In public, and hopefully on Election Night...
By Brad Friedman on 12/21/2010, 7:45pm PT  

[Update 12/22/10: Alaska Supreme Court decides against Joe Miller on all counts. Details here...]

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Having paper ballots is one thing. Seeing them actually be counted, unfortunately, continues to be quite another matter.

For those of you who may not understand why it's not enough to merely have hand-marked paper ballots that are tallied only by oft-failed, easily-manipulated computers --- even if those paper ballots could be counted by human beings "in the event there are questions about the results", as supporters of such systems like to say --- need look no further than the extraordinary finding on Monday from New York's highest court, its Court of Appeals.

And, for that matter, what is likely to happen in Alaska very soon, where Republican Joe Miller continues to wait for a similar decision from that state's Supreme Court in his fight for a hand-count of all paper ballots in his still-uncertified U.S. Senate race against Republican write-in candidate Lisa Murkowski and Democratic candidate Scott McAdams...

Where Have We Heard This Story Before?

As New York Election Integrity advocate Bo Lipari, of New Yorkers for Verified Voting explains today what happened in New York...

New York State’s highest Court has upheld lower Court decisions to stop any further counting of ballots and declare a winner in the 7th Senate District race. The decision is unfortunate on many levels, not the least of which is that it sets legal precedent in the State for how we verify election results by auditing and recounting paper ballots. New York’s Courts have now ruled, in essence, "We do not use paper ballots to verify elections."

The contest in question is a race where just 451 votes, out of some 84,000 ballots cast, separate the two top candidates and where the results decided by the courts without actually bothering to have humans count the ballots, means that Republicans will gain a majority in the New York state Senate, allowing them "a critical voice in next year's decennial redistricting and during at least the first two years of Governor-elect Andrew Cuomo's term," as Newsday reports.

"It's okay to trust the machine," is how Lipari describes the message of NY's high court ruling, adding "The Court didn’t understand why we need to compare machine reported results with a manual inspection of ballots in the audit, failing to grasp that the way we get to the real result is counting the paper, not avoiding it at all costs."

It is for this reason --- and many others spelled out on these pages over the years --- that we've argued merely having paper ballots is not enough. They need to actually be counted by human beings, publicly, with all parties and the entire community observing, video cameras rolling, and all done at the polling place immediately after polls close, with results posted then and there before ballots are moved anywhere or by anybody.

That is, as we've described it, Democracy's Gold Standard. Unfortunately, many Election Integrity advocates, even including Lipari over the years, and even in his article today, seem to argue that it's enough to just have the paper ballots which we can look at, as needed, in post-election "spot checks" to make sure everything is on the up and up, or otherwise for counting by humans in full "if needed".

News flash: It's always needed. It's needed in New York. It was needed in New Hampshire, in Massachusetts, in California, in Arizona, and everywhere else, including today in Alaska, where voters are allowed to use paper ballots to cast their votes, but not allowed to see them counted --- at least if we are to have a democracy in which all parties can know that the results of elections have been accurately tabulated and reported.

Not Unique New York

Over the past year, New York became the last state in the union to "upgrade" to fully computerized voting systems. Until this past election cycle, many of the state's voters had continued to use mechanical lever systems which, supporters of those systems argue, are more reliable, more secure, cheaper to operate, harder to game, and, unlike paper-based op-scan systems, legal for use under New York's Constitution.

Setting those arguments for lever machines (and the ones against them) aside, under a flawed and seemingly dishonest argument made by federal officials years ago in support of the horrible Help America Vote Act (HAVA) of 2002, New York was strong-armed into purchasing new electronic voting systems. As the state reviewed its options for that several years ago, Lipari and many other EI experts advocated strongly and effectively for the state to move to paper-based optical-scan systems, rather than 100% unverifiable Direct Recording Electronic (DRE, usually touch-screen) voting machines. They were successful in their arguments and, thankfully, New Yorkers are now allowed to vote on paper ballots, rather than being forced to vote on unverifiable DRE systems.

But as proponents of hand-counted paper ballots will argue, computerized systems for tabulating paper ballots virtually ensure that the ballots will rarely, if ever, actually be examined by human beings to determine whether or not the incredibly flawed, easily manipulated computer systems are actually accurate.

The decision by the New York Court of Appeals this week underscores the strength of that argument. Again.

