In a ruling issued this afternoon just prior to the Holiday weekend, the presiding Florida Circuit Court Judge William L. Gary denied the plaintiffs motion to allow review of the source code for the paperless touch-screen machines used in the contested U.S. House race in Florida’s 13th district between Democrat Christine Jennings and Republican Vern Buchanan.
Jennings, and a number of Florida voters and Election Integrity organizations, had filed suit asking for a revote and to allow them to review the software used on the voting machines made by Election Systems and Software, Inc. (ES&S), after some 18,000 votes seemed to have disappeared in the race to fill the U.S. House seat vacated by former FL Secretary of State Katherine Harris. The state has previously certified Buchanan as the winner by a 369 vote margin.
Gary’s terse ruling [PDF], issued this afternoon denying the motion to compel the company to turn over their source code, states that ES&S has a right to keep their software hidden from review by both the Jennings camp and voters, supporting the company’s “right” to keep their “trade secrets” protected.
An audit of the machines was previously conducted by a panel convened by the state. The various plaintiff groups had roundly criticized both the make-up of the panel and the procedures used during the testing, characterizing it as an “exercise in futility.” The panel was led by a known hard-right Republican partisan and included the state’s own official responsible for voting machine certification. No independent Election Integrity advocates were included on the panel.
That audit — to nobody’s surprise — revealed no problems in the hardware or software as tested. But the plaintiffs have argued that only an independent investigation of the source code used on the Direct Recording Electronic (DRE) voting machines might reveal reasons for the inexplicably large undervote rate in the race, more than 12%, only found on Sarasota’s paperless touch-screen systems. Absentee paper balloting in the county, and on voting machines in other counties which make up the FL-13 district, revealed no such anomalous undervote rate. Undervote rates on paper absentee ballots in the same race, in the same county, were just over 2.5%.
Neither the Buchanan camp, nor anyone else, has been able to give a credible explanation for the disparity.
Gary’s ruling denying Plaintiffs’ motion to examine the voting machine source code finds that:
E. Because the election was a close one and due to Plaintiffs’ allegations an audit was conducted on the voting system to verify its accuracy.
F. Two parallel tests were conducted on the subject screen systems and representatives of both Plaintiffs and Defendants were present. The test results revealed 100% accuracy of the equipment in reporting the vote selections.
G. Plaintiffs have presented no evidence to demonstrate that the parallel testing was flawed and or the results not valid.
H. The testimony of Plaintiffs’ experts was nothing more than conjecture and not supported by credible evidence.
I. For this Court to grant Plaintiffs’ motions would require this Court to find that it is reasonably necessary for the Plaintiffs to have access to the trade secrets of Defendant, Election Systems & Software, Inc., based on nothing more than speculation and conjecture, and would result in destroying or at least gutting the protections afforded those who own the trade secrets.
The plaintiffs had been requesting a revote for the election in the Florida circuit court. Jennings has filed a contest in the U.S. Congress, under the Constitutional provision which allows the House to determine the seating of members. When the new Congress convenes in January they must decide whether to seat Buchanan as is, seat him provisionally, seat Jennings instead, or leave the seat vacant, essentially forcing a Special Election in FL-13, or take some other action.
…MORE…
Miami Herald’s brief coverage of the story claims, “House Democrats also said today that they will not take any action to block Buchanan from assuming the Southwest Florida seat when Congress reconvenes next week.”
Though we’ve yet to read any such statement. if true it would be unfortunate, given the fact that even ES&S’s only expert put on the stand during the hearings in Florida — notably, he was a political scientist, not a computer expert — concurred that had it not been for problems with the voting machines, Jennings would have won the race. A study of the undervote ballots in the race had previously found the same thing. According to the study, had votes been recorded on those ballots, Jennings would have won the election by a near 3,000 vote margin.
