Guest Blogged by John Gideon of VotersUnite.org

"It is through the Constitution that we control the reins of government and insure that it remains the protector of individual, unalienable Rights - i.e., the servant of the People.

"Therefore, it behooves the People to show the Government that the People know what their Rights are and what Government's obligations are, that the People are watching Government as it exercises its delegated powers and that the People are prepared to act if the Government steps outside the boundaries drawn around its power by the Constitution." --- We The People Foundation

The U.S. Election Assistance Commission (EAC) works for the People. It doesn't work for special interests. It doesn't work for the voting system vendors. The EAC has an obligation, spelled out in its past advisories, public statements and, most importantly, in federal law, to carry out oversight of the voting systems we, the People, use in our federal elections. It does not matter that the EAC commissioners are not elected to their positions. They are still servants of the People.

Not long after being created by the Help America Vote Act (HAVA) of 2002, the EAC published, on June 8, 2004, "Chairman Soaries' Remarks about Electronic Voting Security Strategy for the November 2004 Presidential Election." The comments, by then EAC Chairman DeForest "Buster" Soaries included recommendations "to insure election integrity and promote voter confidence in the administration of the 2004 federal election," and stated, in part: "[The] EAC should solicit information about suspicious electronic voting system activity including software programming and should request aggressive investigative and prosecutorial responses from the U.S. Department of Justice Elections Crimes Branch in the Criminal Division."

The above was restated in a July 13, 2004 "Commission Advisory Letter" [PDF].

It's clear that if there is to be any federal body to recommend investigation and/or prosecution to the DoJ, in regards criminal violation of federal law concerning voting systems, it is to be the EAC, the body charged with testing, certifying, and performing as the "national clearinghouse...with respect to the administration of federal elections" (42 U.S.C. § 15322) and the electronic voting systems employed across the country.

And yet, the EAC has continued to utterly fail in those duties, as a particularly maddening chain of inquiries and emails --- back-and-forth and round-and-round --- that we'd sent to the EAC commissioners and their spokesperson over the past three months illustrates all too well. All we were trying to do was get a simple answer to a very simple question...

Last December 5th The BRAD BLOG reported about the discovery of votes that were "lost" on the Humboldt County, CA, electronic tabulation system. Then, three days later we reported that Diebold knew that their voting system might lose votes and, worse, had known about the flaw in their system for more than 4 years.

So who has the responsibility to do something about this? The EAC is not empowered to carry out criminal investigations or bring legal sanctions or prosecution. However, as with all federal agencies, the EAC has the responsibility to ask the DoJ to investigate potential violations of federal law and, if merited, to prosecute the offenders. That is serving the People.

On December 5, 2008 we wrote to the EAC's then Chairwoman Rosemary Rodriguez, Executive Director Tom Wilkey, Voting Systems Head Brian Hancock, and EAC Spokeswoman Jeannie Layson, alerting them to the troubling revelations in Humbolt County --- which forced its Registrar of Voters to submit a re-certification for their November election results to the state, once "lost" votes were discovered --- and inquiring whether or not they planned to take appropriate action with a referal to the DoJ [emphasis added]...

After waiting for three weeks for a response, we sent a follow-up note on December 29th to the same addressees as the prior email [emphasis added again]...

Within a couple hours, Commission Chair Rosemary Rodriguez replied to my email with an email of her own to EAC Director Tom Wilkey, asking him to discuss the matter with their Office of General Counsel (OGC), and acknowledging that the commission has, in the past, referred other matters --- on issues of "voter registration" --- to the DoJ...

It appears, from the above email, that Rodriguez may have never read the commission's own advisory from 2004, stating the position of the commission's very first chairman, that the "EAC should solicit information about suspicious electronic voting system activity including software programming and should request aggressive investigative and prosecutorial responses from the U.S. Department of Justice Elections Crimes Branch in the Criminal Division."

We received no acknowledgment from Wilkey, in regard to Rodriguez' request, nor any further response from anyone at the commission. So, nearly a month later, on January 21, 2009 we sent another email to EAC Spokeswoman Jeannie Layson, with a cc to the new Commission Chair Gineen Beach, Commissioner Rodriguez, Director Wilkey and Voting Systems Chief Brian Hancock, again requesting an answer to the original question sent nearly two months earlier, or, at least an explanation as to why no response would be forthcoming.

