6th Circuit opinion (4-21-06) Holds Op-SCan & P-cards Unconstitutional!!!

[Land Shark]

Re: Stewart v Blackwell, a to-be-published 6th Circuit case that came down Friday April 21, 2006; opinion at http://www.ca6.uscourts.gov/opinions.pdf/06a0143p-06.pdf

On Wednesday evening our time (Thursday New Zealand time) as you may know the "Cramdown" essay by DUs Autorank and Land Shark was published on the NZ Scoop site, arguing that DREs are being crammed down the throat of American democracy by the very structure of HAVA as it interacts with voting rights. See http://www.scoop.co.nz/stories/HL0604/S00233.htm

On Friday, the Cramdown just became force feeding with a firehose.

This federal court 6th Circuit published decision held that punch card and central count optical scan systems were, RELATIVE TO TOUCH SCREEN DRE's, unconstitutional under the Equal Protection of the US Constitution as interpreted by Bush v Gore. To the extent voting technologies have differing error rates, it creates a huge force to require statewide DREs (or other technologies). Uniformity avoids such equal protection claims.

However, as pointed out Wednesday in the cramdown piece on Scoop, HAVA heavily favors DREs in its structure and probably in its outright intent (though we need not resolve the question of intent to see and prove the actual impact in favor of DREs from the statutes themselves, among other factors). Certainly elections officials favor DRE touch screens because the secret vote counting gives the illusion of smoothness in elections regardless of any errors in the count, because the vote counting is secret.

Previous History: The United States District Court had previously denied the Pro-Touch Screen plaintiff's equal protection claim, which said that punch card and central count optical scan systems violated the Equal Protection clause of the US Constitution by disproportionately disfranchising minority voters. The District Court also held that it would reach the SAME result under either "rational basis review" or the higher and only meaningful standard of review of "strict scrutiny".

Holding: In reversing the District Court's unpublished decision with a decision to be published, the 6th Circuit followed BUSH V. GORE and held that some counties counting a certain way while other counties counting another way violates equal protection. The 6th circuit held that it was bound by precedent of Bush v Gore.

This means that states must apparently have a uniform system of vote recordation/tabulation or else any significant disparities in error rates for those systems would violate the equal protection. And, unlike the district court which used rational basis, the Sixth Circuit suggested that strict scrutiny should apply. However, the District Court had previously said that the level of scrutiny did not affect it's analysis. So the District court will now have new law to apply, but the clarification that strict scrutiny applies probably won't affect the result, if anything it increases the court's concern or activism level to intervene to insure uniform voting technology throughout the state.

While my analysis is ongoing (and I'm taking a copy of the 47 page opinion to the Y today while the kids swim) there appears to be two major implications with two caveats that are not encouraging:

(1) If states use different technologies including CENTRAL COUNT optical scan and DRE, if they generate different error rates they can violate Equal Protection under Bush v Gore

(2) At least for the 6th Circuit if not the nation, the Holt "audits" that thereafter require the paper to prevail in "at least 2%" of the precincts actually audited is a slam bam thank you ma'am reversal under Bush v Gore because the portion audited is treated unequally relative to the rest of the county and state. One can audit to one's heart's delight, but the notion that one precinct or county gets its votes counted more accurately than another offends Bush v Gore. Bush v Gore ignored the fact that counties or precincts are not "protected classes" like minority voters are, but it is the law of the land so in effect it created a new protected class under Equal Protection jurisprudence.

CAVEATS: The Sixth Circuit case may be headed to the US Supreme Court, in which case all bets are off, but we're not necessarily improving....
Second CAVEAT: UNTIL CHANGED OR MODIFIED OR REJECTED BY OTHER CIRCUITS, THIS OPINION IS A STRONG FORCE FOR CONSISTENT STATEWIDE VOTING TECHNOLOGY, REJECTING COUNTY BY COUNTY DIVERSITY in voting systems, to the extent they have distinguishable error rates.

if anyone wants to be in on a conference call regarding this opinion, please email me at [e-mail], or call my cell at 425-422-1387

I will do the conference at 5 p.m. EST, 2 Pm PST and will send out conference directions later on today to those interested. Much more will be available at that time.
---Paul Lehto

[riderinthestorm]

1. Whoooaaah! K & R

I'll be really interested in a followup from any conferencing by DU lawyers. Thanks for this important post.

[Patsy Stone]

2. I think

Bush v. Gore was unconstitutional. Therefore, every subsequent ruling based on it is also unconstitutional. Thanks, LS! K&R.

[Land Shark]

110. Yeah, but please see post #109 lead attorney in case confirms BushvGore

a major part of the Stewart v blackwell case....

[Patsy Stone]

115. I know, I know

But that doesn't mean I have to like it. :)

[Land Shark]

116. ok, gotcha, that's what i thought too, but just checkin' ! : )

[kaygore]

3. Very interesting...thank you for the post

[Fredda Weinberg]

4. And DRE w/ VVPT? Here we go again

I recognize legal babble when I see it - and here's a pure example.

We're not going to have uniformity across the nation - and I doubt any court will even try to impose it across a particular state. Population density and local affordability are both issues that will dictate what system a particular government will choose.

HAVA, at least the way its being interpreted, is an evolving standard - and to dismiss the 2% audit is sacrificing the good for impossible perfection.

[Patsy Stone]

5. HAVA

is just an excuse to force easily manipulatable DREs to be the standard wherever they can get it in. This time, unfortunately, their plan seemed to work.

[Fredda Weinberg]

12. Then why is the commission favoring VVPT?

Sorry, but I think you're being had. I watched the HAVA hearings - did you?

[Patsy Stone]

14. Had? By whom?

I would hope the commission would recommend VVPB, but as we all saw from the 9/11 commission, Congress doesn't really listen to commissions. As long as they can require/pay for compliance with HAVA with no VVPB, they will continue to do so. Until independent audit methods are a HAVA requirement (and I hope the commission gets what it wants) it's useless and we're still voting into a black hole.

[Fredda Weinberg]

17. What part of the following isn't clear to you?

Title III of HAVA, entitled “Uniform and Nondiscriminatory Election
Technology and Administration Requirements,” imposes certain requirements upon
states and local jurisdictions conducting federal elections. Section 301(a) sets forth the standards that voting systems must meet after January 1, 2006. Those requirements include functions and features that, among other things: (1) allow the voter to review his or her selections privately and independently prior to casting a ballot; (2) allow the voter to change his or her selections privately and independently prior to casting a ballot; (3) notify the voter when he or she has made more selections in a single race than are permitted (overvote); (4) provide for the production of a permanent paper record suitable to be used in a manual recount;

http://www.eac.gov/docs/EAC%20Advisory%2005-004%20(%204%20page%20fit%20).pdf

[Patsy Stone]

18. That is not saying what you think it does

Thus, the need for several states to pass their own requirement of a VVPB. Why would they pass legislation if there is already language written in to the law? They wouldn't. It's not in there. Holt's bill HR 550 is seeking to require additional trails, why? Because that requirement is not in there. The requirements of HAVA are met if the machine prints out a piece of paper at the end of the day that says this many people voted for this candidate. There is no requirement for a paper receipt for you to put into a box so that they can match it to the audit list the machine prints out.

There is no question we need VVPB, none. I'm for them, but this is a badly written law which does not require VVPB.

[Fredda Weinberg]

22. They're voluntary guidelines, not laws

And does this sound like the commission is against VVPT?

No verification of the scanned paper record is performed in the above approach. One may assume that the scanning process is highly accurate and can be trusted to create the electronic record correctly; however it would be preferential for the voter to somehow verify that the record was, in fact, created correctly.

An electronic voting system with VVPAT (Voter Verified Paper Audit Trail) capability is similar to that of the optical scan above but consists typically of a DRE that both creates and records an electronic record, and a printer that creates a paper audit trail of the voter's choices. Like the optical scan system, it creates two distinct representations of the voter’s ballot choices: an electronic record and a paper record.

