Sarasota Herald Tribune: Election firm says codes are a secret

[eomer]

Election firm says codes are a secret

Democratic candidate wants to thoroughly check county's voting machines.

By LLOYD DUNKELBERGER
H-T CAPITAL BUREAU

TALLAHASSEE -- The voting machine company now at the center of the disputed 13th Congressional District election made it clear Friday that it will fight the disclosure of the computer codes that run its touch-screen machines.

During a court hearing, Harry Thomas, a lawyer for Election Systems & Software Inc., said the company is prepared to argue that the source codes that control the iVotronic voting machines are a trade secret that should not be disclosed. He said ES&S will present evidence showing a faulty ballot design was likely the cause of a large undervote in the election between Republican Vern Buchanan and Democrat Christine Jennings, both of Sarasota County.

Jennings has filed a lawsuit in a Leon County circuit court claiming Buchanan's 369-vote victory was the result of the touch-screen machines malfunctioning during the Nov. 7 election.

Thomas argued the recently concluded tests by the state Division of Elections "found absolutely no problem" with the machines used in Sarasota County. And he said that evidence coupled with testimony from ES&S's experts, including associate professor Michael Herron of Dartmouth University, will show there is "no reasonable necessity" requiring the company to disclose its computer codes.

Kendall Coffey, a lawyer for Jennings, said disclosure of the codes and an independent review of them will be necessary to determine whether a software flaw may have been responsible for 18,000 voters failing to cast a vote in the highly publicized congressional race.

He said if ES&S is "so darn confident" that its machines worked perfectly, then "why are they fighting tooth and nail to keep everything behind locked doors?"

-snip-

http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20061209/NEWS/612090365">More...

[rzemanfl]

1. The Judge just needs to look at the statute and the dictionary,

the word "misconduct" does not require intent, especially if a person is performing an official duty. I would argue that significant undervote caused by the supervisor designing a bad ballot is sufficient misconduct to constitute grounds to overturn an election in Florida. ES&S could be arguing Jenning's case for her.

Here's the statute:

102.168 Contest of election.--

(1) Except as provided in s. 102.171, the certification of election or nomination of any person to office, or of the result on any question submitted by referendum, may be contested in the circuit court by any unsuccessful candidate for such office or nomination thereto or by any elector qualified to vote in the election related to such candidacy, or by any taxpayer, respectively.

(2) Such contestant shall file a complaint, together with the fees prescribed in chapter 28, with the clerk of the circuit court within 10 days after midnight of the date the last board responsible for certifying the results officially certifies the results of the election being contested.

(3) The complaint shall set forth the grounds on which the contestant intends to establish his or her right to such office or set aside the result of the election on a submitted referendum. The grounds for contesting an election under this section are:

a) Misconduct, fraud, or corruption on the part of any election official or any member of the canvassing board sufficient to change or place in doubt the result of the election.

Dictionary defines "misconduct" as:

"incompetent or dishonest management of something, especially on behalf of others"

I assume that Jennings' lawyers plead this in their complaint.

[eomer]

6. In the amended complaint they argue against the claim that the undervotes

were caused by bad ballot design.

See paragraph 24 (the pdf is a scanned image so I can't copy/paste):
http://moritzlaw.osu.edu/electionlaw/litigation/documents/FirstAmendedComplaint062973.pdf

In the theory that they lay out in the complaint they argue that machine malfunction was the cause and they argue against the claim that bad ballot design was the cause.

Personally I'm glad that's the way they're going because I think it's more important to get to the cause of the machine malfunctions (which I believe are proved by eyewitness reports and not really in doubt) than it is to get Jennings seated. Hopefully we can get both, but if I had to choose one or the other I would go for solving the underlying problem. There are so many races that have been and will continue to be afflicted by this type of machine malfunction that it is much more important to get to the bottom of it.

If the Jennings legal team sticks on this course then we will either get access for the source code to be reviewed by experts or else we will win more of the public to our side because they will react to the court's affirmation that the vote-counting code is a legally protected trade secret of a private corporation.

[rzemanfl]

10. The duty of the lawyers is to their client, not to a cause. The goal

should be to win, not to prove a point. If Jennings signed on to the "machines only" claim after they advised her of her options, I am okay with that-otherwise I think this is malpractice.

