HR550 and Secret Software Code

[garybeck]

the debate about HR550 goes on...

I was amazed the other day to be talking with a person who is against HR550, and in the middle of the conversation it came out that he was unaware that HR550 demands Open Software code. While the anti-HR550 talk usually focuses on the VVPATs, 2% audits, and the increased power of the EAC, they rarely mention that HR550 clearly states:

5 SOFTWARE IN VOTING SYSTEMS.--No voting system
6 shall at any time contain or use any undisclosed
7 software. Any voting system containing or using
8 software shall disclose the source code, object code,
9 and executable representation of that software to the
10 Commission, and the Commission shall make that
11 source code, object code, and executable representa-
12 tion available for inspection upon request to any per-
13 son.

To me, this alone is reason to pass HR550. I know some are saying it's impossible to have open software and they can change it after they submit the code. I say, still, it's better to have this law than not. Other industries open their software code and so should the voting machine manufacturers. and if a voting machine company is found changing their code after they submit it, at least there would be a law under which we could prosecute them.

I still say, HR550 is better than what we have. It's not perfect, could be improved, should be improved.... but compared to what we have it is a definite improvement. I guess I'm just not an all-or-nothing kind of guy. I'd rather have an improvement than nothing.

[Land Shark]

1. This hands vendors big fat lawsuits for constitutional "takings"

because their trade secret "property" is being liquidated for Public benefit. In the mean time, you still don't know if the disclosed code is the code actually on the machine, whether a virus or Visual Basic scripthas been added, and you don't know what the computer was told to do under election conditions (which could still be anything in the world, given that computers simply do as they are told without regard to law, ethics or morality.

Phillip Morris v Reilly is a case where Phillip Morris avoided disclosing their ingredients list to Massachusetts based on the claim that it was a trade secret despite Massachusetts' compelling interest in public health. That's the kind of claim that could be made here.

On the other hand, suing to declare that there are no trade secrets left in the elections context does not constitute a legislative taking, because said trade secrets never existed. This is the more appropriate way to pursue disclosure, and is the approach of my lawsuit

[Bill Bored]

2. Two questions:

You are correct that software authentication is a separate issue and must be addressed whether the software is open or not.

But re lawsuits vs. legislation:

1. Why can't we do both?

2. Under HR 550, if the software is not disclosed, the machines can no longer be used in federal elections, so they will be gone pending the outcome of the vendors' lawsuits, if any, which could take years. So what's wrong with that?

[Febble]

6. "Why can't we do both?"

I would really like to know if there is a good answer to this question.

Land Shark?

[Land Shark]

11. sure, it's possible to do both, the question is one of strategy and

appropriateness.

LEGISLATION: Going on bended knee to the legislature or congress, requesting NEW rights or modifications of the same.

LITIGATION: The forum for violations of PRE-EXISTING rights is court / litigation.

But we always get back to litigation, because the legislation will be interpreted, and tested, in courts.

So, sure you can do both but I'm saying it's not wise to be perceived as being on bended knee when it is OUR democracy, OUR elections, and THEIR legitimacy as elected officials that is implicated. THEY should not (in the special context of elections) being specifying to US the public the precise terms under which THEY shall be re-elected (at least not without major deference and other checks and balances not present in the normal legislative process, but the normal process is apparently the only procedures we have for elections laws)

[Febble]

14. Well, it's back to the metaphor problem....

Would you support HR550 if it didn't involve bending your knee?

And if so, how could we help?

[Land Shark]

18. the only problem with metaphor is that you don't like them

rephrased: litigation vindicates existing rights or declares them for clarity, legislation creates new rights or changes old ones.

That's metaphor-free.

Which one of those or combination of those, in your opinion, needs to be done, and why?

1. We need to vindicate existing rights or violations thereof with respect to ________________________
2. We need new rights with respect to ___________________________

But the basic problem is the insufficient awareness of what the pre-existing rights are, and to some extend the potentially debatable nature of those rights, particularly with committed opponnents or opponent lawyers wanting to contest each move. So, while I'd like to hear your answers to questions one and two, they will in large but not total part reflect your knowledge and assumptions about the nature and extent of pre-existing rights....

[Febble]

24. No, the problem with metaphor

is that it doesn't necessarily tell you anything. Saying HR550 is bad because it involves knee-bends tells me zilch.

So thanks for the translation (I think).

But I'm not sure I accept your premise/frame. HR550 would seem to clarify, not create or change, the nature of the vote (to which American citizens have a right). It rules that "ballot" must be a voter-verified, manually recountable piece of paper, and cannot be mere "electrons" as you so eloquently put it elsewhere. Not only that, but it declares that elections must be subject to random manual audit. In other words, the bill makes it it illegal to elect a winner unless there has been a rather powerful check as to whether the election was actually conducted fairly, or to conduct an election in which that check, or other still more powerful checks, cannot be conducted.

Are you saying that legislation cannot do this? If so, why not?

[Bill Bored]

36. And isn't litigation being on bended knee to the courts?

Why is the phrase "We pray for relief" used so much in litigation anyway?

If you get a corrupt judge or one who just doesn't see things your way, then it's back to legislation. As Al Gore said, there's nothing short of violent revolution in our system to overturn a Supreme Ct. decision. I'm paraphrasing, and legislation has also been known to work. Either way enforcement of the law is crucial.

[Land Shark]

38. Sometimes that word is used, but nobody "prays" they DEMAND

and argue for what they want based on existing law. Congrats on the interesting use/reference to the word pray, but nobody gets on their knees at all. It's more accurately known as "suing their ass"

[WillYourVoteBCounted]

30. we did both in NC, a state law and we had to go to court

Election Integrity can not be won without a multi pronged action.
That means legislation and courts.

The courts have a different roll than the legislature:
-We went to the legislature to get our law.
-We went to court to defend our law.

We then went to court over two issues -

(1)Diebold's temporary restraining order that gave them permission
to ignore most of our law.

