Why can't Diebold-counted voters slap Diebold with a class action suit?

[Stevepol]

It looks like any citizens of GA say could sue Diebold, claiming that his/her/their vote was not counted properly. They would have immense evidence of wrong-doing on the part of Diebold, everything except direct proof, which is impossible to obtain because the touchscreen votes can't be audited (another piece of evidence that could be used in court it seems to me) and the source code is protected as a "trade secret." Why can't the ACLU or just some group of lawyers take up this cause, maybe even the NAACP, since black voters have suffered more from the frauds beginning approximately 2002?

I asked an ACLU member, an older lawyer about to retire, why he didn't take up this cause, and he didn't really have a good answer. I think he'd like to but doesn't know how to frame it maybe.

It just seems to me the only recourse available to people now is the courts. In CA Diebold has been sued or is about to be sued. Can't this be done on a massive scale? Eventually it would need to take in ES&S and Sequoia as well, and any of the other fellow-travelers that use the same programs and techniques or maybe other more specialized ones to achieve fraud. Harris's BBV and the Verified Voting orgs would certainly provide plenty of evidence, Greg Palast has evidence of computer fraud in FL I think, DU-ers could contribute tons of Googled info.

Any lawyer have any ideas about this?

[ixion]

1. there is a clause in the contract that diebold

requires that says no lawsuits can be brought, nor the results questioned.

Why anyone thought that was okay is beyond me. :eyes:

[bemis12]

3. Even if there were

such a clause, it's not binding on anyone not party to the contract.

If you were just being sarcastic, ignore the above.

[Starlight]

4. If that clause *does* exist, then sue all signers on the contract.

Because it would appear that *all* of them were in on the fraud/negligence or they wouldn't have agreed to it.

[Kelvin Mace]

61. The trick is getting a copy of the contract

To my knowledge, attempts to get the contract have been ignored by the state.

David Allen
www.thoughtcrimes.org

The taste of Republican butt does not improve with age.

"The NeoCons can't be bargained with. They can't be reasoned with. They do not feel pity, or remorse, or fear. And they absolutely will not stop, ever, until you are dead.

[Pacifist Patriot]

16. I was thinking the same thing.

[Hugin]

5. Yeah, I heard about that...

Real beaut... eh?

[Hugin]

6. This is true.

I've seen the documents and contracts. It's been around
the web for months.

The way it's set up... Get this... We can't sue Diebold.
We can only sue the election officials. Because they
bought the equipment. Diebold gets it up front in their
contract any failure in their equipment is the fault of
improper certification.

Mr. Blackwell call on line two... Mr. Blackwell.

[bemis12]

8. Where on the net?

Cause I couldn't find it.

And Diebold cannot enter into a contract with a State that limits your right to sue. Only you can enter into such a contrasct.

[Hugin]

11. I've been following this stuff for awhile...

I believe where I first saw it was at BBV.com (Not ORG)

Ask David Allen he knows more about it than I do.

(Ooops, sorry Mr. Allen I meant you.)

[bemis12]

13. Well, thinking about it....

.... it's possible that a voter couldn't sue Diebold because of the absence of a relationship with them. The voter relies on the state officials to provide adequate voting machinery, not the manufacturers. That's a theory that might hold up in court.

But absolutely not some clause in a contract that we're not party to.

[Hugin]

15. It's tucked right in there...

... with the part about. We-the-people have no right to
look at their ever-so-secret proprietary software.

There was a big stink about it a year or so ago.

Remember, they were pulling down web sites and tossing
out college students for posting internal Diebold documents.

[helderheid]

29. Here are the docs

bless Kucinich

http://www.house.gov/kucinich/issues/voting.htm scroll down

[helderheid]

31. just saw this

I LOVE him!

New Legislation
Congressman Kucinich is working with his Congressional colleagues to draft legislation that would create an open-source design process for voting machine software. This process would ensure public oversight and transparency, as well as establish the most secure voting software for citizens to cast their votes.

[Hugin]

33. Bless *you* helderheid!

Yeah, I know there were many who wanted
Congressman Kucinich to be President.

But, IMHO... He's right where he needs to be. :)

[helderheid]

35. I agree

We need him in Congress! :) And thanks! :)

[Hugin]

10. It's a CYA...

Well... More of a form of extortion. The Diebold guys storm
into the SoS's office and say, "Hey, we've got these cool
machines which count the votes so fast!"

The election officials buy it.

Down in the small print it says... If you f*ck up the election
with our machines... It's *YOUR* a$$. But, don't worry we also
offer... Guess what! Certification services. Low prices...
Guaranteed results.

Something happens and the election officials are too scared,
stupid, or corrupt to do anything about it.

Bait and switch people... Bait and switch.

What do you expect from con artists?... Cons?

[Hugin]

18. My suggestion...

If you want to understand this stuff.

Pop up a big old bowl of corn. Rent "The Music Man"

Watch it substituting Diebold for the music company
and voting machines for musical instruments, etc.

Think on it.

We got trouble in River City people!

:tinfoilhat:

[genieroze]

55. I did sign any contract. n/t

[IndyPriest]

2. I'm not a lawyer,. but I'd LOVE to see this happen somehow

Let's keep kickin' this until our trusty lawyers show up!

