Many object to H.B. 550

["Al Kolwicz" <alkolwicz@xxxxxxxxx>]

The Colorado Voter blog's "No H.B. 550" is posted at
www.coloradoVoter.blogspot.com

Black Box Voting's is at
http://www.bbvforums.org/cgi-bin/forums/board-auth.cgi?file=/1954/23277.html


Paul Lehto's is pasted below.

Al

Al Kolwicz
CAMBER - Citizens for Accurate Mail Ballot Election Results
2867 Tincup Circle
Boulder, CO 80305
303-494-1540
AlKolwicz@xxxxxxxxx
www.users.qwest.net/~alkolwicz 
www.coloradovoter.blogspot.com 

CAMBER is a dedicated group of volunteers who are working to ensure that
every voter gets to vote once, every vote is counted once, and that every
ballot is secure and anonymous.

=========================

The Holt Bill (HR 550): 
Dangerously Undermining Audits of Elections
And Other Critiques

By Paul R. Lehto, Attorney at law 
lehtolawyer@xxxxxxxxxxx  

   The following is why I think the Holt Bill (HR 550) does much more harm
than good.  Regardless of whether or not you are a "paper ballot" person, I
think my arguments below apply with equal force.   Election systems act like
kaleidoscopes, and amendments turn the kaleidoscope and force patterns to
rearrange.  These turns can be very damaging and unexpected.  
   
  Please Understand: I'm not trying to rain on anybody's lobbying parade and
I support election protection completely:  But in any case, I always
recommend that we lobby for our VALUES not for specific bill language
subjected to future word-smithing and changes anyway, and may or may not
deliver the result intended.... 
   
   My attack (if you will) on the Holt bill is on the notion that the bill
accomplishes what it sets out to accomplish, and also whether "gold
standard" is a fair description.     The fact that more and more people are
getting involved in the movement and asking for most or all of the right
things does not at all tell us whether a particular bill actually delivers
those promises.
   
   The Holt bill has vetted its 2% audit requirement with "computer
scientists" which is great, but it also needs to be vetted from
statisticians for sure and perhaps even consumer fraud attorneys, and I
think it fails in that regard.  (My co-author Dr. Jeffrey Hoffman concurs as
to the 2% opinions below, but isn't involved with the rest).  
   
  THE GENERAL PROBLEM SEEMS TO BE THAT ALTHOUGH MOST PEOPLE'S #1 GOAL IN
PROTECTING ELECTIONS IS AN ANTI-FRAUD MOTIVATION, HOLT APPROACHES IT AS A
QUESTION OF MAKING TECHNOLOGY WORK.   This may be because we often don't
want to insult the public officials, and it's hard for Congress to sit down
and have a serious discussion about "how do we protect the people from the
politicians and election crooks".  But as Jon Roland said a wise man
prepares for the probability of corrupt administration during a time of good
administration, if that's what we have now.  Plus, to make an analogy, I
don't think security experts in banks stand for too much bullshit about
"there's no risk of embezzlement from the inside, just bank robbery from the
outside".  Same with elections.
   
  So please let me give some examples based on co-authoring a paper actually
scientifically and statistically auditing an election result (I know others
here have done so as well but I don't think everyone has), followed by some
legalistic observations.  With a little overlap, these are in addition to
the 6 or so concerns I posted earlier, most of which I've not heard any
response to.  The first one below on the 2% audits is somewhat of a repeat
and an expansion of the concern:
   
  (1)  SECTION 5 of Holt (Mandatory Manual "Audits"):   The 2% audits on a
precinct or polling location basis means that the samples are clustered,
since all the votes in the entire precinct selected are counted.  The
problem with Holt is not the 2%; it is that it is 2% of precincts.  One
cannot do, with precinct-wide samples, what one must do with a true audit:
establish a firm margin of error and a "tight" confidence level so that if
the sample exceeds that, we can sound the alarms.  So, it won't be possible
or it will be very unlikely that even a cheating margin (in a reasonably
close race at least) can come to a statistical conclusion that something was
wrong. (Thanks to attorney and non-Ph.D. statistician Jonathan Simon for
this)  Press releases will issue, and it will simply be announced, or we
will be forced to announce, that the results are 'within the margin of
error' because the margin will be quite wide indeed.   
   
