangerously Undermining Audits of Elections

By Paul R. Lehto

My attack (if you will) on the Holt bill is on the notion that the bill accomplishes what it sets out to accomplish, and also whether "gold standard" is a fair description. The fact that more and more people are getting involved in the movement and asking for most or all of the right things does not at all tell us whether a particular bill actually delivers those promises.

::::::::

The Holt Bill (HR 550): Dangerously Undermining Audits of Elections
And Other Critiques

By Paul R. Lehto, Attorney at law

The following is why I think the Holt Bill (HR 550) does much more
harm than good. Regardless of whether or not you are a "paper ballot"
person, I think my arguments below apply with equal force. Election
systems act like kaleidoscopes, and amendments turn the kaleidoscope
and force patterns to rearrange. These turns can be very damaging and
unexpected.

Please Understand: I'm not trying to rain on anybody's lobbying
parade and I support election protection completely: But in any case,
I always recommend that we lobby for our VALUES not for specific bill
language subjected to future word-smithing and changes anyway, and may
or may not deliver the result intended....

My attack (if you will) on the Holt bill is on the notion that the
bill accomplishes what it sets out to accomplish, and also whether
"gold standard" is a fair description. The fact that more and more
people are getting involved in the movement and asking for most or all
of the right things does not at all tell us whether a particular bill
actually delivers those promises.

The Holt bill has vetted its 2% audit requirement with "computer
scientists" which is great, but it also needs to be vetted from
statisticians for sure and perhaps even consumer fraud attorneys, and
I think it fails in that regard. (My co-author Dr. Jeffrey Hoffman
concurs as to the 2% opinions below, but isn't involved with the
rest).

THE GENERAL PROBLEM SEEMS TO BE THAT ALTHOUGH MOST PEOPLE'S #1 GOAL
IN PROTECTING ELECTIONS IS AN ANTI-FRAUD MOTIVATION, HOLT APPROACHES
IT AS A QUESTION OF MAKING TECHNOLOGY WORK. This may be because we
often don't want to insult the public officials, and it's hard for
Congress to sit down and have a serious discussion about "how do we
protect the people from the politicians and election crooks". But as
Jon Roland said a wise man prepares for the probability of corrupt
administration during a time of good administration, if that's what we
have now. Plus, to make an analogy, I don't think security experts in
banks stand for too much bullshit about "there's no risk of
embezzlement from the inside, just bank robbery from the outside".
Same with elections.

So please let me give some examples based on co-authoring a paper
actually scientifically and statistically auditing an election result
(I know others here have done so as well but I don't think everyone
has), followed by some legalistic observations. With a little overlap,
these are in addition to the 6 or so concerns I posted earlier, most
of which I've not heard any response to. The first one below on the 2%
audits is somewhat of a repeat and an expansion of the concern:

(1) SECTION 5 of Holt (Mandatory Manual "Audits"): The 2% audits on a
precinct or polling location basis means that the samples are
clustered, since all the votes in the entire precinct selected are
counted. The problem with Holt is not the 2%; it is that it is 2% of
precincts. One cannot do, with precinct-wide samples, what one must do
with a true audit: establish a firm margin of error and a "tight"
confidence level so that if the sample exceeds that, we can sound the
alarms. So, it won't be possible or it will be very unlikely that even
a cheating margin (in a reasonably close race at least) can come to a
statistical conclusion that something was wrong. (Thanks to attorney
and non-Ph.D. statistician Jonathan Simon for this) Press releases
will issue, and it will simply be announced, or we will be forced to
announce, that the results are 'within the margin of error' because
the margin will be quite wide indeed.

Moreover, although the EAC can do more audits if "cause" appears for
the same, when something is "within the margin of error" it is
probably not "cause' for further investigation as a matter of law, so
a court might well shut us down or shut the EAC down with the argument
that UNDER ITS OWN STANDARDS AND RESULTS there is no cause to look
further. The fact that citizens are invited to bid on the contracts in
order to truly waste their time with a futile exercise (with the
contract itself being a control mechanism and probably no access at
all in any event to trade secret software) is not an improvement.

