Legal Question: Does the state have to prove that my vote was counted?

[Bill Bored]

Why don't some of us who voted on electronic machines just sue the states to actually prove that their vote counted? Even though we the people have no right to directly elect a president, we damn well have the right to vote and directly elect a number of other officials, including Congress, state and local representatives.

If the there is no confidence in the voting system, this right is called into question. So why not put the onus on the state to prove that the right still exists? That all the votes are in fact counted.

The idea is for the process of discovery to force the innards of these machines to be revealed for expert scrutiny. The companies who make them would have to give up their proprietary "trade secrets" and prove that they work, that they have adequate security, cannot be tampered with, etc. Otherwise, the right cannot be assured.

So can this be done? It may prevent election fraud in the future without all these FOIA requests. It would only take one person to sue in each state, and one for DC, yes?

[Fiona]

1. As far as I know

you have no explicit right to vote, much less have it counted.

[read the law first]

8. You don't have a constitutional right to vote but once that right is....

You don't have a constitutional right to vote for president but once that right is granted by the state it can not be taken away without due process of law.

Kind of like how a 401-k is supposed to work. They don't have to give you one but once they do and you become vested, then there are ramifications if they try and take it away from you.

[GetTheRightVote]

2. I hope this helps you

A vote which was place on that day is scanned and does not have a written name on it, but the absentee and provisional should have attached to them a signature. The polling books which are available to the public to view should match the count the county is putting out as the official count. You as a citizen of Ohio can demand excess to their records for the election, all of them per the Freedom to Vote Act. Citizens who voted per provisional can call and get the information whether their vote counted or not. The mostly likely candidates to get this information in all its forms is the Ohio voter. Call your local Green Party or Democratic party to get details of your county, people involved etc. You will need to fax or call them to set up a time to meet for your personal recount/review. I wish you luck and do this as quickly as you can.

I gained this information by helping with the recount in Ohio this past week.

[Truman01]

3. You have a right to vote granted to you by....

your state statutes that define how the presidential electors are chosen, but you do not have a right to have the state prove that your ballot was counted. In fact you have a right that your ballot be secret which would preclude them from knowing if your ballot was counted.

You can not both cast a secret ballot and then turn around and make them prove that your vote was counted. They aren't allowed to know what your vote in particular was.

TC

[beyurslf]

4. They can't prove your vote was counted unless you voted

a provisional ballot that had to be hand counted. If they could, then how would they also be able to say you voted in secret? The only thing they can do is prove you showed up to vote.

[Name removed]

5. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Bill Bored]

6. I think you're missing the point

I don't mean me personally. I know the ballot is secret. What I am suggesting is that in order to prove MY vote was counted, they will have to prove that EVERY VOTE was counted. This opens up the cans of worms I've alluded to above.

It may be true that the state doesn't have to prove anything, and they may even be innocent until proven guilty, but I'm not a lawyer so I'm just askin'!

There has to be a way to get this stuff sorted out once and for all.

[read the law first]

7. You mean, was my vote counted as I cast it.

It is absolutely totally provable that your vote was counted. There's usually some sort of certificate of voter, there's the number of people in the precinct who voted and the number of votes received (it is immediate grounds for recanvassing usually if these numbers do not coincide).

The issue that you raise is whether your vote was counted as you cast it.

The burden under our system (rightly or wrongly) is on the complainant. You don't meet your burden of proof by just saying that "I have no confidence in the system." You basically have to rebut the retort, "Well, then that's a problem for you." You have to adduce enough evidence to answer back, "No, because of x, y and z, this is a problem for you."

I've done election contests and I've refused election contests where there wasn't any hard proof. The problem that you've always got in an election contest is that you have to show that the problem calls the entire race for the office into question and I've never seen it successfully done by extrapolation. The problem with extrapolation is that it very very very very rarely holds. For example, I made twenty dollars selling cokes in the last five minutes. Therefore, if I extrapolate this out over the number of minutes in the year, I should make millions of dollars. But I'm not going to sell twenty cokes every five minutes and very likely I won't even average twenty cokes every five minutes.

So, as I've said before, if the margin were smaller, we've uncovered enough to set the election aside but with the margin this big, we haven't even come close YET (emphasis on YET).

In order to get to the discovery stage, we have to pass a certain Motion to Dismiss which will say "Even if everything you say is true, you still don't have enough votes to overcome the margin." If we survive that, then we can get into the discovery but that's going to be very, very expensive.