The Electronic Frontier Foundation had to get the court to grant
me standing - EFF won that for me then....

EFF won in our efforts to have the judge revoke Diebold's TRO.
Diebold was now bound by NC's law.

(2) We sued the State Board of Elections and the State IT dept to decertify the
vendors (ES&S, Diebold and Sequoia) and examine the machines as the
law stated. The NCSBOE had improperly certified Diebold even though Diebold reps said they
couldn't meet requirements of our law. The other vendors were also improperly certified.

Electronic Frontier Foundation represented me again, and after going through
a few judges (the first one got "sick"), we got a judge who also was the father
of a very influential state lawmaker.

The judge ruled against us and in favor of the SBOE and IT dept.
All our SBOE did was use the ITA report as their exam of the machines.

IF the judge had ruled in our favor, it would have held up the certification
process so much that the primary would have been delayed, and that
would not be politically expedient for the judge.

The judicial system is no purer than the legislative system

You can't get VVPB from going to court.

[Febble]

15. But it also mandates

manually auditable paper ballots

And audits.

How are the big fat lawsuits going to fair when an audit of the mandated paper ballots reveals that vendors' machines can't count?

[Kelvin Mace]

50. Exactly

And our opponents ignore your question.

[HysteryDiagnosis]

3. Isn't it interesting that it must be private companies that produce

said software and the boxes that run it. As if the govt (which has hundreds of billions of dollars to throw away on elective wars and illegal invasions) doesn't have the funds to keep elections a GOVERNMENT RUN OPERATION. Interesting and silly at the same time.

[Kip Humphrey]

4. What government do you trust "to keep elections a GOVERNMENT RUN OPERATION

A. The GWB administration?

B. The Hastert/Frist Republican Congress?

C. The recess appointment packed EAC Commission?

D. Local jurisdictions?

[Warren Stupidity]

5. My local jurisdiction has been doing a fine job

running local elections, state elections, and federal elections since the town was founded 300 years ago. We eventually had to convert from hand counting to paper ballots for general elections, and that upset some of the old timers. We did eventually convert to optical scan paper ballots, and we are not entirely convinced that this wasn't some boondoggle to hand over our hard earned cash to some fancy wall street type.

I'll trust my local government.

[Land Shark]

12. it's not about trust, it's about checks and balances

elections determine the govt power, paycheck and legitimacy. Since the only legitimate source of power is from the people via elections, having the govt run elections (whether Local, national, or whatever) is a checkless and balanceless form of absolute power, akin to having people write their own paychecks when the money and responsibility are supposed to be SHARED.

Govt can NOT run elections by itself, nor with the help of its chosen vendor.

[Febble]

17. So if elected bodies should not run elections

who should? Non-elected bodies?

Surely not?

But sure, governments can be illegitimate - which is why they must be checked. That's what HR550 is about.

[Land Shark]

19. Not a very bright answer, Febble (or very bright question)

I do know that you've a considerable amount of "candle power" upstairs but here the check and balance comes from the PUBLIC. That's a no-brainer. You can call the public "un-elected" if you want, but that's misleading.

So the public and political party reps and others provide it, and they are all non-government. If too many people show up, the venue can be changed or a lottery instituted for available space, but that's not a problem that presently exists right now very often.

[Febble]

21. Well, one of us was being dim, said Rabbit,

and I'm not sure that it was me.

(with apologies to A.A.Milne)

Well, perhaps I'm a bear of very little brain, but my simple-minded point was simply that if you want to make a grand generalisation that elected bodies shouldn't run elections because they have a vested interest in the result, you do rather erode the entire concept of a democracy. Elected bodies will always run elections. What is required, as you say, are checks and balances, which, as you say, are provided by parties and the public. Which is why it is essential that elections are conducted in a manner that allows audits and recounts to be made that are independent of the machinery selected by elected bodies. Which is why mandating manually countable ballots is so important (otherwise you can't manually count them) and why mandating random audits is equally important.

Which is why, tiddly pom, that supporting HR550 IS SUCH A BLOODY GOOD IDEA.

And I still don't see where you have argued that it isn't.

[Land Shark]

22. big brained bear, please pay heed

if a the group of supervisors elects by ballot a group of employees to run a task, it does not "rather erode the concept of democracy" for the supervisors (i.e. the PUBLIC) to retain full rights to intervene in the tasks they've delegated in part.

And the employees, you know those "government servants" are not going to specify the manner in which their work is going to be audited via HR 550 or any other mechanism.

It is, at the end of the day, a little dim and a little dumb to allow the servants to specify how they shall be tested, audited, or evaluated.

[Land Shark]

23. Febble, you should start an OP reconciling these two things

(1) Your prior posts extolling the hand counted paper balloting system in England, and
(2) Your support now for HR 550.

This will take some length to do, so therefore I suggest an OP.

[Febble]

27. It won't require much length, so here it is:

The British HCPB system in England is a good one, not because it is hand counted, or on paper, but because it is conducted with almost complete transparency and accountability. Counts are conducted in public, under bipartisan scrutiny, in the presence of the candidates, and not concluded until all candidates are satisfied with the result.

I commend the transparency. I also commend paper, because paper is an excellent medium for documents of which there should be only one valid copy. Hand-counting works for us, and might work for you. But it will be harder for you because your ballots are more complex. But in any case, it is in the transparency and public oversight of our system that its strength lies, not in the hand-counting per se. Hand counting is not, in fact, very accurate. Our recounts rarely produce absolutely consistent answers.

I therefore support HR550. Firstly, because it mandates paper ballots - it will therefore grant to Americans the right that we Brits have to a unique document that represents our choice of candidate(s). Secondly, it mandates manual counts of a random sample of those paper ballots, thus ensuring that any corruption in the count has a substantial chance of detection. This procedure seems to me likely, at the least, to be a powerful deterrent against fraud, and at best may allow results to be declared with a high degree of confidence that the true winner has been elected. And thirdly, it makes possible what is presently impossible in many states: complete manual recounts should that confidence not be assured.

