Doesn't voting that is not verifiable and transparent violate due process?

[Filius Nullius]

I believe I recall reading some posts months ago about the lack of verifiability and transparency in the voting apparatus being a denial of due process under the 5th and 14th Amendments. What happened to those discussions? It seems to me that they represented the most promising avenues for overturning the official results of the 2000, 2002 and 2004 national elections and correcting the obvious susceptibility of our electoral system to electronic fraud and trickery .

America inherited a requirement of verifiable voting through paper ballots from the British, and this has been a fundamental part of the Democratic process in this country since its founding. The voting process must include either some kind of paper ballot that makes it possible to have a recount or some other foolproof method of ensuring accuracy. Surely the complete inability to have a recount, which is the situation with most, if not all, of the ballotless electronic voting machines, violates due process.

Transparency is also an integral component of reliable voting. Voting is the most vital part of the democratic process, and it cannot be outsourced to partisan companies. I therefore feel very strongly that ceding control of the voting process to companies that claim the voting machines and software as their trade secrets and intellectual property is also a fundamental denial of due process. The voting machines cannot be "black boxes" to which the public is denied all access. The software used in these machines has to be completely inspected to ensure that the voting process has not been corrupted through the insertion of malicious code capable of altering the outcome of elections.

The bottom line is that it should not be necessary to point to actual instances of voting fraud if the hardware, software and voting process are not secure. Counting the votes is a fiduciary activity that must not only avoid actual impropriety, but also the appearance of impropriety. Otherwise, there can be no confidence in the outcome of elections. How can you have a valid election if it is impossible to verify that the votes were counted accurately and that massive fraud did not occur? The very fact that gaping security holes exist should be enough to support a lawsuit seeking to overturn the last three national elections.

I find it very difficult to understand why the ACLU and Common Cause are not researching and litigating these issues. Can anyone explain to me why they are ignoring the due-process implications of non-verifiable and non-transparent elections? On what could they possibly be working that even approaches the vital importance of protecting the integrity of the voting process?

[Bill Bored]

1. People for the American Way is dongn it in Pittsburgh!

See this:
<http://www.votetrustusa.org/index.php?option=com_content&task=view&id=1182&Itemid=113>
and the actual complaint:
<http://www.votetrustusa.org/pdfs/Pennsylvania/Allegheny%20County%20Complaint%204.12.06.DOC>

[Filius Nullius]

5. People for the American Way

Thanks for the links. I read the Complaint, and it appeared to have been capably drafted. However, it is exclusively forward-looking to the next election and does not seek to overturn any election that has already occurred. While it is vitally important to correct the problems and prevent a re-occurrence during another election, I hate to see the Republicans get away with stealing at least the last three national elections.

[ThoughtCriminal]

2. The curious self-contradicting Bush v Gore ruling

The Equal protection clause of the 14th Amendment was used by the court majority to justify stopping the recount.

http://en.wikipedia.org/wiki/Bush_v._Gore#Equal_Protection_Claim

"Bush argued that the recounts in Florida violated the Equal Protection Clause of the 14th Amendment because there was no statewide standard that each county board could use to determine whether a given ballot was a legal vote. His argument was that since each county used its own standard to count each vote, some counties would have more liberal standards than other counties. Therefore, two voters could have marked their ballot in an identical manner, but one voter's ballot in one county would be counted while the other voter's ballot in a different county would be rejected, due to the varying standards."

This really made my head spin. Aside from the fact there was a state standard (voter intent), the voters in precincts with punch ballots were denied equal protection with voters that were provided more reliable ballot methods.

[Land Shark]

3. Sure, there are other strong theories as well

back it up a bit. Doesn't signing the purchase contrat for the DREs, since it alters statutory rights, abolishes election boards tha hear appeals on voter intent issues, and so forth, violate due process? The process that is due is a Constitutional amendment, or at least an express legislative act on point (rights can not be eliminated indirectly by a general bill authorizing e-voting for example)

[Filius Nullius]

4. Back it up a bit

I agree that there are other theories that might support a lawsuit seeking to overturn recent federal elections. However, the beauty of a due process cause of action based on the theory that it is always a denial of due process to hold a non-verifiable election or outsource the creation and maintenance of the hardware and software used in an election to a private company that claims a proprietary right to secrecy is that you do not have to show that any actual fraud occurred.

On the issue of non-verifiability, it is clear that if there is no physical record of the actual votes cast, then the hardware and software are all you have in order to try to reproduce the results of an election. If individual votes are not preserved, then there is no possibility of a recount. Once the impossibility of a recount is shown, that should automatically be enough to show a lack of due process and void the election.