  Moreover, although the EAC can do more audits if "cause" appears for the
same, when something is "within the margin of error" it is probably not
"cause' for further investigation as a matter of law, so a court might well
shut us down or shut the EAC down with the argument that UNDER ITS OWN
STANDARDS AND RESULTS there is no cause to look further.   The fact that
citizens are invited to bid on the contracts in order to truly waste their
time with a futile exercise (with the contract itself being a control
mechanism and probably no access at all in any event to trade secret
software) is not an improvement.   
   
  It gets worse.  Section 5(b) requires at least one precinct in each
(microscopic) county, which further forces small precincts to be selected,
further making the 2% precinct selection problem even worse, though it the
purpose of this provision appears to be to help spread the sample throughout
the state, we simply have no rational interest in having statistics mimic
the distortions of the US Senate, with 2 from each state regardless of size.
Legislation simply does not alter the rules of statistics as to proper
sampling, and should not attempt to do so.   For a compelling example of how
this "minimum one per county" provision would also distort audits, see
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=
203&topic_id=421136&mesg_id=421204
   
  In a nutshell, though an "official audit" be completed, nothing can be
proven from it due to wide margins of errors created by precinct sampling,
so that's the empty end result of the huge audit investigation, and anybody
who continues to be unsatisfied is a wacko conspiracy theorist and attorneys
will raise their prices and encourage you to reconsider your desire to check
more.  It will give audits a bad name, and the conspiracy theorists will be
100% correct: the audit proves nothing.
 

  (2) Even if the audit could prove something, which it almost assuredly can
not, all it proves is that there's a DIFFERENCE between paper and
electronic, not where that difference comes from.  It will be argued that
the problems are with the paper, or in a real pinch even with the DRE
printing an incorrect ballot that the voters (according to one claimed
result in I believe an MIT study) don't really check any more than they
check their paper receipts at the grocery store (a glance perhaps).
Because the paper records under Holt are stored "in the same manner" as
other paper records in the relevant jurisdiction, there's no improvement as
to that (it may be good or bad with chain of custody issues).   
   
  In a nutshell, the audit is almost guaranteed to be within margins of
error, and discrepancies (if any) can be blamed on the paper (with DREs,
primarily).  Although "inconsistent' results mean the paper prevails, the
results will be very unlikely to be inconsistent, even in cases of actual
substantial malfunction or fraud.
   
  (3)  Although in Section 5(a)(1) it says audits will be "random,
unannounced, hand counts..." two paragraphs later the Holt bill provides
that the EAC shall determine the precincts "and then *announce* the
precincts in the State in which it will conduct the audits."  Sec.
5(a)(2)(A).   This does not seem "unannounced" it seems "announced".   
   
  Even if the unlikely audit-proven discrepancy can not be successfully
blamed on the paper records, the Holt bill requires the precincts or polling
locations to be "announced" "no later than 24 hours" after the state posts
final results.   Now, presume that the elections officials have engaged in
election fraud, since they are the ones with the access and if anyone in the
past has been successful at hacking, they or their friends are now the
insiders.   Given as little as 4 hours I'm sure they can make paper match
computers for certain precincts.  This game was allegedly played in Ohio
just recently.   Maybe the officials aren't even guilty, they just are
curious to see if they will pass the audit, so they check the ballots
themselves, are horrified by getting caught seemingly with their pants down,
and so they do the human thing and pull their pants back up, even though
someone else caused the problem?   Here again, paper matches result though
the officials are innocent,
at least of the fraud or irregularity, though not of the cover-up. 
   
  If a crime has taken place, nobody announces in advance what the search
warrant will be looking for.   Jesus Christ.   My Dad was an IRS auditor for
32 years and he'd be laughing his ass off at this procedure in a criminal
matter.    So, I can only assume that this bill does not consider either
insider election fraud or insider CYA maneuvers to be a serious risk.  I
think that's deeply mistaken. Or perhaps "announce" has a meaning that I'm
not getting, in the context.
   
  (4)   So we do all these audits, and they discover nothing because they
are not designed to be rigorous enough.   Now the whole idea of auditing
gets a bad name and some people start rallying for the elimination of audits
as a taxpayer waste.  We are stuck with educating the public about
statistics.   Who wins?   Even if audits aren't thereby eliminated, the
elections are looking a lot cleaner than they are, artificially.  
   
  (5)  Now, let's say that we somehow, against all odds, have the whiff of a
smoking electronic gun.    The public and the media are DEMANDING a recount!
People are up in arms about these electronic machines.   We're unlikely to
get any electronic information because Holt provides in section (B)(iv) that
the paper records "shall be used as the official records for purposes of any
recount or audit conducted with respect to any election for Federal office
in which the voting system is used."     I'd still like to see those
electronic ballots, though!  While not saying that electronic records can't
be accessed, the trade secrecy claims and the largest law firms in the
nation will defend that territory if need be.
   
  (6)  The part about prohibiting wireless, power-line or concealed
communications devices is GREAT.  But then the next paragraph takes it away
by saying these must be "certified" by the EAC according to EAC "standards".
One of the central election fraud concerns is that people get elected
President (or whatever) then "pull up the ladder behind them" by changing
the election rules or cheating, or that for any other reason holes are left
in EAC standards.    
   
  Let's say activists are really smart and spot a hole in the EAC standards,
just like 30 "certifiers" failed to spot the Hursti hole, so it just might
happen again.  The EAC "certification" is nevertheless argued to preclude
any suit.  As they did in my case, they argue all day long that these
certifications mean that the technology can't be questioned, except through
the Secretary of State or the EAC's minimal and deficient comment process or
litigation from there.  This argument I would hope would not win, but it is
a major barrier they erect.  It is not without legal support.   The
"strength" of this argument specifically in elections cases has been that
the government "estops" or prevents citizens from litigating under some
circumstances because the issue has already been decided (i.e. by the
certification and comment process).  If the government is deemed to
represent the people's rights, it is just as if the citizen had personally
litigated and lost when the
government did it, they can not do it again.      Perhaps the Holt bill has
planned around this legal authority, I don't know. 
   
  (7) The Holt bill basically says appearances of conflicts of interest.
247(11)(B)(iv).  That's good.  But you can make an office nonpartisan or
make a manufacturer shut up, but that does not mean that we don't have
partisans in nonpartisan office or at the manufacturers.  The local auditor
I basically sued though not by name, was a Democrat in nonpartisan clothing.
Requirements like this are not disqualifications, they just force partisans
into disguise.
   
  (8) Holt says no component of any voting DEVICE upon which votes are CAST
shall be connected to the internet.  247(c)(12)  The headings use the word
"system" but headings are usually ignored in statutory construction at least
in Washington state.   This language appears to mean DREs can't be connected
to the internet, but tabulators can be.   It might be different if it said
"voting system" instead of "voting device". 
   
  (9)  Holt says that manufacturers must disclose anyone convicted of
election fraud. 247(11)(B)(ii) That's good, but what about a criminal
background check?  You mean a conviction for computer fraud, perjury,
computer crimes and bribery need not be disclosed so long as it's not
"election fraud"?   Public school teachers have background checks, do they
check only for "child molestation" and leave it at that?
   
  (10)  Providing all election codes to the Election Assistance Commission.
247(11)(B)(iii):  the manufacturer must provide all codes to the EAC and not
change them until recertified.  I don't think anything like this should be
centralized, it gives anyone who breaks into or is inside the EAC access to
the entire nation's software.  Decentralization makes things harder.  
   
  (11) Laboratories doing certification are not supposed to have a financial
interest in "the manufacture, sale or distribution of voting system hardware
and software".  231(b)(A)(i) They can, and do, have a financial interest in
approval or disapproval of systems, and could even have a bonus in their
contract for doing, let's say, "fast work", and this would not be
prohibited. 
   
  (12)  Section 401 is amended at (b)(1) to allow aggrieved citizens to
"file a written, signed, notarized complaint with the Attorney General
describing the violation".   Let's say that hypothetically Bush cheated to
get into office in 2000 or 2004, our remedy is then to file a complaint with
John Ashcroft!  (or any cheating person of the same party as this or any
other AG, it's not a good remedy)   And, let's say we have serious evidence
of a democracy-stealing election fraud crime, that complaint will be
rejected for insufficient notarization if you want to be an anonymous
whistleblower.  Stand up and be counted like the guy in Tiananmen Square
with the tanks.   Don't forget the notarization so we can be sure who you
are.    There's not a single jurisdiction in this country where even a
multimillion dollar lawsuit requires notarization.   This needlessly deters
complaints.   

     (13)  The 2% audit may well preempt the efforts of any state, or the
right already existing though not codified, of the public to audit.  Granted
this right is rarely honored, but the newspapers were able to recount
Florida.  Will this now be prohibited to citizens or media?  I call this
concern "locating the audit power".  If the audit power is located in a
private entity or even a public entity it will be difficult to impossible to
insure integrity.

     (14)  Disclosing the source code, as featured in the Holt bill:  I've
been saying for some time though not often that this may result in a big
lawsuit by vendors who assert that their trade secret "property" has been
"taken" by an act of Congress, for which "just compensation" is required
under the constitution.    See Reilly v. Phillip Morris (ingredients in
cigarettes can't be forced to be disclosed without a takings claim even
though Massachusetts has a compelling interest in public health).   The
approach of my lawsuit (link below) has been to seek the contracts be
declared void, in order to avoid this and related problems.  It is in the
nature of contracts themselves that they are fairly well protected against
SUBSEQUENT acts of congress or legislatures because of the impairment of
contracts clause in the Constitution.   Thus, this provision might also
impair contracts in addition to being a taking, unless it is declared void
and nonexistent in the first place because it is an illegal contract that
attempts to revolutionize our elections simply by the government and a
vendor signing a contract, even though contracts are not supposed to affect
the rights of those who have never signed.  

    (15)  The Holt bill's status as "The gold standard".    The Holt bill
tries to do well but doesn't succeed.  Nothing about the Holt bill prevents
the "Hursti hack" (which changed the result of an election without leaving
any evidence).  Holt reinforces computers in our elections (which
necessarily creates invisible vote counting, and then secret vote counting
when combined with trade secrecy claims).  If Holt is the "gold standard" we
will have problems when we "come back for more" in future years. 
  
    (16)  Preemption generally.  One advantage of the current system is its
decentralization, at least until it reaches centralized state-level
computers.  This makes it harder to rig.  To the extent things are
federalized more, it makes it easier to rig nationally.   

    (17)  The EAC.  The federal Election Assistance Commission was created
by HAVA in 2002 to advise on best standards.  It has failed the public in
doing so, and become a largely captured regulatory body, controlled by
vendors.  Holt would make the EAC permanent, otherwise it expires at the end
of Fiscal Year 2005-06.  

Democracy for New Hampshire is another group with a critique of Holt at this
link:  http://www.democracyfornewhampshire.com/node/view/2243   

 I don't think one can fairly use the terms "floor" or "bulwark" or "first
steps" to describe the Holt bill, at least not without any major
qualification, as some pro-Holt groups are saying.   We should lobby for our
Values, not for specific bills, so that we are clear in what we want, and
our investments in education retain value over time instead of changing
names and details with each congressional session. 
  
  Paul R Lehto

  Attorney at Law 

www.votersunite.org/info/lehtolawsuit.asp  (link to my lawsuit and pleadings
for it, as well as the Snohomish election irregularities lawsuit)