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Sequoia, Snohomish County, And The Constitutionality of Electronic Voting Machines PDF Print Email
By Paul Lehto   
February 11, 2006

Alerting the Sentinels of Democracy - Election Fraud Evidence and Litigation in Washington State

 

The following report is from Paul Lehto (pictured below), an attorney in Everett, Washington. Paul is a complainant in a lawsuit against Snohomish County, WA , of which Everett is the county seat, and Sequoia Voting Systems. The pleadings in the lawsuit can be found here.

 

The story of my lawsuit against Snohomish County, Washington and Sequoia Voting Systems began on election day, 2004, when I was an attorney volunteer at a polling station that was historically favoring one particular political party. However, in 2004 as I saw the touch screens print out their election results after hours, I was surprised to see the other party win every contested race that could have been won within reason. This led to a series of FOIA or Public Disclosure Act requests, and ultimately to a scientific paper co-authored with Dr. Jeffrey Hoffman. The upshot of the paper is that Snohomish County had a relatively unique setup where optically scanned paper ballots were used side by side with touch screen DREs, but then because of the nation's closest gubernatorial election in history, the paper ballots were subjected to hand recounts to eliminate their counting errors while the DREs were not recounted or recountable. Thus, a natural laboratory situation was set up where side by side differences between paper ballots and touch screen electronic ballots could be compared. 

 

The paper ballots showed the Democratic candidate winning by 2000 votes, while the touch screens (handling only 32% of the total vote) showed Republican winning by over 8500 votes. The chances of this happening based on voters being randomly assigned to voting technologies, with 68% assigned to paper and 32% to touch screens was far more than one in a trillion. Though statisticians debate exactly how *many* trillions, they all agree on the word "impossible".

To be fair, however, discrepancies like these are routinely written off by pundits, who posit things like "late surges" and better absentee ballot organizing by one party or the other to explain why absentee ballots might differ from polling place ballots. However, this is what I maintain is the "claim to fame" of the study: we excluded all the touch screen machines that malfunctioned so badly that they were pulled out of service with fewer than 30 votes on them. These malfunctions consisted of observed candidate-flipping where a vote pressed as D would show up as R, as well as freezeups.

 

Knowing that machines are all visually identical and that no voter would know they had chosen a defective machine, we were surprised to find out that (in the closes gubernatorial race in the nation's history and in a Democratic county) the malfuctioning machines had more than 50% more Republican votes than Democratic votes for governor! Put another way, all of the forms of evidence are present: eyewitness evidence (people saw their votes change), statistical evidence, evidence by admission (the county took the machines out of service), circumstantial evidence, and inferential evidence. On top of all of this, statistical distributions of the paper ballots show single-peak bell curves "with some noise" or variation as is expected in natural systems of variation like voting, and this was true for both Republican and Democratic voters. However, with touch screen voting, there is a twin-peaked curve that is significantly smoother than the paper ballot curves for both parties. My co-author, a Ph.D. and professor in mechanical engineering and things like manufacturing process control, concluded that we can say with 100% certainty that some very large force acted upon the touch screen ballots that did not act upon the paper ballots, and that when it acted upon the touch screens, it affected less than all of the precincts, or did not affect all precincts equally. In addition, the smoother curve with touch screens is very consistent with a computer-generated curve, relative to the noisier curve on the paper ballots, as if a computer randomizing function had attempted to "smooth out" the electronic results via a randomizing function of some sort.

None of this was enough for the County to even start an investigation.

 

The top elections official wrote me and told me he and his staff had read the report, but that without identifying a date and time of a hack, there's really nothing to look into. Although this was akin to coming home and finding furniture missing and concluding that one should do nothing because the date and time of the break in was unknown, it was apparent that I would get nowhere with the county, which was also refusing all of my requests for additional information on grounds of trade secrecy and their contract with Sequoia.