In short, I believe that transparency and auditability should be your goal, not hand-counting per se. Hand-counting can be transparent or opaque. In the past, hand-counts have been pretty opaque. But HR550 seems to me to take you some way towards the kind of transparency and accountability that we Brits enjoy.

[Febble]

41. I have no idea

why I added "in England" to my first sentence above. The same is just as true in Scotland, Wales and even Northern Ireland, which though not part of Great Britain, is part of the United Kingdom, which of course was the country I was referring to.

Although Scotland is bringing in electronic voting, I believe. Perhaps that was at the back of my mind.

[Febble]

26. Exactly

It is, at the end of the day, a little dim and a little dumb to allow the servants to specify how they shall be tested, audited, or evaluated.

Which is why elected members of congress should be supported in passing a bill that specifies, at the very least, universal minimum standards of testing, auditing and evaluation. Precisely because I don't want the likes of Ken Blackwell making up the rules to suit his own purposes, whether he is legally elected or not.

[Kip Humphrey]

29. So, in your view, Blackwell has and continues to act on his own?

[Febble]

39. Huh?

I certainly don't think he's acting in cahoots with Rush Holt and John Conyers, or indeed, with any of the co-sponsors of HR550.

Do you?

[Land Shark]

34. The Congress is also among the class of govt servants

They purport to specify and limit in some ways how their own elections will be audited.

[Febble]

40. And that is why

different tiers of government are important structures in a democracy (one of the things, incidentally, that Mrs Thatcher tried to reduce - she didn't like Labour-run metropolitan authorities messing up her nice Tory policies).

I simply cannot see how a bill that mandates paper ballots as well as a manual recount of a random sample of those ballots can do anything other than good. Not enough good, perhaps.

But how harm?

That is the answer I still don't see coming from you. Implying that it must be harmful simply because it is coming from elected government servants with a vested interest in the ways their own elections are audited isn't an answer, IMO. As you say, elsewhere, "vouching" is not enough - people have to assess proposals on their merits.

Where is the lack of merit in this bill? And how, for Pete's sake, does the bill "limit" anything? Other than the use of voting methodologies that don't provide a paper ballot?

[Land Shark]

58. False statement by Febble: HR 550 requires "paper ballot"

it only requires a "paper record" and the DREs will count their electronic ballots on the first count. The paper record may, under limited circumstances, trump the electronic count in precincts where it is done, subject to legal challenge under Bush v Gore that this is the functional equivalent of the partial recount Gore asked for and was found unconstitutional in 2000.

[Febble]

71. Not false, IMO, and I think this is an important point

it is quite clear from the bill that in the case of a discrepancy between the manual counting of the paper records and the electronic count that the paper record has precedent. That, in effect, confers on the record the status of a ballot, and relegates the electronic count to a method of counting those ballots, just as in an optical scan precinct or a punchcard precinct.

However, I take your point, and I think it is worth pursuing, because if you are correct then no random audit would be legal, whether or not mandated by a federal law such as HR550. Is that what you are arguing?

[Land Shark]

75. You are pointing to the critical provision of the audits that's a problem

exactly that which makes it powerful makes it suspect or invalid. and that is, to quote your post: "in the case of a discrepancy between the manual counting of the paper records and the electronic count that the paper record has precedent." {and the results for that precinct are to be accordingly adjusted}

It is the fact of the adjustment to the precinct results that makes the audit the functional equivalent of a partial recount, which is unconstitutional under Bush v. Gore. BvG also halted an election by a stay order during the election's recount phase, so I trust that I am not treading on the thin ice of conspiracy to suggest that the US SUpreme Court can, will, and has, halted US elections in order to prevent their greater accuracy (for whatever motives, is irrelevant for this purpose)

So, we stake our hopes on 2%+ audits, then roll into 2008 and we just get Bush v. Gore II.

The mere fact that there might be a technical argument against a repeat result, or the mere fact that the 2008 dem nominee would have a few arguments to make is not particularly reassuring. Every represented party ALWAYS has arguments to make. It's just that the US Supreme Court won't have any difficulty dispatching them, and finding the Holt audits to be functional equivalents of partial recounts, and therefore unconstitutional.

I'd love to hear a response that would deal with this entire reply here, and give me confidence that the US SUpreme Court (as opposed to DUers) would find a difference between Holt audits and Bush v Gore that MAKES A DIFFERENCE IN RESULT.

[Febble]

79. What you are describing is a recount

not an audit, and the bill distinguishes between the two.

Regarding the results of an audit:

(d) Additional Audits If Cause Shown- If the Commission finds that any of the hand counts conducted under this section show cause for concern about the accuracy of the results of an election in a State or in a jurisdiction within the State, the Commission may conduct hand counts under this section at such additional precincts (or equivalent locations) within the State or jurisdiction as the Commission considers appropriate to resolve any concerns and ensure the accuracy of the results.

So it is not merely a question of taking the hand count as the definitive count in precincts where a manual audit is conducted; not only is the hand count taken as the definitive count, but if the hand-counts "show cause for concern" further hand-counts can be conducted "appropriate to resolve any concerns and ensure the accuracy of the results".

It's a bit vague for my liking, but it seems to me to provide for full hand-recounts should the result of an audit indicate cause for concern in the accuracy of the machine count.

In which case the paper records would assume the full status of ballots.

Can I repeat my question: are you arguing that Bush v. Gore will invalidate Holt, should it pass?

[eomer]

83. A partial recount is not unconstitutional under Gore v Bush.

The 2004 New Hampshire presidential recount was a partial recount.

What is unconstitutional under Gore v Bush is using a different standard for counting from one jurisdiction to another. But it is still constitutional and still being done to have a partial recount.

