Voting Unconstitutionally (from David G Mills)

[Febble]

In 1677 the British enacted a law called the Statute of Frauds and Perjuries.

The Statute of Frauds and Perjuries was based upon the premise that without paper evidence of the essential terms of a business transaction, the transaction was ripe for fraud and the case became little more than a contest of who was the best perjurer.

Ever since its enactment, the "Statute of Frauds" has been used to throw out of court most business transaction cases which are not based upon a paper record.

The Statute of Frauds became the law of the colonies, and later, of each and every state, because the courts recognized the value of paper as a deterrent to fraud.

Likewise for most of the USA's history, it was recognized that a paper ballot was the best electoral fraud prevention device known to man.

After all, voting is a transaction between the government and the people.

But in the early twentieth century our legislatures lost sight of the principle of the Statute of Frauds and began to eradicate paper-based voting systems. That was a huge mistake.

We need to again recognize the principle that paper is the greatest deterrent to fraud ever invented.

We need a national statute of frauds for voting. Not just for some but for all of us.

Some of you may know that I have filed my own lawsuit here in Tennessee challenging the constitutionality of voting paperless. You can see a Kos diary of mine on the allegations of the lawsuit here:

http://www.dailykos.com/...

The case is now on appeal and you can also access a pdf of my appellate brief here:

http://dragonflihost.net/...

After many months of looking at the election process, it has dawned on me that we need to look at the election process in reverse. We need to look at the best means of having an effective and efficient election contest lawsuit first, and then work backwards. Imagine an election lawsuit without any paper ballots as proof of who won. It is utterly ridiculous. Follow me.

First let's look at example of a business transaction lawsuit without paper. Suppose you have been defrauded of ten grand. You come to me. I ask if you had a contract. You say no. You also tell me you have no cancelled check because the transaction was cash. You also tell me you have no receipt. You don't even have any written correspondence. You have no witnesses. (Keep in mind for the moment that voting is supposed to be secret and there are no witnesses). Tell me how am I supposed to prove you have been the victim of a business fraud! It is your word against the fraudsters'. It becomes a case of which one of you can lie the best. Now you can see why we have had the Statute of Frauds for over three hundred years. Paper deters the fraud and stops the perjury contest.

Now lets look at two different types of voting election contests -- one with paper and one without. Watch what paper does for the election contest lawsuit.

In the first case there are paper ballots. A challenger asks the court to subpoena all of the paper ballots. Once the ballots get to the courthouse, the paper ballots can be marked as evidence (just like a contract, or a cancelled check, or a receipt or a letter of correspondence) and be handed to the jury to count. After the jury's verdict of who got the most votes, the judge declares a winner. The case is fast, cheap, highly effective and final. Plus you have a significant fraud deterrent. Anyone who monkeys with this system has a good chance of being caught.

Contrast that with the case of no paper, like the DRE's everyone is pushing us to vote on, (and like I will be voting on and have voted on). The election contest now becomes a battle of whose software expert is the best. The challenger and his expert will face overwhelming odds. The Challenger's expert will likely have to testify without ever getting to properly examine the equipment. Why? Because the equipment is owned by private manufacturers who assert that their software is proprietary and is a trade secret. Before the challenger can ever get his expert to examine the equipment he has to endure the huge expense of a trade secrets' war.

At best, the second type of lawsuit only convinces the court that there was enough doubt to warrant a new election and so the challenger's best hope is to end up on the same merry-go-round. Does this second kind of case deter fraud? Absolutely not. It encourages fraud. A fraudster knows he is likely never to get caught gaming this system.

My lawsuit is an equal protection lawsuit. It argues that some of the citizens of my state get to vote on a paper-based fraud deterrent system while the rest of us have to vote on a paperless fraud inducing system. It argues that this is patently unfair to those who have to vote on the paperless fraud inducing system. It argues that we should all get to vote on a paper-based system.

When you have no legal redress for fraud, fraud will be rampant when the stakes are high enough. RFK, Jr. and others have always been right to question the 2004 election.

