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April 22, 2007
New York-- The Buck Stops Here: Reflections on the Rule or Law and our Election System
By andi novick
We in New York, who have held off the DOJ breathing down our necks still have the opportunity to be a beacon to others. The buck can stop here. We can resist those who would deprive us of our fundamental right to choose our government by denying us control over the counting of our vote. We can say no to corporate or government control over our elections. We can count our votes by our own hand with our own eyes.
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Reflections on the Rule of Law and our Election System
This past Wednesday I was at court (that's what I do when I'm not doing this). The Appellate Division, First Department (second highest court in New York State) is housed in a room which says- we are a nation that exalts the rule of law. I was feeling confident: the Law was on my side. My adversary's brief had been filled with dumb arguments; the kind that made me think when I'd read it that being dumb has apparently become fashionable or why else weren't these guys more embarrassed to take certain positions. During oral argument I realized, to my horror, that many of those dumb arguments seemed credible to some of the justices of the Court. Not the same Appellate Division of my earlier career. Still, even as the system has eroded over the years, my expectation was still that justice would prevail. That's because enough of the time the courts in New York State respond accordingly. That is to say there's enough of a functioning system to believe in.
I know we've traveled far from the early days as young legal services attorneys, sure that the courts would vindicate the rights of the individual; the poor, the voiceless. We had reason to be hopeful. It was the days of the Warren Court, of Justices Douglas and Brennan- outspoken defenders of individual rights. A court in which justices like Blackmun, a lifelong Republican, could rise to the position and evolve to be the author of Roe v Wade.
Not so the present Supreme Court which has dishonored the ideals of this country. Six short years ago that Court thwarted the will of the people and handed the presidency to a loser.
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to the confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent. – Justice John Paul Stevens 12-12-2000
And then, as I returned home from Court having put aside my thoughts about the dumbing down of America and those 5 old men on the bench who should have been humiliated, I read with horror how far we'd really fallen. Gonzales v. Planned Parenthood and Gonzales v. Carhart; five more men, two of them hand-picked by the loser – in disregard of science and legal precedence, issued a decision which defies common sense and established law and confirms Justice Stevens' dissent in Gore v Bush.
New York has not plunged so far. We still have judges capable of critical thought and reasoning. We have elected officials in New York who continue to strive for our highest ideals as a nation whose founding documents include the Declaration of Independence. As a citizen of New York I still have hope which I don't feel at the moment as a citizen of the United States. (I may be a little down about how court went Wednesday, but maybe, I told myself, this is just what it feels like before you get to the Court of Appeals (highest court in the New York).) And that's the point – in New York there's still the possibility that justice will be done.
New York is the last hold out: The only state to not have decided which way it will divest its citizens of their right to consent to a government of their choosing. Every other state has purchased either DREs or Optical Scan systems, both of which count the ballots in secret, preventing the people from observing the count and thus depriving us of the ability to control our own elections. I've been so busy approaching this issue as a regular citizen I had forgotten what a quarter of a century's worth of litigating has taught me is unquestionably wrong with this picture. An election, in which votes are cast or counted by computer can never be validated in a court of law. The accuracy of the vote count in any challenged election could never be proven because all that remains after a computerized election is insufficient evidence which, under the rules of evidence, would never be admissible.
When the federal government is laughing with disdain at every right of the people it was charged with securing, New York still holds promise.
Elections Counted by Computers Cannot Withstand Challenge in a Legitimate Court of Law
Rules of evidence have always required the best evidence because anything less is not sufficiently dependable to establish the truth. Thus an original document is required by the Best Evidence Rule. Hearsay evidence is rejected because of its inherent unreliability: can't be cross-examined; the demeanor of the witness can't be observed by the trier of fact. The need to be able to observe with one's own eyes (the eyes of the jurors or the judge) is considered so essential that incompetent hearsay evidence will be excluded in the interests of truth-seeking and justice.
Rules of evidence are premised on the search for accurate, reliable, demonstrable truth. The Best Evidence Rule (which requires in most circumstances the production of the original document) is predicated on the assumption that the trier of fact might not be able to detect fraud or error in a copy of a document. Hearsay evidence (evidence not based on direct knowledge) begins with the assumption that the evidence cannot be trusted and therefore must be subject to “scrutiny or analysis calculated to discover and expose in detail its possible weaknesses, and thus to enable the tribunal [judge or jury] to estimate it at no more than its actual value” Wigmore on Evidence.
