By Rady Ananda
Today [Sep. 28], the Georgia Supreme Court ruled [PDF] that unauditable voting in the state does not infringe upon the fundamental right to vote and to have that vote counted. In 2002, Georgia was among the first in the nation to implement Diebold touch-screen voting machines across the entire state.
Lead plaintiff, Garland Favorito, was astounded. “This ruling essentially gives the state a license to pretend to conduct elections. Not one of the 100+ million votes that have been cast on the machines since 2002 can be audited for accuracy and correctness of vote recording.
“Georgia law in 2001 and 2002 required that any new machines have an independent audit trail of each vote cast. The state’s own witnesses have acknowledged that the specific type of electronic voting machines we purchased and use do not have such an independent audit trail,” Favorito said. “The machines can only internally recreate selections that may or may not have been shown to the voter. Without an independent audit trail, it is impossible to determine whether the actual ballots cast on Election Day were recorded correctly.”
His group, VoterGA.org, believes that “auditable electronic voting machines” exist. But software is undetectably mutable. It can change without leaving a trace; and it can do so without malice. Humidity or heat can cause an electronic system to fail, or its data to become corrupted.
There has been much research — beginning in 2005 with computer security expert Harri Hursti’s famous hacks in Leon County, Florida – which clearly show, repeatedly, that even optical scan machines can be maliciously programmed to defeat pre-election testing. So-called “Logic and Accuracy Tests” prior to elections can be subverted, without detection.
Once people submit their paper ballots on such systems — and then those ballots are removed off site for counting — the public chain of custody is broken and we therefore cannot rely on the paper count. Ballots should never leave the polling site before being counted. Not in any real democracy, anyway.
In our current world order, U.S. election officials have consistently chosen to ignore the science and rely on an electronic tally, preserving the ballots only for some potential future recount. Government officials offer little choice other than the public simply trust that they have protected those ballots from corruption — the very ballots they use to assert authority.
While all of that is Orwellian enough and anathema to freedom, the Georgia Supreme Court has gone one step further. They ruled for completely secret, and entirely unverifiable vote casting and counting by allowing the worst possible technology: Direct Recording Electronic (DRE, usually touch-screen) voting systems. With those types of machines, in use across the entire Peach State, officials don’t even have to pretend they kept their paper records secured — there aren’t any.
Favorito notes: “In this particular case, the previous boss of former Secretary of State [Cathy] Cox, who signed the purchase agreement, was the lobbyist for Diebold, the voting machine vendor.”
Diebold changed the name of its election division to Premier Election Solutions in 2007, in hopes of shaking off the horrible reputation they’d garnered after their voting systems — both touch-screen and optical-scan paper-based systems — were found to have failed in so many different states and scientific studies.
They’ve recently been acquired by their largest competitor, ES&S, which — if the sale is allowed to go through — would create a single voting machine company whose equipment will be used for more than two-thirds of the votes cast in the nation. Critics, including election integrity experts, Sen. Chuck Schumer (D-NY), and even one of the remaining e-voting competitors still left in the market, are all challenging the sale on anti-trust grounds.
Yes, welcome to the New World Order, where corporations rule without accountability — or auditability — and where it seems things will be getting worse, before getting better.
Crossposted at BradBlog. Last updated Oct. 1.
[Oct 28 update: Air America’s ‘Ring of Fire’ show discussed this article for five minutes. See ‘Ring of Fire’ Can’t Stop Laughing About BRAD BLOG Headline on GA Supreme Court Decision]
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COTO Report 
From Paul Lehto, JD:
I won’t fully explain why (though perhaps everyone can surmise why) but when a state or even a corporation has a given procedure already (such as an audit, or any other action) it is nearly always foolhardy to question IN COURT the reasonableness or wisdom of that procedure, because these kinds of choices are classically the province of legislators to decide. If one does attack the reasonableness or sufficiency of something like audits or recounts, then one has to be super-careful how that attack is focused and framed.
Unless the Georgia court misstates the appellant’s arguments, this care was not taken by the appellants and that contributed greatly, if not caused,
this loss.
(Other arguments better made can still succeed, only those arguments actually raised and rejected are foreclosed, so even a new challenge to DREs using different arguments not considered here is not foreclosed even in Georgia, and nothing is foreclosed by this case outside of Georgia state court).