[rdmccur]

9. Kick!

[Wilms]

7. Is the clause to hold Diebold harmless in case of malfunction?

I haven't seen the contract, but contracts are one thing, the law another.

And a malfunction is one thing, fraud another.

[Hugin]

12. Yeah Wilms...

You worded it much better than I.

Thanks. :)

[Pacifist Patriot]

17. Excellent point.

[President Jesus]

14. it's completely unproveable, isn't it?

hence the call for machines that leave a paper trail. No paper trail, no proof of fraud.

Speculation is generally not considered evidence.

IF lawsuits were to be filed, they would probably stand a better chance against the various secretaries of state by the citizens of those states.

[Carolab]

19. If it violates HAVA I can see grounds for a suit. n/t

[PaganPreacher]

32. Have you read HAVA?

The mechanisms in HAVA by which violations are addressed are:

1. The US Attorney General may file suit against the state in which the violation occurred, seeking injunctive relief (read Section 401, here: http://www.fec.gov/hava/law_ext.txt).

2. For you as a citizen, you may file a grievance with your state. If your grievance is found to have merit, the state gets to decide the relief for your grievance (see section 402.)

The Pagan Preacher
I don't turn the other cheek.

[Carolab]

49. If you don't like the "relief"

can you not take the case to a higher court?

[PaganPreacher]

54. Good question! I don't know.

My reality-based answer is, "I don't know. I can't find any record that such a thing has happened, since HAVA was enacted."

Since I don't make guesses, I wouldn't even try in this case.

Unless we can find an election law specialist who offers free consultation, we probably won't find out.

The Pagan Preacher
I don't turn the other cheek.

[euler]

20. How does a person show that their vote wasn't counted ?

[davidgmills]

21. I'm a lawyer and I think they could be sued

But if I were recommending it, I would go to a state where I had a liberal judiciary. Do it in a place like Illinois or California or NY, Vermont or Delaware.

You have to have judges who will allow discovery. You need a liberal state legislature for support and you need to keep it in state court.

I think citizens would have standing to sue. I also beleive that a liberal court might bust a claim of proprietary software. If I were the judge I would bust it in a heartbeat. I'm not sure just how legally, but boy I would be looking for a way. But I would probably find some law that says that if you are going to operate in the public domain, you waive your right to retain proprietary information. I would also sue for punative damages and attempt to get a jury to bust their financial chops.

Right courts.... Right lawyers and especially the necessary funding.... It could work.....Publicity (am I dreaming here?) would be a huge plus.

On edit: Privity of contract is no defense to fraud.

[BigBearJohn]

22. Now... WHO do we send this to? GAWD-DARN GREAT IDEA!!!!

[davidgmills]

27. see post #26

[rdmccur]

24. In NM (despite the stonewalling

of the recount), I know there are some liberal judges around,
in Bernalillo cty and several other ctys as well (Santa Fe, Rio Arriba, Taos to name a few). How about Boulder cty in Colorado--that went 70% Kerry? Could this happen in Miami-Dada in Florida? Others?

[helderheid]

30. Thank you!

[Pooka Fey]

23. Kick.

[Stevepol]

25. It seems to me the evidence about tobacco's dangers is equally

based on circumstantial and "statistical" evidence. This percentage of smokers gets cancer while only this percentage of non-smokers gets cancer, ergo, the tobacco manufacturers are liable for damages. We have now a whole country where 80% of the vote was counted on DREs, besides the evidence from GA in 02 where the evidence is overwhelming IMHO that fraud occurred. The exit polling companies could be required to produce their data by court order. I for one would like to see the GA figures. They're unavailable on the IT right now as far as I know. All that is known is that they were wildly wrong -- which is understandable in a state using Diebold touchscreens over the whole state for the first time, no audits, no recounts, just trust me to count your votes for you. The pre-election polls are available and indicate that Barnes and Cleland had a 5-11% point lead four days before the election. The last poll used 800 people and was conducted by a place that conducted polls in a good number of other states, in all of which the result was w/i the margin of error. Not, however, in GA. The result there was beyond belief evidently; otherwise, why pull the exit polling result information from public view?

[davidgmills]

26. Very good talking point -- analogy to tobacco caused cancer

All statistics -- we accept that smoking causes cancer based on statistics.

The tobacco lawyers who are now worth lots of money would be excellent lawyers for class actions for electoral fraud.

>Have the money for class action contingent fee work
>Have the knowhow
>Probably liberal to progressive
>Know the most receptive courts
>similarities between tobacco fraud and election fraud
>statistical evidence

[Beth in VT]

68. Davidgmills, as you surmised above

it was the "liberal" states that achieved traction on this. And they collaborated and worked it jointly which was very effective.

[Peace Patriot]

34. Stevepol: "circumstantial and 'statistical' evidence"-YES! KICK!

I've been saying this in every forum here where somebody says we need "absolute proof" of election fraud, or "where's the proof?" But nobody seems to listen--or else they're just so demoralized by the political scene--the Democrats' lack of interest and will--that they can't see the truth of this. That is, they are demoralized because no one in power will ASSERT the truth of this.

First of all, outside of the legal paradigm, we have NEVER NEEDED "absolute proof." The election system was a fraud going in (secret source code, no paper trail, insecure, hackable computers, controlled by partisan pro-Bush companies), and ON TOP of those inherent, extremely fraud-prone conditions, we now have a MOUNTAIN of inferential or circumstantial evidence of a wrong result. Conclusion: The election was INVALID.