ON EDIT: I wasn't aware of the Fedder complaint, I am perfectly okay with that one and if this was a strategic decision to have voters fight that battle, I take back what I said.

[eomer]

11. Fair enough, but we weren't privy to the conversation where the client

told the lawyers what her objective was. I know it would be a radical idea but maybe Jennings told her lawyers that what she wanted was not to get seated by any and all means whether or not she won. Maybe what she told them was rather to get all the votes counted correctly and for the actual winner of the election to be seated whether it was her or or her opponent.

What kind of representation are we getting in Washington if none of them embrace the most basic principles of our representative democracy in the first place?

On edit: Is it a lawyer's duty to steal on behalf of his client if he can get away with it? That seems to be the approach of election lawyers but I'm not sure they're right.

_{Edit: typos and minor wording}

[rzemanfl]

12. The candidate is letting voters make the other argument in the

Fedder case, which is perfectly legitimate in my opinion. ES&S will be arguing in its defense in her case the very points that would result in a re-vote being ordered in the Fedder case-this is semi-diabolically clever if it was planned. (and I am sure it was)

[eomer]

13. That makes sense.

BTW, sorry I cross posted an edit while you were posting your reply.

I'd be interested in your further thoughts on my question about a lawyer's duty to steal on behalf of his client.

[rzemanfl]

20. Huh? "Steal?" What I meant was that they have an obligation to

present all viable claims. Here it appears a tactical/strategic decision was made to let voters carry the ball on the other claim, which is pretty damn smart now that I understand fully the claims made in the two lawsuits.

[eomer]

29. What I'm trying to say is that the client is the boss of you, isn't she?

If I think my neighbor stole my car then I want my lawyer first to help me find out whether the car in my neighbor's driveway is mine and then, if and only if it is, help me take possession of it. I would not be asking my lawyer to get me the keys to that car by any and all means and regardless of the facts. And if it turned out that it wasn't my car then I might direct my lawyer not to fight against paying my neighbor's legal expense - I might feel morally obligated to pay them whether I was forced to or not (and perhaps to send over a case of wine as a peace offering).

Surely there are many ways in which the client's goals, values, and other thoughts can and should be taken into account when determining what strategy and steps to take in a case.

In an election case, I'm sure there are clients whose goal is to get seated no matter who really won (George W. Bush, for example -- twice). On the other hand, there may be clients who want to first find out whether the car is really theirs.

In this case, that decision may have been more difficult than in some because it is not so clear who "won", legally or morally, if the problem is bad ballot design. If the problem is machine malfunction then a revote is clearly called for. It's possible that Jennings told her lawyers that she didn't want to pursue the bad ballot design argument because she was opposed to it on principle. Maybe she didn't want the seat if she had to get it that way.

You're probably right that using two cases was a strategy to cover both arguments and then it would seem that the decisions were of legal strategy mostly or entirely. But I wanted to explain what I meant even if it's hypothetical because my earlier posts were done in a hurry and therefore a bit flippant.

_{Edit: minor wording}

[eomer]

30. Ah, an example in today's Miami Herald.

An example of the client directing the lawyers to back off on a case because of the client's moral views:

Crist's check and the state's shameful stance

BY FRED GRIMM
[e-mail]

Charlie Crist pledged to write a personal check for $360, ordered his lawyers to back off an ignominious case against buying blankets for a profoundly disabled little boy and signaled the introduction of a radical new concept when he takes over the governor's office next month.

What to call it? A sense of shame? Conscience? Common sense? I don't know, but it was a startling thing to behold.

-snip-

BRUTAL INTRANSIGENCE

APD said no. The agency refused to pay $360 for a year's supply of thermal blankets. An APD contractor, hired to cut costs, decided without bothering to see Kevin that the blankets weren't ``medically necessary.''

APD then spent thousands of dollars fighting a lawsuit filed on his behalf, explaining in language familiar to anyone who has ever grappled with a bureaucratic snag at the Department of Motor Vehicles: ``You can't set aside procedures one time. That invalidates the whole process.''