On the issue of non-transparency, this may be a bit more difficult. However, numerous studies have been performed that show that various electronic voting machines and tabulators are insecure. Some have a list of security flaws as long as your arm that had not been fixed at the time of the 2004 presidential election. If security holes have been amply demonstrated and were not fixed, the natural question that arises is why not? Since fraud is often subtle in nature and difficult to prove, a showing of massive security holes in the hardware, software and procedures used to conduct elections should be enough to shift the burden of proof in a civil case seeking to overturn the election to the local electoral jurisdiction and voting-machine company to prove by a preponderance of evidence that fraud did not occur. This is a case where all of the evidence necessary to present such proof is in the hands of the companies that manufacture and sell voting machines and hardware to local jurisdictions, and I believe that it is appropriate to shift the burden of proof to them in such a case. At the very least, this showing should create a rebuttable presumption of fraud and shift the burden to the defendants to go forward with the production of evidence sufficient to rebut the presumption.

Once such a case has been filed and survives the inevitable motions to dismiss for failure to state a claim and motions for summary judgment, it will enter the discovery stage, and the attorneys for the plaintiffs will be able to begin discovery proceedings that will hopefully enable them to have the hardware and software examined by their own computer security experts. The discovery rules of some states would require the judge to impose reasonable safeguards on the process in order to ensure that the legitimate proprietary rights of the defendants are preserved from public disclosure. However, in a matter of such public importance, a court might be convinced to relax those rules somewhat once the required prima facie showing of extremely serious security defects has been made. Courts usually have wide latitude in making ad hoc rulings on such matters to preserve the fundamental fairness of the proceedings. For example, a court might rule that the demonstration of widespread security flaws makes it appropriate for the court to enter a "show cause" order why it should not grant the plaintiff's prayer that the election be ruled invalid unless the defendant companies either (i) show why their alleged proprietary interest outweighs the public interest in providing fair and accurate elections or (ii) voluntarily relinquish their claims that they are entitled to maintain the secrecy of their hardware and software. Regardless of the outcome of the case, such discovery would be enormously helpful in shedding light on the "black box" voting process that is in widespread effect throughout the U.S.

Here is something else that does not seem to have been given much consideration in connection with the electoral process. Voting machine companies are agents of the government in producing and maintaining voting machines and software. As such, they are fiduciaries and subject to the rules that govern the conduct of fiduciaries. Since voting is so fundamental to democracy, they might even be deemed to be the guardians of a public trust. Among the most basic fiduciary duties are (a) the obligation to maintain a high standard of care in the management of the principal's business and (b) a duty of loyalty to the principal, which includes (i) a duty of full disclosure of all material facts to the principal, (ii) a duty to avoid conflicts of interest without complete disclosure to and consent by the principal, (iii) a duty not profit from the fiduciary relationship without full disclosure to and consent of the principal and (iv) a duty to keep accurate accounts and report periodically to the principal and beneficiaries. The high standard of care in the conduct of the business of the principal is variously formulated, but frequently requires the fiduciary to manage the business of the principal with the same degree of care that a prudent person with the same level of expertise as a person or firm in the position of the fiduciary would be expected to exercise in the conduct of its own business affairs. Applying these principles to voting-machine companies raises an enormous array of issues that could break the entire conspiracy of concealment wide open.

[FogerRox]

6. I would suggest re-framing this:

Or I should say, this is the way I see it:

On the issue of non-verifiability, it is clear that if there is no physical record of the actual votes cast, then the hardware and software are all you have in order to try to reproduce the results of an election. If individual votes are not preserved, then there is no possibility of a recount. Once the impossibility of a recount is shown, that should automatically be enough to show a lack of due process and void the election.

A Judge can order the opening a lever voting machine to inspect the vote counting mechanism. SO we should have that same recourse available concerning DREs. If the vote counting mechanism, proprietary software in a DRE, is corporate owned and not inspectable in a similar manner as a lever machine, this seems to go against a lot of established legal decisions. And voids many sections of states election law such as Title 19 in NJ.

[Filius Nullius]

7. No ability to inspect DRE voting machines

Let me see if I understand you correctly. DREs are high-tech replacements for mechanical voting machines. The reason for having them is that they perform the same functions as their mechanical counterparts but are supposedly faster, more efficient and more accurate. This is, in effect, a three-legged stool that cannot function properly unless all three legs are intact. However, if we lose the ability to inspect the inner workings of the machines and verify the accuracy of the results in order to achieve a higher alleged degree of speed and efficiency, we are missing one leg of the stool, the leg that is arguably the most important of all, and the entire contraption must fall. That is, it will fall unless this glaring defect can be successfully hidden from the public, and Diebold, ES&S, Sequoia and the other voting-machine companies have been extraordinarily successful at concealing thi missing leg.

[FogerRox]

8. It sounds like you got it.

Remember:

We were able to have a look at the vote counting mechanism in a lever machine.

But now, we cant do the same in a DRE.

Whhhaaa thats NOT FAIR,,..