Typically, a voter would use the voting system (called a DRE-VVPAT) as follows:

A voter makes ballot selections and indicates that his or her selections are complete.
The VVPAT-DRE prints a paper record summary of the voter's ballot choices. An alternative approach to VVPAT involves printing the voter’s ballot selections as they are made, e.g., a concurrent or contemporaneous record.
The voter inspects and directly verifies that the paper record matches the displayed electronic record (again, a procedure would need to be included to handle spoiled ballots).
The paper record gets preserved in a ballot box.
Both approaches described here produce paper records that are verified directly by sight. Voters with sight impairments would require an accessible device for verification that can produce an audible representation of the paper record.

http://guidelines.kennesaw.edu/vvsg/vg1/v1ad.htm#v1adt1

[Patsy Stone]

54. Fredda

I never said the commission was against VVPB. I hope the commission gets all of it's wishes, but just because they want it, suggest it, vote on it and bless it, the final amended law still needs to be passed by Congress, no?

I'm not even sure what point we're arguing anyway. Unless you believe that HAVA is just fine the way it is and that no further changes are necessary, I think we're on the same side. :)

[Fredda Weinberg]

60. Perhaps we do agree ...

You wrote, "HAVA is just an excuse to force easily manipulatable DREs to be the standard wherever they can get it in. This time, unfortunately, their plan seemed to work."

My point is simply that the commission that promulgated the standards required by HAVA is at worst neutral on the subject - but they've funded Avi Rubin, so what else could I ask for?

The only proposal I know of before Congress is the Holt proposal - the Election Assistance Commission generated their standards, are funding research and have technical panels looking at specific issues. As far as HAVA itself goes, I'm not aware of any amendments nor can I imagine any required.

I don't argue for the sake of it, so if we agree - excellent!

[Land Shark]

63. Holt is written as an amendment to HAVA

The title to this post is in response to your statement Fredda Weinberg that:

The only proposal I know of before Congress is the Holt proposal - the Election Assistance Commission generated their standards, are funding research and have technical panels looking at specific issues. As far as HAVA itself goes, I'm not aware of any amendments nor can I imagine any required.

Since you clearly know of Holt, you therefore know of an ammendment to HAVA. You can verify this through the bill itself or at Rep. Holt's website.

[Fredda Weinberg]

68. And so it is

A detail not mentioned at VerifiedVoting.com, but sure enough, is in the summary and text of the proposal.

[Land Shark]

71. thanks for acknowledging that Holt is an amendment to HAVA

[Fredda Weinberg]

88. Thank you for pointing it out eom

[Wilms]

19. It seems Fredda Weinberg Is Wrong.

What commission favors VVPAT? The EAC? Where?

The citation you offer refers to an audit trail, but not one that is Voter Verified.

Do you ever get it right?

[Fredda Weinberg]

23. Yeah, it just takes a little more research than you're willing to do

I said the commission favors VVPT and it does - see my reply above. HAVA sets standards - not mandates.

[Wilms]

26. No. It takes a citation within context.

Your second one meets the challenge, the first didn't, as I pointed out.

[BeFree]

33. Fredda, you are right

According to the EAC, lever machines are not allowed because they don't have a "chain of evidence connecting....summary results to original transactions".
http://www.eac.gov/docs/EAC%20Advisory%2005-005.pdf

Well, neither do paperless DREs. DREs only print out the results with no trace of the original transactions. DREs are no better than lever machines.

HAVA has been ignored when it comes to this point. Why hasn't the EAC (maybe they have?) studied that aspect? HAVA calls for an auditable trail, the EAC says the auditable trail must have a "chain of evidence". How in the heck did we miss this crucial piece of information? Paperless DREs do not meet HAVA requirements!

[Fredda Weinberg]

34. HAVA makes recommendations - and requirements for diff systems

But here's the transcript I was looking for - BTW, I took a day off from work to *attend* this hearing, which gives you an idea how closely I've been following it. Now, does this sound like the commission is hostile to VVPT or wants to shove paperless DREs down our collective throats? They're the words of the EAC's Interim Executive Director, Carol Paquette


1 Since some states have required the

2 use of voter verified paper audit trails, the

3 recommended guidelines also include performance

4 specifications for this capability.

5 We would note for the Federal

6 certification purposes of voting systems, these

7 are optional. They have been included for use by

8 those states that have added this as an

9 additional requirement for their voting systems.

10 We would also note that paper audit

11 trails is only one of several technical

12 approaches to providing voters an additional

13 means to verify their ballot in addition to the

14 DRE summary screen. And the Commission plans to

15 work with the TGDC and NIST to address the

16 development of similar specifications for audio,

17 video and cryptographic approaches to voter

18 verification.

http://www.eac.gov/06-30-05_Hearing.htm

[BeFree]

36. Thank you, Fredda

Thanks for going to those meetings. I get the feeling a very close HAVA examination would find paperless DREs don't meet HAVA law Sec. 301, auditable records.
Am I far off base here?

Check out this link to a thread running in ER. I'd sure like to know if you think I'm barking up the wrong tree.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x424627

[Land Shark]

41. hava itself states by statute that DREs satisfy hava's disability reqs

nothing the eac (a voluntary org) does or says can contradict the intent of the statute

[BeFree]

42. What does it do?

It clears up ambiguities of the law, right?

The EAC says levers are no good because there is no auditable trail with a chain of evidence.

Who here can claim paperless DREs have an auditable trail with a chain of evidence?

[Land Shark]

45. as an example of what complies with hava, hava says one DRE per

polling place is ok.

Do you think the government can say something doesn't comply when hava says it DOES? Not very possible. The DRE companies may make allkinds of moves to "comply" with this and that but in the end they'll write that off as "customer service" and cash in their free statutory pass.

it's a double standard, in other words, you can't talk about EAc standards or hava standards with respect to DREs because THEY COMPLY BY STATUTE. regardless of whether they do or not in FACT.

[Fredda Weinberg]

44. Close, but even experts don't agree

that the VVPT is the safest way to go - but right now, it seems to be our best option.

As for the difference between lever machines and DREs, please note that computerized systems can make audit trails that do not include a VVPT - they can take images of the individual ballots that can later be printed and counted manually, if a recount is required. Lever machines have never had an audit trail and as a resident of NYC, I'll be happy to 'em gone.

[BeFree]

48. Not supporting levers

I'm just saying that if levers do not meet HAVA requirements because there is no auditable paper trail, then DREs do not meet that requirement either.

I forgot about the images that CAN be made in DREs. But do those images constitute an auditable, or recountable, trail? On my jurisdictions recent recount, the only trail was a machine spit out of just the results. I know they did not look at any images.

Can you tell us where HAVA stands? I get the feeling HAVA funds are about to dry up and will need another appropriation, soon. Is that your understanding?

[Fredda Weinberg]

56. VV, no ... auditable, yes

Reproducing the ballot images certainly provides an audit trail - they could be compared to the registration book just as the totals produced by the DREs are.

But having an audit trail doesn't mean it'll be used. In Florida, for example, the first recount was simply another run through of the punchard ballots through the accumulators - it took a court hearing to get a manual recount in Palm Beach County, for example, and another to get the aborted state-wide exercise. This was all as set out in the statutes at the time.
Tell me where you live and I'll try to find the applicable rule.

As for your second question, I didn't see any sunset provision in the act that created the Election Assistance Commission, though HAVA funds were limited and there's no reason for further appropriations. My state, NY, for example, never spent the allocated funds and quite frankly, ought to return 'em.

http://www.eac.gov/law_ext.asp

[hunter]

58. What the hell is are "images of the individual ballots?"

Electronic Images??????

Fredda, your faith in electronic images continues to astonish me.

Or am I misinterpreting what you wrote?

[BeFree]

61. Nothing in HAVA about images

HAVA says nothing about images. In fact it does say that a paper record that has the capacity to be used in an audit, or a recount, shall be produced.

Paperless DRE's are not legal. IMO. Here is a copy of part of Section 301



2 Audit capacity.--

A. In general.--The voting system shall produce a record with an audit capacity for such system.
B. Manual audit capacity.--
1. The voting system shall produce a permanent paper record with a manual audit capacity for such system.
2. 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.
3. 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.