[eomer]

84. California law currently includes a mandatory hand audit.

Apparently the California mandatory audit law has been in place for forty years and it has been updated in recent years (post Gore v Bush) to better deal with new technology. The mandatory 1% audit was performed in the recent special election for the Congressional seat vacated in San Diego (Busby/Bilbray).

Under California law, elections officials are required to conduct a public manual tally of the ballots cast in at least 1% of the precincts to check the accuracy of the votes tabulated by the electronic or mechanical voting systems. The law also requires the precincts subject to the audit to be randomly selected by elections officials, but it doesn’t define "random".

SB 1235 (Bowen) improves the election auditing procedures in two significant ways. First, it requires elections officials to include absentee, provisional, and all other ballots that are cast before Election Day or at satellite voting centers in the 1% audit. Second, it ensures the precincts subject to the manual audit requirement will truly be randomly selected by requiring elections officials to use either a random number generator to select the precincts to be manually counted or any other method set forth in regulations the Secretary of State would be required to adopt.

“This is about the integrity of our electoral system and at a time when significant questions are being raised about the accuracy of our voting equipment, this is a loophole that needs to be closed," continued Bowen. "The mandatory manual audit law was created forty years ago when fewer than 4% of the state’s voters used an absentee ballot. Now, more than 30% of California’s nearly 16 million voters are registered as permanent absentee voters, nearly 40% of the people who voted in the November special election did so by absentee ballot, and it won’t be long until more than half of the state’s voters are mailing in their ballots from home."

Last year, Bowen authored SB 370, which was signed into law over the objection of the Secretary of State. It requires elections officials to use the paper produced by the accessible voter-verified paper audit trail (AVVPAT) that all electronic voting machines are required to have as of January 1, 2006, to conduct the 1% manual audit and to use the AVVPAT in the event of a recount.

http://www.votetrustusa.org/index.php?option=com_content&task=view&id=1318&Itemid=113

[OnTheOtherHand]

44. OMG! election laws are enacted by legislators!

Sir, that's how it works. Laws codify rules and procedures, and legislators (mostly) write and vote on the laws. Florida's voter intent standard? a law. The Voting Rights Act? a law. Fairly makes one's skin crawl (or knees hurt), doesn't it?

Heck, we even let Congress vote its own salaries -- although there was that enterprising fellow who stirred up a national campaign to ratify the 27th Amendment, so at least House members would have to face the electorate once before benefiting from their pay raises.

If the "PRE-EXISTING rights" you referred to are rights under election law, then presumably they exemplify state and federal legislators' having 'specified and limited' the process by which they are elected. So what?

(If the "PRE-EXISTING rights" are not rights under election law, then things get interesting. Hmm... maybe "election law" is just inherently a bad idea?)

[Land Shark]

59. People often forget, in their respect for the law, this conflict Interest

but the courts haven't necessarily forgot, that's why strict scrutiny can often apply.

Pointing out that incumbents by definition make 100% of all of the election law is a useful reminder for many people. But not for professors at Bard College, apparently (see official OTOH profile).

But anyway, courts have found the above obsevation that you ridicule as overly obvious to be relevant in determining that a higher level of scrutiny applies. it's even more relevant to the public to encourage it to apply an (informal) higher level of scrutiny of elections.

I can see, OTOH, that all of your settings on whatever instrument panel operates you are set to "sarcastic/ridicule/taunt" but there is a point of note in observing that incumbents make all the election laws, and that in the unique context of elections, the LawMAKERS are coming back to the source of all power to ask for continued authority, yet at the same time prescribing laws that often game the system in their favor, resulting in actual 98 or 99% re-election rates to Congress.

[OnTheOtherHand]

64. you seem to be changing directions in mid-air

I see nothing in the record to indicate that Febble needed to be reminded that (current or past) incumbents write election law. We are still waiting for a clear account of why this truism constitutes an argument against HR 550.

Go back, reread your post #22, and tell me why I'm not entitled to be as confused as all get-out. "And the employees, you know those 'government servants' are not going to specify the manner in which their work is going to be audited via HR 550 or any other mechanism." That seems to mean either that legislators do not write election law, or that they should not write election law, or both.

I think it is downright wacky how much time you spend complaining about how mean I am. Why not just make sense? It's not as if anyone else on the thread is having much better luck with your arguments.

[Land Shark]

67. what it means is the following:

the government officials can not audit themselves, nor specify how they shall be audited.

Granted, this is what they've been tolerated to do, and what HR 550 further insititutionalizes. And that's as ridiculous as telling criminal suspects how they will be investigated or audited, in advance. It makes it easy for them to evade detection.

The audit, as Febble tried to point out, is supposed to be an INDEPENDENT check. It can't be independent if performed by the government or if it's scope is carefully circumscribed by statute. (on edit: or even just DEFINED by statute even if not terribly limited, since knowing how things will be checked is key to knowing how to evade detection)

Transparency, baby. Let a thousand citizen audits bloom.

Yes, the incumbents create all election laws but this applies with much greater force to Audits, where everyone supposedly agrees to an indepependent evaluation and independence of check and balances is being claimed as the result of the audit...

so, in the quote from your post below, I'm writing about AUDITS but you extend the full point to ALL of election law. There's a conflict of interest in election law generally that can be handled via higher court scrutiny, there is a definitional contradiction and absurdity in allowing govt officials in any way to audit themselves or define the audit that will be imposed upon themselves by the people who rule this country: the public:
Quote from OTOH:
{LS said} "And the employees, you know those 'government servants' are not going to specify the manner in which their work is going to be audited via HR 550 or any other mechanism." That seems to mean either that legislators do not write election law, or that they should not write election law, or both.
END QUOTE

[OnTheOtherHand]

72. an audit can't be independent if its scope is defined by statute?

That is tautologically true for some definition of "independent," but I don't think it has much to do with election integrity. Let's see if you can convince others.