That might have been the last word. Jeb Bush's administration, these last eight years, has become infamous for brutal cost-cutting intransigence when it comes to providing care for the state's most pathetic cases. It took years of litigation and finally threats to hold APD's hierarchy in contempt of court before the agency finally, reluctantly, agreed last month to provide needed therapy and medical equipment for 333 foster kids in acute need of help.

-snip-

The Kevin Estinfil case had all the markings of another brick-wall stand by the state of Florida. But Charlie Crist read about Kevin in The Miami Herald. The attorney general immediately told his lawyers to abandon APD's defense. The governor-elect said he would write a personal check to help with the blankets.

Something is changing in Tallahassee. A change of administration. A change of heart.

http://www.miami.com/mld/miamiherald/news/columnists/fred_grimm/16199441.htm

(I know, apologies, Crist is a Republican, but we can still hope he is better than a Bush.)

[rzemanfl]

32. I think the problem is a combination of bad design and bad

machines. If you've read Mark Crispin Miller's "Fooled Again" you know Republicans steal elections in multiple ways. Odds are that there were more Jennings voters among the uncounted votes than Buchanan voters either way.

Regarding pursuing multiple theories, let's use your example. The car is yours, but it is unclear whether it was stolen by your neighbor or was parked there by teenage joy riders who forgot which driveway they took it from. Would you want it back only if your neighbor stole it?

In the Jennings matter I think the decision was strategic, let the voters argue they didn't understand the screen they were voting on rather than having the candidate do that and get the bad press that would follow.

In 2000 I never understood why the Democrats didn't just let Katherine Harris certify the result and then file an election contest action arguing that the result was in doubt because of all the misconduct. The Republicans wanted to have the litigation be about the recount-not about the fucked up election. There were irregularities everywhere down here in 2000, Palm Beach being by far the worst.

[eomer]

33. Regarding my car...

Sorry, I wasn't clear. What I meant was that my brand new car was stolen and shortly thereafter a brand new car of the same make/model and color showed up in my neighbor's driveway. But then he moved it into his garage after he put his groceries away and I couldn't be sure whether it was really mine or not. It turns out it really wasn't (his had the fancy nav system that I couldn't afford) -- it was all just a weird coincidence and a big misunderstanding.

So the fact I wanted my lawyer to help me find out first is not who stole the car and put it in the driveway, it is whether the car in my neighbor's garage is my car or some other car that he just coincidentally bought about the same time I bought mine.

[eomer]

34. From the car analogy back to elections cases

So in the car scenario the way you understood it I know for sure the car is mine and want it back by any means so it is fine to simultaneously pursue all the theories. In the scenario the way I meant it I am not sure whether it's even my car yet so I don't want to go all out to get it until I'm sure. I think it is arguable that the Jennings case is a match with the latter analogy rather than the former but it would depend on how Jennings looks at it.

In other words, do we really want to overturn elections and have a revote if the only known problem is bad ballot design? I don't. I think the solution to bad ballot design is to legislate ballot standards. Then if the standard is substantively violated you should invalidate the election and revote. But in the current setting where ballot standards are not specified by law I don't think we should throw out an election if the ballot design was compliant with law and the election was otherwise compliant with law (hypothetically speaking, that is, -- I don't think that is the case with Jennings). I think we need elections to be by the letter of the law as much as possible because as soon as we start deciding based on subjective criteria that we develop or decide how to apply after election day then there is a great likelihood for biased judges to do something like they did in Gore v. Bush (work toward a desired outcome).

That said, the latest revelation that the sample ballot sent out by Sarasota County was not in compliance with law is to me enough of a last straw to say that a revote is called for. We know there were machine malfunctions that were not in compliance with law, we know the sample ballot was not in compliance with the law, and we know that the ballot design, although not a violation of a specific law, was a case of poor administrative performance.


_{Edit: typo}

[rzemanfl]

35. But, but, that ballot had a high level of "sampliness" now, didn't it?

Any screw up that puts the outcome of an election in doubt should be grounds for a re-vote, regardless of what it was.

[eomer]

36. I'm not totally opposed to that as a general principle

but I'm wary of the fact that there is only a fuzzy line between a screw up and something that is less than ideal but still within legal requirements.