[Wilms]

62. Perhaps if you keep posting, someone will tell you what you want to hear.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=203&topic_id=424627&mesg_id=424993

[BeFree]

What I want to hear is...

...that people, especially the 'experts' are pissed about this issue. That no one will rest until the proper thing, as regards a full paper auditing and recounting is established for the damned DREs.

Is that asking too much?

[Wilms]

77. That's not much to ask at all.

And many experts are pissed.

But, unlike you, they don't assume HAVA requires VVPAT. Quite the opposite. And they work toward getting legislation, state or federal, to require it.

[BeFree]

81. Thank you for your lecture, sir.

[Wilms]

83. Lecture?

Feeling bad for you is the reason I replied.

[Fredda Weinberg]

66. Don't shoot the messenger

The "image", if you prefer that I put it in quotes, is a redundant system meant to double check the accumulated totals. Remember, I support a voter verified paper trail, which binary images certainly ain't. But they are a printed audit trail.

[BeFree]

75. Sorry if you thought...

..I was shooting at you.

I just don't see how they are getting away with a sub-standard system with all the money -3.8 billion - spent so far. You would think for that kind of money the damn machines would be unquestionable.

This whole paperless DRE business -- we can, I think, raise holy hell about. I think the 'experts' on HAVA have failed to raise this issue as a point to be attacked. For all the millions of words I've read here and there, never once has this paperless part been defined, or even discussed, that I can recall.

It is a shocking development for me, personally, and in a sense, a failure that most people never even had a clue as to the disagreements on this particular issue among the 'experts'.

[Fredda Weinberg]

90. Effective action is better than "holy hell"

Back when it was launched, I offered my professional services to http://www.verifiedvotingfoundation.org - I haven't been disappointed. Every week, I get an update and see reasonably steady progress against ignorance.

But some of the opposition ain't badly intentioned ... Caltech, for example, has a voting technology group that's looking for something better and I'll continue to watch their developments - but they haven't suggested anything better yet.

As I reported long ago, in an article that was never published by the magazine for which it was commissioned for reasons I'd rather not mention in public, forces started long ago

http://www.wordsunltd.com/voting_machine_fiasco.htm

and we're just catching up. But as my brother noted, "The Internet could be our salvation."

I'd glad you're part of the solution.

[hunter]

85. If you use that language you lose.

Putting "image" in quotes isn't enough, and it's not a "redundant system" to simply take a single electronic input stream and produce two output streams that can later be compared.

A real example of a redundant system would be hand marked optical ballots counted by hand and machine at each polling place and again by machine in some central location.

I personally think it's essential that the machines doing this counting be "dumb" employing no more electronics than is actually required to count marks on paper. Excess data processing power within any voting machine is an invitation to fraud.

[Fredda Weinberg]

92. We agree on the solution, but not the problem

As far the EAC goes, the digital images doesn't satisfy the volutary guideline for verification

http://guidelines.kennesaw.edu/vvsg/vg1/v1ad.htm

but does for the DRE system requirement

As an additional means of ensuring accuracy in DRE systems, voting devices shall record and retain redundant copies of the original ballot image. A ballot image is an electronic record of all votes cast by the voter, including undervotes.

http://guidelines.kennesaw.edu/vvsg/vg1/v1s2.htm#v1s2at10

[JunkYardDogg]

50. EAC sets the Standards

It is 300 tedious pages
"Voting Systems Performance and Test Standards"

http://www.eac.gov/election_resources/vss.html

[Land Shark]

106. more or less, yes, except where HAVA gives a free pass...

[Land Shark]

29. No one here is "sacrificing" the 2+% audit, Bush v. Gore is doing that

in the event that the audited precincts get "corrected", they get a substantially higher accuracy in their counts, which then violates the Equal Protection Clause, as interpreted erroneously by Bush v. Gore but no one can overturn Bush v. Gore's constitutional interpretation except the S.Ct. Itself.

The point here is that if holt works perfectly and is passed, the audits are highly likely to fall under Bush V. Gore and Stewart v. Blackwell.

"sacrificing the good in the name of the perfect" is an old talking point that doesn't really apply here.

[Amaryllis]

40. Using this logic, wouldnt ANY audit be problematic? Wouldnt anything

short of a 100% handcount be unequal?

[Fredda Weinberg]

59. Thank you ... that's my point

The Holt proposal ain't perfect, but it's a mandate that would improve our current situation. Let's support it and continue to seek progress.

[Land Shark]

67. To Amaryllis and Fredda

The law does not need to be fair, nor does the law need to be just, it only needs to be constitutional.

Amaryllis you are right on the holding of Bush v. Gore, partial recounts are not allowable it MUST be a statewide recount. Does that mean 100%? Yes it does.

Now what's the difference between a 2 or 3% audit and a 2 or 3% recount? The Holt species of audit would require paper to prevail, so in that respect is exactly like the recount's function to change results. But the audit counts something different that's never been counted before. Is that a difference that really makes a difference?

To decide that, a court would look to the purpose of the Equal Protection holding in Bush v. Gore. The purpose is to prevent some voters from being differently treated than others (one county vs. another). With a Holt audit, there are two possibilities (1) it doesn't show anything, in which case it's a non-factor, regardless of whether the machine is in fact working properly or if the audit just failed to catch it (2) it works as advertised, in which case it changes that precinct's totals, operates like a recount and allows some voters to have more accurate Holt-enhanced totals, while others do not. That seems to be a violation of Equal Protection under Bush v. Gore.

Amaryllis they says "doesn't that mean" that an audit would have to be 100%? Answer: YES!!!! That's the exact holding of Bush v. Gore, you can not do a partial recount!!!! The only argument available is that the partial audit that functions like a recount or partial recount is a different animal.... But even if it's a different animal, it still treats voters to differing accuracy, which is precisely the concern in Bush v. Gore. Therefore, partial audits are gone. Kaput. Unless you take away their ability to impact a particular race, i.e. take away the "paper prevails over electronic" language.

You possibly can have an audit that seeks to just go in and get "information", but it doesn't seem that it can do so with the power to change results.

ALl of this is built on top of something virtually all legal scholars agree is a joke: B ush v. gore, even those scholars who would have reached the same result would have used a different analysis. But the thing about the Supreme Court, and this is illustrated by Stewart v Blackwell, is that they are a joke THAT GET'S FOLLOWED.

The Congress can reverse a Sup. Ct. holding that interprets a statute -- by changing the statute.
The Congress can not reverse a Sup. Ct holding that interprets the Constitution. The SCOTUS (Supreme Court of the United States) is the final word on that, they act essentially with dictatorial power.

I'll close as I began, because it's very easy to forget the following point as we attempt to make sense of statutes:

The law does not need to be fair, nor does the law need to be just, it only needs to be "Constitutional".

[Fredda Weinberg]

69. According to USSC, Bush v Gore is not a precedent

Yeah, it's silly, but so is arguing that we should defeat the Holt proposal because it doesn't go far enough.

[Land Shark]

70. Please read the thread Fredda, there's a link for you

Please don't imagine that the 6th Circuit that JUST FOLLOWED BUSH V GORE in Stewart v Blackwell didn't read and understand Bush v Gore very very very well.

very well indeed.

It simply doesn't work to suggest that language in Bush v Gore as a reason we can "all go back to sleep" or something. The 6th Circuit held that it is precedent even if the supreme court doesn't call it that. and there's a link in this thread for detailed info on that for you.

[Fredda Weinberg]

93. Could you please reproduce the link in question?

I've got an early day Monday and really should be thinking of turning in ... it's a stressful place but for me, a privilege to serve the public. If I have time during the day I'll reply, else I'll have to wait 'till Tuesday.

Nighty night.

[Land Shark]

95. at the moment it's three posts down from yours, at #64

perhaps this post will make it 4 down, but there it is, and here it is again, showing that the justices in Stewart v. Blackwell did not miss or misapprehend your observation about Bush v. Gore:

from a guy who wrote a law review quoted by BOTH sides in Stewart v Blackwell. http://electionlawblog.org/archives/005460.html

[Land Shark]

111. and Fredda, here's the case's lead attorney emphasizing Bush v Gore

is definitely a big part of the analysis.