[Land Shark]

76. They're already convinced: nobody can specify how they themselves

are to be audited, without great skepticism being the result.

I have auditors in my family. THey go in, THEY SPECIFY what they want to see and when they want to see it. The auditee is not generally in the position to specify any limits (though with respect to tax matters, congress has provided some citizen rights, but in that case congress and the taxpayer are sufficiently adverse to each other that some reliability can enter into the process)

but if someone else wants to finish the following sentence, be my guest:

It is OK and not a conflict of interest for congresspeople to specify the methods by which their own elections or re-elections will be "independently" tested for validity, because _______________________________________________

[Febble]

78. because....

those specifications are the product of public debate and are well-designed to ensure good minimum standards of accountability which states can only improve upon.

My only fear is that they are so damn good they may not pass. Which is why I'd like them to be backed by support from the election reform community.

[OnTheOtherHand]

80. sigh

Legislators enact laws. It's not a matter of whether this is "OK," or "a conflict of interest." And yes indeed, great skepticism is warranted.

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

This problem cannot be solved, it can only be managed. And election auditing is just one facet of the problem. I am tempted to say a small facet, although of course the costs of getting it sufficiently wrong can be very large.

[Warren Stupidity]

31. My local jurisdiction is us.

And that is why I trust it, it is me and my neighbors and we can watch over each other while we count the ballots. As long as we can sit down and count the ballots by hand the process is passably fair. Of course there are issues that are not solved by local government - my example is a bit unfair as I live in an old new england town where scale still allows for trust and where we have managed fair elections, as I stated, for 300 years or so. However the basics are all there. And the basics do scale. Paper ballots. Hand recounts if needed done by an open process monitored by representatives of all concerned parties. Keep the ballot process local and low tech. It is really quite simple. The rest of this vote technology nonsense is a combination of schemes to make people rich and schemes to make people powerful, usually at the same time by the same people.

[Land Shark]

35. trust as an end result of an observed process = OK, trust that substitutes

for observed process = BAD. If one just refuses to believe that one's neighbor would do anything untoward, that's a system set up to facilitate fraud. It seems like you're suggesting trust limited to a feeling that you have at the end of a totally observed transparent process, w hich is fine. But most of the time people use the term "trust" it is a substitute at some level for observation, thinking or analysis.

[Warren Stupidity]

43. As that asshole reagan said: trust, but verify. nt.

[kster]

7. You can't let CROOKS make the rules,

"could be improved, should be improved".... then why isn't it improved. Because HR550 was made by the CROOKS for the CROOKS.

My two cents.......

[garybeck]

9. if you only accept the perfect bill, you will never get there

welcome to politics. look at history. very few bills completely satisfy anyone.

I'll keep saying it if I'm the last one standing. HR550 is better than nothing. Those who want to reject it for this reason or another are, in my opinion, not seeing the forrest through the trees.

the law would outlaw all paperless DREs overnight. we still have several states with paperless DREs. I guess you want to keep it that way?

the law would require audits on all elections. currently almost no states have mandatory audits. I supposed you want to keep it that way?

the law would require open software code. currently there is nothing requiring the companies to disclose anything at all. I suppose you want to keep it that way?


If everyone would realize our solution is going to take several steps. we simply are not going to get HCPB overnight. if HR550 passes, we will have taken a step in the right direction. and better yet, we will have a means to collect more evidence that the problem is very real. we may catch problems with the audits that we wouldn't have caught before. maybe we'll catch a vendor changing their code after they submit it. and, we can tell Linda Malone to shut her pie hole and get some kind of paper records on her machines or we'll sue her ass. If any of those types of things start happening, it will be obvious that the bill needs ammending and there will be support for it. Right now, none of those things are even possible.


Look at the abortion foes. Are they stupid enough to try to get a law passed immediately calling for a ban on all abortions? Of course not. They realize they have to take it step by step to get to their goal. The same principle applies to practically every issue. Look at marijuana laws. Advocates might want complete legalization, but they know they can't go straight for it. They work for medical marijuana, and industrial hemp laws, first. Eventually they'll get what they really want but every step of the way is a good step. And most importantly, they realize if they only fought for complete legalization and nothing else, they'd still be sitting there with nothing at all, while in the last 10 years several states have taken steps to legalize medical uses and reduce sentencing, etc.

the same has to be applied to us, or we will never get any laws passed that help us. this is a step by step process. HR550 will get us some of the things we want. If we hold out for the prefect law we will be sitting here 10 years from now with nothing.

And I completely 100% disagree that "HR550 was made by the crooks." Rush Holt has been working hard for this for years. They've ammended the bill, improved on it, and he's been a spokesperson for our cause.

[Febble]

10. Le mieux est l'ennemi du bien

Voltaire (apparently).

[Land Shark]

13. it's not at all a question of a perfect bill vs a few steps forward

Legally, my opinion is that we/democracy is screwed and operating from a much worse position, post HR 550.

Garybeck, there's no requirement that you care about what I have to say but you're ignoring what I said in reply #1 which is a direct response to your point on source code, and I don't know if you've seen them before but I've put out around 15 other points along with the one on source code listed above.

If you are too busy or just want to create some momentum for HR 550 and don't really want to discuss it, I can accept that as legitimate provided you say so. Otherwise, though, I hope you don't just post "on message" using the usual frames of "a step forward" etc. I do want to stress that I respect the work that you are doing and if you've not time or desire right now, that's fine. That way at least I know that my point can possibly be picked up at a later date and wasn't just discounted or eliminated without discussion.

[garybeck]

28. I'm not ignoring what you have said, I just disagree with it

if you read the top post, I already repsond to the concerns about changing source code after it's reviewed, etc.

LandShark, as you know I have a ton of respect for you and your work. I agree with what you are doing most of the time if not almost all.

However, I disagree with you on this 100%, and I feel a need to voice my opinion and show people that there are some election rights advocates out there who support HR550.

