Our election systems are in trouble, which means our freedom is in trouble. There are lots of technological solutions suggested to "fix" the situation, but these won't do the trick. We need real democratic elections that meet the test for citizen oversight and checks and balances.

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NOTE: This article was written for publication in the soon-to-be-released book, Loser Take All: Election Fraud and the Subversion of Democracy, 2000-2008 (Paperback)
by New York Times bestselling author, Mark Crispin Miller.

You can read about the book and pre-order a copy at Amazon.com.

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Back to the Future: Democracy that Works, By Nancy Tobi

The United States of America is a democratic republic, a system of governance that derives its power from the people. This is every citizen's birthright, protected by free, fair, and open elections, owned and operated by We the People.

Private corporations have laid claim to our birthright since the 1978 Supreme Court decision giving corporations First Amendment "rights" to influence political campaigns.

Corporations didn't stop with political campaigns. They've made significant inroads into the actual drafting and passage of our laws and, most treacherously, in running our elections.

Against this backdrop we can understand what's wrong with our election systems, and how to repair them. We'll examine the smoke and the mirrors behind 21st century election reform. We'll recall lessons from our national heritage and from the State of New Hampshire, whose Constitution was the first written and second ratified in the country, and whose foundational traditions of grassroots democracy continue to flourish to this day.

We'll reveal the man behind the curtain of 21st century election reform efforts, and the response from the election reform movement. We'll define baseline tests for democratic elections, by which we measure election reform initiatives to ensure they protect and don't harm our American birthright. We'll see reform initiatives that pass and fail these tests. We'll conclude with an election reform solution that meets the tests for democratic elections, and of which our visionary and revolutionary founders could be proud.

Election Reform Sleight of Hand in the 21st Century

Watching federal election reform efforts in 21st century America is a lot like watching a high tech magic show. The audience suspends disbelief while wizards on stage pull rabbits out of hats.

Cynical Americans today scowl as public servants take lobbyist money with one hand and pass legislation with the other, legislation they know rarely supports the needs of the American people.

But election reform is a different animal altogether. There are two lethal differences between election reform and all other Capital Hill sleight of hand legislation :

1) Elections drive the American dream of democracy. If we break something in our elections, our democratic republic is at risk.

2) The audience in the election reform magic show, far from cynical, eagerly agrees to suspend their disbelief. This idealistic audience desperately wants to believe the magic is really working.

Americans believe in the magic of election reform because we are, at heart, an idealistic people. We believe in the American democratic dream of life, liberty, and the pursuit of happiness. We can't fathom that private corporations now control our elections and have subverted our democracy. With roughly 80% of the nation's votes counted in secret by private corporations (1), we dare not ponder if America is even a democracy anymore.

The idea that we may have already lost our democracy is more than the average American can bear. Idealistic activists are eager to accept election reform illusions over the challenging reality of corporate controlled elections.

The stakes in election reform are higher than any other type of legislation, and we can't afford to believe the magician's act. Bad election reform legislation can destroy our democracy, as evidenced in the disastrous 2002 Help America Vote Act (HAVA) (2). HAVA "reformed" the very meaning of our right to vote, turning it instead into the opportunity to verify a voting machine's vote.

To restore and protect the American Republic, election reform must flow from the guiding principles of democracy.

We don't need magic to solve our election crisis. We already have the solutions. We just need the will to implement them.

Constitutional Election Reform – Scaffolding of Democracy

Recalling democratic principles helps us see through the smoke and mirrors of 21st century election reform.

The nation's first successful election reform, the revolutionary ratification of the Constitution, supports democracy with hardy scaffolding: governance by the consent of the governed, checks and balances, citizen oversight of government, and decentralized power.

The Declaration of Independence affirming our inalienable rights, states

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The Declaration empowers the People over the government:

Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.

The Constitution guarantees government deriving its power from the people

The United States shall guarantee to every state in this union a republican form of government.

Many of the founding states reinforced these principles in their own constitutions.

The New Hampshire Bill of Rights:

All power residing originally in, and being derived from, the people...Government, therefore, should be open, accessible, accountable and responsive.

