Persons not a part of the government have power to decide in only two functions in our state and federal governments—as jurors in court trials and as voters in elections. More accurately, however, today the outsider as decider has the final say in only one particular instance of the two: jurors who unanimously find a criminal defendant “not guilty”.
Otherwise, a jury, if it is permitted to decide issues in the first place, is subject to further review and displacement in civil cases and after a finding of guilt in a criminal case. Votes, though made by secret ballot unconnected to the identity of the voter, are subject to review when the validity of the election is challenged in a civil court action. In deciphering an unclear ballot — perhaps the result of the voter writing an amusing and profane comment by a candidate’s name instead of properly marking the selection — the “intent of the voter” will be decided in court.
This review of voting by the judicial process is no longer relevant, as one stark fact must be made perfectly clear. No election can be assumed valid if electronic voting machines or any related devices are used. Every system has limitations, and the public got a hilarious look at some of them in the 2000 presidential election when in Florida the punch card system choked on its own design.[amazon asin=0990463109&template=*lrc ad (right)]
Nevertheless, paper ballots, marked and counted by hand with the best security procedures we can think of, are the only hope. And the financial cost is the smallest.
Predictably, the U.S. Congress, always inclined to jump aboard any noisy bandwagon, proclaimed that it just had to do something about the 2000 election mess, and passed a devious and dangerous piece of legislation called the Help American Vote Act of 2002, or HAVA. Introduced in the House on November 14, 2001, signed by the president on October 29, 2002, and known as Public Law 107-252, it seeks, by hook and crook, to shoehorn electronic voting machines into all 50 states.
There is a saying sometimes attributed to the murderous Russian dictator Joseph Stalin: “The people who vote decide nothing. The people who count the votes decide everything”. HAVA does better than that. The people who vote don’t even vote; the electronic voting machine’s executable computer program does. And the local election officials don’t even count the votes; the computer program in the tabulating computer does.
Ladies and gentlemen, you are completely out of the loop.
To understand the problem, you should know that an electronic voting machine is simply a computer. And a computer is basically electrical engineering and binary arithmetic. A computer program is first written in a computer “language”, which lets you write instructions using numbers, alphabetic characters, and symbols found on a typewriter keyboard that you want the computer to execute. Although people can write and read this “source code” with a lot of practice, the computer cannot. So the source code is converted by an executable program called a compiler into a binary program the computer can execute. In addition, inside the computer are more executable programs, hard-wired into one or more chips that are sometimes called hardware microcode. When you turn the computer on, electricity hits a chip, physics does its work, other hardware components are activated, and the computer bootstraps itself to life.
Within this system, the potential for fraud is unlimited. HAVA’s use of “non-Federal laboratories” to certify the voting system hardware and software is worthless. No one knows if the source code observed at the “laboratory”[amazon asin=B00N71YJQU&template=*lrc ad (right)]is the same source code that is compiled later at the voting machine company, or whether it or the executable program was switched before placement in the voting device.
Now it gets deeper. Even if the source code is perfect and not tampered with, a deviously designed compiler, when it converts the source code into an executable binary program, can put traps and other changes in so that the resulting executable program is not what the source code anticipated it would be. Remember the hardware microcode in chips inside the computer? It can change things as well, since it also executes when the machine is running.
The foundation for assuring the integrity of any system is auditing and cross-checking. For electronic voting machines, what about audits and recounts? The U.S. Congress put this in Title Three of HAVA, with its warm and reassuring caption, “Uniform and Nondiscriminatory Election Technology and Administration Requirements” —
“[Section 301(a)(2)]. Audit Capacity.
(A) In General. The voting system shall produce a record with an audit capacity for such system.
(B) Manual Audit Capacity.
(i) The voting system shall produce a permanent paper record with a manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall be available as an official record for any recount conducted with respect to any election in which the system is used.” [1][amazon asin=0974925381&template=*lrc ad (right)]
Read that carefully several times. A decent, trusting American might think that a paper ballot with the voter’s selections will be printed out, the voter will check it to be sure it matches what was selected on the electronic voting machine, and each ballot printed out will be kept by the election department so that a hand recount can be done to check the electronic results. But does it say that?
Notice the cunning wording. The “audit capacity” is for “such system” and not for each individual voter’s ballot. The paper record is for the whole system, meaning the vote totals as created by the electronic voting machines and tabulating computers. You get a printout of the computer’s totals. You do not get a printout of each ballot verified by each voter, to be saved locally for a real recount.