I have read most of your comments and points about what is wrong with HR550. I just disagree. I've heard you say many times that it creates a false sense of security. I don't care about what kind of "sense" people have about elections. I care about the elections. The bottom line is, a world with HR550 is better than what we have now. we have dozens of states without any paper trails. that is just incredible. the bill would outlaw DREs without paper trails. in those states, at least a recount would be possible.

think about Georgia right now. we have a candidate contesting the election results. if we had HR550 as law, there would be something to recount. as it stands there are virtually no paper ballots, no VVPATs, nothing to recount.

I really think this is forrest through the trees. The bottom line is we'd be forcing Georgia and other states to get a paper trail. That is bad? I just don't get it. You'd rather keep things the way they are and have no paper trails in Georgia and other states who have none?

I fail to see the logic in keeping some states paper free, when we could force them to have paper.

[Land Shark]

37. Well, thanks for the partial response / The future is right here in CA

I didn't hear a response about handing the vendors big fat constitutional takings lawsuits, unless it is that you just reject that statement without saying why or wherefore. If my legal opinion is wrong on that, or if you just think it's worth the risk, please advise.

Here's the deal: Everyone wants hope, I understand that. You raise the example of Georgia paper trails. Here I am personally litigating an election contest in a jurisdiction WITH PAPER TRAILS. Do you think it makes a damn bit of difference? THere's even an audit requirement of 1%. Do you think that actually helped or was actually performed correctly by the elections officials? Think again.

But of course, the media asks me why we're not in the golden age because we "got paper trails". Sheesh.

Thank you kindly for the respect and all of your support Garybeck. I'd like to cash in some of it in exchange for consideration of paper trails and audit requirements here in the 50th Congr. Dist., and whether they actually get us anywhere, inthe real world, when it counts. Useless.

But if I'm dead wrong about that, call me asap because I'm listening!!

[OnTheOtherHand]

46. you don't find the paper trail useful in CA?

I wonder why that is. Could it be a lack of "PRE-EXISTING rights" of recourse to the paper? or is it that the judicial system lacks the insight and/or principle to share your view of the PRE-EXISTING rights?

Two points on Philip Morris v. Reilly. First of all, the "big fat" phrase is likely to be misread(?) as referring to damages. The First Circuit ruling in that case actually struck down the Massachusetts law in question, which required tobacco companies selling in MA to disclose their entire ingredient lists. If you have relevant citations that would speak to damages, by all means provide them. If we are going to have legal arguments, they might as well make sense.

Second, the lead opinion in that case stated in part: "I simply am not convinced that the Disclosure Act, particularly the provisions about which the tobacco companies complain, really helps to promote public health. The Disclosure Act allows for full disclosure of the ingredient lists when doing so 'could' further public health. This places an extremely low burden on Massachusetts. Frankly, for a state to be able to completely destroy valuable trade secrets, it should be required to show more than a possible beneficial effect." http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=1st&navby=case&no=002425&exact=1 It is far from obvious that an open-source requirement for voting software would be invalidated under the analysis in this case. Possible, certainly. An escrow requirement such as recently enacted -- by those pesky legislators -- in North Carolina might be more likely to survive judicial scrutiny. I don't know. A serious discussion of that issue could be useful. A chest-thumping assertion of your "legal opinion," not so much, IMO.

[Land Shark]

61. I'm glad you acknowledge the risk here OTOH, that 's big of you

the specific answers to your questions involve a higher level course for which you've not accomplished the prerequisites, dear Professor.

The essence of lawyering is predicting what judges and courts will do.

Phillip&Morris v Reilly struck down the disclosure of trade secret tobacco ingredients on the grounds that it would be an unconstitutional taking. So, from that standpoing alone, you'd have perhaps a choice: the disclosure of source code could be struck down as unconstitutional taking, or it could be upheld with subsequent claims for damages. In either case, you hand the vendors a "big case", the question is whether it's one for damages or not. If OTOH is right that there's more point to the disclosure of the source code in elections than there is to disclosure of tobacco ingredients, that reality would suggest upholding HR 550 and allowing a claim for damages to proceed. But, as hinted earlier, it's more complicated than just that.

[OnTheOtherHand]

68. no, they don't

Your first two grafs distill to: trust me, I'm a lawyer.

I don't even mean that as a lawyer joke. The point is, no one here is obliged to submit to anyone else's supposed authority. You were pushing off on garybeck, and I pushed back. In my experience, you don't like that very much. Tough. We're entitled to better than soundbites such as "handing the vendors big fat constitutional takings lawsuits."

[Land Shark]

70. That's fine. You're entitled to your opinion as to legal matters

though legally you can only advise yourself, and not others.

You're also entitled to believe that LS, as a lawyer and election activist, is entitled to no additional consideration on matters of election law.

[garybeck]

47. in CA, there is a paper trail to recount, in GA, there isn't. Am I wrong?

I would think logically that you are in a better position to contest the results because at least there is something to recount. In GA all they can say is they don't accept the results. Am I missing something?

[Land Shark]

62. you're missing it. Recounting a stuffed ballot box=stuffed recount too!

among other things. Recounts are not to be eliminated, but they are much narrower remedies than most people think, and they tend to be expensive because incumbents attempt to tax them and price them outta sight. See CA50.

[Kelvin Mace]

53. If what you say is true

Why haven't the vendors sued in NC, that has much the same disclsoure requirements as 550? Wait, they did, and they lost.

[OnTheOtherHand]

54. something I don't know about the NC law

Who gets to examine the source code in escrow?

[Kelvin Mace]

55. Here you go:

Notwithstanding G.S. 132‑1.2, procedures for the review and examination of any information placed in escrow by a vendor pursuant to G.S. 163‑165.9A by only the following persons:

a. State Board of Elections.

b. Office of Information Technology Services.

c. The State chairs of each political party recognized under G.S. 163‑96.

d. The purchasing county.