Best chance is to see if we can't whittle away at the margin through recounts and then to keep digging like crazy for actual illegal votes or unlawful ballots.

:toast:

[gulogulo]

9. Let me see if I understand you correctly

If it is proven decisively, with hard evidence, maybe a confession or something, that 1,000 votes in Ohio were actually fraudulent, you're saying that would not be enough to invalidate the election in Ohio, because the margin was 119,000 votes?

[read the law first]

10. You are absolutely correct.

You would have evidence of a problem. You would have evidence perhaps of criminal activity. You could probably send people to jail. But unless you can overcome the margin (and in some states the margin PLUS the undervote), you can not win an election contest.

I've done election contests and I've defended in election contests. The whole fight is whether there are more illegal votes or unlawful ballots than the margin. If you add in suppression, those that you can actually prove, not merely suppose, count too. And you can tack the two together (you can add your illegal votes and unlawful ballots to reach the margin) For example, voters who are kept from the polls because of a nearby bank robbery and shooting do not count. (actual case but it was not appealed so there's no reported decision).

There is one last hope that is on the books in some states but I've only seen it used successfully once (although I've seen it alleged many times). That is if there is such undeniable, certain, direct proof that the election was so unbelievably tainted, you don't have to show particular voters. In other words, you don't have to bring in 119,000 people to actually testify and you don't have to have the election board demonstrate the people. The example here is if the county misreads the apportionment maps and puts all of the people in District X into District Z, so that you've got thousands of people in the wrong district, you don't have to pull in the number of voters to match the margin.

Make sense? I know we don't like it. But that's the law in most states. That's why the people who keep saying "We're not trying to overturn the election but we're trying to correct the problems" are the most in tune to how this is going to finally turn out unless something comes up that we still don't know about (and it could).

[GetTheRightVote]

11. To high light the provisional, the Director of Elections stated to me

that only the voter whose vote was put on a provisional ballot could call in and verify whether their vote counted, this is part of the HAVA (Help Americans Vote Act) ruling after the problems of Election 2000 in Florida. A lot of the voting public do not know that this can be done. Your calling for yourself keeps it secure and private. The polling books must contain the signatures of all the voters who cast votes at that precinct. They are the most direct way to double check that the votes cast and the amount of signatures match up. If they do not you have a fraud problem. You have the right to demand with records because they are public records, you do not need legal action, you only need to put in a freedom of information act (FOIA):
http://www.usdoj.gov/04foia/, web site to check it out.

[Bill Bored]

12. Yes, to count it, implies counting it correctly.

But I see your point and I'd edit my original post for clarity if it weren't too late to do so now.

What I mean is: does the state have to prove beyond reasonable doubt that my vote (i.e., all votes in the state) WILL BE counted correctly as cast?

I do not refer to Ohio specifically, but to any state with DRE machines without paper trails. This is the crux of the whole bbv (generically speaking) issue and is fueling the conspiracy theories of widespread intentional fraud on a national scale.

What I'm suggesting is that given the "black box" nature of the machines, the fact that we cannot see the source code, the weak certification processes that have been alleged, the possible security holes, etc. inherent in networked machines, whether they are connected via the Internet or the public switched telephone network, can we not sue the states who have selected, purchased and used these machines, for the ability to know beyond reasonable doubt that our votes are in fact being counted as cast? In other words, we allege that they DO NOT KNOW with reasonable certainty that the votes are being counted correctly.

If we accuse the states, or local Boards of Elections that:
Whereas, there is no voter-verifiable paper trail on said machines and the certification process used to purchase and deploy them does not prove that they will perform as the state intends because the computer programs that run the machines are not available for inspection by impartial experts and may also be prone to malicious tampering without the knowledge of the state because of x, y and z security problems, than the state itself does not know if all votes are in fact being counted as cast and is therefore derelict in its duty to protect its citizens' right to vote.

Let's assume that the issue of the expense of discovery can be overcome by donations, public-spirited volunteers, tax dollars, etc. Is this something that could actually be pursued if the evidence warrants it? It seems like a much more efficient and less sporadic way to go about fixing the problem than trying to audit and uncover an actual premeditated, systemic fraud that might not even be detectable after the fact.

Forgive me if I'm being naive here but it seems that there must be a way to put the onus on the states to prove to their citizens that they are doing their jobs of accurately counting the vote. If such proof is lacking, and I think it probably is, then that's a problem for the states, isn't it?