…STILL MORE…
Sarasota Herald-Tribune’s coverage, as it has been throughout the FL-13 Meltdown, is much better than Miami Herald’s, whose reporting on the Democrats’ statement as mentioned above appears to be rather misleading. The Herald-Tribune offers some crucial caveats and details from the Democrats — left out by the Miami paper — clarifying that if Buchanan is seated, it will likely be only conditionally while an investigation moves forward…
…
“The House has the power to collect evidence and make a decision about who, if anyone, was duly elected to represent the people of the 13th district,” U.S. Rep. Rush Holt, D-N.J., said Friday before the judge’s ruling. Holt plans to make an official statement next week making it clear that by seating Buchanan, the House isn’t forfeiting the right to reverse that decision later.
“No one who is in a disputed election like this should get too comfortable in the House of Representatives,” Holt said in a news conference at the Capitol.
…
Drew Hammill, a spokesman for incoming House Speaker Nancy Pelosi, D-Calif., said that the judge’s ruling Friday didn’t change plans by the House to investigate the election, and also noted that the ruling isn’t final because Jennings can appeal.
But Democrats have no plans to block Buchanan from taking the seat, deciding the people of the southwest Florida district should have representation while the contest is being decided, Hammill said.
“This is the best way to maintain representation for Florida District 13 while allowing the two appropriate challenges to run their course,” said Hammill.
Jennings said she agreed.
“I think it’s the right thing to do, to seat Vern Buchanan temporarily while we gather evidence,” Jennings said before Gary’s ruling. “But I am pursuing this and I do believe I will end up being the representative for the people of the 13th District.”
Though the statements from Holt, Pelosi, and Jennings came prior to Gary’s ruling today, it is unclear whether or not Congress may have the right to compel ES&S to make its source code available to House investigators via subpoena. (UPDATE: Someone involved with the plaintiffs in FL, who is not an official spokesperson and has thus requested anonymity, tells us, in regard to the above, that, “Congress could definitely subpoena the source code.” AND A FURTHER UPDATE ON THIS: A congressional staffer has contacted us to say, “The subpoena power has a few glitches. But yes, through the Federal Contested Elections Act the power exists.”)
Additionally, one of the attorneys representing the Florida voter plaintiffs in the case has said they will most likely appeal Gary’s ruling.
“We’d like to get (the code) and prove our case as opposed to listening to the state’s and (the voting machine company’s) theories,” People for the American Way attorney Reggie Mitchell told the Herald-Sentinel.
…LATE UPDATE 6:51pm PT…
Dan McCrea, a Florida spokesperson for VoterAction.org, one of the non-partisan Election Integrity organizations working on the voter lawsuit calling for a revote that had sought permission from the court to review the ES&S software, has just sent us the following statement on today’s ruling, confirming that they will, in fact, appeal the decision at the beginning of next week:
TALLAHASSEE, FL. On Friday, December 29, 2006, Judge William L. Gary denied the Motion to Compel Florida elections vendor Elections Systems & Software (ES&S) to turnover the software, hardware, and source code used in the Congressional District 13 election for independent expert examination in the election contest lawsuit brought by Sarasota voters. As a result, Florida voters have once again been relegated to last place behind corporate and political interests.
“The voter plaintiffs will challenge this ruling in a state appellate court during the first week of January,” declared lead counsel Lowell Finley, Co-director of Voter Action. “Something went very wrong in this election, in which thousands and thousands of voters were disenfranchised solely because they voted on ES&S touchscreen machines. Plaintiffs must have access to the critical evidence of the inner workings of the ES&S machines to identify the source of the problem. Corporate secrecy should never trump the public right to know when it comes to our elections, the cornerstone of our democracy.”
unbelievable.
how did it come to this, that the so-called needs of one “person” in the form of a business(the legal standing of corporations, under U. S. law) is more important than the needs of 18,000+ people in FL-13 and their right to equal representation in the U.S. House?
CONJECTURE THIS! Judges aren’t there to protect voting machine companies, and neither are congressman and senators!
“Relief for Plaintiff(s) is readily available at the polls” (wink, wink) “where ES&S will count the votes on any ballot initiative proposed to remedy this complaint.”