You don't have to prove fraud to prove that the election was INVALID--an election that is so non-transparent and yields such suspicious results that it cannot be trusted.

In any other democratic country in the world, there would be a re-vote (as in the Ukraine). But the fascists have gone so far in seizing power here (they control the presidency, the Congress, the courts, the military, the intelligence apparatus, the media AND the election system), and the country's power structure is so conservative (no obvious mechanism for a re-vote, or for a national citizen referendum or recall, or vote of no confidence) that nobody who understands how invalid this election was can think of a way to remedy it.

Even the few House/Senate members who objected on Jan. 6 mostly objected on the grounds of Ohio's obvious racist vote suppression (a violation of the Voting Rights Act of 1965), and NOT on the invalidity of the election due to, a) fraudulent conditions, and b) a mountain of evidence that fraud occurred.

And we see how far THEY got. The BushCons ridiculed it and shut it down. (And the Democratic leadership had sabotaged it from the beginning, by disallowing any claim that the election result was wrong or that there was widespread fraud outside of Ohio.)

In any real democracy, the Electors of at least 20 states would have been strongly challenged on Jan.6, and there would not only be a thorough Congressional investigation going on (and no inauguration pending), there would be investigations and legal and political actions occurring against every Secretary of State who permitted non-transparency and private ownership of the secret source code that tabulates all our votes.

So that's where we are politically--nowhere. (Why this is so--for instance, what's wrong with the Democratic leadership, a real puzzle--is another discussion.)

Now then, as for a court case--as opposed to a political case--I asked a lawyer about this, early on, and he said that statistical evidence is used, and is acceptable in court, in cases of financial fraud where the evidence has been shredded. Statistical analysis like that conducted by so many experts, and by statistically adept bloggers, on the 2004 election results, has been used for financial fraud prosecution and conviction.

I hadn't thought of the tobacco litigation. This is a brilliant analogy--a very similar situation where there was no "smoking gun" (ahem...) but where statistics proved intent and harm.

(Note: I'm not a lawyer, but have experience as a paralegal in public interest lawsuits, and studied Constitutional law in college.)

I think we (or rather a lawyer team) needs to ask:

What the harm is? (harder to establish than harm from tobacco, or bank fraud)

Who the perps are? (Diebold, or the Secretary of State who bought Diebold's crap?)

(Note: CA SoS Kevin Shelley sued Diebold for lying about their machines, I believe--for alleging security or certification where there was none.)

What laws have been violated? (say, provisions of state code intent sections that assert intent to have transparent elections??)

Which elections and which voters constitute the class? (Prez, Senate, local? All races and measures on the ballot? Only electronic voters? Were absentee ballots scanned and tabulated by Diebold (or other such) central electronic vote tabulators?)

(The Constitution gives the states the responsibility of choosing the presidential electors. The states can do this however they wish--no popular election is required, although most now do it by popular election. So, the state/federal interface is different for presidential vs. other elections, because of the Electoral College, i.e., what responsibility does the state have to conduct a fair and honest and transparent election for presidential Electors? --and, how did HAVA impact that state responsibility, for instance, by requiring conversion to electronic voting, or bribing the states with money?)

How do the lawsuits in Ohio (and any others that have been filed on '04) tackle these questions? (Arnebeck/Alliance for Democracy did a broadbased action on behalf of a group of voters; just withdrew it from state court, and is to be re-filed in fed court, I believe, possibly on Voting Rights Act and Civil Rights Act violations; don't know how broad it will be. John Kerry filed an action in support of the Greens effort in Ohio to preserve evidence--the "black boxes." What's the status of that? Etc.)

Some thoughts on harm: An interesting issue. Aside from the serious harm that Bush is inflicting on us all, what is the specific harm to a voter? I think having an illegitimate government--even if that has real impacts--is too broad an allegation. Also, the election having been stolen--comparable to bank fraud (defrauded depositors and investors?)--is probably too broad (and it's just as well not having to do the "smoking gun" thing--"absolute proof" of election fraud). But there is considerable evidence of more votes than voters (dilution of one's vote), votes changed from Kerry to Bush (electronically), and Kerry votes simply shaved off (given to Bush, or disappeared)--in short, votes diluted or changed or not counted. (There are always a few votes that go uncounted in most elections, for various reasons--that issue will have to be dealt with.)

Harm to voters from a fraudulent election may be a special category of harm that will have to be established (which may be hard to do with the current BushCon Supreme Court). Can there be harm when there is a choice? Nobody's forcing you to vote! However, it's just not the same as buying a car or a pack of cigarettes (both of which can involve liability for the seller). It's even more fundamental than your right to safety or protection from false advertising. It's a choice, yes, but it's also a citizen's most fundamental and important DUTY. (Could an SoS's touting voting--encouraging people to vote--make them more liable? Curious idea!)

The Voting Rights Act of 1965: Passed to remedy disenfranchisement of black voters--but could it ALSO apply to ANY category of voter who is systematically disenfranchised--in this case, all Democratic voters, or all Kerry voters (some Republicans voted for Kerry)???