Democratic elections were the protective shield defending the new American Republic. Public control and citizen oversight are nowhere more important than in elections.

Both the New Hampshire and Massachusetts constitutions declare that in elections the election officials shall "sort and count" the votes in "open meeting" and "make a public declaration thereof."

In more recent times, Section 8 of the Voting Rights Act reinforces public governance and asserts the requirement for an observable vote count (3).

Democratic elections have two defining characteristics:

1) Citizen oversight and public control of governmental functions: The entire voting system is open to citizen oversight and control.

2) Checks and balances: The entire voting process has checks and balances through transparent and observable processes and procedures.

These are the two simple tests for democratic elections: citizen oversight and checks and balances.

Community-based Elections

These two tests for democratic elections dispel the smoke and shatter the mirrors, revealing the profoundly undemocratic nature in 21st century election reforms.

New Hampshire today has a high percentage of ballots counted by computerized optical scanners. Nonetheless, it retains a stubborn tradition of grassroots democracy. New Hampshire politics have a uniquely familial feel with elections, held at the local level, run by elected members of the community. Community members volunteer to help out at the polls, often refusing financial compensation.

New Hampshire's publicly observable manual recounts are accessible and financially feasible. The official NH Election Procedure Manual (4)

Anyone can come and watch the casting of ballots and the counting of ballots and see for himself or herself whether the election is conducted in accordance with the law...The public trust in elections, sometimes referred to as the legitimacy of elections, relies in part on elections being conducted in the open.

Activists observing the community-based nature of our elections have been known to remark that "maybe democracy really does work in New Hampshire!"

And truly, where New Hampshire ballots are hand counted, democracy is working; it is an integrated facet of community life, and every ballot is publicly counted and observable.

Walter Holland, Lyndeborough town election official (5)

"All of these (hand counters) are local volunteers, they are neighbors in our community, and it's important that they handle the votes of their neighbors, because it's sacred. It's an important thing to be able to vote in a democracy, and you handle each one of those votes with care, and you count it as best you can."

Walter instructs his ballot counters on Election Night

"This is one of the most precious things you can do, is to handle your neighbors' votes. And they are a precious thing in this democracy, so handle them with care, and make sure every vote counts. And be sure about what you're seeing, and those that are observing and counting, make sure we get some true counts here."

New Hampshire's problems, like the rest of the nation, occur in the move from community-based hand counted paper ballot traditions into corporate-controlled, non-observable, technology-based elections.

Lobbyist Alchemy and Election Reform

In 1995, House Majority Leader Tom DeLay and Republican strategist Grover Norquist launched the "K Street Project." (6) Named for the Capital Hill street housing many lobbying firms, the Project gave lobbyists direct access to Washington lawmakers through weekly policy and strategy meetings. The most infamous K Street lobbyist was Jack Abramoff, who worked for the firm Greenberg Traurig. Abramoff, now in prison, took money from his American Indian tribe clients, and laundered it to Congressional Representatives in return for legislative and policy favors aligned with the Project's political agenda.

Abramoff's magic trick was converting client money to election fraud activities.

In 2002, the New Hampshire GOP received three $5,000 checks, just in time to pay $15,600to a telemarketing company that jammed the phone lines of the Democratic Party's get-out-the-vote campaign in the morning hours of the election.

The three $5,000checks? One each from two separate Abramoff tribal clients and the third from K Street loyalist Tom DeLay's PAC. (7)

The phone jamming trick, contributing to GOP Senator Sununu's narrow win, shows the magical rabbits that can pop out of a hat when Capital Hill lobbyists focus their attention on elections.

The K Street project also influenced the most sweeping election reform ever enacted: the Help America Vote Act (HAVA). HAVA architect, former Congressman Bob Ney, is also now in federal prison.

(8)

Among other things, HAVA delivered a multibillion dollar payoff to the electronic voting industry, including Greenberg Traurig's client, Diebold Election Systems.(9)

In its heyday, the K Street Project held election "reform" dead center in its crosshairs. Project activities like New Hampshire's phone jamming, Ohio's "Coingate" and Tom Delay's Texas "PAC-gate", spun lobbyist money into election fraud gold.