(Edited for spelling)

[Eloriel]

13. You don't even have a right to vote, let alone any right to have the

state prove they took good and proper care of your vote.

Here's a very good read on the subject:

No change in no-account system
November 23, 2004
BY JESSE JACKSON
http://www.suntimes.com/output/jesse/cst-edt-jesse23.html

[Bill Bored]

14. I will read Jackson's piece but

we do in fact have the right to vote for every elected office except president and vp, don't we?

Otherwise, please cite in the Constitution or a state constitution where we do not have the right to vote for other elected officials.

I'm not talking here about the implementation of the law, but the letter of the law.

Thanks.

[bemis12]

15. The Constitution

doesn't tell you what rights you don't have. It does enumerate certain rights that you DO have.

And no, it does not grant you the right to vote.

[The Judged]

17. Perhaps this is the most important issue facing the grass roots movement?

"Wisdom is the principal thing; therefore get wisdom; and with all thy getting get understanding." Proverbs 4 : 7 ?


It would be quite educational for me to see a thread dedicated to enlightenment on this subject.

This revelation goes directly to the abundant claims that Democracy is a myth in the United States, because the people are not guaranteed the right to vote, but they are instead guaranteed that if they are deprived a right to vote that it can not be based on their age, race, or gender.

Without the right to vote, how then do the people have jurisdiction over a government and hence a Democracy?

Can a national, state, or local election take place and provide equal protection under the law to all Americans if the law only guarantees that one's vote is not guaranteed by the United States Constitution, but instead guaranteed not to be denied on the basis of one's race, gender, or age?

I think not.

[Bill Bored]

18. Sorry but in our republic, it does

Section 2 - The House

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

Amendment XVII - Senators elected by popular vote. Ratified 4/8/1913.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years

[bemis12]

22. I was speaking of the Presidential election, you don't have a "right" to v

The Constituition leaves it up to the states entirely to decide how to choose their electors.

They could, if they so chose, always take the one that comes first alphabetically or is the tallest.

[Bill Bored]

23. Hello Bemis

I understand, but I'm not just talking about the office of Pres and VP.

In any case, my concern here is to put the onus on each state, given the unknowable nature of what's inside these machines and what they are doing, to prove that all the votes in that state are being counted as cast. To do this leads to the process of discovery and that leads to either getting acces to the trade secrets of the voting machine vendors, or new laws to prove that the machines are counting the votes correctly not only through the use of paper bakcup ballots/receipts, but also with laws to sample these paper ballots randomly to prove the machines are counting correctly each election.

Maybe I should start a new thread about this to clean up some of the confusion.

[Truman01]

20. See post #3 about the right to vote.

[rigel99]

16. OHmiGawd.. That's exactly what GA Folks are doing Suing State and DIebold

This is EXACTLY how we in GA plan to fight this election fraud stuff.
According to the GA constitution.
CONSTITUTION OF GEORGIA
(as amended through the November 1998 general election)


ARTICLE II.

VOTING AND ELECTIONS

SECTION I.

METHOD OF VOTING; RIGHT TO REGISTER AND VOTE

Paragraph I. Method of voting. Elections by the people shall be by secret ballot and shall be conducted in accordance with procedures provided by law.

** The key is that we will say "I DID NOT RECEIVE A BALLOT AS PER GA CONSTITUTIONAL LAW

Then we'll say, prove to me by producing a copy of my ballot. Then We say we put XXXXXXX as a write in candidate for this position... show me that there is a ballot with this voting write in candidate.. if we get 100's of folks to sign petition then they know something is fishy.... THEN when lawsuit launched, we launch nationwide press to do this:
a. get an actual voting machine
b. and a new Diebold voting machine, and do a test... show that the software in both machines are different producing different results... it's basically a recreation of the fraud...

DOn't share this too far / too wide.. we're just now getting ACLU involved and taking a CLASS ACTION LAWSUIT angle to get lawyers hungry for cash from suing the state to take real action

please email me at [e-mail] if your state has had success doing this.....

[Bill Bored]

19. 1 down, 50 to go!

This sounds similar to what I'm suggesting.
I bet Max Cleland would support it, huh?

What can we do to make it a national movement?

[Truman01]

21. You can't sue the state for cash, they have

sovereign immunity. Plus you are talking about a suit based on a lie? You would sue and say you wrote in XXX when you didn't?? That isn't very good.

TC