Voting Machines Violate Constitution

I'm sure many of you have read this. I'd only skimmmed it before, and it's excellent. Fits right in with Land Shark's work, and reinforces the arguement that we are barking up the wrong tree if we are trying to pass legislation to make an illegal system secure.

Mods: this is not copyrighted, and it's fairly short, so I posted the entire article.

Voting Machines Violate Constitution - Who Will Launch Legal Challenge?

by Lynn Landes 4-15-03

Wanted - one or more really good constitutional lawyers. Why? Voting machines. We need to challenge their use in our elections.

Voting machines violate the Constitution and threaten what's left of American democracy like no terrorist ever could. Only a handful of private companies sell and service the machines that register and tabulate votes in U.S. elections. And it's all done in complete secrecy. We've lost control of our election process and Congress doesn't seem to notice or care.

If this isn't fascism, I don't know what else to call it.

Over the last several years, particularly in 2002, election results in the U.S. have come under increasing suspicion due to widespread voting machine "glitches" and unexpected election upsets. In an overwhelming number of these questionable elections... Republicans won. That makes sense. Republicans, such as U.S. Senator Chuck Hagel (R-NE), long ago cornered the market in voting machine sales and service.

Some people think that voting machines can be made 'secure' by incorporating technical safeguards and standards, but that misses the point in law. Once the machine is in the polling booth critical parts of the voting process become unobservable and, therefore, violate Articles I & 2 of the Constitution and the Voting Rights Act. But, to my knowledge no individual or organization, such as the NAACP, ACLU or Common Cause, have challenged the constitutionality of voting machines. Although plenty of distraught candidates have gone to court accusing the voting machines of miscounting their votes, but to little avail.

In a November 1996 article for Relevance magazine, Philip O’Halloran wrote, "Many court cases involving allegations of fraud were brought against vendors of electronic systems. There were no convictions. Was there ever any proof of tampering presented? No. Part of the reason for this may be that during the litigation the plaintiffs were never given access to the vote tabulating program, and hence there was no opportunity for anyone to establish evidence to either prove or disprove the allegations. We should point out that even if the court allowed the plaintiff’s experts to inspect the source-code, there would be no proof that the code provided to the court was, in fact, the selfsame code used in the particular election in question."

They're barking up the wrong tree anyway. How can a machine-produced vote ever constitute a legal vote? Isn't it merely circumstantial evidence of a vote produced by a machine that may or may not have been cast by a voter? In Bush v. Gore the Supreme Court said, "A legal vote is one in which there is a 'clear indication of the intent of the voter.'"

Voting machines reflect the action of the machine first and the intent of the voter ...maybe. When machines are in the voting booth three violations of federal law take place:

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inability to observe if voting machines properly register votes
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inability to observe if voting machines properly count votes
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inability to enforce the Voting Rights Act, because of the inability to observe if voting machines are properly registering or counting votes

Enforcement of the Voting Rights requires that Federal Observers observe whether votes are being "properly tabulated." Civil Rights statutes state, "Observers are authorized to watch all polling place activities, including assistance to voters and the counting of ballots." However, voting machines constitute a concealed tabulation of the vote which cannot be observed by Federal Examiners, making the examiner's role in that regard moot and the federal Voting Rights Act unenforceable. Nelldean Monroe, Voting Rights Program Administrator for the U.S. Office of Personnel Management admitted to this reporter in November of 2002 that there is no training and no opportunity for Federal Observers to observe the accuracy of voting machines.

There is significant case law that upholds the constitutional right to have votes cast and counted properly. The Supreme Court held in the following three cases:

Allen v. Board of Elections (1969) - "The Act further provides that the term "voting" "shall include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election."

Reynolds v Sims (1964) - "It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote and to have their votes counted. In Mosley the Court stated that it is "as equally unquestionable that the right to have one's vote counted is as open to protection as the right to put a ballot in a box." The right to vote can neither be denied outright nor destroyed by alteration of ballots nor diluted by ballot-box stuffing. As the Court stated in Classic, "Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted."

Wesberry v. Sanders (1964) - "It is in the light of such history that we must construe Art. I, 2, of the Constitution, which, carrying out the ideas of Madison and those of like views, provides that Representatives shall be chosen "by the People of the several States" and shall be "apportioned among the several States according to their respective Numbers." It is not surprising that our Court has held that this Article gives persons qualified to vote a constitutional right to vote and to have their votes counted."

But that's not happening. Our votes are not being cast or counted openly or properly. As far as we know some madman from Midland is counting them.

http://www.ecotalk.org/VotingMachinesUnconstitutional.htm

violate our rights, and are completely unconstitutional.

DEMAND HAND COUNTED PAPER BALLOTS!

"Fighting for Election Justice and Integrity", in Columbus, Oh.

Sorry for the C.A.S.E. Teach-In promotion, but wouldn't you like to hear Ms Landes speak in person?

Heard Landes speak a couple years ago and thought long and hard about taking the "unconstitutional" argument but then kind of got swept up by the "insecurity of the machines" argument that seemingly had a lot more steam behind it. Was foolishly thinking that the seemingly slumbering populous could get the "hey dudes. . .these machines don't work" angle. But NOOOOOOO.

Having endured in amazement, the blatant systematic manipulation of the last election, followed by the deafening silence of scrutiny by the echo chamber, this constitutional approach may be our last and best resort.

I've never doubted Landes' veracity for a nanosecond, just wondered whether most could grasp the enormity of the argument she was putting forth.

Having had some experience with the law where the medical and legal communities were speaking in entirely different languages and I had to translate, and having witnessed the PHD's in computer science and statistics repeatedly dismissed as mere conspiracy theorists, it's like. . . okay fine.

Put the argument in constitutional legalese. Let 'em put that in their pipes and smoke it.

the average person can understand. He was on Thom Hartman Tuesday and was brilliant, and yet presented the info simply enough that someone without a legal background could easily get what he was saying.

I too think this may be our lst hope, but we'd better do it fast, becasue if they get the rest of the courts...

If someone was willing to take it to court, whether or not they win, it could open up the media coverage - or would it just be a laughing game.

Actually, I am beginning to think that Litigation May Work

(slightly tweaked)

The critical legal point is that there are certain functions that our constitution reserves to the government, functions which can not be taken over by the private sector.

Elections would have to be at the top of that list.

Governments are not supposed to contract the core process of elections to the private sector because of the obvious danger. Small ministerial parts of the process might be legally transferable to the private sector without a constitutional problem. But that is not what has happened; we are now way beyond that. With DRE's and the like, the core process is transferred to the private sector because the public officials are incapable or unable to perform the basic functions for themselves.

I am willing to believe that the law will not allow this, if a legal challenge is brought.

Ironically, the weak link in the chain is the government not the private sector. The private sector will fight like cats and dogs to keep the status quo because of the financial interest. On the other hand, the financial interest to the government is nil. The county attorneys and district attorneys probably will not have much fight in them because they will know it is wrong once the facts are made known to them. They will probably tell their election officials they have done ultra vires acts (meaning acts they did not have the authority to do on behalf of the people) and realize that voting is something that election officials must be able to do by themselves.

Election officials are the ones elected to do the job, appointed to do it, take sworn oaths to do it, have to pass background checks performed on them in order to do it, have to be citizens to do it, may in some instances be deputized or licensed to do it, and a corporation can be or do none of these things.

With a corporation, it is even possible to have agents of foreign governments controlling the process and one would never know. It is also possible to have criminals controlling the process. You have to demonstrate in court that the officers, directors or major shareholders of these corporations may not be citizens, could be agents of a foreign government, or might have criminal backgrounds. Next you demonstrate that the election officials have no clue in how to run the process or by virtue of trade secrets can't run it even if they have the technical capability. Presto! You have now proved that the elections process has been usurped or been given away by the elections officials to parties who are legally prevented from acquiring the rights to the process.

So I am optimistic that litigation can work. Takes money and will take time. But it can be done.

I have not been focusing on litigation because I have been interested in the exit polls. But the privatization of voting is an idea whose time came because we were asleep and should quickly go once we awaken to it's dangers which are so blatantly obvious. It probably would have been gone by now, but nobody seemed to care, so no one challenged it's legitimacy.

davidgmills

I have made some suggestions as to where he might go with discovery.

In his complaint he brought up the idea that no oaths were required. That got me thinking and I have expanded upon it somewhat and am trying to tweak the emphasis to ultra vires acts and the adbidcation of the government's duties to the private sector.

I believe that the notion of abdication of governmental duties is something that judges will not only buy, but will be alarmed about. Look at it this way, do the judges want to be privatized?