The Proof That Our Votes Were Actually Counted as Cast Cannot Be Established by the Evidence Produced by a DRE
If an election is run on a touch screen computer (DRE) there's absolutely no evidence that could withstand scrutiny in a court of law. The only proof of the vote count is the computerized tallies produced by a computer. Can't cross-examine the computer. Testimony from the last computer software programmer who may have had access to the machine isn't going to solve the problem because we can't really know who that might be. That is precisely the problem of voting on computers: they're only as good as the last person who had access to them and they are capable of being hacked without detection by malicious codes. Malicious codes are designed to leave no trace. So even if the computer programmer takes the stand, there is nothing he/she could say that could prove the machine(s) had not been rigged. There is no way to effectively scrutinize or analyze the computer's tally and no way to get at the truth.
Other computer scientists could testify about what they can determine after the fact, but there will never be anyone who can testify with certainty that a vote tabulation system is secure because there's no such thing as a tamper-proof system. No amount of testing can prove software is safe. The millions each state wastes on testing and certification is just that: a waste. See Bruce O'Dell's Pull the Plug on E-Voting http://www.opednews.com/articles/opedne_bruce_o__061025_pull_the_plug_on_e_v.htm,
Pull the Plug on E-Voting, Part 2, http://www.opednews.com/articles/opedne_bruce_o__061026_pull_the_plug_on_e_v.htm, Open Source Voting Considered Harmful, http://www.opednews.com/articles/opedne_bruce_o__061027__22open_source_voting_.htm.
And for those who have been misled to believe that adding a voter verified paper trail to the DRE is going to make a meaningful difference, it can't. Regardless of whether a DRE has a paper trail or not, a malicious code could be installed on the voting machine and "...that the code could easily be configured to "disappear" once its work was done, leaving no trace of tampering; the electronic and paper records produced by the voting machine would agree– and both be wrong". See Technology Review: How to Hack an Election in One Minute http://www.technologyreview.com/Infotech/17508/,
That leaves DRE evidence inadmissable. There's no one to cross examine, probe, ask – how were these votes counted? That's because the counting of the votes is concealed within the inside of a computer. There are some questions we could ask about how that computer was programmed, who tested or certified it last, but not only would that not give us enough information to pass muster in a court of law (see the O'dell articles above), the voting machine companies assert trade secret proprietary ownership rights over that information and won't reveal that evidence for further examination. Incredibly the proprietary rights of the corporation have already been upheld in some of our courts in this country.
How can our votes and our elections be owned by private corporations with the right to withhold information about how the computer's been programmed and the votes counted? How can American citizens be required to vote in a way that leaves the outcome of the election in question?
Let's say I'm in charge of elections in my district and we have no machines. The election is challenged and I'm called to testify how the election is run so as to be able to prove the accuracy of the vote count. I explain that we have every voter fill out a paper ballot and put it in a ballot box, which votes are then counted at the end of the day. It's very secure. We have very honest people in my district. I can't give you all the details of how the votes are counted, nor is it possible for me to establish who else may have had access to these ballots, nor can I say for sure that someone didn't get access to the ballot box and change the votes, but I'm sure that kind of thing doesn't go on in my district. A court is obviously going to toss out the results of that election and well it should. The evidence and the results from a DRE run election is no different. In any self-respecting courtroom these voting machines would be recognized as violative of our right to be self-governing and an unconstitutional way to run an election.
Elections Counted by Optical Scan Computers Can Not Be Proved Accurate by a Computerized Tally
Voting on paper ballots that are counted by Optical Scanners is not really any better than voting on a DRE because the Optical Scanner is just a computer and as such can be readily hacked as well. The computer tally produced by the Optical Scanner is as unreliable as the computer tally from the DRE (be that the electronic DRE tally or the verified paper trail). All of them are a function of computer software and all are vulnerable.
The only way to prove the Optical Scan computer counted the votes correctly is by verifying the machine count by hand- with a manual hand count. In a court of law, only the paper ballots could satisfy the Best Evidence Rule. However, in order to get to those paper ballots, not only would we need to pass legislation that permit and protect a full recount in every situation (and laws that prevent the swearing in of any candidate as long as the election is contested so as to not moot out the results of a recount), but chain of custody issues would have to have been dealt with in advance or those paper ballots would be inadmissible in court.
