The "All or Nothing Approach:" Should It Apply To Democracy?
by Paul R Lehto, Attorney at Law
lehtolawyer@gmail.com
EXECUTIVE SUMMARY / TIME MANAGEMENT CUES: In this essay, I go out on a limb and suggest that this is one of the most important articles and perspectives you will ever read about, though most of the ideas herein started with the American Revolution and are as much your ideas as they are mine. But to summarize in one sentence, this article applies to vote counting and voting systems the legal and political perspective of democratic rights. It shows that almost all of your meaningful rights in the area of voting and vote counting have been taken away, and Congress instead of correcting that is about to institutionalize it. A government, a Congress, a Judiciary or a local government that simply can not be bothered with the manual labor of counting your vote and every American's vote with openness, honesty, transparency and care, most surely can not be trusted to treat redblooded Americans with openness, honesty, transparency and care. In summary, this essay stands for the proposition that our fundamental obligation as Americans is to defend democracy, and that when it comes to respecting voting rights, "the "compromise" IS the same as the violation of the right." I hope that you will read it all, and if you do not think it is important and worth the few minutes to do so, I invite you to tell me why at my email address above.
Let's have a real talk about defending democracy. And voting rights. And how many of us must think that America really is unattractive as something to own or control, because we act like stolen elections are unlikely or impossible or at least nothing to think seriously about defending against. Worse than a sleeping sentinel, our government and especially our media have walked off the job of watch guard, apparently figuring there is no need to be vigilant when it comes to voting or liberty. And yet, virtually America's entire history can be told from the perspective of fights over the right to vote, who gets it, elections and their crimes and shenanigans.
In what is only the latest example of failure to take democratic rights seriously, a hard working and accomplished activist Steve Rosenfeld criticized other activists for an "all or nothing" approach/attack on Congressional legislation that he made in his Alternet article
http://www.alternet.org/story/48967 supporting the Holt bill (HR 811) legislation. In general, the Holt bill keeps electronic voting but instead provides generally for a "paper trail and audit" system. Attacking "all or nothing" is attractive rhetoric since it is seemingly reasonable, slightly effective even. We typically don't want to be difficult, we'd rather "go along to get along."
There are exceptions, though, to this "go along to get along" approach that avoids being an "all or nothing" type.
One "goes along to get along" until you realize that we are dealing with the most important rights that BOTH the individual citizen can have (the right to vote, which protects all other rights) as well as the most important democratic right we all have (the right to have that vote counted properly and tabulated properly on a one person/one vote basis).
Rights, ahem, are "all or nothing" things. In fact, it is illegal and unconstitutional to even "BURDEN" those rights, absent narrow and compelling circumstances.
Steve Rosenfeld's argument proceeds from the statement that (paraphrasing) says "well, we've already got all these billions in machines in place so, we'll just have to tolerate secret vote counting on DREs and opscans, but if we look at an election result and it seems wrong we'll have no problem assembling a million dollar dream team of lawyers statisticians and computer experts to evaluate the election and its audit, then file suit or application for a full recount and pay those fees too….." (not his words, but mine, given the playful liberties Steve took with the position of other activists, the above placing words-in-mouth is fair, IMHO.)
The Holt bill, which I actually do oppose in any event and no matter what, keeps the first counts secret and leaves any corrections, if any, to post-election audits and recounts. As a lawyer and dare I say emerging expert in post-election litigation, I stand to make TONS of money if only this kind of election disputing got a little more popular with candidates. But, as we know, almost all candidates easily and soon concede within 24-48 hours of the election.
So, after conceding the secret hackable counts that nobody can see on opscans and DREs, we are behind the EIGHT BALL in an extremely serious way:
1. We have conceding candidates in high %'s of districts.
2. We have legal expenses that are huge that we wouldn't have if we had the sense to insist on protecting THE FIRST COUNT
3. We have computer expert expenses we wouldn't have if we had the sense to insist on protecting THE FIRST COUNT
4. We have statistician expenses we wouldn't have if we had the sense to insist on protecting THE FIRST COUNT
5. We have extremely short timelines and statutes of limitation,
6. We have elections officials, whether innocent (mostly) or corrupt (some), who, the last thing they want is lawyers and citizens "misunderstanding" "spinning" or discovering their mistakes and in any case putting the officials in the biggest media or internet fishbowl the citizens can find. THEREFORE, all elections officials tend to be slow in producing information and doing what they should, and have the semi-plausible deniability of "lots to do."
7. We have the "sore loser" moniker in the media, if we are challenging anything.
8. Candidates and their staff have already scheduled well deserved vacations starting 3 days after the election, and are exhausted and usually in debt or without money when the real battle is just starting, regarding the post-election audit or recount.
