Court loses sight of fundamental right to verifiably accurate count...
By Ernest A. Canning on 12/10/2016, 3:04pm PT  

If allowed to stand, the reasoning behind U.S. District Court Judge Mark A. Goldsmith's December 7, 2016 decision [PDF] in Stein v. Thomas to halt the Michigan presidential "recount" is flawed, at best. Issued, ironically enough, on the day we commemorate what President Franklin D. Roosevelt described as "a date which will live in infamy", it is by no means an exaggeration to suggest that Judge Goldsmith's reasoning could inflict greater harm on the very foundations of our constitutional form of democracy than that inflicted by the Dec. 7, 1941 attack on Pearl Harbor.

The halt to the "recount" came just two days after Judge Goldsmith issued a temporary restraining order ("TRO") directing the MI Canvassing Board to immediately commence the "recount" and one day after a U.S. Sixth Circuit Court of Appeal decision, upholding that TRO.

Under that 6th Circuit appeals ruling, Judge Goldsmith was obligated to revisit the issue if "the Michigan courts determine that Plaintiffs' recount is improper for any reason." Separately, on Dec. 6, the Michigan state appellate court ruled that, under MI law, only a candidate who has a reasonable chance of winning has a right to initiate a post-election count. But that state court ruling, by three Republican judges, did not justify Judge Goldsmith's decision to halt a "recount" that had been predicated on Dr. Jill Stein's rights under the U.S. Constitution.

As he acknowledged in his original decision, the Green Party Presidential candidate did not base her federal claim on state law. To the contrary, in his initial finding, Goldsmith held that the Plaintiffs had shown a likelihood of success on the merits of their claim that the two-business day waiting period mandated by state law "would likely violate their right to vote under the First and Fourteenth Amendments." Judge Goldsmith, in that first decision, added, "the [federal] right to vote, and to have that vote conducted fairly and counted accurately" [emphasis added] is not merely "fundamental" but serves as "the bedrock of our Nation."

State law, whether directed at the timing of the recount or to the aggrieved status (standing) of the candidate seeking the count, should not be allowed to infringe upon a fundamental right that every citizen has to a verifiably accurate count of their votes.

The truly damaging aspect of the decision to dissolve the TRO lies not in the question of standing but in Judge Goldsmith's upside-down reasoning as to who should bare the burden of establishing the integrity of the vote. That reasoning is directly at odds with the rulings made in two landmark cases in Germany and Austria, to the effect that the need for election integrity and transparency are paramount in any nation that values democracy...

Backwards burden of proof

As Brad Friedman reported when Stein first announced her intent to seek a "recount" in three states (WI, MI and PA), the Green Party Presidential candidate cited "the many concerns brought to her by computer scientists and voting systems and election integrity experts, all questioning whether paper ballots were counted accurately by error-prone and easily-hacked computer tabulators in WI and MI, and whether touch-screen systems were manipulated in some fashion in PA."

Stein was seeking a first-time hand-count of the optical-scan paper ballots, where they exist, along with an independent forensic audit of the touch-screen voting systems by computer experts. Her goal, she said, was to "verify the vote and be confident our votes were counted."

Judge Goldsmith did not dispute the validity of Stein's concerns. To the contrary, he acknowledged them, even while going on to rescind the TRO which would have allowed for either verification or refutation of the accuracy of the unverified machine tallies.

In his Dec. 7 decision, he wrote:

The issues that Plaintiffs raise are serious indeed. But invoking a court's aid to remedy that problem in the manner Plaintiffs have chosen — seeking a recount as an audit of the election to test whether the vulnerability led to actual compromise of the voting system — has never been endorsed by any court, and would require, at a minimum, evidence of significant fraud or mistake — and not speculative fear of them. Such evidence has not been presented here.

Judge Goldsmith has utilized a backward application of the burden of proof that can only serve to undermine a fundamental right that the court, itself, acknowledged "is the bedrock of our nation": the right of the people to know that their votes were "accurately counted." Short of an impossible result, like the negative 16,022 votes recorded for Al Gore on Volusia County, FL's optical-scan system during the 2000 election, the only reliable means for verifying or refuting whether the official optical-scan count is the product of "significant fraud or mistake" is to have human beings publicly hand-count the paper ballots. To require proof of fraud or machine error before ordering a hand-count, or a forensic audit, is to put the cart before the horse.

Real issue is transparency

When it comes to elections, the word "fraud" is frequently invoked but rarely substantiated. Oh, there certainly have been instances where insider election fraud has been proven. See, for example, this site's coverage of the guilty verdicts handed down against high-ranking Clay County, KY election officials for multiple counts of felony election fraud. Those officials had illegally manipulated elections, including voting systems, for decades. But proving actual fraud is far too time consuming to be of any use within the context of the severely limited time constraints of a recount in a Presidential election. (In the Kentucky case, the guilty verdicts were handed down more than one year after the initial arrests).

When it comes to election integrity, the key issue is not to establish actual fraud, but to operate a transparent system that significantly reduces the opportunity that is afforded by e-voting systems for either hacking by outsiders or the rigging of the ultimate count by an insider. "I follow the vote," CIA cybersecurity expert Steven Stigall informed the U.S. Election Assistance Commission (EAC) during a 2009 presentation, "and wherever the vote touches electron and touches a computer, that's an opportunity for a malicious actor potentially...to make bad things happen."

When it comes to what Judge Goldsmith acknowledges is the "fundamental right" to an "accurate count," U.S. courts would do well to follow the lead of Germany's highest court, which, in 2009, banned all forms of e-voting. There the issue was not actual fraud but transparency. The court ruled that there is a "constitutional right to a public observed count" --- a right which would be denied by all forms of unverified e-vote counting, which, of course would include, optical scan tabulations as well as 100% unverifiable touch-screen (Direct Recording Electronic, or DRE) systems.

Earlier this year, Austria's Constitutional Court extended this core transparency principle to the counting of absentee ballots. The court went so far as to vacate the results of a Presidential election and to order a re-do of the election. Although, in that instance, the absentee ballots in question had been hand-counted, Austrian election officials had failed to comply with an election law requirement mandating two officials be present to personally observe the unsealing, opening and reading of the absentee ballots so as to insure a verified count.

The Austrian court ruled that the question as to whether someone illicitly manipulated the count "is of no relevance. All that a challenger need show is that the number of votes in which election officials failed to adhere to that nation's strict procedures is high enough that it may have altered the outcome."

If the U.S. truly aspires to genuine democracy, our courts should pay heed to the German and Austrian decisions. Whether or not there's sufficient time to overturn Judge Goldsmith's latest decision and to carry out a Michigan hand-count, his reasoning must be rejected as unsound. Anything less will serve to destroy a core pillar of our constitutional democracy.

* * *

Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing