The Help America Vote Act (HAVA) structures so-called elections in the United States. It is profoundly defective legislation. The Holt Act is intended to modify HAVA but will more likely ratify it, should Holt ever get passed and signed. This article was written in April 2006. The subject was election attorney Paul Lehto’s questioning of the Election Assistance Commissioner Ray Martinez. It’s enlightening, at least. The complete version is at the link “Complete Article.”
Thursday, 20 April 2006, 10:44 am
Article: Michael Collins
SIMPLE QUESTIONS — TROUBLING ANSWERS
Q&A Session with a Commissioner of the Elections Assistance Commission Reveals Massive Violations of Citizen Rights
Secret Vote Counting Crammed Down the Throat of Democracy
by Michael Collins
"Scoop” Independent News
With the help if nearly $4 billion in federal grants, HAVA eliminates the evidence of voter intent by eliminating the paper. Instead of paper ballots we have votes registered and counted on “touch screens” – computer based direct recording electronic (DRE) voting machines. Invisible electronic ballots are the result of these DRE touch screens. Electronic vote counting software does the vital vote tabulation in secret. For citizens and public officials, the vote counting processes are strictly off limits. There is literally nothing to see. As a result, the public records of vote counting are gone. To preserve this secrecy, DRE purchase contracts often pledge the government to cooperate with the vendors to fight the very citizens the government is pledged to serve.
What is this secrecy in vote counting, really? To have the votes counted in secret by your political enemy is the picture of tyranny. To have the votes counted in secret by your political friend is the picture of corruption. To even desire such an unaccountable power is itself corrupt. So how is HAVA cramming this down the throat of American democracy?
HAVA, it turns out, provides a $3.8 billion carrot of federal money to assist election jurisdictions with purchases that comply with HAVA’s “standards.” This federal carrot is combined with a big lawsuit stick for noncompliance. The date for required compliance with HAVA is the first federal election in 2006 (the primary), and violations of HAVA are routinely guaranteed by the U.S. Department of Justice to be cause for a lawsuit. New York was the first major example made of a big state, when DOJ filed suit to force compliance with HAVA’s “standards” in March 2006.
HAVA standards require voting accessibility for people with all “disabilities.” They also require at least one “accessible” voting device per polling location. Adding considerably to the stress of some local jurisdictions is the fact that there is no single voting system that allows accessibility for all disabilities, whether of sight, motor abilities up to quadriplegia, or other disabilities as defined by the Americans with Disabilities Act (ADA).
Because of the trade secrecy claims and the nature of electronic vote counting on hard drives, with touch screen DREs, the voters never see the final form of their ballots, and the ballots are all counted in complete corporate trade secrecy. Making any reasonable connection between the intent of the voters and the invisible electronic ballot requires an elections theory that borders on magical thinking.
The wildly unaccountable features of invisible ballots and secret vote counting, and the fact that DREs do not accommodate more than half of all disabilities yet get a free pass under HAVA, should give us reason to pause to reevaluate the law and its outcomes. Yet at this very moment, the Department of Justice is proceeding, suing and threatening to sue any and all jurisdictions that do not comply with HAVA, scaring them into the only seemingly safe route to go under HAVA: touch screen DREs, even though some brave jurisdictions have still rejected that route.
MR. LEHTO: Well, you know, I can look at the outside of the [touch screen voting machine] DRE all day long and I’ll never see how the vote is counted and I’ll never get any information about how the electronic vote is counted after the fact [either], so I have no idea how the vote is counted.
MR. MARTINEZ: Then I understand your question. The answer is that Congress didn’t – I mean the federal government didn’t trump your rights under state law to see the counting of the vote. Now, I understand what your point is. That is, what you’re talking about is these electronic voting machines do not leave the evidence under that you would have under a paper-based system, where you’d see a lot more of what’s actually going on, so I don’t have a good answer for you. Congress is not intending to obstruct your rights as a citizen under Washington State law to see what’s in the vote count. What I would suggest to you is that you better define your state law so if you want to see what’s going on with the machines, then you gotta have your legislature write a law that deals with the fact [of] changes in voting technology [inaudible]. Your legislature can request [inaudible] that you as a citizen to be able to witness every single aspect of the vote count, you’re going to have to get your state law changed, or you’re going to have to do it a different way like 25 and 26 [inaudible] which may not mean anything to you because most of these states [inaudible] It’s not a good answer to your question but I can tell you .. I’m pretty sure that the intent of HAVA was not to trump your rights under state law; that may be what the effect was, but that’s not what the intent was.
(Author’s note: At this point, the EAC has been effectively put on notice that it may well be abridging citizen rights, with knowledge of the same, by facilitating contracts for DREs and cramming them down the throat of democracy by litigation threat after litigation threat, all in the name of the disabled and yet serving only a fraction of the disabled community, favoring some disabilities over others, all at the expense of democracy itself.)
CRAMDOWN, STRIPDOWN, LOCKDOWN
The HAVA cramdown is delivered in the form of twin inducements to counties and states that are nearly irresistible: “We will buy you your voting machines” and “We’ve got language in HAVA that says these types of machines, DREs, will make you largely immune from litigation by those pesky citizens who might object”. When those inducements fail to gain the necessary compliance, the next step in the cramdown of electronic voting is threats of litigation and actual lawsuits by DOJ in behalf of EAC.
Once the machines are purchased and contracted for, the stripdown of our rights takes place. We are no longer able to know where our votes go once they leave the screen, nor can we have someone examine the process for us. We are no longer to challenge the vote because DREs are the final word now. Even if so-called voter-verified paper ballots become part of HAVA, currently HAVA makes the DRE-generated invisible ballots the “ballots of record” only if state law so requires, thus rendering the DREs as the headline-makers, even with full “paper trails.”
The HAVA lockdown will be discussed in depth in the next article in this series of affronts to freedom. Once we have HAVA crammed down our throats and we have been stripped of our most fundamental rights to free, fair, and transparent elections, we will find ourselves in a HAVA lockdown, an iron cage composed of bureaucratic, regulatory, and politically predetermined results in which government and its friendly vendor corporations certify each other’s qualifications, all strictly enforced by a judicial system that may not be able to offer relief if we fail to take up the challenge to defend democracy.
The author asked Lehto to share his advice to citizens as they approach politicians and bureaucrats to demand their rights. This first article in a series on affronts to freedom through the evisceration of the voting traditions and practices ends with his comments:
If you are asked by elections officials what gives you the right to watch over the elections that grant all the legitimate power and money the government ever gets, and why a government official shouldn’t be trusted to count secretly the processes that determine the government’s own money and power, since you’ve got lots of things to do, just tell them “Thomas Jefferson sent me”. Remind them that our system of government is not based on trust; it’s based on checks and balances.
You will have plenty of energy and time to do these tasks to protect freedom and democracy, if you just remind yourself of what others have sacrificed so that you could enjoy democracy, and consider whether we have the right to allow democracy to literally disappear on our watch by our inaction. Then you’ll be a sentinel of democracy, one of democracy’s real defenders.
– Paul Lehto April 18, 2006