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Hello Everyone-- Jim just called and asked that I post this update ,
because he knows we're all very curious about what happened. He said
that he is having trouble with his ISP and can read mail, but cannot
send any out. So, here's an update to hold us over until he can send
out again.
--Sherry H.
======================================
From Jim March - Wednesday, July 27, 2005, 9:30 p.m.:
Arright. There's been a LOT of discussion of this and it's time I
spoke up for myself.
First point: NO FUNDRAISING IS INVOLVED HERE. I don't need a "legal
defense fund". I'm not asking for money. Jim Hamilton helped out
BIGTIME by loaning me $10k to make bail with (no bail bondsman, that's
the total amount) and then I'm paying him back tomorrow out of the $76k
of Diebold money. After that you can bet I'll make all court
appearances and fight this tooth and nail.
Second point: felony charges are an interesting twist. Unexpected but
not something I'm sweating. The extreme short form here is that they
violated my basic civil right to observe the election (California
Election Code 2300(a)(9)(A)) and in response I stopped "begging" to be
allowed to observe the election and did so directly, by going through a
"security door" to get closer. At which point I was (expectedly)
grabbed, stuffed and cuffed.
We'll get into details there later. For now I'll be clear that I was
unarmed (not even my usual pocketknife) and there was no violence
planned or happened.
Third: this has been portrayed by some as a "publicity stunt". Its
damned well is NOT. Granted, media were present so yeah, once it
became clear that MLKJr-style civil disobedience was going to be
necessary, I made two reporters aware of what was going to happen. But
the CORE reason for doing this is to establish our civil right to
observe elections. Right now a lot of county election officials in
California and across America don't believe in that right; they are
dead set on taking it away from us piece by piece as elections become
electronic and increasingly "automated" - and you can take that last
term as meaning "in the control of the vendors".
I would have done the same thing with no reports present and this
action can and will be a success even with no media coverage whatsoever
(which isn't what's happening and PR *is* a nice side benefit).
OK, let's go over the details.
First, last year I observed elections in San Joaquin County ('04
primaries) in which the right to observe the election was completely
violated. There is a whole chapter on what happened there in this
report to the California SecState's office:
http://www.equalccw.com/sscomments6.pdf
As of two weeks ago, this is what I expected to see happen in San
Diego. In preparation for a visit and possible protest against that
sort of crime, I had the following two documents hand-delivered to the
San Diego registrar's office:
http://www.equalccw.com/openlettertosandiegoregistrar.pdf
http://www.equalccw.com/sscomments8.pdf
Then last week, the registrar (Haas) and his assistant (McNamara) tried
to make it clear to local activists like Jim and Sher Hamilton that the
process in San Diego would be much more open - that the monitors
showing the central tabulator and it's backup (both Diebold GEMS) would
be visible "behind glass" to the viewing public doing observation.
Thus, I was pretty well convinced coming down from Sacramento that no
"arrest protest" was going to be necessary. In fact, Tuesday AM I paid
for my Amtrak tickets ROUND TRIP, return date Wednesday the 27th.not
something I'd do if I planned to go down there to get jailed. (God, I
hope I can get the date on those reset, otherwise I'm out $60, sigh.)
On the day of the election at 3:00pm, Jim Hamilton and I met with
McNamara to discuss logistics of the night's activities starting around
7:00pm and running pretty late into the night. First stop was to the
"public viewing areas" and the "GEMS behind glass" observation post.
Houston, we have a problem.
The monitor was 8ft behind the glass.
Now we didn't absolutely know for sure we had a problem - the screens
weren't showing active working displays and to the county's credit they
were 19" monitors. Much would depend first on the resolution they were
set to (800x600 makes for a perfectly usable GEMS screen and probably
could be read at that distance) and where the console operator's head
was gonna be (and for that matter how tall the guy was, how often he'd
be there, where he stuck his head, etc.)
Jim Hamilton, McNamara and I then went to a cubicle.
We discussed the demand to have the GEMS screen viewable, and I
explained that I didn't care how it was made viewable - moving the
screen closer to the window would do and at least establish the
principle that they were trying. Using a projector to send the signal
through the window to the wall behind would be better if they had a
projector lying around; I also offered to make a run to Fry's
Electronics a couple miles away and purchase a video signal splitter to
allow use of a second monitor up closer to the window.
All of these proposals to improve compliance with Election Code
2300(a)(9)(A) were flatly rejected. McNamara tried to characterize
these requests as "coming on the day of the election" when in truth his
boss Haas had had them for almost two weeks.
I then made a second request: an official (if hand-written at the
scene) California Public Records Act Request for "snapshots" of the
GEMS database taken shortly after poll close and another near midnight.
It's not often I say good things about Diebold products. One of the
few features I like is the ability to do "instant backups" of the
database to the included CD-ROM burner without interfering with the
election processing in any other way. It's standard procedure for
counties to do this throughout election night just for backup purposes
in case something dies. Cutting extra backups (each of which fits
easily on a CD-ROM would cost a few keystrokes time and about 20 cents
a disk (and we brought a few blanks).
More "snapshots" would have been nicer but the two requested would at
least have been a good start. And we don't consider these just "public
records" - THEY ALLOW MONITORING OF THE ELECTION ON OUR OWN SEPARATE
COMPUTERS SUCH AS MY LAPTOP RIGHT THERE ON ELECTION NIGHT. This
request is therefore an integrated component of the right to observe
elections.
By 7:00pm, that request too had been flatly refused.
Make NO mistake folks, if any ONE of these requests had been honored in
the slightest, I would have accepted that as precedent and dealt with
the rest later.
As it was, with even a shifting of the table being refused as
"inconvenient", the stage was set for a confrontation not of my making,
but theirs.
Once the election started up, it was clear that our concerns re: table
location were valid and then some. The screen resolution was set to a
miniscule 1280x1024 pixels, for ridiculously small text unreadable by
any normal human at 8 feet.
Much else happened by the time it became clear that "refusing to go to
the back of the bus" was going to be necessary. A set of unidentified
"mystery terminals" were systematically plugged in one at a time to the
GEMS box - optical scan units that were in unusual luggage were used to
upload memory cards separate from the four units otherwise dedicated to
that - combined with a lot of frantic typing and manipulation of GEMS.
These "mystery terminals" were used one at a time as if to test them,
and we have no idea what that was about.
We learned one REALLY interesting thing:
The GEMS box was connected to the Internet.
Oh, not directly! They had a set of "one way firewalls" allowing data
to come out of GEMS onto the county LAN where it was served up on web
pages. But get this. They didn't set up these firewalls themselves.
Rather, they paid SAIC to do it for them. For those not following
along in extreme detail, SAIC is a software development and computer
consulting house that does almost exclusively government contracts;
their ties to military contracting are very well known.I'll let others
discuss that connection.
But in any case, San Diego has in my opinion turned it's entire
election security over to TWO different "black box vendors" - Diebold
and SAIC. A security failure (accidental or deliberate) by either
could leave their election integrity under threat.
------------------------
Now let's talk legalities.
California Elections Code 15204 requires county election officials to
make "all proceedings" "open to the view of the public".
---
15204. All proceedings at the central counting place, or counting
places, if applicable, shall be open to the view of the public but no
person, except one employed and designated for the purpose by the
elections official or his or her authorized deputy, shall touch any
ballot container.
---
Nowhere are the terms "view" or "observe" defined in this or any other
law connected to the subject. But do note that this law is originally
much older than electronic voting in general. It was later updated
with:
---
Access to the area where electronic data processing equipment is being
operated may be restricted to those persons authorized by the elections
official.
---
San Diego and other counties appear to believe that the latter section
SUPERCEDES and eliminates the former. Not hardly! It just means that
if they go all-electronic, they have to use electronics to maintain
viewing accessability! And this won't cost much - a video signal
splitter/booster is about $200, plus the use of an extra monitor for
the night. Video projectors are another possibility; they're expensive
but the county probably has them laying around anyways and can press
them into service for the night.