Legal cases like this have many purposes, beyond simply winning, redressing specific harm, or getting big awards. They are also intended to force (or inspire) reform, and to educate the public and public officials. It would be no bad deal to force the Supreme Court to rule on the disenfranchisement of a broad class comprised of anti-Bush voters. THAT would be worth the publicity, no matter how they ruled!

This is presuming a federal court case on the issue of disenfranchisement in the 2004 presidential election (which might go federal, by way of appeal, even if it's filed in state courts). What other ways are there to go? (state court? specific state rules or constitution violated? all races, all measures on the ballot?).

I keep thinking, too, about the secret source code, and no paper trail. There must be something in state constitutions about open and fair elections.

And one other thing: What about those Wally O'Dell (and other) $100,000 contributions to Bush/Cheney? It seems like egregious conflict of interest. Are there no state or federal conflict of interest laws that have been violated? RICO also comes to mind--a nationwide racket to sell an inherently fraudulent election system to the states. Also, Diebold was throwing a lot of money around, wining and dining election officials and congress critters--are Democrats also vulnerable to corruption charges? Is THAT why--or one of the reasons why--they are so inexplicably silent on this very fraudulent election?

This is getting far afield of a class action on harm to voters, but this is an unusual situation and requires creative thinking. I don't think there is any precedent for it--even though I can--and I'm sure many others can--FEEL the harm. It's palpable. And it cries out for litigation and remedy.

[Hugin]

36. Required Reading in this thread.

Thanks Peace Patriot.

NGU...

[Stevepol]

37. Peace Patriot you really have a ton of ideas to think through, all good.

Maybe some of this Kerry battalion of lawyers could be commissioned to see how many different kinds of lawsuits can be initiated, some state, some federal, who gets involved whether individuals or groups, etc. Any Kerry lawyers out there? Why not organize yourselves into think tanks and see who you can sue. Stealing the vote is no small misdemeanor it seems to me, and there has to be a way, maybe many ways, to take it to court.

I suspect the only way this stranglehold of the voting machines on our electoral process can be broken is by a barrage of lawsuits aimed to get monetary awards and legislative commitments. At the very least, as indicated by somebody previously, it would give a lot of publicity to the issue and begin to educate people about what happened in 04.

[Peace Patriot]

43. Stevepol: "Maybe some of this Kerry battalion of lawyers..."

Absolutely...and the tons of contributions that K/E solicited for legal action! This infuriated me, actually. I donated to the legal fund on election night, after Edwards' statement that "every vote will be counted." A short time later, Kerry conceded--with votes STILL being counted. I want to know where my money has gone. I emailed the DNC and asked for it back! The Greens were meanwhile struggling to get funds for their efforts (luckily they were successful).

Anyway, they (K/E) OWE us, for sure. Such a terrible betrayal. I shall never forget it. (As a 44-year loyal Democratic Party voter, I've seen a number of ugly betrayals, including LBJ's touting himself as a PEACE candidate in 1964! But I think THIS betrayal is the worst of all, because of the history of it--the 2000 election cave-in--the Democrats' participation in HAVA, their failure to warn voters of the fraudulent election conditions, and their utter abandonment of black voters, their most loyal base--except for a few heroes, Conyers, Boxer et al.)

I heard that some of those 17,000 lawyers were chafing at the bit to sue, and to challenge the election--and were held back. Some might well be interested, but would we have to create a whole new legal fund? (Damn, that legal fund contribution thing makes me so mad! WHAT are they using those funds FOR?!)

I think lawsuits all over the country is a fabulous idea! That's one method of making change happen, and establishing rights. It's been used in the past (although with a far more non-partisan and citizen-friendly court system). Ultimately (or rather immediately--it's urgent), I think state election rules is the most likely place for a remedy, and perhaps state election rules should therefore be the particular target of lawsuits.

We also need state by state, county by county, grass roots citizen pressure on election officials and state legislatures, and possibly citizen initiatives/referendums to put the matter of transparent elections to a vote (har, har!). (yikes!)

[davidgmills]

45. Don't think Kerry lawyers are the answer

Chances are, they are not contingent fee lawyers. You need contingent fee lawyers on these kinds of cases. If not, Diebold and ESS will just ring up the time and expenses of hourly lawyers (motions, written discovery, depositions, hotels, meals, court reporters, copying, etc., etc.,) until all the money runs out. Then the case goes away. When the other side has limited funds, the name of the game is to break the bank.

See my post below on how to entice contingent fee lawyers to get excited about doing the work -- re-exit poll -- it gives them a good feeling that the investment of their time and money will pay off in the end.

[helderheid]

38. YES

Let's roll!

[Peace Patriot]

39. Taking care not to harm the innocent (or relatively innocent)...

Just before the election, and after CA SoS Kevin Shelley had sued Diebold, some mysterious allegations appeared in the newspapers re: Shelley misuse of HAVA funds, and also sexual harassment. There was nothing in it, as far as I can see. And it most definitely occurred to me that this was, a) Rove based, and b) intended to intimidate--a warning to Democrats perhaps related to election fraud challenges.

We're dealing with pretty nasty fascists here, and should be beware of the twists and turns they are capable of making, to deflect guilt from themselves. (If a "Mafia" corrupts an entire town, do you blame and prosecute the little guys who got caught in the middle, if the real perps are insulated from prosecution?)