The state is now fighting about when full hand-counts ought to be required, if ever, and how much of a post-election "audit" of ballots is necessary to help determine that. As Newsday reports in their coverage of the NY state senate contest:

[Democratic candidate Craig] Johnson's attorney, Steven Schlesinger, argued that the state should abide by New York City's standard, which calls for a hand recount when elections are decided by one-half of 1 percent.

[Republican "winner" Jack] Martins' attorney, Peter Bee, asked the judges to avoid adopting a standard for future elections. He said cases should be determined "with standards of reasonableness and standards of discretion without outlining a perfect, bright-line rule."

Bees' sentiment is, of course, a rather convenient one for the Republican "winner" in this case. We suspect Republicans may (correctly) feel differently the next time the issue comes up and they find themselves on the "losing" end of an incredibly close, unofficial, unverified computer tally. Didn't the GOP argue in Bush v. Gore that rules for elections need to be determined, with "bright-line rule[s]" if you will, before they are carried out?

But the next two grafs from Newsday are simply breathtaking...

Bee argued that allowing a manual recount merely because the election is close would lead to candidates on the short end of close elections demanding recounts all over the state.

"What happens the next time a gubernatorial election is won narrowly by one candidate or the other?" he asked. "Are we going to count millions of paper ballots by hand?"

My goodness! Imagine a narrow state-wide election in which the future of the state hangs in the balance and the losing candidate and his/her supporters think they actually may have won instead of lost. Are we going to allow them to find out for themselves whether they did? Or are we simply going to trust in the state's oft-failed, easily-manipulated computers made by Dominion (a Canadian firm using e-voting Intellectual Property (IP) owned by Venezuela), and those made by the private e-voting firm, ES&S (a company which has their own long history of failure)?

Apparently the NY Republicans are choosing the latter, "voting" against citizens and in favor of the private companies and their un-overseeable tallies. And the state's highest court has now has ruled that unverified counts produced by systems made by those companies are more reliable, apparently, than counts done by actual New York citizens. Unfortunately, that same belief continues to be the "law of the land" in most other states as well where it is incredibly difficult and/or expensive for a candidate to see an actual hand-count of ballots cast in their race.

Moreover, Lipari's own blog item, in using the metaphor of a bag of marbles to detail the absurdity of the court's decision, even tends to undermine his own argument that post-election "audits" or "spot-checks" are enough to determine if a full hand-count is needed. You can see his argument for yourself, and it's a good one, but it doesn't underscore the need for post-election "spot-checks", it --- and the finding of the New York court --- underscores the need for paper ballots to be tabulated correctly and transparently in the first place, since it's a rare case where those ballots will ever be properly examined after the computers have announced a "winner", no matter whether the computers are accurate or not.

Meanwhile, in Alaska, a similar story...

That same issue is currently being decided by another high court, this one in Alaska, where Republican candidate Joe Miller has called for a hand-count of paper ballots in the U.S. Senate race in a state where, as we detailed at length not long ago, inexplicable computer tallies, including still-unexplained disparities of hundreds of thousands of votes, have marred election after election over recent years. Though there is a paper ballot for each vote cast in Alaska, yet another candidate is being forced to go to court to try and convince the state they should actually be counted by human beings before a winner is declared.

The AK Supreme Court is set to rule any day now in regard to Miller's appeal [PDF] in his state election contest [PDF] where he is alleging that the liberal way in which Murkowski's write-in ballots were tallied was in violation of state law requiring perfectly correct spelling of write-in candidate names. He is also arguing for a complete hand-count of ballots on, essentially, two bases: First, that alleged voting irregularities occurred, requiring a closer review of all ballots. And, secondly, the fact that Murkowski's write-in ballots were examined by hand (necessarily, since the optical-scanners can't read hand-writing), giving her tally more accuracy than that afforded everyone else by the Diebold op-scan systems used across the state.

On the matter of the State Division of Election's liberal interpretation of the election code (AS 15.15.360) which states that at least the last name of a write-in candidate be written "as it appears on the write-in declaration of candidacy" in order to be counted for the candidate, the lower court has offered a rather liberal, even Clintonian, interpretation of the law, declaring that it appears to depend on the definition of "appears". That, despite the law which also reads "A ballot may not be counted unless marked in compliance with these rules."