Now, this sort of thing where a government body is required to do
something and doesn't is common. You can take them to court of course,
and depending on the IQ of the judge you may or may not get anywhere.
Since it isn't civil rights in question, a lawyer who tries to help out
on the cheap will have to fight to get his fees back at a minimum and
it's not guaranteed. It's a long, bitter mess.
BUT EC15204 has a companion piece: California Election Code
2300(a)(9)(A) gives us a basic civil right to observe elections:
---
2300(9)(A) You have the right to ask questions about election
procedures and observe the elections process.
---
Now we're no longer talking about "ho hum government requirements that
often get ignored". Now we're talking about civil rights. And we're
in a whole 'nuther realm of law. Violations of civil rights are
punishable against bad government actors. Penalties can apply; in many
cases lawyers can get triple attorney fees back on a win.
More: when this cross-connects with criminal law, one of the times when
arresting you becomes a real problem is when it happens IN CONJUNCTION
with a violation of your civil rights. Not only that: when you're
fighting a criminal charge, one of the arguments that a court cannot
block is that you did a particular action in support of your civil
rights.
And this, folks, is why their "felony charges" don't scare me! The
felony thing was decided upon by Haas and McNamara by the way, the cops
initially thought this would be a "no big deal" infraction or
misdemeanor bust until McNamara told 'em to "go long". I don't know if
they factored this in or not but the WORST thing they're threatening me
with is the lifetime loss of my firearms ownership rights.I'm a "gun
nut", remember?
Their probable plan is to try and plea me down to some nuisance charge
to avoid the felony, but once I do that I can't argue in any court
(criminal or civil!) that they violated my civil rights. I go home
with my tail between my legs, they get to keep running secret elections.
Well they picked the wrooooong guy to try and scare.
They've charged me with Elections Code 18502:
---
18502. Any person who in any manner interferes with the officers
holding an election or conducting a canvass, or with the voters
lawfully exercising their rights of voting at an election, as to
prevent the election or canvass from being fairly held and lawfully
conducted, is punishable by imprisonment in the state prison for 16
months or two or three years.
---
Let's get real: anybody here think that charge will stick? Remember
that the GEMS server screen was 8 feet in past the doors or a hair over
(the door was offset 3ft from the observation window), I made no
attempt to touch any piece of gear whatsoever, I stopped on my own 4ft
in, and I ended up "pausing the action in there" *maybe* a total of 2
or 3 seconds.
"Oh, but he distracted the officials!" Oooohhh, bad gun nut!"
Except that in other circumstances, I'm specifically ALLOWED to and did
for up to five or ten minutes at a time asking questions pursuant to:
---
Elections Code 2300(B) You have the right to ask questions of the
precinct board and
election officials regarding election procedures and to receive an
answer or be directed to the appropriate official for an answer.
However, if persistent questioning disrupts the execution of their
duties, the board or election officials may discontinue responding to
questions.
---
So.distract 'em for 3 seconds tops in one room, it's a felony.minutes
at a time on the other side of the door, it's a civil right?
Ah. Yeah. Let's see what a SAN DIEGO jury makes of this, when they're
dealing with a guy who wants to monitor elections as per his civil
right in a city where the last mayor was in office ONE DAY before being
convicted of crimes, where the 2004 primaries were a total disaster,
where the pension fund is basically a toxic superfund sight, where two
city councilmen have been convicted and a third wasn't only because he
died first.need I go on?
I've said it to Diebold, I'll say it to these clowns: bring it on. You
picked this fight, not me. You don't trample my civil rights without
consequences.
The real trick will be to try and make those consequences happen before
November, establishing the principle of open access to this stuff
statewide. And that's one area where criminal law helps: by not
"waiving time" I can make "step one" (the criminal jury trial) happen
in 45 days or less. An aquittal there will sting 'em pretty good and
at least help; after that comes the civil court fight and I'll save a
discussion of that for later.
But yeah, I got 'em right where I want 'em .
Jim March
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