Twists and turns: I suspect that a Constitutional Amendment to protect voter rights could easily be turned into a "twist and turn." Get the BushCons off the hook, and do nothing whatever to repair the election system (it's entirely dependent on ENFORCEMENT). Also, any new Congressional legislation could turn this thing upside down. The BushCons have TOO MUCH POWER, and could require electronic voting with no paper trail, and no-bid contracts for Diebold and ES&S tomorrow--and who could stop them? If the states' power to run elections is taken way, in pursuit of "national standards," the citizen's only remaining potential remedy, via state election rules, would be removed.

I am very worried about this.

[helderheid]

40. I am as well n/t

[qwghlmian]

41. Glad some people see value

in states' rights. This headlong rush to take away those states' rights on the part of the Left is ridiculous. They are protected for a reason, and short term political considerations should not be used to destroy them.

[Peace Patriot]

47. Yeah, because why?

Because the BushCon regime is full of the same kind of bigots and thugs that used to beat black citizens to a pulp who dared to demand the right to vote. When we had some decency in the federal government--when Democrats and liberals and "Leftists" were in charge--we appealed to the federal government to stop the thuggery and outright murder of black citizens and voting rights activists by the white "Christian" establishment in the South. And now that these same kind of fascists have hijacked the federal government, we have to look to local power to overcome it. But the fundamental problem is not states rights vs. federal authority (except in so far as a "balance of power" can help keep fraud, theft, murder and tyranny in check); the fundamental problem is that thieves and mass murderers and lawless pirates are running the federal government!

[davidgmills]

42. Some interesting comments here and my response on what is needed

First of all, harm is a given. No need to prove the harm caused by losing the right to vote. No judge or lawyer in his right mind would ever argue that loss of voting rights was harmless.

RICO is an interesting thought, but it might put you in the federal courts which I think should be avoided. States do have their own version of the RICO statutes and maybe we ought to look to the most liberal states and include RICO based state claims if possible.

The real practical problem with this case is that there are no usual and customary money damages on which to base contingent fees for the lawyers. That is always the problem with civil rights cases. You prove that a civil right was violated but you can't prove that it cost you anything in terms of dollars. The lawyer then gets a percentage of nothing, so he's not interested, at least financially.

In tobacco litigation, people lost their lives and health due to fraudulent misrepresentations. Smoking costs lots of people loss of income, medical expense and pain and suffering. Loss of income and medical expense are costs which are verifiable and in the tobacco cases, those costs were huge. But those damages are not present in a voting rights case.

You may be able to sue for the emotional distress of being uncertain of whether your vote was counted or not, but many states require some type of physical injury before a claim of emotional distress can be made. So pain and suffering damages are going to be minimal or not obtainable at all.

So that leaves punitive damages as your only source of money damages. Lawyers will take punitive damage cases on contingency if evidence of the intentional wrongdoing is strong enough. But if it were me, and I were having to rely on statistics, I would want to re-exit poll at least one state with highly accurate results, which can not be easily attacked.

I have been suggesting for weeks now, we need to re-exit poll Ohio. If we re-exit polled Ohio with a random sample of 16,000 voters (I'm told that is what it would take to get a really accurate sample) and the re-exit poll showed Kerry won again by 4 or 5 %, you could probably, at that point, have the interest of many good contingent fee attorneys who would be willing to invest their time and money into a class action case.

A re-exit poll also makes discovery a whole lot easier. The judge knows from the beginning that you have good evidence that something smells and deserves to be checked out. But so far, my idea of re-exit polling certain states has fallen on deaf ears, even though it could be accomplished for as little as $500,000 as in the case of Ohio. It also is a newsworthy event and the press would almost have to cover it, making a class action suit even easier. It would probably also be a lot cheaper than paying a lawfirm an hourly rate which could be in the millions. And hourly rate lawyers don't have near the incentive to win and most are not Plaintiff's lawyers who definitely have a different approach than Defense attorneys. (I'm a personal injury Plaintiff's attorney and have been for most of my 27 years of law practice).

But as it stands right now, probably most contingent fee attorneys are going to stay away from the huge investment it would take to take on Diebold or ESS. They simply need to have some of the work done first (like a re-exit poll) to show them that they do have a good shot before they start investing in lawsuits. Remember, by the time lawyers began getting involved in the tobacco cases, by then it was pretty well known that smoking caused serious health risks. All the lawyers had to do is prove how long the tobacco companies knew about it and that was not that easy.

[Peace Patriot]

44. davidgmills: Dr. Steven Freeman in his 2nd paper on exit polls says...

...that Mitofsky (the exit pollster) said there is no reason his demographic exit poll cannot be used to verify the election. (It is as accurate as any similar poll--and both exit polls in general, and Mitofsky, have excellent reputations for accuracy. It's just broken down differently--not just a simple Kerry? or Bush? question, but demographic info included.)

See Freeman on the accuracy of exit polls, and of this one in particular:

Freeman 1st paper: http://www.truthout.org/unexplainedexitpoll.pdf
also at: http://www.buzzflash.com/alerts/04/11/Expldiscrpv00oPt1.pdf
Freeman 2nd paper: http://www.appliedresearch.us/sf/epdiscrep.htm

Also of note (on this exit poll):

Dr. Ron Baiman paper: http://www.freepress.org/departments/display/19/2004/997
Dr. Webb Mealy paper: http://www.selftest.net/redshift.htm

Also of interest: (paper vs. electronic in FLA's 3 biggest Dem counties--130,000 to 230,000 phantom votes for Bush, or votes stolen from Kerry).