It gets worse. Section 5(b) requires at least one precinct in each
(microscopic) county, which further forces small precincts to be
selected, further making the 2% precinct selection problem even worse,
though it the purpose of this provision appears to be to help spread
the sample throughout the state, we simply have no rational interest
in having statistics mimic the distortions of the US Senate, with 2
from each state regardless of size. Legislation simply does not alter
the rules of statistics as to proper sampling, and should not attempt
to do so...

In a nutshell, though an "official audit" be completed, nothing can
be proven from it due to wide margins of errors created by precinct
sampling, so that's the empty end result of the huge audit
investigation, and anybody who continues to be unsatisfied is a wacko
conspiracy theorist and attorneys will raise their prices and
encourage you to reconsider your desire to check more. It will give
audits a bad name, and the conspiracy theorists will be 100% correct:
the audit proves nothing.

(2) Even if the audit could prove something, which it almost assuredly
can not, all it proves is that there's a DIFFERENCE between paper and
electronic, not where that difference comes from. It will be argued
that the problems are with the paper, or in a real pinch even with the
DRE printing an incorrect ballot that the voters (according to one
claimed result in I believe an MIT study) don't really check any more
than they check their paper receipts at the grocery store (a glance
perhaps). Because the paper records under Holt are stored "in the same
manner" as other paper records in the relevant jurisdiction, there's
no improvement as to that (it may be good or bad with chain of custody
issues).

In a nutshell, the audit is almost guaranteed to be within margins of
error, and discrepancies (if any) can be blamed on the paper (with
DREs, primarily). Although "inconsistent' results mean the paper
prevails, the results will be very unlikely to be inconsistent, even
in cases of actual substantial malfunction or fraud.

(3) Although in Section 5(a)(1) it says audits will be "random,
unannounced, hand counts..." two paragraphs later the Holt bill
provides that the EAC shall determine the precincts "and then
*announce* the precincts in the State in which it will conduct the
audits." Sec. 5(a)(2)(A). This does not seem "unannounced" it seems
"announced".

Even if the unlikely audit-proven discrepancy can not be successfully
blamed on the paper records, the Holt bill requires the precincts or
polling locations to be "announced" "no later than 24 hours" after the
state posts final results. Now, presume that the elections officials
have engaged in election fraud, since they are the ones with the
access and if anyone in the past has been successful at hacking, they
or their friends are now the insiders. Given as little as 4 hours I'm
sure they can make paper match computers for certain precincts. This
game was allegedly played in Ohio just recently. Maybe the officials
aren't even guilty, they just are curious to see if they will pass the
audit, so they check the ballots themselves, are horrified by getting
caught seemingly with their pants down, and so they do the human thing
and pull their pants back up, even though someone else caused the
problem? Here again, paper matches result though the officials are
innocent, at least of the fraud or irregularity, though not of the
cover-up.

If a crime has taken place, nobody announces in advance what the
search warrant will be looking for. My Dad was an IRS auditor for 32
years and he'd be laughing his ass off at this procedure in a criminal
matter. So, I can only assume that this bill does not consider either
insider election fraud or insider CYA maneuvers to be a serious risk.
I think that's deeply mistaken. Or perhaps "announce" has a meaning
that I'm not getting, in the context.

(4) So we do all these audits, and they discover nothing because they
are not designed to be rigorous enough. Now the whole idea of auditing
gets a bad name and some people start rallying for the elimination of
audits as a taxpayer waste. We are stuck with educating the public
about statistics. Who wins? Even if audits aren't thereby eliminated,
the elections are looking a lot cleaner than they are, artificially.

(5) Now, let's say that we somehow, against all odds, have the whiff
of a smoking electronic gun. The public and the media are DEMANDING a
recount! People are up in arms about these electronic machines. We're
unlikely to get any electronic information because Holt provides in
section (B)(iv) that the paper records "shall be used as the official
records for purposes of any recount or audit conducted with respect to
any election for Federal office in which the voting system is used."
I'd still like to see those electronic ballots, though! While not
saying that electronic records can't be accessed, the trade secrecy
claims and the largest law firms in the nation will defend that
territory if need be.