I'm admittedly a bit perplexed as to how you feel you can come here and post what you do regarding Bush v. Gore not 'being precedent' without having read Stewart v Blackwell, and attempt to contradict an attorney such as myself ON AN EASILY DISPROVABLE POINT. (contradicting on a disputable point is different of course)

see post #109 for link to lead lawyer's blog in stewart v. Blackwell, where he states this....

[Fredda Weinberg]

119. 'cause my brother's a judge

And we've argued this point. He predicted we'd see Bush v Gore used as precedent despite the majority opinion - and that any case that tried it would come to nought.

I read the Stewart v Blackwell opinion and as I remarked earlier, your commentary was legal babble. We're not talking the voting rights act, though it would have been nice had the law prohitibed using inferior equipment to affect results. I may have missed it, but I don't remember seeing anything that concluded that race was a deliberate factor in the selection, though the majority opinion dismissed the defense argument that cost was a consideration. I wish I could predict that it would stand.

It sounds like you're just not accustomed to contradiction, which may be a problem for you but I'm used to civil discourse on controversial issues. If you have an argument, sir, make it - but I caution you that I've explored these issues with someone whose intellect probably outshines yours.

[Fredda Weinberg]

120. Yes, I'd read that article before

That's where I found the link to Sixth Circuit opinion. But it adds nothing to the real question: does the selective use of inferior election systems violate constitutional rights? I'm glad this decision holds that it does, but the Supremes made it painfully clear that they won't allow their ruling in Bush v Gore to be used as precedent. That's why I cautioned against celebrating this development - it will fall despite its merits.

[Land Shark]

112. any audit that tries to CHANGE RESULTS is reversible, yeah

that's not my logic it is Supreme Court logic. Such an audit is too much a recount. (partial recount)

[Land Shark]

72. Yes, logic requres 100%, it ain't MY LOGIC it's the SUPREME CT Logic!!!!

[Fredda Weinberg]

57. You're forgetting the most bizarre part of Bush v Gore

In the decision itself it was ordered not be used as precedent. So forget the crap about the different voting systems making the Florida system unconstitutional ... that was a legal fig leaf.

[Land Shark]

64. Fredda, that "most bizarre part" is precisely what the 6th Circuit

struggled with, and found that Bush v. Gore had to be followed regardless of whether the court said in one of the numerous fractured opinions that it was precedent, or not....

more information here on the 6th Circuit following Bush v Gore, from a guy who wrote a law review quoted by BOTH sides in Stewart v Blackwell. http://electionlawblog.org/archives/005460.html

It most certainly IS precedent. Unfortunately no, you may not use your recollection of that passage from Bush v. Gore to ignore Stewart v Blackwell

[Fredda Weinberg]

87. Yeah, I read the decision and it doesn't depend on BvG

But the majority opinion sure takes some good swipes at it.

http://www.ca6.uscourts.gov/opinions.pdf/06a0143p-06.pdf

It reminded me of the night my brother (the judge) "explained" Bush v Gore to me the night it came down - "bizarre" was his word to describe it. But we've debated American jurisprudence in the past ... how the USSC isn't bound by precedent as lower courts are and that judges, especially appellate level ones, resent it. This decision was dripping with sarcasm and I certainly appreciated it.

The Supremes are a different breed - a political body, not subservient to Congress or even the president. That awful night, my brother ventured, they exercised their perogative.

I don't have to ignore Stewart v Blackwell - it makes perfectly valid points and I wish the plaintiffs well. Of course, you see the irony ... the opinion cites the Caltech study, which seriously questions the value of VVPT

http://vote.caltech.edu/media/documents/wps/vtp_wp31.pdf

My point remains that the original post of this thread is legal babble ... whether you apply strict, middle-tier or rational basis scrutiny, this decision will not result in the imposition of a single voting system across the state of Ohio, much less the country.

[Land Shark]

102. Your key word, if you're to be correct at all, is "imposition"

You state "will not result in the imposition of a single voting system across the state of Ohio, much less the country."

It may in fact do that in Ohio, but it doesn't have to "impose" anything to have a major influence in the "free" choices of counties in terms of what system they buy, where they are influenced by the prospects of future litigation regarding the same.

I've regularly been posting the counties are motivated by their risk analysis (liability is forced upon them) and so if they are faced with Equal protection exposure going one way, they will likely go the other way. The point i've repeatedly been making is that lawyers will regularly advise their county clients that DREs are the safest way to go. This is true both under HAVA as well as Bush V Gore, which are separate analyses. That will maximize the DREs the DREs.

Correct, this DECISION will not by itself IMPOSE a voting system. It will be a heavy thumb on the scales of justice, and also at the state level the terms of debate will be the benefits of a uniform statewide voting system to avoid the problems of bush v gore.

A future case will challenge an entire state and say that the state must be uniform to comply. It's not even a logical leap from the current holding, because "differences" in counts or recounts violate the EP clause. Therefore, uniformity does not.

[Fredda Weinberg]

122. I choose my words carefully

You're arguing now that the struggle for civil rights is beneficial even if it suffers defeats - we can agree on that. But this thread started with an enthusiasm this verdict doesn't warrant.

What's even more ironic is the position it takes on DREs - technology I don't want to see applied to voting systems. Had the Supremes not halted the manual recount, the punch cards in Florida could have yielded the true intent of the voters. In Wellington, Florida, the contended mayoral race will never be resolved, because the voters who allegedly showed up to cast no selection in a single race election had no record.

Until we have a reliable voting system, VVPT or something equivalent, I see no virtue in uniformity. Let some districts choose precinct based optical scanners and others DREs capable of printing voter verified, legally binding ballots. Either will reduce the voters' proprensity to err and leave an audit trail we can believe in.

So perhaps we can agree on the larger issue and simply agree to disagree agreeably on whether this development will make a significant difference in the long run.

[FogerRox]

94. Fredda read LS post #70,

[Fredda Weinberg]

121. Yup, I'd read it before

and it contributes nothing to the central issue - it was useful because it led me to the published opinions in the 6th Circuit case.

We could argue about the number of angels who fit on the head of a pin - it would be more worthwhile than to debate whether Bush v Gore is applicable precedent. The Supremes per curiam opinion said that it wouldn't be and no inferior ruling will make it otherwise.

[robinlynne]

6. Go Land Shark!

Thank-you.

[Warpy]

7. NM got around that one

We now have optical scan ballots mandated statewide.

However, let me guess, the error rate of those video machines, which is programmed into them and favors one side over the other, is preferable to the error rate of punch cards or optical scans, something that can be compensated for by recounts?

Ye gawds.

[AndyTiedye]

8. "Uniformity" In This Case Means They Get To Steal ALL the Votes

Like they do in Ohio.


If that line of argument prevails in court we are utterly, totally, and permanently screwed.

[EFerrari]

15. F#ck! That's how I read this. We will be uniformly screwed.

:shrug:

[liam_laddie]

9. K & R plus!

HAVA has been credited to efforts by Tom DeLay and soon-to-be-accused
Bob Ney (R-OH), an election-corruption team if ever there was one...

The Sixth Circuit is HQ'd here in Cincinnati; I have friends there...perhaps
can get some inside dope. May end up in Supreme Court...

Be sure to watch PBS' "NOW" this coming Friday night; it's about OH politics
and Kenny Boy Blackball's ties to the maniac-reich religious groups.

The local BoE had no big issues with punch-cards, other than overvotes,
which IIRC affected only the race or issue in which the overvote occurred.
Guess programming at central tabs could be changed to throw out the
entire card; I'll have to check that out to verify. The cost of elections will increase
dramatically; punch cards are about 1/10 the cost of an opscan card. To say
nothing about maintenance contracts and software "upgrades" every year.

[autorank]

20. Keep up the great work in SW Ohio. How about Hackett for Federal Judge

At least there would be no need to recount that one, just one ballot - you're appointed...oh, Congress (forgot them as they did themseves).

Please share any info on motivations etc.

