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By Rady Ananda

October 25, 2008

The Help America Vote Act is so flawed it makes the USA PATRIOT Acts look like time-out for ill behaved children.  Bipartisanly passed in 2002, HAVA strips U.S. citizens of their right to know their vote is counted as cast.  HAVA legalizes secret vote counting on undetectably mutable software.  That bears repeating:  the software can be changed and no one would know; it cannot be proven because malicious code can erase itself.  HAVA took control of US elections out of the hands of election officials and gave sole control to private, for-profit corporations. 

Citizen oversight of US elections is the only way I can think of to develop democracy in this nation.

At the end of this Science Friday interview of Nassau County Election Commissioner, William Biamonte talks about the Judge in the case USA vs. NY State Board of Elections (which case still controls NY elections to this day).  Biamonte says:  

“And the conclusion was – I’m not saying it verbatim – but the conclusion, in essence, was the judge said, “I don’t care if they don’t meet standards. I don’t care if they don’t meet New York State’s, uh, if they can’t escrow their software. I want one machine in each polling place.’  So, the federal judge, by his ordering that Consent Decree, allowed the vendors not to fully comply with a very important and very secure standard.”

He is not kidding – the statements by the Judge – Gary L. Sharpe – are what are amazing.  Let me start with his willful ignorance:  

“Why is it that New York thinks that it can thumb its nose at the federal government and not comply with federal law?”

Well, maybe because the Help America Vote Act was crafted by now-convicted felons.  Maybe because the Administration that pushed for this legislation was never elected, but illegitimately occupies the White House. Maybe every federal law that has been passed in the last seven years has no legitimacy, if it emanated from the White House. 

Or maybe because software driven voting systems that the (now discredited) Dept of Justice is suing New York to implement cannot be made secure.  

Sharpe is no sharp tact.  How can he ignore the mountains of scientific evidence condemning software driven voting systems?  Is this willful ignorance?  Or is he merely part of the system that is overthrowing democracy with secret vote counting.  Then, Sharpe says in this December 2007 hearing:

“I suppose I could follow the example of Eisenhower in 1957 and call out the National Guard and make them install machines in compliance with federal law.”

Oh, don’t flatter yourself, your honor.  There’s a big difference between forcing states to provide an education to everyone regardless of the color of their skin, and forcing states to implement voting systems so deeply flawed that not a single credible computer security expert approves them

There’s a big difference between enforcing justice and enforcing fascism, by denying voters their constitutional right to a fair vote count.  If Sharpe does call out the National Guard, he will merely be acting like Stalin who famously said:

“It’s not who votes that counts; it’s who counts the votes.”

Sharpe then reveals he is NOT ignorant about these flawed machines – none of which have been federally certified, btw.  But instead of dealing with this fact, he cowardly accuses the NY SBOE of not doing its job:

“What seems to me to be the ridiculous option is what I see everybody talking about, which is you want me to do your job. You want me to pick voting system standards for you, through a special master or otherwise, you’re asking the federal court to do what New York State, in dereliction of its responsibilities refuses to do.  I suppose you want me to conduct brain surgery this afternoon, too…”

Let’s blame the victim here – NY does not want these flawed machines, and is being forced to deploy them by a corrupt Dept. of Justice.  And the judge acts like the fact that the machines are flawed is none of his business. Talk about shirking responsibility.  

“Sixteen months ago, I told ya to pick a machine, and here we sit, in December, a week before Christmas, and you still haven’t picked a machine.”

The machines can be hacked without detection; who cares?  Federal law says you must use them.   

Again, now the judge blames the victim:

“So, if New York is paralyzed by its inability to meet its higher standards, that’s irrelevant, because noncompliance with federal law is not an option.  It’s off the table.”

It isn’t NY that can’t meet its standards; it’s the vendors who can’t make a product that works.  So, what is this on the part of Judge Sharpe?  Willful ignorance?  Why is he pretending it’s NY’s fault that “the voting industry sells crap,” to quote NY SBOE Commissioner, Doug Kellner.  

I’ll tell you what’s off the table, Judge Sharpe – undetectably mutable software when recording or counting the public vote in a democracy.  Jeez.  Who does he think he’s fooling?  

I wonder if the judge is thinking about what happened in DC this year, or in NJ, or in Palm Beach County – with optical scanner and paper ballots.  I wonder if he rues his decision to enforce a federal law that so thoroughly fucks up the vote count by requiring a system that, when 2,000 ballots are scanned three different times, it gives three different results.

“Noncompliance is not an option.”

But, your honor, if we walk off the plank, we’ll drown! “Noncompliance is not an option.  If federal law says you must walk the plank, then you must walk the plank.  If federal law says you must drink poison, you must drink poison.”  (Okay, just kidding here.  The judge didn’t say the last two sentences.) 

But, your honor, the testing lab that worked with NY (Ciber) has been decertified for its shoddy practices.

“Noncompliance is not an option.”

But your honor, all the systems that purportedly follow the 2002 or 2005 Voluntary Voting Systems Guidelines have been shown by computer security experts to be deeply flawed.

“Noncompliance is not an option.”

Does the US judicial system HAVA brain?  Or does it just follow orders like a Good German?  Or maybe we need a jury of informed voters to decide the issue. But the problem is not just with our corrupt Department of Justice, nor our clearly unjust judicial system.  Electoral management bodies across the nation ALL know these machines can be hacked without detection, and yet they proceed to use them with Eyes Wide Shut.  They’ve read the studies, so I gotta ask:

Does the US electoral system HAVA brain?

What can voters in the United States do in the face of such blind, willful ignorance (at best) to implement a federal law that flies in the face of the US Constitution by abdicating the right of voters to know how their vote was counted?  What can voters do when electoral management bodies deploy what EVERYONE KNOWS ARE TOTALLY HACKABLE VOTING SYSTEMS? 

I’ll tell you what they can do – they can choose not to vote in a ridiculously flawed electoral system.  The only vote tallies we can trust are those counted by hand in a secure, publicly observable fashion at the precinct on election night; or on lever machines that are protected in a secure fashion, with multiple parties and the public observing the counts as they accrue during the day, comparing them with the number of signatures in the poll books.  And when they are transcribed at the end of the day – multiple parties, and the public, and the media should witness the transcription.   

Another thing we can do as journalists and bloggers is not report election results as fact.  Unless you rely on verification of the vote count by an independent source – like you and your team hand counted the ballots under secure protocols – then election results can only be fairly described as “reported results.”  See Dave Berman’s excellent article, How To Disarm Weapons of Mass Deception:

“We must challenge our industry to refuse to report as fact what cannot be proven and has not been independently verified, particularly when the only source of the information is the government itself.”

Voting in a fraudulent system is a waste of time and gives credibility to this charade called US elections.  We will never rid ourselves of fake elections until we first stop participating in them.