The Project-sponsored HAVA was equally subversive. HAVA fed billions of dollars to an unsavory e-voting industry and created a White House agency with unprecedented power over the nation's elections.

HAVA, with its deep K Street roots, is a study in legislative alchemy, where K Street money was spun into a sparkling, rich, complex and intricate golden gateway to perpetual election fraud.

In its masterful diversion of funds influencing various election campaign, policy, and process activities around the nation, the K Street Project might reasonably be characterized as one big money-laundering-for-election-fraud apparatus.

Election 2000 – Election Reform 2002

In the aftermath of Election 2000, the American people struggled to understand the Supreme Court's preventing the counting of the vote and deciding for us our next president.

The Bush v. Gore decision (10) dealt one terrible blow after another to our nation's democracy. The subversion of the democratic process that began with this decision continued with HAVA, which, among other things, created an agency of perpetual subversion in the form of the Election Assistance Commission (EAC).(11)

The K Street-influenced Congress passed the massively complex HAVA legislation with theatrical fanfare worthy of any great magic show. Election reformers and the American people, still reeling from Election 2000, received it with a wholesale willingness to suspend disbelief.

But when the smoke had cleared, a closer look revealed that HAVA had codified, rather than fixed, Election 2000's largely unreported but most egregious trespasses of democracy (12):

1. Electronic voter registration databases: In Florida 2000, up to 94,000 eligible voters – all identified as "Democratic-leaning"- were unjustifiably purged from electronic voter databases and not allowed to vote.
2. Electronic voting machines: Florida 2000's electronic voting equipment mistabulated countless votes. In Volusia County alone, computers tabulated for Candidate Al Gore negative 16,022 votes.
3. Presidential appointees with powerful authority to influence election outcomes: Florida 2000's vote count was stopped by the Supreme Court, effectively deciding the election for us.

HAVA alchemy transformed these three root causes of the Election 2000 catastrophe into the law of the land:

1. Electronic voter registration databases: HAVA required every state in the nation to implement electronic voter registration databases.
2. Electronic voting machines: HAVA mandated accessible voting equipment, specifically recommending computerized touch screen machines.
3. Presidential appointees with powerful authority to influence election outcomes: HAVA created the Election Assistance Commission, four presidential appointees with broad and ever-expanding powers over the nation's election systems.

The last HAVA outcome, the EAC, is by far the most troubling. This powerful presidential commission is the election reform gift that keeps on giving in a continual "re-visioning" of America's election systems.

Post-HAVA elections have delivered one disaster after another - from e-voting crashes, unequal distribution of expensive computerized equipment, registration database complications and abuse (13),electoral lawsuits, and the multi-billion dollar e-voting industry's complete and utter failure to deliver quality product (14).

Rise of the Machine

The media painted Election 2000 as a problem of butterfly ballots and pregnant chads (15), incessantly playing video clips of Florida election officials staring at computer punch cards trying to discern the "intent" of the voter.(16)

America was told that paper ballots caused chaos in Florida, and HAVA would take care of that, distributing nearly $3 billion to the states to buy electronic voter registration databases and computerized voting machines.

The number of American votes counted by computers went from 40% in 2000, to 70% in 2004, and 80% in 2006. (17)

This was a cataclysmic change for election systems, traditionally used to ten to twenty-year management cycles. Election officials continue to struggle with the transformation of familiar and manageable low-tech elections to the complex high-tech theatre wrought by HAVA.

The destabilizing effect on America's mechanism of democracy has been substantial. Techno-elections have caused shortages of poll workers, who, with an average age of 72 years, are averse to the complexities of e-voting (18).Techno-elections have brought general confusion and the inability of our public officials to independently administer our elections without the e-voting industry's support services.

Corporate employees now appear at our elections to assist pollworkers in using their equipment, administer "fixes" when their equipment malfunctions, and to hold vote data and election results in their black box secret vaults away from public scrutiny.