First, remember that this is only the evidentiery part of the case. There will be more to come.
Second, remember that a team of computer scientists from one of the Florida Universities is actually doing what the court said Jennings’ experts cannot do; they are inspecting the source code. Some of those scientists are experts that I would call. This, to some extent, makes this court ruling out to be pretty stupid and the state and ES&S’s arguments against inspection rather non-sensical.
Third, the seating of Buchanan will be challenged by Rep Holt on the floor of the House. Buchanan will be seated, and Jennings has agreed to this, but it will not affect the lawsuit or challenge in any way according to legal interpretations I have heard.
The whole software review thing is futile anyway.
For Pete’s sake! If there are errors, most likely they will not be found. No one can write error-free code; and the most stringent screening never finds all the errors. Microsoft, despite genuine best-faith effort, has to issue new bug fixes every week.
And black hats who write malware take pains to be sure that it will not be recognized…
And the obscenely inadequate Independent Testing Agencies are precluded by regulation from even looking at so-called Over-The-Counter Software -in which, correspondingly, evildoers can plant their trojans with impunity….
Hand count paper ballots – machine-free!
Good God. What a nice way to close out the year.
The battle rages on, folks.
And the Dems STILL do not appear to get it…
“I. For this Court to grant Plaintiffs’ motions would require this Court to find that it is reasonably necessary for the Plaintiffs to have access to the trade secrets of Defendant, Election Systems & Software, Inc., based on nothing more than speculation and conjecture, and would result in destroying or at least gutting the protections afforded those who own the trade secrets.”
I think you left out the sub text so I will give it to you here:
“1b. So instead I prefer to destroy and gut the right of voters to have their votes counted by a verifiable and transparent counting system.Other wise there can be no guarantee that they won’t vote for the wrong candidate.”
Sites to remember in 2007:
http://judiciary.house.gov/
http://judiciary.senate.gov/members.cfm
Anyone still not clear here? PROFITS (dangling balls.. lessthan_symbol 3) everything else.. even our OWN Democracy..
Remember it well, kids. Corporate America is ALL that matters. They have your money, your mortgage, your car, your TV, your stereo, everything you own, if they want it. They can just call in all your debt at once, and 90% of America would lose almost everything.
It’s a real threat, and the reality is, Corporate America is destroying this country. They don’t care, though.. they don’t need to. This country and it’s debtor slaves have a use, and once we can’t “buy” shit anymore, we’ll all end up part of the “corporate army” that wages wars against “bad governments”. Corporate Wars will end up being all that’s left, in 50 years.. watch.
(can’t seem to get a left carrot (less than symbol) to actually post, yet it shows up in the preview fine.. bleh)
{You can’t use carets because the software thinks it’s code. –99}
Getting the code would be huge, simply because their code has yet to be reviewed, as far as I know. It would also set a possible precedent for future cases like this. Nonetheless, I think a new election is the ONLY way to go, and frankly, it should be on all paper and hand counted!
Another Judge blinded by the phoney ‘Corporate Personhood’, which is a fairy tale anyway
I expected this
I have hammered at length on this: corporations are not the same as a person–so why do they get to be treated the same as a person? It is long past time to reign in corporations by changing the law and revoking some corporate charters.
Does Jennings lawyer blow, surely theres enough information out there to make a decent case. Or is the Judge bought?
There’d been a lot of talk about poor ballot design being one cause for the undervotes. Do we know who designed this ballot? perhaps the ballot designer should be subpeona’d.
Also, what technical knowledge, experience, certifications or degress does the Florida elections supervisor posess that allows him/her to certify this type of gear?
if none. then the judges argument of conjecture weighs just as heavily in favor of tossing the machines reported results, as is does in the plaintiffs arguments of malfunction.
When testing computer memory/motherboard/cpu/input/output, the machine is run thru BILLIONS of cycles which must run flawlessly before that computer is cerified for use in production.
How does ES&S do their certification? Do they use propietary testing applications? Or do they run the machine thru a number of simulated election cycles?