And also targeting the government makes sense tactically. Government lawyers are much more inclined to roll over in a suit of this nature than are lawyers representing the private sector. Governemnt lawyers are on salary and are not paid by the hour. They don't like unnecessary work.

We are seeing more and more privatization of our government daily. Some things can be privatized, but some things should not be abdicated.

Another case in point is the privatization of our prisons. Only the government can put you in jail. Yet now we are seeing prisons run by private companies. I think this is going way too far.

Could this be held up in court?

Held up in the sense of being delayed? Yes it will take a while.

Or held up in the sense of prevailing? Hopefully yes in the end.

The Constitution does not mandate a popular election for chosing the president. In other words, electors could be appointed by a state's legislature, or the legislature could empower the governor to choose electors.

I believe that the only public office that requires a public vote is US Senator and that is only due to the 17th Amendment.

I had forgot to mention that the Constitution requires Representatives to be elected by the people as well.

And even though you don't get to directly vote for president, since you do get to vote for Senator and US Representatives directly, I think the same arguments would apply.

Elections, both state and federal, are governmental functions and should not be allowed to be usurped by the private sector.

You could use both state and federal constitiutions for this argument.

NOT just for "president".

If you cannot PROVE that the representatives/senators were ACTUALLY elected by "we the people", then how can they possibly be trusted to decide for you who they should "appoint" for the top offices anyway?

Sounds like a definite route to take!

This constitutional angle has great potential. If a system isn't transparent, it isn't fair. A system that allows voting machine companies to designate the source code of election software as proprietary and use that as a pretext for hiding it from the government and electorate certainly is not transparent. It also is not verifiable. I would contend that this is a violation of the 5th Amendment guarantee that "No person shall...be deprived of life, liberty, or property, without due process of law" and of the 14th Amendment's extension of this safeguard to the states. After all, the right to vote and have our votes properly counted is the most fundamental of all our liberties. It is the one liberty upon which all of our other freedoms depend.

Check out the Administration and Cost of Elections (ACE) Project ACE at <http://www.aceproject.org>. It provides an excellent framework for assessing the fairness of an electoral system. For example, have a look at the following passage on transparency of voting systems, taken from a section on the "Guiding Principles" of vote counting.

"For the counting process to be open and transparent, representatives of political parties and candidates should be allowed to witness and/or participate in the process, and permitted to copy the statement of the results of the counting process. National and international electoral observers should also be allowed to witness the process and permitted to copy the statement of the results of the counting process. In some countries, ordinary citizens are encouraged to watch the counting process.

"Manual counting is by its nature more transparent than computerized counting. If vote counting is computerized, new mechanisms for ensuring transparency, such as external audits, need to be introduced." <http://www.aceproject.org/main/english/vc/vc20.htm>.

You may also want to read the section on "Code Security," which discusses, among other things, the advisability of using external auditors or open source code to assure the integrity of election software. <http://www.aceproject.org/main/english/et/ete01c.htm>.

According to an introductory passage that appears at <http://www.aceproject.org/main/english/pi/pi.htm>:

"The Administration and Cost of Elections (ACE) Electronic Publication represents the first-ever attempt to provide a globally accessible information resource on election administration. It provides user-friendly, operationally oriented information on options, detailed procedures, alternative solutions and the administrative and cost implications associated with organising elections.

"Three leading international organisations (The International Foundation for Election Systems (IFES), the International Institute for Democracy and Electoral Assistance (IDEA) and the United Nations Department of Economic and Social Affairs (UNDESA)) worked together to produce the materials on www.aceproject.org."

There is a wealth of relevant material in this hypertext electronic document. Since it seems that we have lately become a third-world dictatorship, perhaps we need assistance from organizations like these.

My argument of usurpation by the public sector of a government function which is reserved to the government and the people.

http://us.news3.yimg.com/img.news.yahoo.com/util/anysize/345,http%3A%2F%2Fus.news1.yimg.com%2Fus.yimg.com%2Fp%2Frids%2F20050505%2Fi%2Fr3399898074.jpg

Police watch over ballot boxes as they arrive for counting at Newton Aycliffe leisure centre in Tony Blair's constituency Sedgefield May 5, 2005. Britons grudgingly returned Prime Minister Tony Blair to power for a third time on Thursday, according to an exit poll of voters, but with a vastly reduced mandate after a bruising election campaign dominated by Iraq. REUTERS/Jeff J Mitchell