Dr. Michael Haut paper: http://ucdata.berkeley.edu

---------------

Blogger analysis:

TruthIsAll statistical analysis (particularly on the odds of skew to Bush):

TruthIsAll: "To believe Bush won, you have to believe…"

Part 1
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=132&topic_id=1316010

Part 2
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=132&topic_id=1358806

Part 3
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x197878

and updated analysis:
http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=203&topic_id=286098

---------

Also: Jonathan Simon
http://www.scoop.co.nz/mason/stories/HL0411/S00142.htm
___________

I'm not saying that there shouldn't be a re-exit poll of Ohio (and of the whole nation, for that matter). I just wonder if the fresh results of the highly reputed poll that WAS done, on election day, in face to face with voters who had just voted (much more accurate than opinion polls of who MIGHT vote), isn't our best evidence, and that a LATER "exit" poll would be dissed for being LATER.

BushCons will make up any excuse--make it up out of whole cloth--to deflect the power of this information (such as asserting, on no evidence whatever, that Republicans were shy of pollsters that day), and they will invent excuses for a later exit poll as well. I can just hear them. All you can do is put expert after expert on the stand to make the case. And they will, of course, call THEIR experts to debunk. It's inherent in the situation.

I do agree, though, that if a new exit poll strategy is decided upon, the sooner the better. Also, one peril of doing only Ohio is that BushCons made a special effort there to PREVENT Kerry votes. So at least one or two other states should be polled, and best, three or four (to include, for instance, a "blue" state where Kerry votes were shaved off and given to Bush, to help manufacture his popular majority; and a number of close "red" states with sufficient Electoral Votes to change the outcome).

[davidgmills]

46. If you win two exit polls

The chances of them claiming with success that the exit polls are flawed are much reduced.

As you know, Freeman, Baiman, TIA and others have taken much criticism for their views. A second re-exit poll would go a long way to prove their views were right and those of others were wrong. I just believe it would shut their critics up.

[Peace Patriot]

48. davidgmills: As I said, I'm not against re-exit polling...

...but I'm sure of this: NOTHING will shut their critics up. Nothing. BushCons will yammer on with no facts to support anything they say, and get 24/7 television coverage, all day every day, all week, all year, on all stations, forever, no matter what we say--and no matter what we say, it will be ignored, ridiculed, twisted beyond recognition, marginalized, and heaps of manure will be piled upon it.

It's a new world, this BushConWorld, in which facts don't matter.

Kerry should have gone for it, right upfront, in their faces, on his steaming white charger, "absolute proof" or "no absolute proof," because this election STUNK TO HIGH HEAVEN.

And the TV networks' motive, and Mitofksy's motive, and AP's motive, and the Bushcons' motive, and even the Democrats' motive (whatever it was) in NOT CONDUCTING AN EXIT POLL SPECIFICALLY DESIGNED TO VERIFY THIS ELECTION AND CHECK FOR FRAUD--with a highly controversial new election system being tested out nationally for the first time--really need to be examined.

I think the motive was to provide just this kind of excuse, this talking point (it was a demographic poll--even though the demographic data is accurate!) for questioning the exit poll result that Kerry won. Why else did they HIDE this result from the American people on election night and the days following (and did not reveal it at all but for alert bloggers and experts who ferreted it out)?

However--even though this news media situation, and the basic facts of the fraud, and the collusion involved all obtain--it still might be useful to pile on yet more facts, from new exit polling, in the hope that there is an objective, non-partisan judge left in the United States of America who would put his/her neck on the block for our right to vote, and could use some additional documentation.

Christ, I feel like we're in Germany 1934. I really do.

[davidgmills]

51. Couldn't agree with you more

about the new BushConWorld fascism and this being 1934.

Here's an article I wrote on how I feel about the situation, published both on Informationclearinghouse and Dissidentvoice about two months ago.

http://207.44.245.159/article7260.htm

It has also been discussed on dailykos here:

http://www.dailykos.com/story/2005/1/4/132449/4105


I still believe that there are judges (I'm a lawyer not a judge)like myself who do not like what is happening in this country and will help, but they are limited in their actions by whatever evidence is presented in court. The better the evidence, the more likely they are to help.

I view two exit polls like they were two quartz watches -- if they are both saying it's 12:00 and the old grandfather clock (actual tabulation) is saying 11:45 which are you most likely to believe? If you have only got one quartz watch though, it's hard to convince those who are in love with the grandfather clock, especially those who know nothing about your quartz watch.

I have always thought the analogy of the clocks is a good one. It was passed on to me by a very conservative blogger. But they like to compare the actual tabulation not to a grandfather clock but to an atomic one. Atomic, my ass. But we have also got to prove that the actual tabulation is more like an old grandfather clock rather than the myth of the atomic one.

[Peace Patriot]

58. The Grandfather clock analogy...

The electronic voting in this election is only like a Grandfather clock if you envision ol' Grandad crouched inside behind the pendulums and reaching up to fiddle with the hands of the clock, to prove that it really works.

As for the electronic voting in this election being like an atomic clock--I'm sure it was. It recorded every vote that BushCons manufactured for Bush or stole from Kerry.

[davidgmills]

64. Atomic

It was a bomb.