A Republican House attorney, involved in the drafting of HAVA, has remarked to me

"They are trying to complexify our elections to the point where citizens have no idea what is going on."

As well, county and municipal coffers are emptied each election cycle to meet the newly enriched and empowered e-voting industry's ever-increasing demands for programming, maintenance, upgrades and training.(19)

It would be easy enough to end this story with a cynical glance at this piece of pork barrel legislation that sold the American public a bill of goods and lined the pockets of a generally corrupt industry delivering an unforgivably shoddy product to our nation.

But this is more than just a story of greedy corporations.

Rabbits and Rabbit Holes

In the chaos generated by the corporate media's hanging chad illusion, nobody pointed out that the much maligned Florida "paper ballots" were really just the paper component (the computer punch cards and computer-scannable paper) of a failed computerized voting system, poorly designed and in some cases delivered on intentionally defective paper (20).

New Hampshire has a more than two hundred year history of grassroots elections, using voter marked paper ballots counted by human hands. Nearly half of New Hampshire polling places still counts paper ballots by hand.

Real paper ballots are pieces of paper with candidate names printed on them in legible human-readable letters. Voters mark an "X" in the box next to the name of the candidate of their choice. Real paper ballots are quite a different animal from Florida 2000's paper component of a computerized system.

When real paper ballots are used and counted by real human beings, voter intent is not so difficult to discern. With more than 200 years of case law and procedures for discerning voter intent, in New Hampshire you never see anyone staring at a punchcard through a magnifying glass, as we saw in innumerable Florida 2000 news reports.

More than two hundred years of accurate, effective and reliable hand count elections provides a historical memory for Granite State residents and election officials to see what is going on behind the smoke and mirrors of 21st century election reform.

The problem with the ballots in Florida 2000 was they were intentionally produced on defective paper, and those ballots, designed for computers to read, were confusing to human voters.

HAVA legislative magicians distracted the nation with hanging chads, and then pulled e-voting out of their hats. Voila. America's elections were transformed in the blink of an eye.

Election Reform Alchemy: From "Right to Vote" to "Opportunity to Verify a Voting Machine"

The cornerstone of the K Street-spawned HAVA is elections designed to technology rather than voter needs. This continues to this day in nearly every piece of post-HAVA proposed federal election reform.

Nowhere is this better exemplified than in the now normative vocabulary of election reform: "verifiable voting."

HAVA states that a voting system must "permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted." (21)

Let's think about this for a minute.

If a voter has just marked a paper ballot with pen or pencil, marking an "X" next to his candidate's name, why does he then need to "verify" his choice?

He doesn't. A voter only needs to "verify" his vote when it has been marked and/or counted by a computer.

HAVA was written to pay for and ensure the use of computerized voting nationwide, even down to the terminology used to define voters' rights.

In HAVA alchemy, our Constitutional right to vote is transformed into the opportunity to verify a voting machine's vote. Many election reformers now believe that giving voters the opportunity to verify voting machines, and election officials the opportunity to audit their machines equates to the right to vote.

Indeed, the verifiable voting movement has spawned an entire cottage industry of election reform-minded computer scientists and statisticians, devising elaborate protocols to support the "verifiability" and "auditability" of technology-based elections.

Verifiable voting is turning voters and election officials into quality control agents for the e-voting industry.

As well, verifiable voting centralizes power in the hands of technology experts, eliminating citizen oversight and checks and balances. The problem is further exacerbated when computerized voting is privately owned and controlled by corporations claiming proprietary trade secrecy for the software counting our votes.

Despite the inherently false premise of verifiable voting, it has become the clarion call for 21st century election reform. Congress, the Election Assistance Commission, and activists have all jumped on board.

Suspending Disbelief

HAVA's passage and implementation is chockfull of K Street influences, money laundering, technological complexities, White House interventions, and billions of American dollars. Nonetheless, surprisingly, a large number of election reformers still struggle to believe this magic act.

But verifiable voting election reforms demand a fairly high degree of suspension of belief, because they all fail the basic tests for democratic elections.