Each person listed in sub‑subdivisions a. through d. of this subdivision may designate up to three persons as that person's agents to review and examine the information. No person shall designate under this subdivision a business competitor of the vendor whose proprietary information is being reviewed and examined. For purposes of this review and examination, any designees under this subdivision and the State party chairs shall be treated as public officials under G.S. 132‑2.

Edit for clarification:

GS 132-1.2 says this:

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_132/GS_132-1.2.html

Nothing in this Chapter shall be construed to require or authorize a public agency or its subdivision to disclose any information that:

(1) Meets all of the following conditions:

a. Constitutes a "trade secret" as defined in G.S. 66‑152(3).

b. Is the property of a private "person" as defined in G.S. 66‑152(2).

c. Is disclosed or furnished to the public agency in connection with the owner's performance of a public contract or in connection with a bid, application, proposal, industrial development project, or in compliance with laws, regulations, rules, or ordinances of the United States, the State, or political subdivisions of the State.

d. Is designated or indicated as "confidential" or as a "trade secret" at the time of its initial disclosure to the public agency.

(2) Reveals an account number for electronic payment as defined in G.S. 147‑86.20 and obtained pursuant to Articles 6A or 6B of Chapter 147 of the General Statutes or G.S. 159‑32.1.

(3) Reveals a document, file number, password, or any other information maintained by the Secretary of State pursuant to Article 21 of Chapter 130A of the General Statutes.

(4) Reveals the electronically captured image of an individual's signature, date of birth, drivers license number, or a portion of an individual's social security number if the agency has those items because they are on a voter registration document. (1989, c. 269; 1991, c. 745, s. 3; 1999‑434, s. 7; 2001‑455, s. 2; 2001‑513, s. 30(b); 2003‑226, s. 5; 2004‑127, s. 17(b).)

[OnTheOtherHand]

56. OK, so in fairness or in caution...

HR 550 would require (per the OP) that source code would be made available to any person upon request. That requirement would probably merit closer judicial scrutiny than the North Carolina escrow requirement.

I can't imagine why this would be a reason to oppose HR 550, but it's not the goofiest legal argument that Land Shark has ever made.

[Kelvin Mace]

57. 550 goes much further than 223

And I don't think that it can pass unaltered. In fact, NC 2.223 will probably wind up being used as the language, since it has already survived a court challenge.

I'd love it if it did. The trade secret argument is kind of stupid. The only reason this stuff is secrte is because it sucks.

[Land Shark]

63. The time commitment you've made to attempting to discredit me is

admirable, OTOH. Just not admirable by everyone.

That being said, every statistician that disagrees with OTOH he calls goodfy or crazy or totally wrong or similar, and now OTOH has suddenly gained enough legal expertise to be able to conclusively make this same kind of statements with regard to lawyers.

All of the above, it should be added, has to be interpreted in OTOH's oft-stated total commitment to careful pursuit of factual truth (used in other contexts to slow down his debate opponents). But this is no such barrier when it comes to slowing down a lawyer he opposes most often (me).

For what it's worth, lawyers in the relevant areas might disagree, but once the ideas are fleshed out that i'm asserting here, no one is going to call them "goofy" like OTOH does. They may be "wrong" in the sense that a court rules somewhat differently, but it's not goofy to suggest that takings claims would be made when i've shown the example of Phillip Morris v Reilly.

[OnTheOtherHand]

66. oh, golly, do you really want to go down this road?

Actually, if I were committed to attempting to discredit you, I could go a heck of a lot further.

If you have a response to my statistical arguments, make it; if you have a response to the legal arguments, make it. This is a discussion board, right? It's silly to complain that I am slowing you down. It's even silly to complain that I am opposing you.

I didn't call you goofy. I do think that some of your legal arguments have been poor, and I think I am entitled to that judgment even as a non-lawyer. Certainly people have expressed all sorts of derogatory opinions about my statistical arguments, and I don't recall your ever launching into all this hand wringing about the time commitment they made to discrediting me.

"but it's not goofy to suggest that takings claims would be made" -- nor did I say that it was. You've practically stood my actual statements upside down.

[Land Shark]

69. OK, then in the context of your critique here, your statement that

this is "not the goofiest legal argument" LS ever made was intended as praise of some limited sort. (even as you criticize it) In that case, it was at best an ambiguous statement on your part, but I thank you for the support. Maybe. But i'm not sure...

[OnTheOtherHand]

73. why do you think this is about "praise" and "support"?

If you entertain the conjecture that I am actually more interested in election integrity than I am in you, a lot of pieces may fall into place.

[Land Shark]

74. it relates to whether one should respond in debate, or not.

But, why don't you start a thread about what you're doing for election integrity besides being OntheOtherHand, the self-styled contrarian visiting a den of election activism in which to exercise his independence and contrarianism and then being mystified by being called, by others, a troll.

I'd be interested to hear more about what you think IS a problem and IS evidence, rather than what's not. 99% of the world and more is, of course, NOT any evidence at all of the problems we tend to describe here, simply because elections are just one small part of reality.

Do you subscribe to the proposition that there is no basis for confidence in the reported electronic election results?

[OnTheOtherHand]

77. these questions seem poor

I see no merit in your efforts to personalize the differences between us. You are the one arguing against HR 550, so how am I the "self-styled contrarian" here?

[Land Shark]

65. otoh's first paragraph is basically correct

when disclosure is limited by law to certain persons, it can be said to preserve the trade secrets. When available to any person, the trade secret is claimed to have been Destroyed, and totally obliterated in value, and thus a taking. There's a flaw in the PhillipMorris v Reilly analysis in this regard (IMHO) that might get us out of that box, but if that case approach is not changed, the results would be along the lines i've written.

[Kelvin Mace]

52. Wasting your breath with this crowd, Gary

They live in this fantasy world where the laws of time and space do not apply.