In the courtroom, documentary evidence (the paper ballots) would have to be authenticated (ie. proven to be genuine, not a forgery). That would require a procedure by which a designated person had physical custody of the paper ballots from the opening of the polls on election day until the time of the trial or could establish proper, reliable, documented custody of the ballots. To be properly authenticated in court a human being would have to be able to testify how the ballots were collected on election day: how the ballot box was secured, the identity of all those who handled the ballots, how they were counted and tallied, the security conditions for the handling and then storing of the ballots, the manner in which the ballots were transferred to subsequent custodians, etc. If the chain of custody is broken, the evidence is inadmissable.
In hand counted paper ballot precincts (which exist in other democracies and used to exist here, pockets of some are still operating in this country) this is precisely how the votes are handled. The entire process may even be videotaped. The reliability of the process can be proven and the accuracy of the count established. But in Optical Scan precincts, where the computer is responsible for counting the votes, the chain of custody provisions will not survive scrutiny applying our rules of evidence. Obviously we could implement a proper hand count system that would satisfy our rules of evidence and have the Optical Scanner check that. But as long as the job is delegated to the computer in the first instance, the machine count will never be legally provable. The only means of verifying an election counted by an Optical Scan computer is by a manual hand count in which the actual paper ballots are counted as described above, including the existence of a proper chain of custody. In other words, the only way to prove the accuracy of any election, if we insist on the level of scrutiny we require in our judiciary system, is through human beings using their own hand with their own eyes.
These rules of evidence, the product of hundreds of years of experience with truth as the judicial goal, would not permit the introduction of a weapon in a robbery if this chain of custody could not be established. We as a society have determined these rules are necessary for the preservation of a just system. They should be equally applied to the jewel thief as to those who would steal that which we have proclaimed to be inalienable. Certainly something as sacred as our ballot should be subjected to no less.
"The trial of all Crimes, except in Cases of Impeachment, shall be by Jury" (U.S. Constitution, Art. 3 sec. 2)...."by an impartial jury" (U.S. Constitution, Sixth Amendment)..... comprised of computers
Computerized voting means substituting our judgment for that of a computer, which we know to be potentially unreliable. So unreliable that our current system of justice would not permit the evidence produced by the computer to prove the accuracy of the vote count. No one would dispute the limitations of a computer, dependent as many of us may be on them. If you were accused of murder, would you be willing to let the computer decide your fate? Sound ridiculous? Not anymore so than letting the computer decide how we voted.
Just think, if we were willing to let the computer handle our responsibilities as jurors, we could do away with the labor intensive voir dire (the preliminary examination of prospective jurors to determine whether they are qualified or suitable to serve on a jury). The computer would not have those prejudices the voir dire is suppose to uncover. We could eliminate the time consuming process of jury deliberation. Whether it's intent of the innocent until proven guilty accused or the intent of the voter- makes no difference to the computer: It doesn't recognize intent. Having computers fill in as jurors would certainly make our lives easier and would make trials much more efficient, assuming those are our paramount societal goals.
How important is the protection of our civil liberties? How important is it to us to preserve our ability to determine that the system is working – either by way of our participation in our justice system or our election system? If we're not willing to let computers take over on juries, how can we allow them to take over our vote counting?
The ultimate authority ... resides in the people alone – James Madison
We used to enjoy saying that the United States is governed by the rule of law, not men. It has become difficult to make that statement in the last 6 years- just about the same time that most Americans have been forced, by the 2002 Help America Vote Act (HAVA), to vote on these machines. All the more reason to step up our collective responsibility to strive towards our ideals and resist those who would deprive us of our inalienable right to be a free, self-governing people. As long as we are able, each citizen privileged to live in a country founded on the fundamental right of a democracy – government by the people, of the people, and for the people -- has the duty to fight to preserve that democracy.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed, -- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government."
Our vote is the means by which we exercise that consent. It should go without saying that since elections are our mechanism for asserting our authority over our public servants - the government, the people are the only ones who should have authority over their own elections. Once we permit our public servants to decide that someone other than the people shall control the counting of our votes, as they have under HAVA, We the People can no longer ensure the integrity of our votes. As has been often quoted these days, but not often enough:
The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case. – Thomas Paine
Every citizen has the responsibility to every other citizen to protect the integrity of the ballot. Each of us must strive to insure that all citizens are entitled to vote and that every vote is counted as cast. This is our civic duty. It is the ultimate obligation the individual assumes as the price of freedom in a democracy. This charge is oft repeated, but not heeded. If citizens assumed this responsibility the government would not have been able to undermine the will of the people. They can only do this so long as we stay collectively silent, as evidenced by how much power and control the government has taken from us right now.