Given that so many people voted on paperless systems around the country, the question should never have been: "Was there any proof of fraud?" Given the spending of $500 million per side, the stakes were extremely high. The question should have always been: "Just how rampant was the fraud?"

Face it. It happened. The stakes were too high and the legal checks and balances were not there to prevent it.

And Land Shark, are you listening? I think the Statute of Frauds argument is the one that wins if the courts decide we all must vote in an equal system. A paperless voting system will never pass the Statute of Frauds smell test.

I should add that these are David's views, not necessarily my own, though I agree with most of them, including his view that the question "how rampant was the fraud?" is the right one, given the laxity and lack of transparency in the electoral process. However, I'd have to add that, having considered that question in detail, I consider that the answer is probably "not very". Sadly, I think that the corruption of the democratic process that characterized the 2004 election was due less to lack of transparency in the voting mechanisms, and more to what strikes me as a systemic disregard for the rights of voters, especially voters who have most to gain from a Democratic administration.

Which of course is not to say that transparency is not vital. It is.

My two pence. Kick for David, address flames to me.

[robinlynne]

1. What a great argument!

Of course. Nothing can ever be proven without paper in this country. no contract, not even the smallest one. If you owe me 5.00, and I dont have it on paper, then legally you don't owe me 5.00. How on earth can a company "tell me" they are registering my vote correctly without putting it on paper. What an insane idea that is!

[Land Shark]

2. LandShark here, and reporting for duty

I'm still choking on my pretzel that exit polls seemed to be so promising for quite a long time then fizzled out so fantastically.

David G. Mills, you can read my take on RFK JR and Salon's Manjoo taking on RFK at this link:

<http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x2661019>

I think Manjoo misses the point, such that even if he's right, he's Wrong.

Statute of Frauds is an interesting point. "partial performance" is a traditional exception to the requirement of a writing signed by the party to be bound (no signatures at all in election ballots of course) as required by the statute of frauds to deter false swearing contests.

I do very much like the example of a verbal contract, paid in cash, and, to make the analogy more perfect and parallel, you contracted in the dark and can't go back to find the party you contracted with, just like you can't go back and snatch up and correct your ballot.

Good job.

[Febble]

9. Well, let me get you a drink of water....

Sure, they were promising. We had an election we mistrusted, and an exit poll with a bigger discrepancy than seen in recent elections (although not a lot bigger than 1992).

So the question was (and is) legitimate: was the discrepancy not due simply to a bias in the sample (which is perfectly possible, precedented, and actually anticipated) but to miscounts in the vote?

What we now know is (and I will keep this simple):

1. The redshift was not due to random sampling error


2. Redshift correlates strongly with factors known to be associated with biased sampling


3. Redshift only correlates with voting methodology in urban precincts, and is greater where older technology was (levers, punchcards) used, and less where DREs or optical scanners were used


4. Redshift is not positively correlated at all with "red swing" - swing to Bush in the count.


5. State level redshift from the exit poll is not positively correlated with state level redshift from the pre-election polls (even when TIA's polls are used as the measure

All these are extremely informative findings. Number two means that the exit poll discrepancy does not actually require further explanation. Nonetheless, further explanation is worth looking for, and so number three is of interest; it may reflect something that we know happened in 2000, and in other elections, namely that in precincts using older technologies more Democratic votes than Republican votes are spoiled - it's the reason your current president's name isn't Gore. However, number four means that whatever caused redshift in the poll wasn't what gave Bush his improvement over 2000, and number five means it also wasn't the same thing that caused Bush to do better (or less badly) in the vote count than his pre-election polls.

So not only is the biased poll theory strongly supported by the data, the stolen vote theory is contra-indicated by the data.

OK, now, get a beer, and we'll get on with fixing the disenfranchisment of voters who have most to gain from a Democratic administration, and preventing the future digital theft of votes by any party.

Good luck to you all, and especially to David Mills.