Also, you would have to live with that same rule when it would result in a revote of a Democratic win. I bet I could find a race somewhere in the country with a bad ballot design and enough undervotes that you would get a revote on a race that the Democrat won (I'm not necessarily willing to take the time so I mean my bet sort of theoretically). Effectively, every race in the country that was won by less than 1 or 2 % and had a bad ballot design would probably have to be redone. I'm not sure we want that result.

Edit: and I suspect that most of the "sampliness" came from machine malfunction since it is so much higher than anywhere else that had a bad ballot design.

[rzemanfl]

38. The undervote in Sarasota is just beyond comprehension,

although I seem to recall similar percentages of undervotes in the Presidential election in New Mexico in 2004. What I meant by "sampliness" was that the sample ballot to the actual electronic ballot like "truthiness" is to the truth.

[OnTheOtherHand]

14. hmm, do we look at this one differently?

I think most voters clearly intended to vote for Jennings. The unclear part is why their intentions did not determine the outcome.

Is it your view that Buchanan is the "actual winner" and should be seated if the undervotes are attributable to confusing ballot design and voter error (not seeing the race on page 2 and not correcting the undervote from the summary screen), but Jennings is the "actual winner" if outright machine malfunction (for any reason including a hack) overrode votes actually cast? In that view, there could be a conflict between winning by any means and having the actual winner seated.

I don't think Jennings' lawyers face that choice. But they could face a choice between maximizing their chances of victory, and maximizing the suit's contribution to election integrity in general.

Umm, still thinking. Darn it all, eomer, why do you always make me think? ;)

[rzemanfl]

19. Not at all. Jennings would have won. The only question is how

do they get there? They have ES&S boxed in with the two lawsuits, if ES&S defends on the basis of ballot design they are playing into the hand of the voters who filed the other suit. I edited this post several times and may have been confusing, since I was learning new details as I went along.

ON EDIT sorry, I thought you were replying to my post.

[eomer]

31. This one is making me think too.

And the way I'm looking at it right now is that reasonable people can disagree over who is the "actual winner" when the problem is bad ballot design. If the problem is outright machine malfunction then I think it's clear that Jennings is the "actual winner". So I do see a potential conflict in this case between winning by any means and seating the actual winner. Jennings' thoughts on the matter could range anywhere from totally convinced that she's the actual winner even if the problem was merely bad ballot design to totally convinced that that approach is wrong, with a likely middle ground that she may be uncomfortable enough with the argument to say that she doesn't want to get seated that way. All this, of course, is based on fairness and moral grounds and, although it has to sit on top of the legal framework, it is not purely a question of the legal calculus of what you can get away with.

To make the analysis yet harder, we know for a fact that some of the problem is machine malfunction and some of it is bad ballot design because we know both problems occurred. So however hard it would be to decide the question when either A or B must be the case, it is harder yet when it is some of A and some of B, which it is.

[OnTheOtherHand]

7. I think that Jennings took a different line

Here is the Jennings complaint: http://moritzlaw.osu.edu/electionlaw/litigation/documents/jenningscomplaint.pdf

And here is the complaint in Fedder v. Gallagher: http://moritzlaw.osu.edu/electionlaw/litigation/documents/sarasota_complaint.pdf

Jennings hangs the argument on the Florida "Voter's Bill of Rights": "Each registered voter in this state has the right to: . . .Vote on a voting system that is in working condition and that will allow votes to be accurately cast." On this theory, "misconduct" doesn't have to arise. (The complaint tends to pooh-pooh the ballot design argument.)

The Fedder complaint does allege misconduct or the functional equivalent by election officials.

But I haven't read these closely (and I Am Not A Lawyer), so don't rely on me.

[eomer]

8. Good point. So Fedder covers both arguments...

both machine malfunction and bad ballot design, while Jennings is focusing on just the machine malfunction.

Anyway, as I said in my other post, I really want an investigation into the machine malfunctions that does not stop until it finds the cause. We know they occurred because of the eyewitness reports. David Drury and others who are running the Dept of State investigation are rushing to a judgement that the machines functioned properly when we already know for a fact that they did not.

[rzemanfl]

9. Thanks for the link. I am upset by that pleading. They are

attacking the machines, not trying to win the election by forcing a re-vote any way they can get one. The complaint says that ballot design is "unlikely" to have caused the under vote. I practiced law for 25 years and when I went to school we were taught to plead every possible cause of action you had- not just the one you liked best.