What do you think a person, organization, or foreign government would give and do to be able to rig the election for president of the United States and for some seats in Congress? Now more than ever, the money to be made, natural resources to be controlled, and the psychological payoff from exercising authority over many others who do not resist, both domestic and foreign, depend on who chairs critical committees of the United States Congress and who the president is.
The harmful part of human nature saddles us with the ongoing burden to protect ourselves from ourselves. History teaches that the desire fraudulently to determine the winner of an election despite the will of the voters has not been eliminated from the genetic pool that serves the United States.
Texas was the epicenter of the notorious 1948 runoff election in the Democratic Primary for the U.S. Senate between Lyndon Johnson and Coke R. Stevenson. A true drama starring not only the candidates but the Parr family of Duval County (for Johnson) and legendary Texas Ranger Captain Frank Hamer (on Stevenson’s side) finally ended when a federal district court judge’s order keeping Johnson’s name off the general election ballot was set aside. His 87-vote margin in the primary came from votes in Duval and Jim Wells counties, as a “corrected” vote total emerged in Jim Wells County from around 203 names added to the voter sign-in list, appearing in the same handwriting, different ink from the rest of the list, and in alphabetical order! A solid victory in the general election sent “Landslide Lyndon” to the Senate, but he had learned his lesson about rigging elections in his unsuccessful bid for the Senate in 1941—[amazon asin=B00CTKW9US&template=*lrc ad (right)]
Cong. Lyndon B. Johnson, in a special election for a U.S. Senate seat vacated by death, had taken on Gov. W. Lee (Pappy) O’Daniel – and apparently had the election won. But the state’s liquor magnates, wishing to get the tee-totaling O’Daniel out of the governor’s chair and out of the state had stealthily “negotiated” with the machine bosses in South Texas and East Texas for additional votes when they saw how close the race was. From apparent victory, Johnson dropped practically overnight to a 1,311-vote defeat.
For Lyndon Johnson, the 1941 experience was an object lesson in Texas vote-return management. The secret in a really close election, as Johnson had painfully learned, was to withhold complete returns in counties where you are leading. This way, you kept the opposition guessing as to how many votes they needed to produce to win. And it provided you with a bit of protective camouflage if you must go shopping for post-election votes in the border country yourself [2].
The creation of phony voters and votes for a ballot box was not stopped by using mechanical voting machines, with their large size, curtains, and one-lever voting option for a political party. Dick Gregory, a black comedian and active participant in the United States civil rights movement, ran for election against Mayor Richard Daley of Chicago in 1967 as a write-in candidate. In a memoir, Gregory explains—
The Black guy was so ashamed over the bet that he asked me if I would meet him at the Tiger Lounge, a Black-owned tavern in Chicago, so that we could talk. When I met him, he took me to a warehouse where they kept the voting machines. He showed me something that night that changed my views on our so-called democracy. The Black guy unscrewed the back of a voting machine and showed me that you could tamper with it.
“The reason Daley wants you on the ballot,” he said, “is he is worried about being humiliated by you in the Hyde Park / Kenwood area.” Daley knew that the people living in that area were sophisticated enough to know all about write-in voting. The guard continued, “They want your name to appear on line four and Daley’s name would be on line five. They are planning to take a wire and hook it around line four and line five, so that when people vote for you it will register to Daley.” I left that warehouse wiser and remained a write-in candidate [3].[amazon asin=B009LQXV3W&template=*lrc ad (right)]
The opportunity to rig electronic voting machines definitely exists. The devices are designed and manufactured by private companies who claim that the software and hardware microcode are proprietary. Owners, financiers, and employees of the companies through their own attitudes could desire to defraud voters and fix an election’s outcome in advance. A trained person would not break a sweat penetrating such a company. For years, Kim Philby spied for the Soviet Union while rising to important positions in the British intelligence service, including placement as the British liaison in the United States with the FBI and CIA [4]. Likewise, Gunter Guillaume worked his way up in the Government of West Germany to the position of a personal assistant to Chancellor Willy Brandt, all the while working for the East German Communist government’s Ministry for State Security, known as the Stasi. When Guillaume’s true role was finally discovered, Chancellor Brandt resigned in 1974 [5].
Voting data compiled over the years by political parties and organizations and placed in computer databases can be cross-referenced to the extent that boundaries can be drawn for a candidate’s geographical area that will virtually ensure the election of a person affiliated with a particular political party. This is now obvious in the struggles over Congressional redistricting in which the districts for U.S. Representatives are created in the states.
The same data that can predict voting results by precinct and zip code encompassing certain streets can be used to be sure that false results produced by electronic voting machines do not look too obviously rigged.
In 2009 the German Constitutional Court prohibited the use of electronic voting machines in elections after considering a challenge filed regarding their use in the 2005 election of the sixteenth German Bundestag. The ruling was based on the requirement of German law that all essential steps of an election are subject to the possibility of public scrutiny; the essential steps of the voting and of the determination of the result must be able to be examined by the citizen reliably and without any specialized knowledge of the subject [6].
A fascinating campaign of misdirection and deception is ongoing through endless talk by those on television and talk radio described by the late Gore Vidal as the “chattering class”, along with chattering politicians and lawyers. With publicity and litigation, they have created a straw man to knock down: massive voting fraud by ineligible voters can only be stopped and the integrity of the voting process restored by requiring all voters to get and bring with them to the polling place a “government-issued” identification card in order to vote. Poll workers can then see if the voter’s face looks like the photograph and the name is more or less like the one on the voter[amazon asin=130068240X&template=*lrc ad (right)] rolls and registration card. But if, for example, 300 people vote in a specific election with a phony registration card and no photo ID who are not qualified to vote, and if the difference between the winning and losing candidates is 1,000 votes, then the legal question is whether the fraudulent votes are irrelevant and the winner is still the winner, or under what circumstances the election would be void and a new one ordered.
Ironically, any attempt at massive voter fraud by tabulating votes from dead people and including votes of other unqualified persons claiming a phony voter registration might be neutralized or result in unintended consequences through the fraud in the electronic voting machines themselves, since the fraud within the machines would override the attempt to load the vote in favor of a candidate by having unqualified voters go to the polls or by election officials adding votes during the tabulating process.
Lyndon Johnson had to go shopping for his fraudulent votes in the 1948 Texas special primary election. Electronic voting machines highly centralize the opportunity for misconduct nationwide. The machines permit manipulation outside the knowledge of all candidates, opinion pollsters, financial contributors, block walkers, the creators of political advertising, election officials, courts, and all others involved in the political process.
Outside the scope of this article are: the issue of gaining access to, or “hacking into”, the voting machines, the tabulating computer, or a network or phone line connecting parts of the voting machine system in order to gain control of part of it, and the issue of the nature and accountability of any organization that gathers vote totals from multiple jurisdictions and states and presents them to the public as valid totals.
A useful reference for the current status of some election law litigation around the United States is on the Ohio State University Law School website at the Internet address http://moritzlaw.osu.edu/election-law. It contains archives going back several years and often includes copies of lawsuit documents from the court files in the various cases.
Voting to produce change in a government is a slow process, to the extent that noticeable change can be accomplished by it, since enough legislators must be elected to create a majority to pass new laws or amend or repeal earlier ones, and they must then prevail within the committees, procedures, and rules of the U.S. House and Senate and obtain the signature of the president, or have enough votes to override a veto. Voting is supposed to be the method in a democracy by which the peaceful replacement of persons in political positions is accomplished. Thus, an honest and uncorrupted voting process is essential because of the unique nature of a government as a [amazon asin=1933550139&template=*lrc ad (right)]mandatory monopoly over a particular geographical area covering all persons within it, and which also claims the power to obtain money for its use through taxation and an additional monopoly over the use of force and violence to seek compliance with its decrees.
Having a legitimate voting system is a serious matter, as astonishing changes in the law and in the relationship between the executive branch of the federal government and the legislative and judicial branches, and with the general public, have occurred since 2001. New doctrines in the area of search and seizure that would undoubtedly have shocked the “conservative” judges of Texas of decades past, and likely of other states as well, pale in comparison to new practices of surveillance begun without controlling legislation or in the face of it. An Act of Congress that claims to codify existing law without listing that law removes from use the Great Writ of habeas corpus and claims to empower the executive branch with the authority to detain a U.S. citizen without trial [7]. Judge Katherine B. Forrest in a U.S. District Court for the Southern District of New York on September 12, 2012 granted a permanent injunction against the enforcement of section 1021(b)(2) of the NDAA [8]. The government gave notice of appeal the next day. The federal Court of Appeals for the Second Circuit (New York, Vermont, and Connecticut) threw that hot potato back, avoided the issue, and wiped out the injunction, saying that the U.S. citizens did not have “standing” under Article III of the constitution to challenge the law. To explain the court of appeals opinion with its tap dancing and contradictions would require a gut-wrenching article in itself. It concludes that as to citizens, “Section 1021 simply says nothing at all”, because section 1021(e) says that “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens….” The big fat problem is that “existing law” can be interpreted in drastically different ways, which the court of appeals admits, and it ominously announces that “While it is true that Section 1021(e) does not foreclose the possibility that previously ‘existing law’ may permit the detention of American citizens in some circumstances … Section 1021 cannot itself be challenged as unconstitutional by citizens on the grounds advanced by plaintiffs because as to them it neither adds to nor subtracts from whatever authority would have existed in its absence”. The U.S. Supreme Court refused to hear the case [9].