:applause:

[teryang]

3. battle of the software experts

Great post. This authors approach is exactly right. The consensus in the software industry in 2000 was that recounts were not possible with encrypted electronic voting. Congress and local election authorities simply ignored this. If election results are not verifiable they are not legitimate. End of constitutional argument. The legislatures did not even evaluate the ability to comply with their own laws.

[snot]

4. BRILLIANT.

Should be obvious, but apparently it's not.

THANK YOU.

[neoblues]

5. Important Truth!

Paper ballots work perfectly well, deter fraud--and they are a heck of a lot cheaper than any of the Electronic Black Boxes (which act as a black hole for votes)!

I personally experienced an electronic touch-screen system game being played. I carefully entered my vote for President... went through an endurance test to enter my votes on a long list of other questions/races/initiatives... and--having been a software engineer, was surprised that I only just managed to notice when the final review page, which didn't look important and was so crammed with information in extra small print that I almost missed the fact that it showed my votes on the issues AND showed that my vote was about to be recorded for the wrong candidate for President (the one who now sits in the Oval Office). It switched my vote. It almost hid the final review in a series of tedious, tiresome and unimportant pages of information towards the end of the process (when you couldn't even tell you were approaching the end), such that I was pushing next, next, next and wanting greatly just to be done. I wonder how many didn't notice their choices had been rearranged? This was, after all, a retirement community in, of all places, Palm Beach County, Florida... loaded with elderly people unfamiliar with computer displays and with failing eyesight and endurance. Even so, I'm surprised the software game being played even bothered to show that the vote was about to be given to the wrong party--it could just as easily have indicated anything. I found out later that such problems had been reported across the state and the rest of the country as well; so it was not just an isolated event.

This could have meant anywhere from a couple of percent to as much as a third or more--depending on the frequency and how alert the voter was. To me, it was obvious evidence of either an extremely, unforgivably flawed logical software error (which absolutely must have been caught in testing) or explicit fraud. Alas, I couldn't have proven it even at the moment it happened--no session log, no nothing to show it wasn't an input error if it happened at all. Perhaps I should seek to record my voting session on video next time... because it looks like we'll be using the same damned machines again; nothing has been done here to either provide a paper trail (itself inadequate because the decision to recount would depend on comparisons of electronic totals not verified by paper or people) or return to a simpler form of voting. It left me without doubt that vote fraud really does exist (albeit in a host of forms just as there are a host of different systems used by the large number of individual election's boards).

We had better do something or we will likely be "surprised" (again) by how many Republicans actually win despite the most recent pre-election polls (and actually suffer an increase in the Republican strangle-hold over our government). That Republicans appear scared only means most of them don't actually know for sure that they really do have a powerful 'ace in the hole' (the black box hole) type advantage in terms of voting/tallying systems (capable of reversing as much as 15% or more--limited only by how sure the cheater is that there will be no evidence and therefore chance of being caught).

Wake up and smell the coffee, wholesale vote fraud and effective disenfranchisement are vastly more likely than not whether we can prove it with or without proper investigations or not! Current electoral reality--bites!

[Peace Patriot]

6. Non-transparent elections are not elections. They are tyranny. That's

what we have. The questions now are:

1. How do we get out from under this tyranny? How do we restore our right to vote, with the tyrants in charge of most of the machinery of government including elections?

2. How do we push beyond restoring transparent elections to obtain REPARATIONS for all actions of illegitimately elected officials, including appointment of fascist corporatists to our court system and a $10 TRILLION deficit?


As to the first, I see only one way--and that is relentless citizen pressure at the state/local level, where ordinary people still have some influence, and where the decisions on election systems are still made. I see no hope that a Congress that took away our right to vote is going to give it back. The state/local campaign is a long term, messy, difficult business, involving hundreds of jurisdictions and thousands of laws. I see no other way. The court system is so tainted that any objective decision that we get (and pro-transparency is the only position that an objective judge could hold on this matter), it WILL be overturned in favor of corporate secrets and corporate rule.