What were they thinking? This is the same way the 2000 Presidential election was lost, because the Democrats did not push for a re-vote in Palm Beach County based on the butterfly ballot design. Pat Buchanan admitted he got thousands of Gore votes in Palm Beach County.

ON EDIT: The Fedder complaint is a winner. I think I understand the strategy now. Attack the machines and have another lawsuit covering your flank.

[OnTheOtherHand]

15. two lawsuits for two ways of thinking

A lot of election lawyers seem convinced that only machine malfunction is a winner. I don't know; it seems to me that when the results don't pass the giggle test, that is reason enough to void the election even if we don't know what went wrong. If one lawsuit helps us find out what went wrong, and the other wins, that would be gravy.

[Febble]

21. Palm Beach in 2000

didn't pass the giggle test, and it was pretty obvious what went wrong, and it clearly altered the result, not only as to whether Florida's electors voted for Bush or Gore, but the result of the electoral college vote.

But the election wasn't voided. So is there any way any election could be voided simply by demonstrating that the result didn't reflect the intentions of the voters?

It would be ironic if the Jennings-Buchanan election could be voided, when all that is at stake is the size of the Democrat majority in the House, and yet the 2000 presidential race couldn't be.

What is it they say about butterflies and hurricanes?

[rzemanfl]

22. Why wasn't the law I posted above pursued in Palm Beach

in 2000? It was on the books then, I looked it up after the 2000 election. Beats me.

[Febble]

23. Duh, I didn't notice

that you'd already brought up Palm Beach 2000.

Yeah, that seems to me to be the key case, because whatever was subsequently concluded re over-votes and hanging chads, the butterfly ballot had clearly cost Gore far more votes than his margin. I remember seeing someone waving a scatter plot on TV, with Palm Beach sticking out like a sore thumb, and everyone, including Buchanan, accepting that that a large number of Gore votes had ended up boing to Buchananan.

In fact I even remember a revote being suggested as the only legal remedy. The only argument against it seemed to be that it would, to be fair, involve re-running the entire election, as if only Palm Beach residents were allowed to re-vote, they would be doing so on different information to the rest of the election (not that I thought that was a very good argument anyway, seeing as West Coast voters and Hawaiians are already voting with different information to those who vote in the East). In fact, it seems to me it would have been right for the Florida electors in 2000 simply to have voted for Gore. Presumably they are entitled to vote for the person they think was the choice of the electorate, and any statistician could have told them who that was.

But who am I to say? Our Queen chooses our prime minister, and it is only convention that says she has to choose the leader of the party with the largest number of MPs.

[OnTheOtherHand]

24. yeah, unfortunately, I don't make FL law, although

the sheer magnitude of undervotes in Sarasota 2004 distinguishes it from Palm Beach 2000. Also, there is probably more wiggle room in scheduling House elections than presidential elections. Still, not a slam dunk by any means.

Here is an excerpt from the final Florida Supreme Court ruling on Palm Beach:

As a general rule, a court should not void an election for ballot form defects unless such defects cause the ballot to be in substantial noncompliance with the statutory election requirements. See Nelson v. Robinson, 301 So. 2d 508, 510 (Fla. 2d DCA 1974) (rejecting a post-election challenge based upon an alleged defect in the alignment of the candidates’ names on the ballot). When considering a petition alleging a violation in the form of the ballot, “a vital consideration guiding the courts in determining whether an election should be voided is the reluctance to reach a decision which would result in the disfranchisement of the voters. Indeed, as regards defects in ballots, the courts have generally declined to void an election unless such defects clearly operate to prevent that free, fair and open choice.” Id. at 510.

It's not obvious that the ballot form is in substantial noncompliance with statutory requirements. The rest of it seems more promising, but not necessarily binding!

Of course it's also not at all clear whether the ballot design evoked the undervotes.

[rzemanfl]

26. Now I remember why this argument wasn't raised in 2000. The

election contest statute requires that the election be certified. The 2000 Presidental Election never was until after the Supremes appointed the blivet. So the argument being raised by the voter's suit in FL-13 was never addressed in 2000.