(6) The part about prohibiting wireless, power-line or concealed
communications devices is GREAT. But then the next paragraph takes it
away by saying these must be "certified" by the EAC according to EAC
"standards". One of the central election fraud concerns is that people
get elected President (or whatever) then "pull up the ladder behind
them" by changing the election rules or cheating, or that for any
other reason holes are left in EAC standards.

Let's say activists are really smart and spot a hole in the EAC
standards, just like 30 "certifiers" failed to spot the Hursti hole,
so it just might happen again. The EAC "certification" is nevertheless
argued to preclude any suit. As they did in my case, they argue all
day long that these certifications mean that the technology can't be
questioned, except through the Secretary of State or the EAC's minimal
and deficient comment process or litigation from there. This argument
I would hope would not win, but it is a major barrier they erect. It
is not without legal support. The "strength" of this argument
specifically in elections cases has been that the government "estops"
or prevents citizens from litigating under some circumstances because
the issue has already been decided (i.e. by the certification and
comment process). If the government is deemed to represent the
people's rights, it is just as if the citizen had personally litigated
and lost when the government did it, they can not do it again. Perhaps
the Holt bill has planned around this legal authority, I don't know.

(7) The Holt bill basically says appearances of conflicts of
interest. 247(11)(B)(iv). That's good. But you can make an office
nonpartisan or make a manufacturer shut up, but that does not mean
that we don't have partisans in nonpartisan office or at the
manufacturers. The local auditor I basically sued though not by name,
was a Democrat in nonpartisan clothing. Requirements like this are not
disqualifications, they just force partisans into disguise.

(8) Holt says no component of any voting DEVICE upon which votes are
CAST shall be connected to the internet. 247(c)(12) The headings use
the word "system" but headings are usually ignored in statutory
construction at least in Washington state. This language appears to
mean DREs can't be connected to the internet, but tabulators can be.
It might be different if it said "voting system" instead of "voting
device".

(9) Holt says that manufacturers must disclose anyone convicted of
election fraud. 247(11)(B)(ii) That's good, but what about a criminal
background check? You mean a conviction for computer fraud, perjury,
computer crimes and bribery need not be disclosed so long as it's not
"election fraud"? Public school teachers have background checks, do
they check only for "child molestation" and leave it at that?

(10) Providing all election codes to the Election Assistance
Commission. 247(11)(B)(iii): the manufacturer must provide all codes
to the EAC and not change them until recertified. I don't think
anything like this should be centralized, it gives anyone who breaks
into or is inside the EAC access to the entire nation's software.
Decentralization makes things harder.

(11) Laboratories doing certification are not supposed to have a
financial interest in "the manufacture, sale or distribution of voting
system hardware and software". 231(b)(A)(i) They can, and do, have a
financial interest in
approval or disapproval of systems, and could even have a bonus in
their contract for doing, let's say, "fast work", and this would not
be prohibited.

(12) Section 401 is amended at (b)(1) to allow aggrieved citizens to
"file a written, signed, notarized complaint with the Attorney General
describing the violation". Let's say that hypothetically Bush cheated
to get into office in 2000 or 2004, our remedy is then to file a
complaint with John Ashcroft! (or any cheating person of the same
party as this or any other AG, it's not a good remedy) And, let's say
we have serious evidence of a democracy-stealing election fraud crime,
that complaint will be rejected for insufficient notarization if you
want to be an anonymous whistleblower. Stand up and be counted like
the guy in Tiananmen Square with the tanks. Don't forget the
notarization so we can be sure who you are. There's not a single
jurisdiction in this country where even a multimillion dollar lawsuit
requires notarization. This needlessly deters complaints.

(13) The 2% audit may well preempt the efforts of any state, or the
right already existing though not codified, of the public to audit.
Granted this right is rarely honored, but the newspapers were able to
recount Florida. Will this now be prohibited to citizens or media? I
call this concern "locating the audit power". If the audit power is
located in a private entity or even a public entity it will be
difficult to impossible to insure integrity.