On the second matter, we need to push the Democratic Party's agenda--or, if they won't agree, SOME new party or movement's agenda--way, way toward the Left (in reality, the middle), where government officials are held accountable for their actions in democratic processes of investigation, prosecution and REPAYMENT or other undoing of the harm. We have had five and a half years of illegitimate rule, by the President and by Congress (now extended indefinitely into the future, by illegitimately appointed judges!). The MISRULE that we have suffered has most likely INCLUDED A CALCULATION of how long it would take the American people to wise up about these non-transparent voting systems and throw them into 'Boston Harbor'--just as, now that the election fraud/election reform issue is finally breaking through the "Iron Curtain" placed over it by the corporate news monopolies, the fascist schemers, well ahead of us, are working assiduously on systems of purging and disenfranchising groups of voters before they ever get to the polls. That is their next line of defense against accountability--drastically and lopsidedly reduced voter rolls.

Given the deliberateness and calculation of the so-called "Help America Vote Act" of 2002--and given that it was engineered by the two biggest crooks on Congress, Tom Delay and Bob Ney (abetted by Bilderberg 'Democrat' Christopher Dodd)--restoring transparency to our election system is not enough. We need to assert criminal liability and seek damages, for the fraud itself and its costs, and for the vast costs of illegitimate rule.

"Please, Mr. Fascist, sir...please give us back our right to vote" is not going nearly far enough. We need first of all to TAKE BACK our right to vote, not ASK for it. And we need secondly to call the culprits to justice, and to determine among us, as the sovereign people of this nation, what that justice should be. Me? I want our money back! From Diebold, from ES&S, from Bush, from Cheney, from Halliburton, from Enron, from Exxon, and from all the super-rich and all the global corporate predators and war profiteers who have used this non-transparent election system to rob us blind.

Think big.

------------

"The time of the people has come." --Evo Morales

[In Truth We Trust]

12. Perhaps the answer to question one is a constitutional amendment requiring

paper ballots and Hand counts-ONLY. It would naturally be time consuming (years) but I see it as the only way the people can force the issue and demand true traqnsparent representative democracy.

Without transparency there can be no address of question two other than underground revolutionary tactics against the corporate power structure which controls and sustains the status quo as we now have it. The violent actions that would be necessary to force this change would be playing into the fascist hands ala the burning of the Reichstag.

Any novice student of history would be probably come to the conclusion that in reality it will eventually require both forms of redress to achieve the goal of dramatic change.

I would like to tell you Peace Patriot that I admire your post for its intelligent content and your passion. NGU! I too so want to not only effect change for the future but to redress ALL the criminal actions of the last five and a half years. The corporate fascist judiciary will be with us for too long after the current corrupt unelected administration is gone enjoying the fruits of their misdeeds.

[Peace Patriot]

7. "Sadly, I think that the corruption of the democratic process that

characterized the 2004 election was due less to lack of transparency in the voting mechanisms, and more to what strikes me as a systematic disregard for the rights of voters...." --Febble

How, given the non-transparency, do you arrive at this conclusion?

And why, given the criminality of the Bush junta, would you pose the matter as an either/or? Either they deliberately set up this non-transparency and didn't use it, OR they "disregarded" the rights of voters? The opposite conclusion is the probable one, that they used every means possible--both deliberately planned non-transparency AND massive, egregious, illegal vote suppression -to keep their claws on power.

And, in no case is this a matter for sadness. It is a matter for burning anger, protest and action. You would have us waste our time re-passing the Voting Rights Act of 1965, rather than addressing the REASON that this regime felt safe in violating it--that they are immune from public ire and from legal consequences BECAUSE THEY HAVE A NON-TRANSPARENT ELECTION SYSTEM PROTECTING THEM. They owe their power not to us, the people, but to the NON-TRANSPARENT voting system--a system controlled by major Bush donors and campaign chairs, and billionaire donors to rightwing extremist causes, using "TRADE SECRET," PROPRIETARY programming code to "tabulate" all our votes, with virtually no audit/recount controls.