[DemReadingDU]

10. K&R, and Thank you for your dedication!

[yowzayowzayowza]

11. Wuznt BvG a "one time" decision and therefore...

could not be utilized as precident?

K&R.

[liam_laddie]

13. IIRC...

The written decision did say something to the effect that this 5-4 ruling
shouldn't, not couldn't, be used as a precedent. I could be wrong, as always.
Anyone have a link to the decision's wording?

[Jane Austin]

16. That's what I recall, too.

In this instance, I'm glad, but boy, what a nice, special law just for Prince George.

[Land Shark]

31. There is language suggesting a lack of precedential effect

but it is 100% clear that the 6th Circuit and the dissent from this recent case is 100% aware of that language.

Problem is, there's no precedent for cases not having precedential value. Bottom line: Look what the 6th Circuit did, they followed Bush v. Gore!!

[Peace Patriot]

21. The only solution then--if this ruling prevails--is to chuck the machines

out, eat the cost ($billions already paid to Bushite corps), and return to paper ballots hand-counted at the precinct level. Canada does it very successfully in a day. Speed should not even be a consideration. Only verifiability, transparency and correct election results should be considered.

We're going to be stuck with bad courts for a long, long time. We need to devise FDR-like strategies to get around them. While FDR's effort to expand the number of Supreme Court justices (called "packing the court" by the Rovians of that era) failed, the pressure DID change the tenor of the court on New Deal programs--which saved Social Security, among other things. I see a similar fight brewing in the future, if we ever get a president with any balls again. And I think the answer will have to be to get rougher--to go ahead and "pack" the Supreme Court if they continue with Corporate Rule (a legal possibility, since the Constitution does not specify the number of justices), to term limit them, or make them subject to elections (both requiring a Constitutional amendment), and/or initiate a permanent Special Prosecutor just for the courts, and give him/her a real fat budget, to investigate every quail shoot they go on, and find out who they're getting blowjobs from in the hallways. Similarly, the rules for other federal judges need to be re-written to put term limits on them and other tight reigns, and to also watch them like hawks and impeach them with corruption charges whenever possible. (This is sounding like a great job for Patrick Fitzgerald!--investigating the Supreme and other fed courts!). Finally, if we can get a Congress with any balls, there is what I shall call "nuclear option 2": declaring the 2004 election invalid and rescinding all Bush junta judicial appointments.

Then we can start de-corporatizing America and overthrowing our Corporate Rulers--by pulling the corporate charters of all global corporate predators and war profiteers, dismantling them, and seizing their assets for the public good. All perfectly legal, given the "sovereignty of the people" in this very revolutionary land of ours.

:patriot: :bounce: :patriot:

[Peace Patriot]

25. Note: The "Hack America's Vote Act" does NOT require electronic voting.

It's a myth that it does. See MythBreakers - an easy primer on electronic voting--one of the myths is that HAVA requires electronic voting; it does not.
www.votersunite.org

Paper ballots hand-counted at the precinct level remains a legal option--and the best one available. How HAVA worked was by BRIBERY and LAVISH LOBBYING, and enticements of power, and "revolving door" employment. Sound familiar?

[autorank]

24. Shark, thanks for the note. Go down their and grill them, you know,

with the bare light bulb in a stark room.

This discussion is obviously preliminary but we need to be ahead of the game on this.

The courts can be our salvation, as they were in NM where they forced examination of machines
and they can be our demise.

I'm disturbed that Gore versus Bush is even a factor in this, even if it's underlying. Wasn't
that to be a one time only decision without precedent and enduring power. Oh, right, maybe the
court was ;) and nodding, saying "We know you'll use it but by the time * gets through screwing
up the judiciary with Federalist Society appointments, we won't have to worry about anything."

A special shout out to former Justice Sandra Day O'Connor for sElecting *. She just had to
have that now she's implying he's a tyrant. Go figure.

The Gore versus Bush decision was reaching in by SCOTUS.

Why didn't they reach in and say disenfranchised minority voters were screwed by "spoilage" or

Why didn't they say that the CHOICEPOINT centralized voter registration database was a crime because
thousands of minority voters didn't get to vote that day because CHOICEPOINT and Ms. Harris' shop
decided they were felons.

Gore won the popular vote but had the election stolen by the Supreme Court.

SERIOUSLY, HOW CAN WE TRUST OUR JUDICIAL SYSTEM FOR EVEN ONE MINUTE AFTER THE GORE DECISION/

[autorank]

27. HAVA nice day;)

The "cramdown" of DREs and the "stripdown" of rights is now entering the lockdown phase.
The courts are the main show here. This is the same court system that stood silently by as Scalia,
Kennedy, O'Connor, Thomas, and Rhenquist stole a popular vote victory from Gore and gave him an electoral college victory by "fixing" the popular results in Florida. It's an elegant and efficient
system.

From: "Scoop Independent Media
SIMPLE QUESTIONS -- TROUBLING ANSWERS
Q&A Session with a Commissioner of the Elections Assistance Commission Reveals Massive Violations of Citizen Rights
http://www.scoop.co.nz/stories/HL0604/S00233.htm

The Help America Vote Act of 2002 (HAVA) was passed on the heels of the Florida 2000 presidential election and its “hanging chad” problem. These ambiguous ballot chads riveted and frustrated the nation for a couple of months in late 2000. However, few thought the solution to the ambiguity of hanging chad evidence of a voter’s intent would be to completely eliminate that evidence.

With the help of nearly $4 billion in federal grants, HAVA eliminates the evidence of voter intent by eliminating the paper. Instead of paper ballots we have votes registered and counted on "touch screens" - computer based direct recording electronic (DRE) voting machines. Invisible electronic ballots are the result of these DRE touch screens. Electronic vote counting software does the vital vote tabulation in secret. For citizens and public officials, the vote counting processes are strictly off limits. There is literally nothing to see. As a result, the public records of vote counting are gone. To preserve this secrecy, DRE purchase contracts often pledge the government to cooperate with the vendors to fight the very citizens the government is pledged to serve.

<snip>

MR. MARTINEZ (EAC Commissioner): HAVA does require changes in voting technology upgrades for a lot of different and I think very compelling reasons, but it’s not my intent to try to, in any way, interfere with your right to get to see as much transparency as you should rightfully see.

[Time for change]

28. I don't get this?

1) The slime buckets who produced the Bush v. Gore ruling said themselves that it should not set a precedent. So why is it all of a sudden setting a precedent?

2) If the bottom line is that error rates have to be equal, why does that mean that DREs need to be used? Aren't error rates higher with DREs than with op scans? Why wouldn't * v. Gore be read just as well to require op scan voting?

3) Shouldn't Bush v. Gore be read to apply nationwide, rather than on a state by state basis?

[Land Shark]

35. Good questions TFC, here are some answers

1) Yes, Bush v Gore has 'no precedent here' language. The 6th Circuit is 100% aware of that, having parsed the opinion in enormous detail with abundant briefing. Problem is, there's no precedent for an opinion of the Supreme Court NOT to be precedent, and the 6th Circuit felt compelled to follow it regardless of that language. so, the "no precedent here" clause didn't work in the sixth circuit. Now, it's fairly likely that the Supreme Court will get a shot at giving the final say. Connecting the dots: in a way this strange Bush v Gore language has the effect of giving the Supreme court final word on election issues since nothing is so "settled" that the US Supreme Court can't take it on review as an issue worthy of attention

2) DREs are favored by the HOLDING of this case, which plaintiffs brought as a pro-DRE case. HOwever, it's true that the RULE of the case is not necessarily pro-DRE. However, an understanding of how terribly pro_DRE HAVA is (see the links to Scoop piece above) puts on a lot of pressure for DREs. In addition, although have requires ONE DRE PER POLLING PLACE as an express statutory example of something that complies with HAVA, other technologies don't comply. HAVA is in effect the TOUCH SCREENS FOR ALL BILL because when you combine it with Bush v. Gore, the single touch screen that is in each polling place just creates an Equal protection argument!!!!!!!!!!! So, you need uniformity within that polling place right? Well,,,, what do YOU think will be chosen, the more "accurate" DREs with the statutory safe harbor under HAVA, or the less accurate other technologies that there are conflicting views on whether they comply with hava????