I’ve summarized the main ruling below (there are some subrulings). But note: What I’ve been saying over and over again is that [we should attack] the FIRST COUNT (forget about audits and recounts, they never work when it REALLY counts like Florida 2000 as against the powers that be, and Minnesota is a Democratic state so don’t talk to me about Franken, who is in any case only the 2d in three decades to reverse on a statewide recount NATIONWIDE, and both were the political establishment of the state electing there own, whether honestly or not I’m not addressing…)
So if you read the rule of decision below and imagine attacking not the recount or audit, but the FIRST count as follows:
(1) It is completely nontransparent SECRET vote counting that is
therefore inescapably 100% NON-ACCOUNTABLE to the sovereign We the
People, and
(2) that there’s NO EVIDENCE in the record nor any evidence at all on
election night that a vote count was EVER PERFORMED (only a rough
total of ballot numbers on the whole, with vote total breakdowns could
all be 100% made up by the computer, and there’s no evidence we can
dispute those totals with because the electronic ballots are invisible
and trade secrets)
HOW can we say that the right to vote is protected (which clearly includes under case the law the right to have that vote COUNTED) if there’s NO EVIDENCE of any count and NO ACCOUNTABILITY?
Courts readily understand, because they think this way every day on evidence issues, that “conclusory” statements are not evidence. Vote totals, or vote “conclusions” are purely conclusory and wouldn’t be admissible even in a routine tally of widgets much less votes unless the opposing counsel was granted the right to inspect the underlying data from which the conclusions were reached.
SImilarly, any expert witness who testifies via opinions (a form of conclusion) must disclose all data and analysis of it prior to trial. That’s not being done in elections at all. There’s no evidence to support the existence of a count.
How can that NOT severely burden the right to vote?? This is the much better argument, in my opinion.
In fact, you can’t really lose if you make this argument well, because if you DO LOSE (there are always anti-democratic, sleepy or corrupt judges) then you expose the system in VERY stark relief and get printed into the case law the factual allegations (above) that on reflection are undeniably true even if the corrupt court tries to wiggle out of it.
This Georgia case is, also, a perfect example of why making the correct arguments IN SERVICE OF even a proper relief requested is so important. But also, in this case the relief requested was improperly crafted, IMHO. It only sought a better AUDIT because of deficient recounts with DREs and additional risks of fraud with DREs.
While these things are true, they don’t compute legally into relief, and the
problems with the electronic voting systems are far greater than the relief sought here (better audits). But because it was second-guessing the TYPE OF AUDIT selected and what can be dismissed as hypothetical fear-mongering about fraud, the plaintiffs lost both in the trial court and on appeal.
The specific legal question (the main one) and the ruling applying the
legal rule of decision follows here:
Case: FAVORITO et al. v. HANDEL et al. (Supreme Court of Georgia)
Vote: All Justices Concurring
Date: September 28, 2009
ISSUE PRESENTED Appellants argue that their fundamental right to vote
is currently being injured because the recording, counting, and
retention of their votes, unlike paper ballots, are not being properly
protected either by an independent audit
trail or by county and state tabulators which can prevent fraudulent
manipulation.
RULE OF LAW APPLIED: Courts apply a “rational basis” test (easy to
pass) for govt action that neither impacts a suspect class nor a
fundamental right, which historically requires strict scrutiny review.
However, the US Supreme Court has loosened up strict scrutiny analysis
a lot under Burdick v. Takushi (below) which was followed in Weber v.
Shelley, a 9th circuit california case where a pro se plaintiff took
on Sequoia in an ill-advised way and lost. The Georgia court uses
long cuts and pastes from Weber v Shelley to make a copycat ruling.
Under Burdick and Weber, the George court found the law to be that
“states are entitled to broad leeway in enacting reasonable,
even-handed legislation to ensure that elections are carried out in a
fair and orderly manner.” [Cits.]” Weber v. Shelley, 347 F3d 1101,
1105 (II) (B) (9th Cir. 2003). Moreover, “when a state election law
provision imposes only “reasonable, nondiscriminatory restrictions”
upon the First and Fourteenth Amendment rights of voters, “the State’s
important regulatory interests are generally sufficient to justify”
the restrictions. [Cits.] Burdick v. Takushi, 504 U. S. 428, 433-434
(II) (112 SC 2059, 119 LE2d 245) (1992).