(14) Disclosing the source code, as featured in the Holt bill: I've
been saying for some time though not often that this may result in a
big lawsuit by vendors who assert that their trade secret "property"
has been "taken" by an act of Congress, for which "just compensation"
is required under the constitution. See Reilly v. Phillip Morris
(ingredients in cigarettes can't be forced to be disclosed without a
takings claim even though Massachusetts has a compelling interest in
public health). The approach of my lawsuit (link below) has been to
seek the contracts be
declared void, in order to avoid this and related problems. It is in
the nature of contracts themselves that they are fairly well protected
against SUBSEQUENT acts of congress or legislatures because of the
impairment of contracts clause in the Constitution. Thus, this
provision might also impair contracts in addition to being a taking,
unless it is declared void and nonexistent in the first place because
it is an illegal contract that attempts to revolutionize our elections
simply by the government and a vendor signing a contract, even though
contracts are not supposed to affect the rights of those who have
never signed.

(15) The Holt bill's status as "The gold standard". The Holt bill
tries to do well but doesn't succeed. Nothing about the Holt bill
prevents the "Hursti hack" (which changed the result of an election
without leaving any evidence). Holt reinforces computers in our
elections (which necessarily creates invisible vote counting, and then
secret vote counting when combined with trade secrecy claims). If Holt
is the "gold standard" we will have problems when we "come back for
more" in future years.

(16) Preemption generally. One advantage of the current system is its
decentralization, at least until it reaches centralized state-level
computers. This makes it harder to rig. To the extent things are
federalized more, it makes it easier to rig nationally.

(17) The EAC. The federal Election Assistance Commission was created
by HAVA in 2002 to advise on best standards. It has failed the public
in doing so, and become a largely captured regulatory body, controlled
by vendors. Holt would make the EAC permanent, otherwise it expires at
the end of Fiscal Year 2005-06.

Democracy for New Hampshire is another group with a critique of Holt
at this link: http://www.democracyfornewhampshire.com/node/view/2243

I don't think one can fairly use the terms "floor" or "bulwark" or
"first steps" to describe the Holt bill, at least not without any
major qualification, as some pro-Holt groups are saying. We should
lobby for our Values, not for specific bills, so that we are clear in
what we want, and our investments in education retain value over time
instead of changing names and details with each congressional session.

Paul R Lehto

Attorney at Law

www.votersunite.org/info/lehtolawsuit.asp (link to my lawsuit and
pleadings for it, as well as the Snohomish election irregularities
lawsuit)

Paul Lehto is an attorney in Washington State who sued Sequoia Voting Systems and Snohomish County in 2005.

Submitter: Joan Brunwasser

Submitters Website: http://www.opednews.com/author/author79.html

Submitters Bio:

Joan Brunwasser is a co-founder of Citizens for Election Reform (CER) which since 2005 existed for the sole purpose of raising the public awareness of the critical need for election reform. Our goal: to restore fair, accurate, transparent, secure elections where votes are cast in private and counted in public. Because the problems with electronic (computerized) voting systems include a lack of transparency and the ability to accurately check and authenticate the vote cast, these systems can alter election results and therefore are simply antithetical to democratic principles and functioning.


Since the pivotal 2004 Presidential election, Joan has come to see the connection between a broken election system, a dysfunctional, corporate media and a total lack of campaign finance reform. This has led her to enlarge the parameters of her writing to include interviews with whistle-blowers and articulate others who give a view quite different from that presented by the mainstream media. She also turns the spotlight on activists and ordinary folks who are striving to make a difference, to clean up and improve their corner of the world. By focusing on these intrepid individuals, she gives hope and inspiration to those who might otherwise be turned off and alienated. She also interviews people in the arts in all their variations - authors, journalists, filmmakers, actors, playwrights, and artists. Why? The bottom line: without art and inspiration, we lose one of the best parts of ourselves. And we're all in this together. If Joan can keep even one of her fellow citizens going another day, she considers her job well done.

When Joan hit one million page views, OEN Managing Editor, Meryl Ann Butler interviewed her, turning interviewer briefly into interviewee. Read the interview here.


While the news is often quite depressing, Joan nevertheless strives to maintain her mantra: "Grab life now in an exuberant embrace!"

Joan has been Election Integrity Editor for OpEdNews since December, 2005. Her articles also appear at Huffington Post, RepublicMedia.TV and Scoop.co.nz.

Back