[WillYourVoteBCounted]

16. Rep Conyers cosponsors bill you say was MADE BY CROOKS

You said:

"Because HR550 was made by the CROOKS for the CROOKS."

Please provide documentation that HR 550 was made by crooks.
The bill was drafted by Congressman Rush Holt.

This is an insult to the cosponsors of the bill, which include
the honorable Representative John Conyers.

He is too smart, has too much integrity to cosponsor
legislation MADE BY CROOKS.

[kster]

20. I used to support it, but once you read it, and

then start looking at the bigger picture, I asked myself, if 98% of the Government, REMAINS SILENT about this criminal vote counting activity (and they know whats going on) why would that same Government put together a bill that protects us the voter, thats where I started catching on, THEY WOULDN'T.

I started thinking, if I was in their shoes, what would I try and pull, and this HR550 would be it. REMAIN SILENT and make a bill that makes people believe that I was doing something about the corruption.

Even though they will not admit anything is wrong with the machines they now are going to fix the problem with the machines, come on, all one has to do is look to Georgia, if they want to figure out what the Governments game plan was. The Government is not that stupid that they should have let Georgia happen, but they did. To me Georgia, speaks volumes.

[Land Shark]

25. lots of people "of integrity" support misguided things

there shouldn't be any "vouching" in a democracy, each citizen's independent vote should be independently earned by engaging their own critical faculties...

Trusting Rush Holt, or me, or anyone else is efficient, -- it saves us from thinking. But the magic of democracy will only occur if lots of brains are independently engaged.

[garybeck]

32. how is Rush Holt a crook? n/t

[kster]

33. Garybeck, These people are not ON YOUR SIDE

it took me a while to realize that, but this is a FACT. If you want to believe that these Politicians are on your side, thats your choice.

Come on please, stay with me here, ZERO, ON TV about the 2004 election theft, ZERO, ON TV about the secret and corrupt voting counting machines. Need I say more?

Now you want me to believe, that these same guys are going to save the day by introducing a bill. COME ON! SNAP OUT OF IT!

[garybeck]

48. who are "These people"

you're losing me here. now you're grouping Rush Holt and John Conyers along with the media, as being responsible for nothing being on TV in 2004? I believe that if Conyers had his way and probably HOlt too, that the media would be covering this issue much more. I do not hold them responsible for the lack of coverage.

[kster]

81. I have an autographed copy of Conyers book

just so you know where I stand with Conyers, "These people" the Politicians that REMAIN SILENT about the vote rigging machines any and all of them.

I could see early on, when Lampley, Koehler and Conyers was speaking out about the election theft and the secret vote counting machines, that they (politicians) might ignore it, but now, come on, we had atleast two Hacks into the machines, Kevin Shelly blatantly tossed out on his ear, the Kennedy article, this list goes on and on and on, You know this, you have a great site with WALL to WALL facts about all of this.

So why you would think this bill would be better than nothing, coming from the SILENT SQUAD (our government) is beyond me.

[Kelvin Mace]

51. Excuse me?

So anyone who supports the bill would have to be a crook?

Bullshit. Rush Holt is NOT a crook, and the bill was not written by crooks.

[kster]

82. Your excused........nt

[Stevepol]

8. Totally agree garybeck.

[eomer]

42. garybeck, I support HR550 because of the VVPT and audit...

but I'm so sure about the open source part.

Linus Torvalds famously said: "Given enough eyes, all bugs are shallow." By disclosing the source code we will get a lot of eyes looking for bugs and I'm sure we will find quite a few.

But here's the problem. Open source, done right, is more than just disclosing the source. Once the source is disclosed and bugs are found then you need a competent party that can and will remedy the bugs. The second half of the approach is missing in the case of election software. I have no confidence that Diebold, for example, is capable of and/or willing to apply remedies and have the end of this path be secure and reliable software.

In the case of security bugs it is especially important to remedy them. If the source code is disclosed and then left unchanged we will have a less secure system, not a more secure one because it will be easier for a would-be hacker to find and exploit security holes.

I don't know how this would play out. When the code is disclosed then we will raise a ruckus over all the flaws that we find. But will we have the leverage to bring about a second step? Will we be able to throw the machines out or get them fixed or will we create some stir, be ignored, and then find ourselves out of the frying pan and into the fire?

As I said, I'm in favor of passing HR550 but am not convinced of the wisdom of the open source part.

[OnTheOtherHand]

45. you meant "I'm NOT so sure about the open source part," right? n/t

[eomer]

49. Yes, thanks. NOT so sure.

Too late to edit.

[Land Shark]

60. Linus Torvalds, another famous Finnlander somewhat relevant to elections

besides Harri Hursti (highly relevant) and yours truly (irrelevant, see constant ridicule by OTOH, above for example)

There is the floodlight of transparency in the open source model. But the motivation of other programmers to check open source programs is that they use the programs themselves, that there is a sufficient community of users available, and they get credit for the fixes. (a more complete description of open source can and should be posted, this is a rough thumbnail at best)

With election programs, the programs are used only a few days a year and only by government election officials. There's a high public interest in finding bugs that may substitute for motivation that is taken away by the lack of widespread use by individuals, but to what extent???

When we get down to brass tacks, let's say that there's a community of hackers out there that enjoy exploiting a particular open source vulnerability. A good faith patriot finds this flaw, and publicizes it along with a proposed fix. A debate ensues in which the community of hackers argues that the fix creates more problems and doesn't solve any problems because the bug is not really a bug. The public is unable to tell who is telling the truth. So, DO WE HAVE COURTS TO DECIDE??

WIth private software, there's rarely if ever a strongly funded community of hackers dedicated to preserving INSECURITY. But with elections, there very well could be a strongly funded community of hackers dedicated to preserving insecuirty. (they may be able to sell election results for a lot of dough, for example). This is a thought-process deserving of a thread if someone else has time. I'm just throwing out some ideas and throwing some back at OTOH, because he loves this sport. Lotsa love, OTOH!!!