BTW there are non-DRE technologies that appear hava-compliant but you'd be surprised how many roadblocks are put in their way to even get in the ballgame via certification. Or, maybe you wouldn't be surprised. ; )

3. The unit is the state for electoral college purposes and under federalism, so the state level is the one that will prevail. We could have consistency within states and diversity nationwide, but the playing field is tilted heavily toward DREs.

[Steve A Play]

37. Paul, one quick question

Couldn't one just enter into evidence all of the known failures of any form of electronic voting as proof that they have less accuracy than hand counted paper ballots since things like ballot box stuffing and ballots going missing are not failures of the "technology", but rather, failures of the oversight mechanisms that protect elections?

It's a subtle distinction of the argument but none the less it exists. :)

[Land Shark]

39. a good question but so far the analysis is focussing largely on

undervotes and overvotes, the twin "problems" that DREs are (if they work properly) set up to attempt to remedy. But that's only a slice of overall error, but it is the lion's share of the errors that are detectable because they arise out of the reported results themselves. On the other hand, there is the huge undisclosed area of secret vote counting where we either don't know of the error at all, or alternatively we have "no evidence" affirmative in nature that it "affected the results"

[Steve A Play]

49. Comments on your answer

so far the analysis is focusing largely on ... undervotes and overvotes, the twin "problems" that DREs are (if they work properly) set up to attempt to remedy.

In that case, I would argue that there is nothing to "remedy" in the case of "undervotes" as there is no legal requirement that all races be voted on. One could also argue that simply adding a choice for "None of the above" would act as a "remedy" for situations where the voter chooses to "under vote" in a race.

There is also nothing in the law that I'm aware of that makes it illegal for a voter to "over vote" in a specific race and the "remedy" for a voter who chooses to ignore the ballot instructions and vote for more than one candidate in a race is that their vote will be nullified.

The key part of your statement in my mind is, "if they work properly". The simple fact is that they provably don't "work properly" all of the time. There is a tremendous body of evidence that these machines fail at an alarming rate. One cannot separate one or two functions of the machines from their overall failure rate to record votes properly. The real argument here is whether or not they are more accurate overall than the technology they seek to replace as a "remedy".

But that's only a slice of overall error, but it is the lion's share of the errors that are detectable because they arise out of the reported results themselves.

I don't have enough data to make a definitive declaration that 'over' and 'under' votes make up the, "lion's share of the errors that are detectable". I'll need to do some work to get those numbers and compare them to other known failure rates for various machines due to other causes.

On the other hand, there is the huge undisclosed area of secret vote counting where we either don't know of the error at all, or alternatively we have "no evidence" affirmative in nature that it "affected the results"

Whether the failure rate "affected the results" or not seems, to me, to be a 'moot point' when the base argument is whether the technology sought in "remedy" of a situation is demonstrably less accurate that the technology it seeks to replace.

The eventual outcome of this is worrisome on so many levels. :(

Thanks Paul!

[IndyOp]

30. Question - Will Dems Get Burned in the 2006 Elections?

Answer: HAVA match?

This joke made me laugh out loud the first time I heard it -> :rofl: :rofl: :rofl:

Landshark, as always... :applause: :applause: :applause:

[hedda_foil]

32. Paul, before you make everyone hysterical with your preliminary reading.

As you know, there are several other excellent attorneys working in this field, and you are able to get in touch with any of them quite easily. Have you discussed this analysis with them? Do you have any idea if they agree with your initial read? If not, how can you justify a conference call with non-lawyers to further your opinion at this point? Wouldn't it be a far more effective tactic to do a conference call with the attorneys who are currently litigating in other states?

I would be very interested in a discussion among informed attorneys that could go somewhere productive rather than just freaking out the folks on DU again.

on edit:
Would everyone please note that the decision has nothing to do with DRE's vs PRECINCT COUNT op scans or with the type of audit that is proposed in HR 550 (and is in force in several states) which does not affect way in which the vote is counted. This equal protection argument, as it applies to central count DREs and punch card machines, was a no brainer because HAVA requires the voter to have the opportunity to be notified of overvotes. Precinct count opscans fully comply with this rule. Central count scanners for op scans and punch cards to not.

Despite Paul's desire to extend his cramdown argument as far as possible, this has nothing to do with promoting DREs over precinct count opscans. HAVA makes it quite clear that central count op scans (and punch card readers) aren't going to make it through unless there's a ton of voter education to warn voters about over-voting.

[Land Shark]

38. don't know why you are saying this hedda-foil

"freaking out the folks on DU *again*"? Huh? What was the first time? And who says no other lawyers will be on the call? Please invite any that you have contact information for, as I have and will continue to do.

My original post clearly states the applicability to central count opscan systems:

This federal court 6th Circuit published decision held that punch card and central count optical scan systems were, RELATIVE TO TOUCH SCREEN DRE's, unconstitutional under the Equal Protection of the US Constitution as interpreted by Bush v Gore.

One possible strategy includes precinct count optical scan systems. But the merits of such a strategy haven't been worked out.

Heddafoil also states:

HAVA makes it quite clear that central count op scans (and punch card readers) aren't going to make it through unless there's a ton of voter education to warn voters about over-voting.

And that "voter education" class is also the class paper ballots are in. So if you're saying Hedda-foil that this class is on its way out then you are also throwing out paper ballots with it. In the end, a HAVA 'saving' statute that excepts a technology based on "education" of voters does not trump the Equal protection clause of the US Constitution, and if something has an equal protection impact, it is NOT going to matter that hava allows voter education as a remedial or alternative device if in fact the impact is occurring nonetheless.

Hedda-foil what do i have to do to earn the right to express my personal opinion? I don't claim to represent a group of any kind. If I need do nothing further why do you want to undermine what i'm saying by attributing personal motive to it? Of course I want to further my own opinions, just as you do. People who don't wish to do that don't post here or anywhere else.

[hedda_foil]

43. The paper ballot class is unaffected. The problem isn't paper or op scan.

The issue is that central count opscan and punch card machines fail to count a sizeable percentage of the vote. CENTRAL COUNT is the problem, not optical scan machines per se or paper ballots.

Paul, you know perfectly well how to contact Lowell and Matt Z and Anita and Chuck Pascal. Their email addresses are easily available to you if you don't have them. These election law attorneys, all of whom are or have been litigating on electronic voting and HAVA implementation cases, are all on a discussion list that you participate in.

[Land Shark]

46. I can't post to that list right now, but I've contact the list owners

edited to add: and I don't know chuck pascal though would love to be introduced if you can manage to help in that regard

[Wilms]

98. hedda, Is the paper ballot class really (practically) unaffected.

Not that I don't have concerns with central counting, but if the effect of this ruling is to eliminate central count OpScan I'm assuming two possible outcomes.

1. Precinct Count scanners, at additional costs to the taxpayer, or (and much worse)

2. DRE deployment with the elimination of OpScan.

Am I not seeing this correctly?

[Land Shark]

100. stewart v blackwell divides the universe of technologies

into "notice technologies' and "non-notice technologies".

Notice technologies are the ones that warn you that you are about to undervote and/or warn or don't allow you to overvote. This is just the tip of the "accuracy" iceberg but alas it is what the stewart v blackwell case and others largely focus on.... the "residual vote" generally. DREs are the main example of notice technologies.

Non-notice technologies include central count optical scan, punch cards and paper ballots. These non-notice technologies are "rescued" under HAVA if a voter education program is done. however, that's a statutory rescue. Compliance with a statute does not insulate anything from constitutional attack. If something violates "equal protection" is a voter education program going to remedy that violation appropriately if the FLAW IS SAID TO COME FROM THE TECHNOLOGY and not from the voter? Or even if it comes from the voter, why should so many more be impacted with one tech rather than the other???

Precinct count optical scan MIGHT be an option, provided it's the type that kicks the ballot back with overvotes and undervotes, so therefore it is a "notice" technology.

"Notice" something? No "notice" with paper ballots, so you gotta watch out for these arguments.

[Wilms]

103. Thanks.

Funny. I've had an idea for awhile of using scanners at the precinct to check for under/over votes...no tallying. Then, Hand Counts.

If I were a BoE not particularly interested in transparent elections, or ignorant of the potentials for fraud, I might--given this--push for Precinct Based Optical Scan. And if there was a DRE to be used for accessibility, I'd bag the OpScan altogether and force voters onto the DRE, VVPAT or not.

This is a concern. But if there are opinions other than yours, don't hesitate to link us to them. We're DemocracyCats, we can talk.

[Land Shark]

109. Opinions different than mine? Are you serious?

well the lead attorney Tokaji has blogged on this on his site at Moritz Law school re election law.

His Friday April 21 entry is "Sixth Circuit Holds ohio Voting systems unconstitutional"
http://moritzlaw.osu.edu/blogs/tokaji/

But I don't know that his opinion is inconsistent with mine, it is shorter, to be sure. Here's an excerpt:

The Sixth Circuit today ruled on a challenge to the State of Ohio's use of punch-card and central-count optical scan voting systems, holding that the use of both systems violates the Equal Protection Clause of the U.S. Constitution. The decision in Stewart v. Blackwell reverses the district court's contrary holding, which had rejected this claim after a bench trial. The Sixth Circuit also vacated and remanded on plaintiffs' claim that the challenged voting systems disproportionately deny the votes of African Americans, in violation of Section 2 of the Voting Rights Act. The opinion may be found here. (Disclosure: I'm co-counsel on the case with the ACLU and argued it before the Sixth Circuit.)

This is the first decision to hold that the use of punch-card or central-count optical scan voting equipment violates the Constitution. Two prior district court cases (Black v. McGuffage in Illinois and Common Cause v. Jones in California) had allowed lawsuits making similiar claims to proceed, but those cases were subsequently resolved without a final judgment on the merits of the issue. The California recall litigation (Southwest Voter Registration Education Project v. Shelley) also raised like claims. A three-judge panel of the Ninth Circuit originally ordered a preliminary injunction to be issued, but that order was vacated and the en banc court ended up affirming the district court's denial of a preliminary injunction.

The Sixth Circuit's opinion discusses these cases and, as one would expect, devotes considerable attention to the Supreme Court's opinion in Bush v. Gore. There's a lengthy exchange between Judge Boyce Martin's majority opinion and Judge Ronald Gilman's dissent on Bush v. Gore, which includes substantial discussion of Professor Rick Hasen's Florida State U. Law Review article on the subject.
{snip}

Yes, the lead attorney DID SAY contrary to someone in this thread that the case of Stewart v Blackwell DID devote "considerable attention to the Supreme Court's opinion in Bush v. Gore."

[hedda_foil]

117. Yes Wilms, it really is almost completely unaffected.

The decision was something of a no-brainer, actually. A lot of HAVA money has gone to replacing central count op scans with precinct count op scans because HAVA required over-vote notification to give voters a chance to correct their ballots. With paper ballots, this usually occurs because of stray marks on the ballot. Central count op scans are notorious for having a very high discard rate because they incorrectly count those stray marks as overvotes, and record no vote at all as a result. (If you go back and re-read HAVA , you'll find the clause on overvote notification.) A lot of counties have dealt with the problem successfully (and legally) by requiring the workers at the county to hand check ballots to sort out the votes that the machine would be unlikely to count and hand-count them.

Actually, more counties have gone precinct-based opscan than DRE, believe it or not. PBOS is fine. We're fighting like hell against the DREs (with or without toilet paper) with litigation going on all over the place -- excellent suits too. Given the publicity that DRE meltdowns are getting this year, and the fact that county officials are finally catching on to the fact that when we told them they were going to be paying through the nose for DRE maintenance, we're unlikely to lose ground because of this ruling, may well gain ground, and are most likely to come out a wash.

[Wilms]

118. Then this is a potential positive.

Forcing the counting to the precinct level seems the direction preferred.

If this ruling helps that, I agree we're in better shape.

Of course, a single ruling may well affect different jurisdiction differently, but in addition to one's own neck of the woods, the national stage must be viewed.

Thanks

[autorank]

55. "Hysterical" is a pretty big charge; when do we need approval to speak.

"Paul, before you make everyone hysterical"...I have not noticed any hysteria on this thread, not in the least. So we can put that to rest.

As to the statement "several other excellent attorneys working in this field, and you are able to get in touch with any of them quite easily. Have you discussed this analysis with them? Do you have any idea if they agree with your initial read?" What difference does it make. Are we supposed to find consensus by numbers before we speak. The benefit of an open forum is free speech, one of the key values in a democracy. Ideas go out, they get discussed and debated, and then a consensus is formed or it's not.

As for extending "his cramdown argument as far as possible." I don't see it as just the Land Shark cramdown argument. I see that argument as arising from the facts of our situation today. HAVA is an abomination. Set up to solve the "Florida problems," it really creates new "Florida's" all over the country. It is crammed down our throats, IMHO and by my reading of the evidence, legislative and historically. I reviewed the evidence and came to the same conclusion as Land Shark, thus changing an earlier opinion I had ( " SIMPLE QUESTIONS -- TROUBLING ANSWERS" http://www.scoop.co.nz/stories/HL0604/S00233.htm ). I challenge anyone to put lipstick on the pig that is HAVA.

Developing audits and "verifications" of an inherently flawed voting system, DRE's, through unofficial (not the ballot of record) ballots is an approach that misses the point. Canada does national elections on paper and counts the votes in four hours. There are no DRE problems. They're happy with the system and they have empirical evidence of the outcome. That's the solution, paper.

Let me give you an analogy regarding jerry rigging DREs with verification systems:

If you want to eliminate the harm caused by smoking, do you:

(a) quit smoking altogether or
(b) smoke filtered cigarettes?

You quit smoking altogether. You quit using DREs altogether. That's the solution.

No more lipstick.

[Land Shark]

47. if you want to join the conference call here are the access numbers

5 p.m EST, 2 pm PST, would appreciate a heads up via email or telephone at 425-422-1387 if you will attend but not absolutely necessary, still an email will allow me to get any handout or other info to you ahead of time

Dial-in Number: [phone]
Access code: 372008#
5 pm EST, 2 pm PST

please check email before conference in case of hand outs, (if i have your email!)

[tom_paine]

51. K & R

[Land Shark]

52. back from conf call: thanks to all who attended: Key points

1. Only the supreme court interprets Constitutional law, whereas the congress can reverse an SCT interp of a statute. bush v Gore is on constitutional grounds.

2. the stewart v. blackwell equal protection attack will apply mainly within states as a force for consistency. Federal supremacy applies to harmonize states as between each other (hava, e.g.)

3. a technology needs to survive not only Equal Protection attack under Stewart v Blackwell, but also disability attack under hava.

4. Note that many jurisdictions have followed hava to one one DRE per polling location EVEN THOUGH THE DREs don't comply with hava in fact, it doesn't mattter, the HAVA statute says that they do in fact comply or "satisfy" the HAVA 301 requirements. The law does not have to make sense or be just, it just can't be unconstitutional.

How that there's one DRE per polling place, we have stewart v blackwell pushing very hard for uniformity to avoid equal protection attack. Uniformity ITSELF will do the job, statewide. Only DREs comply with HAVA. THErefore Uniform DREs will surive both HAVA attack as well as Stewart v Blackwell attack. The reverse is not true: if the polling location had DREs and opscans, precinct counted, the precinct count opscans might satisfy Stewart v blackwell "notice" requirements but they won't be HAVA-compliant without a whole bunch of addons. But that very need to "add on" a whole bunch creats a different voting system, that sends us right back into a potential equal protection attack. (note hava requires the ability to vote 'privately and independently' in the same manner as other votes... which is readily supportive of the equality arguments) I don't know if this is completely clear or not but it's just a whole lot easier to comply with DREs and difficult to impossible to comply with the TWIN DEVILS of HAVA and Bush v Gore with non-DREs

[BeFree]

65. Paperless DREs do NOT comply

While it is true DREs meet requirements under disability, paperless DREs do not meet requirements for a paper audit or recounts. The law clearly calls for a paper record usable for both audits and recounts. Bolded below in paste from Section 301


2 Audit capacity.--

(Subparagraph)A. In general.--The voting system shall produce a record with an audit capacity for such system.
B. Manual audit capacity.--
1. The voting system shall produce a permanent paper record with a manual audit capacity for such system.
2. 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.
3. 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.