John Gideon, if you have any input in the process currently underway, please, please, push the plaintiffs to examine the testing procedure and to grill that ballot designer and look real real close at the designer’s private connections.
Once again, we see a judge ruling on electronic voting issues in negligent ignorance of elemental facts about voting machine software; for instance, that the machines have internal calendars, know what day and time it is, and have an “election mode” that operates only on election day. Testing machine behavior outside of election day mode will not tell you anything about how they performed on election day.
What about the memory cards, precinct tally tapes, internal audit logs, and network or modem logs, if any? Were those promptly impounded by court order and examined before they could be erased, altered, or otherwise lost?
A forensic examination of electronic voting machines requires full access to all the code and all the hardware, preserved in exactly the operative relation they were in on election day–and even then, the likelihood is high that self-erasing code executed at closing of the polls has already covered all trace of fraudulent vote-manipulation. Judges have no idea how computers work or how hidden subroutines can self-activate under trigger conditions. Plaintiffs’ attorneys are not obtaining discovery orders that meet the essential requirements for meaningful investigation of computer fraud. Newspaper reporters assigned to these stories are no better informed, so their shallow reporting perpetuates the surface illusion that anything meaningful was accomplished in that charade of purported “testing” conducted by the same team that certified Florida’s fraud-prone voting machines in the first place. The process guarantees incompetence or complicit coverup, not honest answers.
What, I ask, do these computer companies have to “protect”. Anybody who would try to steal voting machine software to make their software run better would waste less time if they tried to make palaces out of poop.
I’m glad Rush Holt has come forward, but nothing has convinced me that we shouldn’t be calling for hand-marked, hand-counted ballots for 2008. This proves that the judges and lawyers are going to make sure we can’t have verifiable voting.
BanVotingMachines.org
Support Congressman Kucinich’s HB 2600 – only paper ballots & hand counts – no machines – for next presidential election or the next bill if this one has expired
Link
time to take our country back from the corporations and the judges that they buy off.
Boston Tea Parties around the country and destroy all these damn machines!!!!!!!!!!!!!!!!!!!!!!!!!
So, this judge is saying, “You’re elections are being controlled, and FUCK YOU!!! Too bad!!!” Time to get rid of this judge. The judges are in on it, too.
Pay close attention, folks:
It isn’t the source code that’s the problem, except in so far as the code serves an imbedded transceiver, which can be remotely used to alter voting tabulations.
Many high-end computers contain transceivers, which certain federal agencies use to spy on economic/political/persona activities of computer users, using satellite links and/or devices closer to home.
#20, thats why I always wear a tinfoil hat when I vote
Note to BVAC, regarding comment #21: Why bother to vote? http://whybothertovote.blogspot.com/
Floridiot #12: Corporate personhood … a fairy tale…
No, it’s now a national and global NIGHTMARE because it has become “established law”; as GTASH said, fixing this will require Congressional action and/or Supreme Court rulings (and that is a hell of a long shot with the current Corporate friendly makeup of both bodies).
I’m not convinced the machines miscounted, or dropped votes for Christine, much as we’d all like to think so.
I think the design of the computer page that contained her race inevitably pointed voters to the race for GOVERNOR, which was on the same page (and just below the Buchanan-Jennings election).
I’m an educated coherent voter and even I might have skipped the race for Congress based on the page layout. Hate to say it, but we may have another idiotic “butterfly” ballot design here that intentionally or unintentionally led 18,000 Floridians to overlook the little race at the top of the page (why does this keep happening in Florida???)
But I hope Christine’s fight proves successful.
#23 If I remember correctly, the SCOTUS tried to take Corporate Personhood up when it came before them in the 1990s, Thom Hartmann wrote a brief to the court about the subject from the 1890s (Link) and the Supremes dropped the case, so it still isn’t (link) written law yet, kinda like the income tax law isn’t either
More on the Corporate Personhood mess
Link
COMMENT #24
HENRYCLAY:
You may be correct about this but there clearly is no excuse for this problem. Those who are in charge of our elections can easily prevent ballot design from becoming a problem if they want to.