Perhaps overwhelmed by its complexities, perhaps too far removed in time and space from the founding principles of American democracy, or perhaps just desperately clinging to their idealism, election reformers grabbed at verifiable voting illusions like a magician pulling an ace out of the deck.

After HAVA rolled computerized touch screen machines into roughly 40% of America's polling places, reformers clamored for "voter verified paper audit trails"(VVPAT) (22). This reform would send more money to the e-voting industry to attach printers to their touchscreen voting machines. The printers would then display a receipt-like printout to voters, who could look through a window and "verify" their vote.

But VVPAT, corporate controlled and proprietary, denies citizens the opportunity to oversee how their vote is being recorded and counted. Computer scientists remind us that a computer can easily be programmed to display one thing, record another, and count something altogether different. To make things worse, the display window in many of the VVPAT machines is inadequate for voters to even read the print out.

No number of magic wands could transform verifiable voting reform to meet the standards of democratic elections. With black box, trade secret computerized vote counting, there is no citizen oversight. There are no checks and balances.

Studies soon showed that between 10-20 percent of VVPAT paper records are unreadable and unusable for the purposes of "verifying" the votes in a recount. Other studies showed that only a very small percent of voters "verify" their vote in this manner. (23)

Ultimately, many VVPAT reformers abandoned the cause.

Every computerized voting solution-holding the vote hostage in a black box of invisible bits and bytes-fails the test for democratic elections, especially when those bits and bytes are trade secrets owned by private corporate interests.

Today many reformers would willingly exchange all touch screen voting machines for optical scanners using voter marked paper ballots. I myself have advocated for just such a solution, as a great way to reintroduce voter marked paper ballots into every polling jurisdiction in the nation, itself a step in the right direction.

But optical scan technology, like the touchscreens, keeps the count itself secret and proprietary. Citizens and candidates are denied access to the count, even when the computers perform such bizarre tabulations as were seen in Florida 2000's negative vote count for candidate Gore.

Although they use real paper ballots, optical scanners, with their proprietary, black box computer counts, turn public votes into privatized election data. Corporate controlled, trade secret optical scanners, like their touchscreen brothers, fail the test for democratic elections.

Paper ballots are only as good as the hands that count them.

Today, more and more, we are beginning to understand that transforming ourright to vote to the opportunity to verify voting machines profoundly subverts our democratic elections.

The Magical Brew of HAVA's Election Assistance Commission (EAC)

The HAVA-created EAC, a five-person commission appointed by and reporting to the White House, recently released their 2007 vision for America's elections: the "Voluntary Voting System Guidelines" (VVSG), "voluntary" because the US Constitution empowers the states, not the federal government, to administer elections. Theoretically the EAC can only " recommend" voting system standards to the states.

The VVSG defines technology-centric "verifiable voting," and through the VVSG the EAC keeps the nation's voting systems perpetually aligned to this paradigm.

The EAC recommends "software independent" voting systems (dual systems so the same software doesn't mark and count the ballot), and even goes so far as to suggest completely paperless verifiable systems, where one computer will check (verify) another. (24)

In the EAC paperless verifiable voting scheme, the voter is so incidental as to completely disappear.

The VVSG is the EAC's authorized blueprint-hardware and software design specifications-for our nation's election systems. The e-voting industry pays scrupulous attention to the VVSG, ultimately using this specifications document for developing their products.

In the 2007 VVSG, the EAC designs paper ballots. EAC Chair, Donetta Davidson, declared at a 2006 meeting: " We must address the problems associated with counting paper ballots. " Ms. Davidson apparently was not thinking about hand counting. In the topsy-turvy world of federal election reform, technology takes precedence over voters.

So the latest version of the VVSG includes design specifications for machine-readable paper ballots (25). The EAC ignores Florida 2000's lessons and the dangers wrought by paper ballots designed to machine, rather than voter, specifications.

The EAC's verifiable voting goal is to enable and promulgate technology-based voting systems.

Accordingly, the EAC's principal recommendation addressing voter needs is for large print signage reminding voters to verify their voting machine's vote.

The EAC and Congress

The Ear's power is further amplified in the uncomfortable confluence of the Commission and federal law (26).

A 2007 version of the controversial election reform proposal known as HR 811 (27) , aka the Holt Bill (and its companion bills in the Senate, sponsored by Senators Nelson and Feinstein) is a perfect example of this.

Hidden within 62 pages of convoluted language HR811 mandates new, complex and expensive technology for every polling jurisdiction in the nation (28). This odd provision did not come out of nowhere. It came straight out of the EAC's 2005 VVSG.

The "voluntary" nature of the EAC's guidelines is transformed into the law of the land whenever any particular congressional representative decides to toss an EAC ingredient into the election reform soup du jour.

With the industry designing to EAC specifications, and Congress putting those specifications into federal law, soon all of America's voting systems will be EAC-designed. Or, put another way, designed by the White House, with designs that fail the tests for democratic elections.

Instead of publicly owned, observable elections, we are getting complex, corporate-owned, voting computers designed by the White House.

Could we get any farther from the Founders' vision?

Coming Back to Life: Restoring Democracy in America

The tests for democratic elections demand that we ask, for each proffered election reform, does it enable citizen oversight? Does it enable checks and balances?

None of the corporate, privatized, and trade secret reforms meet the standards of democracy. With black box technologies and claims of trade secrecy, it is a stretch to say they can even provide verifiable voting, although that is the illusion under which they are sold to the American public.

In contrast, hand counted paper ballot elections offer an observable, reliable, accurate, secure, and advanced election system. Some say that moving from technology-based elections to hand count elections is going backwards, but this method for running elections is in fact the most advanced when considered in the context of the tests for democratic elections.

In hand count elections you manage process, people, paper, and numbers. Hire a good manager and a good accountant for every district, and hand count elections are orderly, secure, accurate, reliable, and dependable.

With the right methodology and management in place, election costs come down and integrity goes up. With a 2-4 person team you have built-in double checks, 2-4 sets of eyes on every count, every tally mark, every contest, every ballot. This is a self-authenticating system; combined with accessible hand recounts, there is no need for complex and expensive audit protocols suggested for computerized elections.

Hand counts integrating the final election count reconciliation (blank ballots, registered voters, ballots cast, etc.) into the process of counting, provide a high level of integrity for the system overall. The " auditing" occurs during the election night count, when it matters, because this, after all, is the count declaring the winner.

Many election officials are afraid that if they give up their machines they won't have enough help to count the ballots, or they will have the "wrong" kind of people. But our communities are filled with the "right" kind of people. We just need to reach out to them.

Every city and town has community organizations. Church groups, Rotary Clubs, Neighborhood Watch groups, PTA's, high school social action or community service groups, are just a few that come to mind. Seventeen year olds are eligible to be poll workers in most states, and community service is often a high school requirement. This a match made in heaven.

New Hampshire's large multimember districts create some of the most complex and highest numbers of ballots per polling site. Still, New Hampshire hand count elections handle up to 3600 ballots, with the national average less than 1,000. In fact, 25 people can count up to 3,600 ballots with roughly 15-20 contests in less than three hours.(29)

Twenty five counters is not a difficult number of volunteers to recruit for any polling jurisdiction. It doesn't matter how populous the state or county. What matters is how many ballots are processed in any given district, how many contests are on the ballot, and whether or not there is the political and community will and the infrastructural integrity to conduct hand count, observable, self-authenticating, elections, that meet the test for democracy.

The only thing that can dispel the illusions of 21st century election reform, the alchemy transforming democratic elections into technological electoral illusion, is a good solid dose of reality. Community based, hand counted paper ballot elections are about as real as you can get.

Do you support secret vote counting in the United States of America?

Is it democracy when private interests count 80% of our votes in secret?

Restoring democracy means restoring citizen oversight and checks and balances to our elections. Today, only hand counted, paper ballot elections pass the tests for democratic elections.

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(1) Election Data Services, 2006 Voting Equipment Study, http://www.electiondataservices.com/EDSInc_VEStudy2006.pdf.

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