[rzemanfl]

25. The way this appears to be playing out is good. ES&S will be

arguing that the whole thing is the Supervisor of Elections fault. That plays into the hands of the voters case and relieves Jennings of the charge that she is claiming the people who supported her were "too stupid to figure out how to vote" an argument that was used in 2000 regarding the butterfly ballot.

The Democrats in Congress must, however, refuse to seat Buchanan as this will not be sorted out by January. I just had a delicious thought, maybe they can let Katherine Harris keep the seat warm until the election issues are resolved. How poetic is that?

[philb]

27. The real reason Gore won in 2000 with the most legal in Florida votes but was not declared winner

was legal overvotes in the several "butterfly ballot" design counties. Gore didn't need the chad or Buchanan's Gore votes to win.
All he needed was to get his legal and clear votes counted, which he never did.
In big counties like Palm Beach and Duval, where Gore had over 20,000 votes rejected in each due to "double votes" by the computer count, thousands of the votes were actually just reinforced Gore votes and clearly legal votes. The design had the Presidential race on 2 pages with it possible to vote for Gore twice. Thousands did vote for Gore twice in Duval and Palm Beach, and likewise did in Hillsboro, Gadsden, etc. These votes were known about by the voters who voted them, and by people like me who told the "officials" about them repeatedly. But though they were clearly legal votes under Florida law (as long as intent of voter is clear), they were rejected for arbitrary and unlawful reasons, at every stage of the "recount". They were rejected for convenience- that is rejecting the legal Gore votes was the only way Bush could win. But they also had to add thousands of manipulated Absentee votes in 2 counties, where SOEs allow Republican operatives use of their office to fill in enough Bush votes to win,
and had to exclude over 100,000 legal Dem minority voters who were purged by Jeb/Katherine before the election "because they were black". It was known most were legal voters and only a few could be legitamately purged, but they needed the larger number to have a chance to win. So they did it. In a fair election, Gore would have won by about 100,000 votes in florida.
The Chad were a diversion. Gore didn't need them.

[flyarm]

2. trade secret my ass!!our votes trump trade secrets....our

democracy trumps trade secrets!! ..these companies stealing our votes does not justify trade secrets..democracy must be transparent..fuck trade secrets!

[OrangeCountyDemocrat]

3. Solution #1 For SAVING Our "Democracy"

GET RID OF EVERY SINGLE FUCKING ELECTRONIC MACHINE CURRENTLY IN EXISTENCE!!

Either replace them with new "Paper Trail" models, or else return to Paper Ballots.

[Botany]

4. The public pays for those machines & codes ....

.... the public has a right to look @ them.

We are the only country in the world that lets private for private partisan
companies control the vote.

Bet ya in the source code is a program that made some of the 18,000 votes
disappear.

In Central Ohio I have my doubts about EES Kilroy was way up over Pryce
but come election day Pryce "sneaks" out a win. She never polled over
44% ...... election day =50.5%

[Hubert Flottz]

5. How many bank robbers would like to get a deal like that!

"No you can't look in this big black bag for evidence of theft, because it's my trade secrets in there!"

[texpatriot2004]

16. Well then, if it's a "secret" then it's NOT a transparent election &

if it's not transparent then it's not a democratic election!

[philb]

17. There is no credible reason to have election compilation codes be secret

compilation of votes is straight forward if you want to simply compile the votes accurately, and there is no chance that
knowledge of compilation software/programming could cause competive harm to a company.
Any company that wants to be in the business can high competant programmers to write compilation code.

The only reason to keep the code secret is that there is something there that the public would not appreciate.

All of the logic and ethical arguments are against secrecy in codes used to compile totals that decide elections.

[hvn_nbr_2]

18. When they're hiding something, you gotta ask, "What are they hiding?" nt

[autorank]

28. I'm shocked, simplly shocked...that avendor would claim "proprietary" software

Don't they care about elections being transparent?

Do they have something to hide. K&R

[BeFree]

37. Even if there was a law

ES&S would still use lawsuits to protect is product. ES&S doesn't care about transparent elections, all ES&S cares about is profit.

Even if we had opscans ES&S would keep elections tied up in court until the cows come home. We don't need private companies making a profit from our votes.