——
MAIN RULING: Under Burdick [v Takushi], the use of touchscreen voting
systems is not subject to strict scrutiny simply because this
particular balloting system may make the possibility of some kinds of
fraud more difficult to detect. [Cit.] Rather, the question is whether
using a system that brings about numerous positive changes . . . , but
lacks a voter-verified paper ballot, constitutes a “severe”
restriction on the right to vote. We cannot say that use of paperless,
touchscreen voting systems severely restricts the right to vote. No balloting
system is perfect. […] , touchscreen voting systems remedy a number
of these problems, albeit at the
hypothetical price of vulnerability to [certain types of fraud]. The
[DRE Voting] System does not leave [Georgia] voters without any
protection from fraud, or any means of verifying votes, or any way to
audit or recount. The unfortunate reality is that the possibility of
electoral fraud can never be completely eliminated,
PAUL LEHTO’s 2nd COMMENT (which I obviously think is important, so am tossing these ideas up here… 😉
It’s clear in case law at state and federal levels that the right to vote specifically includes the right to have the votes properly counted.
(Numerous cites can be given for this, and in any case it need not be written because if anything is an inalienable right, the right that protects all other rights certainly is, making that right operational without needing in any way to be written down into positive law, much like our adult right to, say, “wear different clothes.”
(It exists, but if we wait around for legislators to load up
statute books with this and other rights we may wait forever, our freedoms are totally slaves to legislators who are now de facto tyrants, and we’ve turned the American Revolution on its head, by making government the grantor of rights, instead of merely the
guarantor of our rights.)
If in fact this recognition of our rights is not happening, then that means that government and/or courts are violating and failing to uphold that counting right as part of the right to vote, even though in the case of counting many a US Supreme Court opinion makes very clear that counting is part of the right to vote, without which, as common sense confirms, the right to vote is rendered “meaningless.”
So if [fascists are] correct in saying (I disagree strongly) that we have no right to a count, then we have no right to vote either. Not a right to
a meaningful one.
The facts are that elections are basically Just a charade, a theatrical display, a game of smoke and mirrors with the underlying reality, if any, completely unknown. But that does not mean that we don’t have THE RIGHT to something much much better. We
do.
This is a critical distinction because if one has a presently existing right that’s being violated or unenforced, one has a powerful legal, ethical and political claim.
On the other hand, if we do NOT have “a right to have our vote counted” based on looking at the reality on the ground around us, we are in a very weak position of needing to advocate for such a right.
Ironically, even if one does not have a presently existing right being recognized, the very first step to getting a “new” right is to claim that the right EXISTS NOW and should be recognized. (for example, gay marriage exists under Equal Protection, so courts should recognize it NOW)
Stating expressly or impliedly that rights “don’t exist” because the government is violating them or not recognizing them is definitely NOT the way to assess the status of ANY of one’s rights — except the least valuable ones that no one cares about and therefore no one will steal or violate because they have no value.
Anything of value can and will be stolen, or is at risk of the same. (but the right still remains with us, and nobody else can really steal it because they can’t legitimately claim it’s truly their property, unlike a stolen car…)
The right to vote over political control of the world’s largest economy and sole military superpower IS something “of value.”
Lawyers can tap dance around this all they want to. Efforts to make vote tampering easier and less detectable continue to proliferate…….this just makes it “legal.”
Rady, is the the same Georgia legal system that sanctioned the racist voter identification laws. Here’s a cite from the opinion:
“Under Burdick, the use of touchscreen voting systems is not subject to strict scrutiny simply because this particular balloting system may make the possibility of some kinds of fraud more difficult to detect.”
I don’t live in the parallel universe of lawyer logic, but I visit there occasionally. Even in that strange world, this statement is a dead giveaway. The court is laying out the rational for election fraud by denying the need to guard against systems that are inherently vulnerable to fraud.
Excellent article, bad outcome for Georgia, but who could expect less on voting rights after the bottom of the barrel has become the standard for legal and political reasoning on the subject.
thanks, Michael and Claudia – and ISN’T THAT OUTRAGEOUS LOGIC?
omfg… there aren’t enough hours in the day to catalog the numerous abuses of government!
It’s not government per se…it’s the LAWYERS in government and the judiciary.
We need to elect truck drivers, teachers, accountants, waitresses, and nurses etc. Then they can hire some lawyers for staff, if needed.
Obscurantism and greed are the hallmarks of the legal profession. We can do without them.
You know, the whole “right to vote” thing is a myth. It’s nowhere in the law, it’s nowhere in the Constitution, it is just a fabrication of those with a social agenda. In fact, the Founding Fathers intended for only landowners to vote – definitely not a universal “right to vote” like you’re imagining.
you’ve obviously never studied case law
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