[EuroObserver]

57. Kick n/t

[ivorysteve]

28. Kick! n/t

[BigBearJohn]

50. Forget everything else. THIS is our solution. We need to do it.

I hope everyone can push some energy towards this.
It sure seems like a very viable solution. We need
to get more legal opinions on this. What a great idea!!!

[davidgmills]

56. New Jersey looks like the place I would start

Liberal
Electronic voting
7% difference in exit polls and actuals
NY publicity

See this DU board:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=203x288460


CNN Exit Poll here:

http://www.cnn.com/ELECTION/2004/pages/results/states/NJ/P/00/epolls.0.html

[Amaryllis]

52. CA SOS Kevin Shelley had a lawsuit against them for ...I think it was

making false claims about security. Not sure what happened with this. Any of you CA DUers know?

[Stevepol]

53. I believe the lawsuits in CA were for using uncertified software, at least

that was one of the things that Diebold did in CA. One of the voting precincts using a Diebold touchscreen discovered that the machines were running on uncertified software (uncertified by the elections people before the election). Shelley demanded that Diebold pay to investigate, and it was found that ALL 17 counties or precincts that used this machine were using uncertified software. Shelley impounded the machines and had somebody look into suing the company. I believe it was over this uncertified business but Diebold did a lot of other illegal stuff there as they do wherever they are used I would suspect and the lawsuit might be aimed at something else. Bev Harris had a story about this some time ago, how a libertarian lawyer there was instrumental in getting Shelley to impound the machines and come up with new laws for how votes are counted in CA. At that time, any legal action against Diebold was just in the offing. I'm not sure if court action has already started or if something has been settled out of court or what. But I think Diebold is definitely vulnerable to lawsuit, if nothing more for the management of GEMS, the division that writes the software for the machines. At the time of their acquisition by Diebold (Jan 02), they had 5 ex-felons working in upper management positions. Jeffrey Dean, the senior vice president, had just gotten out of the slammer where he'd been for five years for embezzlement, a sophisticated falsification of computer information over a 2 1/2 yr period while working for a law firm. Harris says she has records to show he continued to serve as a "consultant" for Diebold as late as April of 02, prior to the stunning upsets that year in GA, which for the first time that year used all Diebold all the time. All circumstantial yes, but certainly apropos.

[Kelvin Mace]

60. Unfortunately

the law suit Bev filed has given Diebold a free hand in California. As part of the settlement that paid Bev and Jim March $75K each, the suit was dismissed with prejudice. The evidence used to file the suit may never be used to file any similar suit in the state now and forever after.

David Allen
www.thoughtcrimes.org

The taste of Republican butt does not improve with age.

"The NeoCons can't be bargained with. They can't be reasoned with. They do not feel pity, or remorse, or fear. And they absolutely will not stop, ever, until you are dead.

[bemis12]

62. As whoring goes

$75k ain't bad.

[Kelvin Mace]

65. It's about half what Bev has cost me

I hope she enjoys the money

David Allen
www.thoughtcrimes.org

The taste of Republican butt does not improve with age.

"The NeoCons can't be bargained with. They can't be reasoned with. They do not feel pity, or remorse, or fear. And they absolutely will not stop, ever, until you are dead.

[davidgmills]

66. have my doubts about that

There are two things in law that prevents the refiling of suits: one is called res judicata, and the other is called collateral estoppel.

Res judicata means the parties have already had their day in court once and had the opportunity to resolve their disputes that had arisen up until that time. Collateral estoppel means the issues involving one of the parties has already been determined in another case.

Res judicata would not apply to anyone who sued other than BBV. Collateral estoppel would only apply to the voting machine corporations in the event they lost a suit to BBV on the issue. It would not apply to anyone suing the voting machine corporations.

[Kelvin Mace]

71. As it was explained to me

terms of the settlement called for the suit to be dismissed "with prejudice" which meant it could never be brought up again in California.

David Allen
www.thoughtcrimes.org

[davidgmills]

72. Dismissed with prejudice

Means that only Bev and BBV can't sue Diebold again for anything they knew or should have known up until the time of the dismissal.

If Bev and BBV acquire evidence of subsequent (after the dismissal date) fraud, they can sue again on the new fraud.

[Kelvin Mace]

73. But, since the state was party to the suit

neither can they. The evidence, very important evidence, was pissed away in a law suit which got us nothing of substance.

David Allen
www.thoughtcrimes.org

The taste of Republican butt does not improve with age.

"The NeoCons can't be bargained with. They can't be reasoned with. They do not feel pity, or remorse, or fear. And they absolutely will not stop, ever, until you are dead.

[Hugin]

74. Thanks for bailing me out Mr. Allen.

High powered legal questions overwhelm my simple mind. :)

[davidgmills]

75. Did the state file the suit

Or was the state made a party by BBV or Diebold?

It matters.

And again, it would only bar a case based on the facts known at the time or which could reasonably have been discovered at the time.

Remember we are talking fraud. Which is hidden.

I just don't think that suit would present much of an impediment to other litigants.

[Hugin]

76. Wow...

I can't even begin to describe how corrupt this is!

Really, was Harris part of a "plan"?

I hadn't heard of these events yet. I thank my lucky stars
the DU admins spit her out like a watermelon seed.