This situation is so filthy, so corrupt, and such a snakepit of evildoing, that your "SADNESS" at your conclusion that it's not really the corporations' crapass election theft machines, deliberately installed to CREATE non-transparency, that destroyed our "democratic process," but rather is "more" attributable to somebody or other's "disregard" for the rights of voters, really makes me tear up. I mean, it's so sad when you think about it.

:cry:

[Stevepol]

8. Right on, PP, but Febble has a good idea too. Every little bit helps.

It's so laughably illogical to vote on machines which either can't or are almost never even checked for accuracy that you just have to wonder about the sanity of the people who went along with this.

I remember the first time I heard about this in 02 with the obvious fraud of GA. It wasn't so much the big differences between the polls and the final result that freaked me out but the fact that these machines were used and there was no way to recount or even check for accuracy. I couldn't believe it. I thought, Boy the news reporters will be on this like white on rice. They won't let go.

So here we are and the asylum gets bigger everyday, except it is becoming obvious to more and more people that it's not just the fraudulent elections that need to be addressed: it's the principle of the thing that stinks to high heaven. You can't have a democracy when the vote counting goes down this way. BY DEFINITION!

But I agree w/ PP that when and if we ever get power again and are able to institute reasonable control over elections to make sure they're counted fairly, we need to hold these companies accountable. I believe if reporters investigated the lives and business practices of the company execs they would find huge crimes that could put these people away for years hopefully and perhaps destroy the companies in a welter of lawsuits. Sequoia I think has a particularly long rap sheet, but Diebold with its Jeffrey Dean and 5 ex-felons working for GES is probably a close second. Whatever. BUT THEY NEED TO BE INVESTIGATED. All of them.

[Febble]

11. Well, to a Brit, it's nuts

Maybe we are just a more ceremonial nation (although in some ways you guys are even more so, you just don't go in for such fancy dress) but I think the thing that has amazed me most about what I have found out about your voting systems is the sheer casualness of the whole thing. I mean punchcards, by any standards, have a margin of error that is just unthinkable here. The hanging chad story was greeted with disbelief in Britain. It's as though you guys were happy with a show of hands. Too lazy to count the damn things properly (well, you know we have a chip on our shoulder about American technology - we still haven't got round to mixer taps in handbasins).

But by comparison with your ballots, our paper ballots are treated like banknotes, and, by and large, counted by bank tellers, scrutinised closely by bipartisan volunteers, and at an only slightly greater distance, by the public. Plus, counts are televised. Sealing the ballot boxes at the end of the day at each polling station is also done with ceremony, with witnesses, and the sealed ballot boxes are conveyed like royalty from polling station to counting place.

So sure, you have a problem, and a problem that is likely to be exploited, given the exploitation of other means of suppressing votes that are well evidenced.

My only problem is that I think that the only evidence that digital theft in 2004 might have amounted to millions (or even hundreds of thousands) of votes is the exit poll evidence, and while at first look it seemed plausible, on a close look it simply doesn't. And I think the fact that it doesn't is obvious to the kinds of experts whose expertise is the kind that counts. For that reason, I dearly wish that RFK had bypassed the exit poll arguments in his Rolling Stone article, because I think, to use a cliche, that the exit poll argument is the proportionally spaced font of the 2004 election story. It is dead easy to refute, because it really is not only unsupported, but actually contra-indicated by the data.

My fear is that those who should be alarmed by Kennedy's article, or David's suit, may dismiss both by citing falsifiable claims based on the exit poll. Not that David has fallen into the trap of making those claims, bless him. He is fighting this as a matter of principle, whatever he believes about 2004, and it is on principle that it needs to be fought.

[IndyOp]

15. Febble - What is the UK margin of error?

Y'all use the same paper ballots nationwide? Hand counted, right?

And your margin of error?

Thanks! IndyOp

[Febble]

16. I think it has been calculated

but I don't know what it is. A candidate is not declared the winner until all candidates are happy with the count. If it is close there is a complete recount, sometimes two. They tend not to produce the same result, so there is error. But my recall, of the relatively few recounts I remember, is that it is single figures, in constituencies of maybe thirty or forty thousand voters. I'll try and find out details. Handcounting is not 100% accurate. It's the transparency it offers that I think is its best feature, also the units we work with are good (the constituency).