"The use of 'appears' allows variations of the write-in candidate's name to be accepted. 'Appears' does not mean 'exactly,' 'precisely,' or 'perfectly,' but rather 'close to,' 'like,' or 'resembles.' ... The definition of 'appears' in this context does not require perfection or precision, but rather a close, apparent approximation known to the viewer upon first look," the lower court judge ruled [PDF]. "If exact spellings were intended by the legislature, even with respect to the most difficult names, the legislature could have and would have said so."

But a "first look" at what? Up until this year, as The BRAD BLOG reported in October, Alaska had never before supplied a list of write-in candidate names to polling places, as Division of Elections director Gail Fenumiai admitted herself in response to our public records request.

Had Republicans supported the lower court's loose interpretation of election code in 2000, Bush v. Gore would likely never have even been necessary, Al Gore would have been named the winner in very short order, in an election where, had paper ballots been allowed to be counted by humans, it would have determined [PDF] that he won the state and the Presidency along with it. But had "voter intent" been allowed as the standard for counting votes, the way Alaska is now arguing, despite their laws which suggest otherwise, Gore would have easily won long before Bush made a federal case out of it.

Miller has argued that some 8,000 votes tabulated for Murkowski should be discarded on the basis of such spelling errors, and those voters completely disenfranchised in the race along with it. While that sort of mass disenfranchisement is likely appalling to anybody who supports democracy, the (rather reasonable, and arguably appropriate) "voter intent" basis on which Alaska is determining valid votes ought to be encoded into law to avoid such disputes in the future.

The BRAD BLOG had, of course, predicted this mess months ago, in September, when Murkowski first declared her intention to run as a write-in candidate after losing to Miller in the GOP primary, and after the AK Div. of Elections made clear that they were sort of making it all up as they went along.

However, even if Miller's hopes of tossing all 8,000 votes were agreed to by the courts, he'd still be behind Murkowski by some 2,000 votes in the still-unofficial results where the majority of votes were tallied only by op-scan systems with a dreadful record of failure. The arguments Miller's team has forwarded to date concerning "voter irregularities" are not particularly well supported, but his Constitutional "equal protection" argument, essentially that votes recorded in favor of Murkowski had more weight than those tallied by the flawed e-voting system, has a great deal of merit --- particularly if one is familiar with the failings of these systems.

So, despite available paper ballots which show conclusively who actually won and who actually lost, Miller finds himself in the state's highest court, at great expense, fighting to actually have them counted by human beings so we can all find out who actually won and who actually lost.

We don't agree with Miller on much of anything, policy wise. Nor do the knee-jerk, largely substance-less "voter fraud!" arguments advanced by his initial team of hard-Right partisans seem to amount to much more than the usual GOP fear-mongering over largely non-existent "voter fraud".

But on the right for all ballots to be counted in the same way, and, even more importantly, for all candidates and all voters to know that their election results were tabulated accurately, a public hand-count of ballots should not be so difficult for any candidate to have. If such a count occurred on Election Night, in front of everyone at the polling place, many of these fights (which we're seeing more and more of each cycle) would be wholly necessary.

"The fact is, this is about the integrity of the election," Miller was quoted by AP as saying earlier this week. "Making sure we've got a clear process that we can apply, not just in this election but in future elections, making sure that the rule of law is upheld."

"And that really is the goal here," he continued. "Once that's done, obviously, we're going to sit back and respect whatever the numbers are. But that hasn't happened yet."

Whether Miller is saying those words --- all of the right ones as far as any serious Election Integrity advocate would likely agree --- for his own personal long-shot benefit, or whether he actually means them is of little matter. He is spot on. And it shouldn't be as difficult for him, a Republican, or for Johnson, the machine-reported Democratic "loser" in New York, or for their supporters, or for candidates and their supporters anywhere else, to know that an election has been decided fairly and accurately.

The majority of voters in the United State are now able to cast their vote on a hand-marked paper ballot, thanks in no small part to democracy advocates like Lipari in New York and others all across the country. So now that we've got paper ballots, how about we now actually bother to count them?

CORRECTION: New York's high court is actually called the Court of Appeals, as opposed to Supreme Court, as per this map. References in the article above have been modified to correctly reflect the naming in NY's court structure.

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