[Peace Patriot]

63. Shelley also provided Californians with a paper ballot option...

...he did that last summer ('04) I think, but not too many people knew about it. It appears that Shelley and CA counties were sold a bill of goods (a really lousy, and extremely insecure, hackable, fraud prone system--runs on Windows, with C++ code, totally penetrable Diebold piece of crap), like so many other election officials under the gun to spend HAVA money, but Shelley got onto it sooner than others (after activism by Bev and others). In fact I think Shelley is far in advance of others in now understanding what he bought. I believe the Diebold suit was settled out of court. Don't have the details to hand. I think it also involved a ban on Diebold machines (I don't know if permanent--and I don't know if CA uses Diebold central electronic vote tabulators--need to find out--but I'm sure it's some untrustworthy party's central tabulators with secret source code).

One of the problems in being vigilant on this stuff is that it's so damn complicated--or sounds complicated. Ordinary people don't understand it, and cannot easily monitor what is going on (or think they can't). It shouldn't be like this! Voting should be simple enough for everybody--not just the technically adept--to understand and keep track of. I think the only solution is to go back to paper ballots and hand counts. THAT everybody can understand. And if there is fraud, it's at a human rate of speed, and humanly visible--not happening at the speed of light, in many "places" at once, invisibly.

HAVA was the most mis-named bill ever. Help America Vote Act. Right. It totally corrupted our voting system, made it incomprehensible to ordinary voters, and set up the conditions for widespread, nearly undetectable fraud. An open bank vault, really.

[berniew1]

59. There is solid evidence of fraud in many states- why aren't they doing som

something in the following states???

in most states: summary of some of the documentation
Florida http://www.flcv.com/fraudpat.html
http://www.flcv.com/dirtytrf.html
http://www.flcv.com/EIRSFla.html http://www.flcv.com/EIRSFla2.html
Ohio http://www.northnet.org/minstrel/alpage.htm
www.freepress.org departments
http://www.flcv.com/cuyahoga.html
New Mexico http://www.flcv.com/fraudpat.html http://www.helpamericarecount.org/NewMexicoData/NewMexicoGeneralElection.pdf
http://www.flcv.com/bernalil.html
Pennsylvania http://www.flcv.com/mercerco.html
http://www.flcv.com/philaddt.html
http://www.flcv.com/philadel.html
Texas http://www.flcv.com/texas.html
Lousisiana http://www.flcv.com/neworlea.html
Georgia http://www.flcv.com/claytong.html
New York http://www.flcv.com/NewYork.html
New Jersey http://www.flcv.com/njersey.html
Washington http://www.flcv.com/snohomis.html
South Carolina http://www.flcv.com/southcar.html
North Carolina http://www.flcv.com/northcar.html
Virginia http://www.flcv.com/fairfax.html
and default straight Dem Ticket to Bush in
Wisconsin,Indiana,North Carolina,South Carolina,Texas,etc.
(I have files on these also)
and for other states not given here
www.votersunite.org state and messups
www.voteprotect.org maps/state/county use filter for key word
www.freepress.org departments see articles

[Peace Patriot]

67. Greg Palast has an interesting take on all this...

RICO: RNC passing around lists of black voters to purge. (Greg is much more upset by the systematic nationwide disenfranchisement of black and brown voters through disqualifying voters with crappy voting equipment--than with the electronic thing.)

See interview at

http://www.gregpalast.com/detail.cfm?artid=408&row=0

[Carolab]

69. Read this section of HAVA. Aren't DREs without paper trails illegal?

http://www.usdoj.gov/crt/voting/hava/HAVA_2002.html

(2) Audit capacity.--
(A) In general.--The voting system shall produce a
record with an audit capacity for such system.
(B) Manual audit capacity.--
(i) The voting system shall produce a
permanent paper record with a manual audit
capacity for such system.
(ii) The voting system shall provide the voter
with an opportunity to change the ballot or
correct any error before the permanent paper
record is produced.
(iii) The paper record produced under
subparagraph (A) shall be available as an official
record for any recount conducted with respect to
any election in which the system is used.

How can you manually audit electronic votes if there is no paper record other than a machine printout? When a bookkeeper audits, they go beyond the books and look at receipts and invoices, etc.

Here's a paper that argues this, too:

http://www.wheresthepaper.org/

[Stevepol]

70. These regs from HAVA could provide some hooks for the lawsuits.

The Voting machine companies, however, claim that the touchscreens can audit or recount by running through the whole process again, but of course if the machine counted the votes one way the first time it will count the votes exactly the same way the second time or the hundredth time as long as the programming remains the same. If there's a difference, there really is something wrong with the machine. So I don't see how that could possibly stand up in court. There's no telling what the vendors will claim in court about this, but they would be cut to shreds I think by Avi Rubin and the other computer scientists who would testify as one voice I think about the hazards of touchscreens, particularly Diebold's.

The optical scanners HAVE a paper trail but these machines are almost never audited. In NH 11 precincts using scanners were hand-recounted supposedly with negligible results. I can't help but believe that in the state of NH there had to be significant fraud from the machines because of the huge difference between the exit polls and the actual vote, but unless the whole state is recounted or a truly random group of precincts is recounted, it's im;ossible to know.

But I agree it looks like HAVA has not been adhered to in many states, like GA e.g., which to my knowledge still has no paper trail and probably no intention of having one anytime soon.