Making matters even worse, the executive branch has announced that you, a U.S. citizen, receive due process under the federal constitution when persons in that branch of government meet in secret without notice to you, and without showing you a government-issued ID card, to decide whether to try to kill you based on a secret policy rather than a specific law passed by Congress, with secret evidence, if any, from unknown sources and which is presented to unknown persons (in addition to the president) on this ultimate death panel. Of course, we are only assuming that this secret death panel does not include people outside of the executive branch or foreigners.
Both HAVA and a requirement to get and show a government-issued identification card along with your voter registration card in order to vote ignore the real problems and weaken the voter’s power: completely in the case of electronic voting machines and by burdening and potentially preventing it through mandating the use of photo ID cards which now force additional bureaucratic requirements on a person to produce extra identification in order to get a card for identification [10].
The real problems to be addressed in the voting process are the creation and maintenance of accurate voter registration lists, and having plenty of eyeballs (and possibly video cameras) at polling places to ensure that paper ballots are properly presented and counted. A voter’s identification is best handled by the local elections department upon voter registration. If a photo ID is desired in order to vote (ignoring the problem for mail-in ballots), it could be created by the local elections office with more sensible and practical criteria than are now required by states choosing to use the drivers license documentation mandated by the Real ID Act of 2005, a law sold as addressing issues of immigrant identification but which contained optional requirements for states that in essence create through the back door a national ID card in the form of a state’s drivers license for natural born U.S. citizens [11].
Voter registration lists are public and so are the polling places on election day. Anybody and everybody can watch and check every move made because everything, except the voter privately marking a ballot with a pen, is out in the open [12]. This approach creates a structure for full audits and recounts and puts the process completely in plain view.
But hoping to use one of their two independent powers, people turning to the ballot box face the ultimate trump card. Electronic voting machines.
Voters no longer mark their ballots. Local election officials no longer count them. Devices created and programmed in secret do it. No recount is possible. Any fraud is undetectable.
The perfect crime, except it is not a crime.
It is all “legal”, or so the U.S. Congress tries to say.
See you later, Sucker.
End Notes
1. 42 U.S.C. section 15481 (2012).
2. Dudley Lynch, The Duke of Duval: The Life and Times of George B. Parr 53-59 (1976).
3. Dick Gregory with Sheila P. Moses, Callus On My Soul 122 (2000).
4. Kim Philby, My Silent War 183-219 (1968).
5. John O. Koehler, Stasi: The Untold Story of the East German Secret Police 153-163 (1999); Mike Dennis, The Stasi: Myth and Reality 195-196 (2003).
6. Federal Constitutional Court, Press release no. 19/2009 (March 3, 2009), http://www.bverfg.de/en/press/bvg09-019en.html.
7. National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298, sections 1021-1022 (2011); Bruce Fein, An Execrable Ancestor, The Daily Caller, December 28, 2011, http://www.dailycaller.com/2011/12/28/an-execrable-ancestor/; Chris Hedges, The Last Chance to Stop the NDAA, Truthdig, September 2, 2013, http://www.truthdig.com/report/item/the_last_chance_to_stop_the_ndaa_20130902.
8. Hedges v. Obama, 890 F. Supp. 2d 424 (S.D.N.Y., 2012).
9. Hedges v. Obama, 724 F.3d 170 (2nd Cir. 2013), cert. denied, 134 S. Ct. 1936, 188 L. Ed. 2d 960 (2014). To get the court of appeals opinion, go to the Internet website of the 2nd Circuit at http://www.ca2.uscourts.gov/decisions.html. On the search page, type in the case number 12-3176. On the page with the search results, click on the docket number to display the opinion.
10. Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005).
11. Id.
12. The issue of blind persons and those handicapped and unable to mark a paper ballot with a pen can be addressed by machines tailored to that purpose, which might be designed as a mechanical device with a printer and not a computer, or, if an electronic machine, it could be built to print a paper ballot capable of being counted visually.