Every government degenerates when trusted to the rulers of the people alone. The people themselves, therefore, are its only safe depositories. –Thomas Jefferson
HAVA has caused every state, except New York, to allow these corruptible and vulnerable machines to run their elections. The Legislature, whether well intentioned at the time or not, has proscribed the exercise of the most fundamental of our constitutional rights- "the primary right by which other rights are protected" – the ability of the People to observe and retain control over the counting of our votes.
When a legislature undertakes to proscribe the exercise of a citizen's constitutional rights it acts lawlessly and the citizen can take matters into his own hands and proceed on the basis that such a law is no law at all. – William O. Douglas, Justice of the Supreme Court, 1939 - 1975
Citizens across the country need to take back their elections: remove the corporate dominion that voting machines have given to private corporations. HAVA has not yet prohibited our right to choose to not have a computer count our votes. Under HAVA we must provide for disability access, but that does not mean we have to choose these computerized machines to count our votes. Since we already know that there is no such thing as tamper-proof software why would we, as citizens who cherish freedom, agree to submit the counting of our vote to the hidden corruptible workings of a computer?
The people are masters of both Congress and courts, not to overthrow the constitution, but to overthrow the men who pervert it! -- Abraham Lincoln
The country has been under fierce attack from within and we have not been defended. We have watched our inalienable rights crushed by this administration. We have witnessed the wholesale dismantling of government in service to the people – replaced by cronies and hacks who will lie and conceal to implement the rule of this corrupt administration. It's not easy to resist the force that's quite literally stolen the reigns of control from us. But to submit is not an option.
Americans can choose to take the DREs and Optical Scanners, that were bought without their consent, and dump them in the Boston Harbor. We in New York don't need to go so far. We can learn from the mistakes of our unfortunate neighbors and save our money. All those hard earned tax dollars being spent not just on the shoddy equipment, the maintenance and upgrading, the contracts with the voting machine vendors to run the elections because no one can operate these machines without them, but the millions handed over to the so-called independent testing companies that allegedly "certify" these machines, when we know that no such certification is done or is possible. (See Halting Holt Thoughts and Nancy Tobi's and Bev Harris's Voting Machines as a Ponzi Scheme).
The emperor has no clothes: the sham testing and certification of these voting machines is a fraud against the American people. There is no testing and certification that could make these machines secure, even if this government were to require more than the appearance of testing and approval that it does now. The administration would have us believe the machines are certified and can be relied on to protect our votes, but this is an administration that has no interest in protecting our votes.
They have used the Department of Justice (DOJ) and the Election Assistance Commission (EAC) to ensure that hundreds of thousands of us will never vote. You only want to rig so much to prevent detection (see Landslide Denied). This administration is so unpopular, rigging the machines alone can't do it. It needs more. It has used the DOJ to do its bidding, aggressively pursuing phantom voter fraud in order to create a justification for voter ID laws that will disenfranchise hundreds of thousands of poor and minority voters who tend to vote Democrat. This campaign to retain power at all costs was also behind the firing of at least 4 of the 8 U.S. attorneys who failed to go along with the Administration's treasonous plan. See here. Still another aspect of this annihilate-the people's-destroy-all-checks-and-balances government, is the recent altered report from the EAC which concealed the actual evidence that voter fraud was "scant" (evidence from a report done at tax payers' expense) and stated instead that "There is a great deal of debate on the pervasiveness of fraud." See here.
We in New York, who have held off the DOJ breathing down our necks (NY was sued by the DOJ for not yet complying with HAVA) still have the opportunity to be a beacon to others. The buck can stop here.
We can resist those who would deprive us of our fundamental right to choose our government by denying us control over the counting of our vote. We can insist on our right to be self-governing and retain control over our elections– the means by which we express our consent. We can say no to corporate or government control over our elections. We can count our votes by our own hand with our own eyes pursuant to a protocol that will assure us and our system of justice that we can have confidence in the accuracy of our elections. To do less would be a dereliction of our duties as citizens who have proclaimed our inalienable rights are not the government's to trample.