[Land Shark]

73. According to Holt's website, the very reason for his bill is that

this language you cite above has been interpreted to mean that the results printout at the end of the day with totals (only) on it will satisfy the paper audit trail requirement of holt.

Regardless of whether that's legally correct in any kind of "ultimate" sense, that is how it is operative in actual practice. Thus, Holt would amend hava to make the audit requirement more meaningful, which is the subject of the very first Q&A in Holt's Q&A website.

[BeFree]

78. And this is what all the arguments are about?

Why in the hell are we arguing about it? Lets all get it done!

Either get it amended or get rid of it altogether.

What the hell are we waiting on?

As I said above, in reply to Fredda, I am shocked that the 'experts' have not been reaming that dadgummed law, and especially that one part. Why is this the first time I've come across this section? It's my fault, I know, but it seems to be a huge failure of the movement to ask people to do something when you don't even tell them what it is exactly that needs to be done.

[Wilms]

79. A lot of people have done a lot, BF.

That's why there is VVPAT Law in many states, and pending legislation about it.

They haven't been waiting.

[BeFree]

82. Get off my back, wilms. get off.

[Wilms]

89. That monkey ain't me.

[FogerRox]

97. Easy there gentlemen, take a chill pill

[OzarkDem]

86. Exactly

I have a hard time seeing how this is going to help Ohio have free and fair elections in 2006.

[Wilms]

76. Non VVPAT DRE's produce a paper record, BeFree.

It's a lousy paper record, it's not a voter verified paper record, but it's a record produced of paper that is understood to be compliant with law.

Are you saying that the fact that it's not voter verified that it's not auditable?

Are you saying that the fact that more than half the states have passed VVPAT law since HAVA, and that there are a number of bills in Congress that would require it, is a result of everyone (except you) misinterpreting HAVA?

[BeFree]

80. I'm not happy with it

Now that I know what needs to be changed, and why, exactly, all the BS is now washed away. Its all clear to me now. Some people are happy the law is so stupid, so poorly written, and so poorly executed.

And all the BS about getting 550 passed, or not, or whatever, is clearly all just that: BS.

Lets change the damn law, so that everybody is clear that we want a paper trail, reams of paper trails, spilling out of the damn things so that there are no questions.

Is that too much to ask? 'Cause that's what I am after. Are you with me?

[Wilms]

84. As I've said...

There are many states that HAVE changed the law.

Why do you think people are satisfied with the law?

[FogerRox]

96. BeFree-- IIRC the EAC has stated that your cite means

the end of voting tally-- the DRE tape, if you will.

SOme say that the Ensign bill, or similar... was in that exact section of HAVA that you site, and was literally hacked out of HAVA, which is why the wording of that area is very weird.

WE dont have to agree with the EAC memos on HAVA, some of them are duplicitious, but the EAC does seems to be calling the shots. And Bryan Hancock has been real busy for a while, being the front man for the EAC.

Never the less, it is, what it is.

[BeFree]

99. Yeah, Foger

It is what it is. But if we all can agree on the way it should be interpreted then it seems the EAC (everyone else, too) might be moved to agree?

I ponder this: What was the intent of HAVA? Was the intent to make audits and recounts impossible, or was the intent to make sure the voter's intent was correctly recorded and tabulated?

I hold that the real, honest, correct, and responsible intent is the way I interpret it.... that the majority of the members of congress wanted an orderly, efficient, and good government style of counting the votes when they voted for HAVA.

That's how I read the bill, and I am not alone, eh?

But the corruptness has stolen the good government intent of the bill and used it instead to steal votes.

The EAC can be so persuaded, I hope.

Now, having inadvertently hijacked a portion of this thread, I now return to Land Shark's soup d' jour: Those assholes! <grin>

[Land Shark]

101. well legislation is like soup, these some meat, some vegetables,

mix in some billions, i mean bullion, some spit, some other stuff and some people trying to throw some stuff in there that shouldn't be in there such that they call this soup "sausage" and tell folks they don't want to know how it's made.

So expecting an overarching purpose to be a clear and accurate count (without any contradiction or tension) is a bit too idealistic. That is primarily what the public wants, but not what legislation delivers. We've heard about the problems of lobbyist control, pac's and all that, haven't we??

[BeFree]

104. Yeah, idealistic

... guess if I hung out in the justice system all my life I sure as hell wouldn't be so idealistic.

Thanks, Paul, for putting up with what amounts to newbies hanging with yall. Thanks to all of yall. But face it, we need each other... its what's called democracy, eh?

Anyway, the battle field is being drawn, the two sides are gearing up, and the gloaming is near.

On a cynical note: we have met the enemy, and he is us.

[Land Shark]

105. yes, and the dynamics of the battle pit brother against brother

note how the disability community can be peeled away from the progressive community in part (HAVA) how disfranchisement activists can be peeled away in part on tech issues (Stewart v blackwell was backed by ACLU)...

the "wicked" part of it is that people doing their level best to avoid obstacles (like many elections officials) will honestly pick DREs, all because the incentives are set the way they are....

It could be intentional, or it may not be. IT doesn't matter from the perspective that the dynamics are what they are, and they are dictated by statutes and their interpretation. no guns needed. I hope people get that.

[autorank]

107. Prediction, HR550 won't pass. Any takers. "...a sound and fury...

well, you know the rest. How do I "know" it won't pass. I just ask my little friend on important issues.



You ponder: "What was the intent of HAVA?" The stated intent was to solve the "Florida" problems. Well, that would have meant impeaching the five shamed for eternity "Justices" and that's not in HAVA. It could mean an end to discrimination,rampant, against minority and poor voters. HAVA didn't do that. it could mean no more felonious purges of registered voters under the aegis of "felon" purges. HAVA is silent, pathetically so.

HAVA is a rigged game, a pathway to DREs provided by the Republican vendors (with a new twist with Sequoia, but nobody knows where their corporate ownership lies).

It's not a serious bill. It's a 'the first one's free' (DRE's bought for states/counties), flim flam, bull shit of an excuse of legislation. It does exactly the opposite of the public claim, which of course is often the REAL intent of legislative authors.

I'll repeat my analogy:

If you want to solve the problems of smoking, do you:

(a) quit smoking or
(b) smoke filter cigarettes.

You and I would choose "(a)" because that makes perfect sense. I'm sure anyone, given the choice, would choose an entireliy different system of voting. Check out kster's thread on paper.

NO MORE STINKING "FILTERS"!!!!!!!!!!!!!!!!!!

[AngelFactor]

53. Why is it that...

The government wants to keep records of everything except voting records. Hmmm/

B B B

American Justice? Sure, so why is an attorney getting away with tampering with court documents even though he “inadvertently” filed three pages of emails detailing what was done with the court.

See for yourself: http://www.maximumadvocacy.com/Court_records.html , look on pages 25-27 of document 64.

Unbelievable. Priceless. Hilarious, if it wasn’t so sad but true.

How’s your faith in the justice system?

[Land Shark]

74. welcome to DU angelfactor, looks like your first day, and 36 posts!

that's a torrid pace.

[autorank]

108. A Very Welcome to DU!!!...my faith in Justice System, not too good;)

[FogerRox]

91. futher mucker . . . . . .

[Pacifist Patriot]

113. Is anyone else's head spinning?

I admit to not being my sharpest on a Monday morning. I'm having trouble wrapping my brain around implications. I hate this feeling!

[Land Shark]

114. forgot to mention this obvious thing Pacifist Patriot

Kenneth Blackwell LOST this case against the plaintiffs iwth a bit of support from the ACLU but lost it in a fairly favorable way, (don't you think?) bringing Bush v. Gore right back into the center of our elections again.