Cheers

Lizzie

[Febble]

10. To address your question

(which I appreciate).

I arrived at this conclusion, as it happens, through an extremely painstaking analysis of the exit poll data. As people on this forum are aware, I found myself in the extraordinary position of being contracted by Mitofsky to re-analyse the exit poll data using a measure I had proposed (on Daily Kos) as being more valid than the one that had been used in the original E-M evaluation. I had not been at all satisfied by that evaluation, because I had demonstrated to myself, and since to others, that the measure used (the "WPE") was a flawed measure. I also considered that multiple regression models were required to make sense of the data, and I made a public call for this to be done, using either my proposed measure, or something similar. The extraordinary part was that my call was heard, and I actually got the job.


The important findings from my analyses are now in the public domain, and I have summarised them in my post 9 on this thread to Land Shark.

But to turn to your specific questions:

I do not pose the question as an either/or (and if I appeared to, I apologise for being misleading - it was not intentional). My big question, following the issue of the E-M report was: well, we can see that polling factors account for some of the variance but the big question is: how much? That is why I called for a multiple regression, which is a statistical technique for determining how much of an effect (eg redshift) is "accounted for" by a range of different variables. To give a neutral example: we know that a healthy diet helps children to grow. But to know how much it helps we need to know how much of a child's growth is determined by other factors such as genes, or, for that matter age. So we can specify diet, genes and age as "predictor" variables in a multiple regression, and determine the amount of variance in height is "accounted for" by each.

And it is this kind of analyses that I was contracted to conduct.

I know that you are convinced that the non-transparency was deliberate. I won't argue about that - you may well be right. I certainly do not assume that you are not. And if you are right, then I suggest that 2004 was at most a dry run. And whether or not you are right, there seems to be no doubt that digital voting systems are absurdly vulnerable to tampering, and absurdly resistant to audit. Both these things require urgent attention whatever conclusion I, or any other analyst comes to about whether those systems were used to steal millions of votes in 2004 I happen to think that massive vote switching will remain technically difficult to accomplish without leaving a statistical trace, but that is of little comfort. I actually hope that the work I myself, and others, have done over the past 18 months will send signals to future hackers that the statisticians are on to them. I have learned a heck of a lot about the kinds of things that would be the fingerprint of digital fraud, and next time, I shall be there, telling people what to look for.

But because those statistical techniques are very powerful, the fact that they have uncovered very little is, in a sense reassuring. It doesn't let people like Blackwell off the hook at all, nor does it have anything to say about the non-transparency and insecurity of digital voting systems, nor about systemic disenfranchisement, but it does say that it is worth voting next time. BushCo might have tried to set up a system that would make votes easier to steal in future, but the numbers are telling me that the probability that they actually digitally stole millions (or even tens of thousands) of votes directly in 2004 is so small as to be as negligible as the probability the exit poll discrepancy was due to chance. It wasn't.

[Febble]

13. Comment from David

And some fixed links, I think.

Amended Complaint:

http://www.dailykos.com/story/2005/11/27/7178/5540


Copy of brief:

http://dragonflihost.net/Mills_Election_Brief.pdf


Also please let Land Shark know I read his reply to Manjoo yesterday. Tell him I wonder if Manjoo should be apprised of the lessons of the statute of frauds and perjuries.

Also, thinking about his further, it occurs to me that in commercial transactions the statute of frauds was designed to prevent a perjury contest which is basically a he said / she said lawsuit. Likewise a see an analogy to the he said / she said lawsuit in the voting election contest that has no paper. A perjury contest has been replaced with an expert opinion contest. May the best expert win. Just a variation on the theme of the he said / she said lawsuit. Unfortunately, this expert contest is rigged against the challenger because of the trade secret problems and the trade secret wars. It might be even worse than an old fashioned perjury contest.

[GreenPoet64]

14. k & r n/t

[Wilms]

17. Thanks, David.

And thank you, Febble.