When using a DRE every race should come to the screen in sequence using the entire screen for each numbered race. There should be a set number of buttons for all races aligned vertically down the screen. A list all numbered races could be displayed beside the machine so a voter could easily check out how they were credited with voting in any race by checking out that page option.
If there are 15 buttons the party who got the most votes in the previous election could be at position #7. The party who got the second most votes could be put in position #1. The rest of the parties could be sandwiched between these in a similar fashion with the even numbered positions winding up with an option only if there are more than eight parties in the race. The resulting ballot would have the most significant parties sandwiched between the least significant parties and vice versa. The positions of parties on the resulting ballot could be rotated one position clockwise as it is passed on to each of the remaining precincts so that ballot position bias is not a big problem.
In any race where there are less than nine parties an over sensitive button would only garner votes from a blank position. Even in larger races over sensitive buttons would only transfer votes from very significant parties to very insignificant parties or vise versa.
The Republic Con Party could not garner votes as they consistently do from the Democratic Party without their button being so sensitive it garners votes from all the positions between them as well. Any shifting of votes because of button sensitivity would thus be highly unlikely to happen and very easy to spot if it did happen.
There are ways to prevent or reduce the impact of the “gliches” that are showing up in our elections. The remedies to these problems are very simple if we all wanted to get control of these problems. The big problem is that those who control the outcome of our elections want nothing to do with these very simple solutions. It would cost them the control of the outcome of our elections that they clearly enjoy very much.
It all has to be up-rooted.
ALL OF IT.
The Judges
The Senators
The Congress
The Executive
They have fucked up ONE too many times.
The Electronics in our Elections (The Dictionary should not even define it as ELECTION anymore) are the ROOT of this EVIL.
So send a VIRUS to the Corporate Media.
EVERY DAY.
OH Crap. By the way, I forgot to state the simple.
The Judge is WRONG.
Not a computer virus; you fucking know what I mean!
Otherwise my fellow AMERICANS
We will soon be in a nasty unconstitutional catch 22.
I hope to GOD (my God Not your _god_) that don’t happen.
I just want my country back, I want this unconstitutional crap ROLLED BACK. I want COMMON FUCKING SENSE from these “educated retards” DOES ANYONE KNOW WHAT COMMON SENSE IS ANYMORE?!
I will say this, “Although you may have the fucking votes, I DID NOT VOTE FOR YOU, AND YOU WERE NOT ELECTED.”
Can you tell I am pissed off?
On another though…
Let ES&S keep their fucking precious source code (That ANYONE can reverse)
But Take ES&S out of our elections.
ESS&S ATT&T whatever. they both are unconstitutional.
Hell maybe you want ME to have a voting machine company?
All I got is a few fucked up 8080’s, Z80’s,8086’s, 8088’s 1 ea 80186 and A shitload of 286’s, a few 80386DX, and 80486DX2, several … Oh never mind. There’s the motorola chips box! Maybe RISC is better?!
Want ME to make the lections? Shit I can’t SPELL Lection. Let alone PUKE up 0’s and 1’s on New Years.
Want me to puke up a 0? How about a 1?
How about I put a 12,000 VAC oon a a +3vDC bus? Oh wait wait wait, the fucking room just filled with DARK GREY SMOKE IN 4 SECONDS.
Maybe I need a fucking video. Of REALITY for the retards in government and corporate media. Cause we in public ACCESS don’t have this problem of visualation
Let the ANGER ROLL ON IN 2007…….
One day the voting machine companies (like me with my CHIP collection, btw I got them from doing propane torches on circuit boards) will have to figure out how to dispose of the toxic waste. (You just heat up the circuit card/board with the torch and slam it against the cement/wood)
No wonder I am dying huh?
Federal law must mandate that the only count that matters is the hand count of the paper ballots. Any other vote count is little more than a meaningless dog and pony show.
Link to article : Federal mandate needed to hand count paper ballots. Close the gaps and loopholes that allow our votes to be tampered with.