Layson punted, in response, shortly thereafter...

The "near future" hadn't arrived over a week later, so on Friday, January 30th, we sent another email to what had become the regular list of addressees:

On the next Monday, Layson responded back with yet another stalling email...

"Shortly" apparently meant more than another 8 days, since Layson hadn't been in touch following that note, so, on February 10th, the following email was sent to the commissioners and Director Wilkey [emphasis added yet again]...

I received the following response from Layson two days later...

After two and a half months, the EAC was saying in the above response, that, essentially they are going to do nothing but post links to any reports from California on their "Voting System Reports Clearinghouse" page at the EAC website (the "Clearinghouse" page is quite difficult to find, as its buried some four levels deep on the main menu via the EAC's front page) and then, likely, include the fact that they have done so, in their weekly newsletter. There would be no request for investigation, as per their original Chairman set out in 2004, and as echoed in an advisory publication at the time.

So, we took the opportunity to remind Layson, again, of the Commission's own 2004 Advisory statement, and notified them that we were not seeking "on the record comment" for possible publication in this matter...

As has become expected, the response last week was, yet again, non-committal and generally non-responsive to the question...

...To which we sent the following response in turn...

...to which Layson responded...

At this point, it seems obvious that someone would be making a determination concerning referral (or not) to the DoJ.

Recall, in the January 22nd response from Layson, she informed that the original "question is under review". But who would be doing that "review" and when would the determination finally be made?...

The next day, last Friday, came the unbelievable answer from a servant of the People...

And so it goes. Around and around again...

The EAC, via their spokeswoman, has been stalling for months, saying that "someone" was going to decide what action to take, at some point, but after three months, the mouth piece for the organization apparently has no idea about the status of anything, despite inquiry after inquiry.

So who is being protected by the EAC here? As stated in the email of 18 February, three members of the EAC, including one Commissioner (Donnetta Davidson); the EAC's Executive Director (Tom Wilkey); and their Voting Systems Certification Director (Brian Hancock); were all involved in the National Association of State Election Directors (NASED) process of authorizing voting systems for use at the federal level. That was the system that allowed the use of nearly every electronic voting system presently in use by states, including all of those that have failed in myriad elections in the past.

The list of e-voting systems approved for use by NASED --- which oversaw federal testing and approval of voting systems until only recently, as per the EAC's directive at their founding --- includes the failed Diebold GEMS v1.18.19.

Is it the voters or the vendors who are being protected by the EAC? If Diebold had been a drug company or auto maker they would have been told by the FDA or NTSB to remove their product from the market and fix the problem or, in the case of a problem with an automobile, recall the cars and make immediate repairs for customers free of charge. But the EAC does not see themselves as a "servant of the People", so, it seems, they continue to ignore problems, and put off those inquirying as to how --- and if --- they are doing their jobs, in hopes that the problem, and the People asking about it, will simply go away.

Perhaps it's time to replace the Executive Director and Commissioners with people who have the best interest of the People in mind. And certainly, it is time for someone to step up and ask the Department of Justice to investigate Diebold for knowingly allowing the use of a voting system that they knew was not accurate.

In the meantime, CA's Sec. of State Debra Bowen may be doing at least some of the EAC's work for them. She will be holding a Public Hearing [PDF] on Tuesday, March 17th in Sacramento, "to give people an opportunity to express their views regarding the investigation into" into the "anomaly" discovered in the Diebold/Premier GEMS v 1.18.19 voting system, by the citizens of Humboldt County.

The Times-Standard reported on Sunday that Bowen is likely to decertify the system in the state, as currently used by Humboldt, as well as a number of other counties. "The public hearing is typically the last step in the [decertification] process," according to a CA SoS spokesperson.

The software designer of the citizen project which discovered the problem in Humboldt, Mitch Trachtenberg, also believes that the DoJ should investigate the matter. "I think that would be totally appropriate," Trachtenberg told the Times-Standard. "They sold software that doesn't work."

The same Diebold system, "that doesn't work" --- as well as later versions, also believed to have the same programming bug, and also federally approved for states' use under the EAC/NASED program --- is used widely across the country, a full four years since Diebold admitted to the problem.

                 

Article Categories: Diebold/Premier, Election Irregularities, Debra Bowen, California, Election Reform, Voting System Certification, HAVA, Election 2008, EAC, Accountability, Dept. of Justice, Humboldt County