9. Even elections officials in the Democratic county of Cuyahoga Ohio, were recently sentenced to 18 months in prison for rigging the presidential recount in 2004 because they'd rather avoid working through Thanksgiving and avoid making their own first counts look bad, and avoid being in a media fishbowl through 2 full days of rigging and CYA maneuvers to make the first count look like the election officials did their job right the first time. One can never trust a human being to audit themselves, or blow the whistle themselves, so we can't trust the right to vote to post-election government audits, either. NO matter how perfect the statute is written, the people who perform the audit have conflicts of interest, and the very fact that the statute is published in the United States Code is a foolish public announcement of the method by which potential criminals will be investigated, so they can figure their way around any such audit.
10.. All of these burdens and expenses would not exist if we would have had the sense to insist on protecting THE FIRST COUNT, and rejecting garbage like Holt II that gives EVERYTHING to the secret counters and nothing to the citizens, except ILLUSIONS and EXPENSES .
All of this, of course, occurs in a larger elections context in which election criminals have three huge advantages that no other criminal really ever gets: (1) They know in advance the limits of the investigation because they are published, and (2) successful election criminals become insiders who get to set or alter future election security policies (and there will surely have to be policies on how even a "perfect" audit statute is implemented), and (3) The constant talk in newspapers and from election officials that we should trust them, and that "public trust" is the most important thing in elections, when in fact the most important thing is checks and balances and public oversight, i.e. institutionalized distrust, not trust.
Now take these three unique advantages of known investigatory techniques, likely insider status, and constant media trust-talk, and consider the fact that the elections stakes are for the world's richest country and sole military superpower. In light of these extremely high incentives to cheat, consider the fact that the average person will send only their like-minded friends to an unscientific Internet poll to "vote it up" for their side, which is the moral equivalent of stuffing the ballot box. Of course, most of us do this so that the most just side wins the unscientific poll, but we are acting intentionally to make the poll even more unscientific. Well, election cheaters to the same, they create "justice" for the side they believe in, and they create inaccurate and unscientific results in the process. So, Election criminals are just like you and me, in other words, they just are creating more "justice" by making the right side win than you and I do in our small-time Internet polls.
Given the highest stakes in the world, the highest cheating incentives in the world, published clues to criminals on how they will be investigated, a universal tendency on the part of all humans to stuff the ballot box to help the more just side (in their opinion) win, and the fact that successful election criminals and their friends become election insiders, we have a problem with election security don't we? We need TWO WAY security that protects from insiders as the biggest risk and also protects from outsiders. Everyone who votes has a bias and a motive to mess with your sacred right to vote. And, if your individual right to vote is sacred or very important (take your pick), then the counting of the individually sacred votes of all 122,267,553 Americans that got their votes counted in the 2004 presidential election, is approximately 122,267,553 times more sacred or 122,267,553 times more important than the individual's right to vote - which all by itself can not be burdened or compromised in almost any case.
So, what does Holt propose concerning the FIRST COUNTS, these counts that are 122,267,553 times more powerful than the merely SACRED in our democracy?
Holt institutionalizes secret first counts on optical scans and touch screens by offering paper trails on touch screens it deceptively calls "ballots" and Holt also substitutes post-election Illusions of 3% audits instead of 100% open counting on election day, and urges us to imagine the statisticians (government workers) rushing in to save the day by proving the government's own first count numbers to be wrong, when we've always had a post-election option like this called recounts and their track record of expense, untimeless and inadequacy is so legendary that even the Holt bill knows something has to be done about 100% recounts, but Holt comes up with an even more modest 3% post-election audit in place of first count checks and balances, and tells all of us non-scientists and non-statisticians that science and statistics will save the day so we needn't worry about a 97% reduction in the already-inadequate recount "right." America has over 13,000 counties, do you think we have that many statisticians willing to serve, spread evenly over every American county....? Forget it, the Holt bill is not based on actually THINKING nor is it based on the perspective of DEFENDING DEMOCRACY, a stated reason we launch Middle East wars.
So why is it so difficult for politicians to honestly talk about DEFENDING DEMOCRACY via public oversight, since even a political bird-brain in America knows that Arthur Anderson couldn't audit Enron, but Holt has government appointed auditors auditing the government's election numbers, which is tantamount to Enron auditing Enron?
The public is the ONLY party qualified to oversee elections, because the public is the sole source of legitimate power as the "boss" in democracy, the government is the servant, and all the servants have huge conflicts of interest, getting all their money and power from elections themselves, and naturally wanting to defend their first-count reputation, not attack or correct it.
The above is the gauntlet of destructive processes your RIGHT to vote is subject to, culminating in the complete destruction of the right via secret vote counting, leaving us with absolutely no basis for confidence in our election results other than pure trust --- the very thing the checks and balances in our system were designed to avoid. The Founder John Adams wrote: There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty. It seems to follow, then, that the right that protects all other rights, the right to vote, ought not to be processed in secret or counted in trade secrecy.
