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Dodgy voting systems; Luddite judges; stressed out, arrogant election staff – small wonder vote counts are often wrong.

Half a Loaf in the Maricopa County, Arizona, Election Trial

In an era of instant news when Twitter, Facebook and news feed updates chirp at you live on your smart phone, desktop and perhaps even the chip resident inside Apple CEO Steve Jobs’ head, why are we still more concerned with getting our elections “called” by that quaint 11:00 PM television news deadline appointment than with ensuring that every vote (including absentee and mail-in ballots) be counted and correctly reported?

Today, in hundreds of counties around the USA, absentee ballots, including those cast by overseas-stationed troops fighting for the right to vote, and mail-in ballots, all of which are cast by well-meaning citizen voters who took the time to ensure their votes were counted, are often not even processed unless the outcome is in doubt.

When doubt is cast over an election result, everybody, including the election officials themselves, lawyer up and head to court. There they sit before Luddite judges, whom we ask to adjudicate a fight over technology electrons, although many of them cannot even figure out how to open and read an email.

The pundits then personally attack the motive of those raising any question, not their argument, and assume those raising issues are a bunch of tin-foil hat, conspiracy theorists. Because they don’t understand (or worse, do, and want to cover it up) the basis of the security concern, they attack the messenger rather than fix the problem.

Why can’t more public servants be like California Secretary of State Debra Bowen, winner of the Kennedy Library’s 2008 Profiles in Courage Award? In 2007, Ms. Bowen commissioned a statewide review of electronic voting systems and withdrew their certification citing lack of security.

Instead, most fight to preserve faulty systems and point the finger (you choose the digit) at those making the charge. Instead of going back to paper ballots and signed poll tapes, or even following their own election law (!), states like Arizona and others pass laws saying only the technology that created the mess can get us out of it by … running the faulty machines a second time.

When voters rely on the courts to help set the verdict right and interpret how voting technology can or should be used, we count on judges to understand complex technology issues. These lower courts lead up to the US Supreme Court (SCOTUS) where the chief justice writes his opinions in longhand by (quill?) pen.

Justice Roberts is so technologically unversed that in the oral arguments of City of Ontario v. Quon he asked counsel, “What’s the difference between email and a pager?”

In that same case, Associate Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else. (My answer, “we would fall into a black hole and life as we know it would cease to exist,” was, thankfully, vetoed.)

And this problem is not limited to SCOTUS. In the recent Maricopa County case brought by a candidate and a group of voters, eight, highly technical items were before a local circuit court judge. AUDIT AZ’s John Brakey said, “The case was compromised by lack of time for preparation, as well as the judge’s lack of technical understanding.”

Michael Duniho, who was called as an expert witness, concurred. He was upset that the judge never identified wi-fi signals as important: “I think because the judge didn’t really understand the technology,” nor understood why untested software should not be allowed. Said Duniho, “because when someone tells you what their software does, they could easily be lying.”

Duniho should know. He spent 30 years working on computer encryption systems for the NSA. When you need a technical expert from central casting, Duniho is your man.

When asked for a layman’s explanation of why wi-fi could become an issue, Duniho said, “the potential problem with wi-fi is that if a person in the election department made the central computer wi-fi capable, it would be possible for someone out of sight (possibly even outside the building) to gain control of the central computer and make it do things like change the outcome of an election by altering the database, remotely.”

Oh.

While vividly remembering an MSNBC “Countdown with Keith Olbermann” conspiracy theory rant about cellphones in election headquarters, it became clear that my iPhone or a Blackberry was essentially a tiny, powerful router. According to Duniho, “the general solution is seen as not allowing any wi-fi signals anywhere near the central computer, or at least to demonstrate that there is no wi-fi router anywhere in the vicinity. All routers should be banned.”

Precisely because most cannot get their heads around this concept, changing a result in the central computer can be far more easily effected than the previously discussed Hursti memory card hack made famous in the HBO film “Hacking Democracy.”

So, the Maricopa trial was half a loaf.

Said Brakey, “We won the first flurry when the County basically admitted that they had been doing the hand count audits wrong since 2006 by not publicly committing the precinct results as required by law.” The group lost, though, on a number of important technical points including ensuring that cables were clearly marked and visible and photography allowed in the observation area to ensure transparency and the rules being followed. Duniho was aggravated when the elections director insisted, “she could interpret the law any way she wanted to and it was more important to ‘not confuse the public’ than to literally follow the law.”

The advent of television in the 1956 presidential election put incredible pressure on election departments across the USA to get the numbers in, and somehow valued speed over accuracy in national elections. The only way they could hit the deadline was to rely on computers, counting machines and scanners. Since they are used around the country and no one can trust the result, why not go back to the old ‘Colonial’ system still in use in the UK and other countries?

During the 2010 parliamentary election, no one questioned the count or integrity of the process because every one of 650 parliamentary districts used the same rule book counting some 40 million ballots by hand. The entire result was known by 3:00 PM the next day in every single race.

The USA will cast double that amount of votes in three times that number of jurisdictions in this year’s general election. It is possible to take the pressure off these beleaguered public servants and ensure they get it right, openly and transparently, by doing it right from the start and counting by hand.

As Duniho said, the judge in the Maricopa case “suggested that the County’s lack of cooperation, though legal, was ill advised.” And at the end of the day, he praised the election activists for their hard work and commitment to improving elections. “So,” said Duniho, “I guess it was a moral victory and a bit of legal victory.”

Duniho, Brakey, AUDIT AZ, and hundreds of vote auditor activists across the USA have lost thousands of hours fighting for election transparency. No one can understand why so many local and state election officials around the USA use scarce public resources to pay exorbitant legal fees to fight their own citizens.

While it would seem unwise in this Tea Party-inspired country to bite the hand that literally feeds you, these fights also give the impression of impropriety or, at the very least, that something – possibly just foolish human pride – is being hidden. Why?

As Brakey and his colleague Jim March stated, “We’ve all learned over many years that Election Integrity is not about ‘trust’ or ‘credentials,’ it’s about transparency and oversight and our right, as citizens, to know that our favorite candidate – or least favorite – won or lost in our public elections. If you find yourself having to trust in someone – anyone, whether it be an election official, a Judge, a voting machine company, or an Election Integrity advocate – rather than being able to see things for yourself, then something has gone terribly wrong.”