To add insult and outrage to democratic injury, it is a simple legal fact that a trade secret is a form of intellectual property, and thus, the very heart of democracy being elections, and the very heart of elections being the counting of the vote, we not only have utter secrecy in vote counting, we also have corporate PROPERTY. The very heart of democracy has been rendered corporate private property, and the vendors of these electronic machines argue that all forms of property share the common characteristic of the right of exclusion of others, or the right to kick off the trespassers in other words. In 2007, in Sarasota Florida in a congressional election contest with up to 18,000 missing votes in a race decided by around 500 votes, a judge ruled that the trade secrets of the secret software would NOT yield to the need for accuracy in the election result, and no discovery of information inside the machines was allowed.
We are all supposed to uphold and defend democracy, and yet even though the heart of elections is corporate private property simply given away by our government (in fact vendors were PAID to take it, in the course of buying electronic machines), and even though we have corrupt secret vote counting on election night, we're going to keep the secret counts under the Holt Bill. And don't think of the Clinton bill and the other bills which are even worse.
Whatever you do, they seem to tell us, DO NOT THINK OF YOUR RIGHTS OR THE RIGHTS OF DEMOCRACY! Don't be an "all or nothing" type person. You might lose a friend or something.....
Because rights are really "all or nothing" type things for the most part, especially "inalienable" rights, we all need to have a gut check here.
If we keep our eyes on Congressional "realities" whereby this institution, fully 60% of the public believes is actively corrupt and accepting bribes, insists that the only realistic thing for the public to expect from congress is for congress to vote for Holt, and thus ratify that it's their own re-elections for each congressional seat will be conducted under corrupt conditions of electronic trade secrecy. Anything less than first count secrecy is a non-starter, and we are supposed to cooperate in praising the emperor's clothes on this.
On the other hand, we could take a rights approach, and KEEP OUR EYES ON THE PRIZE of those rights, instead of on bullshit statements about "realism" the source of which can not be traced. Our eyes on the prize, we realize that secret vote counting is "transparently" corrupt no matter when or where it occurs, and even if George and Martha Washington are doing it. Opscans count in secret too, it's like watching a photocopier and thinking you can count filled-in ovals at 60 page per minute scanning whizzing by, if you think otherwise.
Thus, it is not a desire to derail a bill, or a lack of realism, or any other such cause that impels us to separate from Congressional Holt momentum and to declare the reasons for this separation. We hold these truths to be self-evident, that people are born with certain inalienable rights involving their liberty interests, and if "the right that protects all other rights" is not one of these inalienable rights, then nothing is safe OR inalienable.
Holt is not opposed for light or transient reasons. Rather, the right to vote purchased literally with the blood of thousands, is NOT going to be dropped into a black box where it is NEVER seen again (touch screens / DREs) nor is it going to be sent through a optical scan computer-machines secret first count where there is perhaps a 1% to 3% chance that truth will ever be known by any human being or combination of human beings (including election officials), much less being known by the entire public.
Over. My. Dead. Body. I'm taking rights my seriously. Yours too. Shouldn't we all?
I'm asking, and I will risk annoying my friends to do this, that everyone consider this from a rights perspective. I submit we have no right to seek the compromise of our neighbor's rights or the rights of future elections or future generations. There is no more of a compromise on fundamental rights than there is to compromise and only be tortured on weekends, but not 7 days a week. In other words, the compromise IS the violation of those rights. For example, Condoning or tolerating torture, even at a reduced frequency, when one has an ability to do something about it is in fact an international war crime. People get prosecuted for giving other people "half" of their rights and compromising their rights.
Surely, voting and having the vote counted accurately are rights, are they not?
As an advocate for the rights of democracy, let me say that the water is warm, we have the entire American history behind us, that every successful major movement from women's suffrage to civil rights has used the Declaration of Independence and inalienable rights as their foundation, and that anybody who supports or tolerates burdening and making voting rights entirely dubious by counting those votes in secret thereby removes themselves from the democracy tent, even though the democracy tent is no large it has room for 100 or more political parties.
No American can really look squarely at Holt's secret first counts and support it, even if audits were beefed up, it doesn't pass muster. I'd like to see Cong. Holt or any other Holt supporter pry away the ballot from any suffragette that worked their whole life for the right to vote, and then tell them their Hobson choice was (1) have the ballot filled out for them and counted secretly, under touch screens, via the "Help" America vote act, OR (2) fill out the paper ballot themselves and have the ballot counted secretly on an "optical scan" machine via the "Help" America Vote Act.
I wouldn't be surprised to see the above suffragette say
"Get the heck away from me, or I WILL SHOOT! I don't need your "Help" for me to vote and America doesn't either!!" Our rights are not negotiable, our Constitution is not negotiable (only amendable through extremely open, public processes).
Is it somehow extreme to insist on and think about rights of voting in the voting rights movement, or are we all messed up in the head??? When it comes to rights, the "compromise" IS the violation of the right.--Paul Lehto, Attorney at Law
lehtolawyer@gmail.com
(c) 2007 Paul R Lehto, Permission granted to forward, blog or reproduce at no charge to the public, with all attribution preserved to Paul R Lehto as author with full text.
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