So, I did what any redblooded lawyer would do: I sued. My attorney is Randy Gordon, a lawyer who, like me, has served on the Board of Governors of the State Bar Association and has a demonstrated history of taking cases to the Washington Supreme Court and making law where it appeared to many there was no room to argue, e.g. Birklid v. Boeing. In the lawsuit, we are asking that the contract to purchase the touch screen voting machines be declared void, and that the County get a refund, for a variety of legal and constitutional reasons. Among other reasons, I took this approach because I don't believe that Sequoia's trade secret claims actually exist in elections because there was never a valid contractual or other relationship to support them in the first place. Further, I'm concerned about "takings" claims being filed when and if legislation is passed that purports to require disclosure of trade secrets, resulting in the voting vendors being handsomely compensated for having stolen the public nature of our elections in the first place, because their trade secret "property" has been "taken" by an act of Congress or the State legislature.

Fast forward to February 10, 2006, when, after Sequoia and the County got their removal of my lawsuit to federal court tossed out of federal court, they asked to convene a settlement conference to see where things were at. Just this past month, the County had voted to get rid of the touch screens and go to vote by mail, so the impact of this move on the litigation had to be assessed. The County and Sequoia requested a settlement conference, which I attended on February 10 along with Randy Gordon. The defendants were apparently interested to find out what we wanted in the case, and to share their opinion once again that our litigation is moot because the County voted to get rid of the DREs on January 5, 2006. We were able to give them a copy of the New Jersey Appellate Court opinion of February 9, 2006, with which they were unaware, after they expressed their confidence that the courts will take their side next time, despite the fact that the courts have now failed to do so 3 times in a row.

 

Both defendants purport to be baffled as to why we continue to sue them over "moot" issues, so we had to point out that the constitution is, in fact, of continuing and recurring importance and has therefore not been rendered "moot" by a [potentially] reversible decision to mothball certain totally secret DRE vote counting machines, in favor of the use of largely secret optical scan vote counting machines, albeit optical scan machines capable of a hand recount of the paper ballots under transparent conditions if provided for and requested by the few parties able to trigger this process.

 

We sued the County and Sequoia as the parties to the contract that is the direct cause of the alteration of citizen voting rights and informational rights in elections. But Sequoia sees itself most clearly as though it should not be a party to the litigation at all, which they maintain is solely the County's problem. They are merely a provider of machines, and not responsible for the Constitution. If they are in fact as bereft of values as their lawyers advertise them to be, they may excel at making some things, but they have no business being involved at the heart of our democratic values in vote counting. Despite emails from elections officials stating that they are "contractually obligated" not to disclose things about elections due to their contract "with Sequoia", Sequoia maintains with a straight face that this dispute is not of their interest or their doing.

 

Then there's the County. The elections officials now claim, through their attorneys, to be institutionally unsuited to the constitutional arguments we raise. How, they wonder, can the "academic" constitutional arguments we raise be reduced to bureaucratic rules so they can function *efficiently*? Few ever pause to realize that we do not want something to be efficient if it is not following the proper rules and values we desire! In addition, the institutional incompetencies of elections officials are in significant part the reason we are in COURT in the first place where they have more of a sense of the Constitution (though they object to that venue as well, of course).

 

According to the County's position, our only option that is procedurally proper is not to sue, but only to attack certification at the level of the Secretary of State, and perhaps appeal to Court from there. But that is an administrative law process. Again, constitutional arguments are not encouraged nor are they usually decided - though sometimes they can be decided after appeal to the Superior Court. And certification is no more a guarantee of proper election *performance* than a driver's license or a attorney bar membership card is a guarantee of a career of driving or practicing law completely free of negligence and vehicular homicide. Yet, for the County, certification is the be-all and end-all when in fact, even if it operated perfectly, it proves nothing at all about how the machines actually perform in actual elections.

 

Amazingly, we have both a county and a vendor who expressly disclaim any responsibility for our Constitution, even though some of the county officials have sworn oaths to "uphold" the Constitution. They will uphold it, they just don't wish to be at all *constrained* by it, or to be bothered by it.

 

Our freedom ultimately depends on someone's willingness to take responsibility for it. Whatever side you may find yourself on in the military debates of our day in terms of whether our soldiers in Iraq are properly defending freedom, it appears that the sentinels of democracy who are supposed to be defending our elections are AWOL, and they are deeply baffled by any one who would object to that state of affairs.

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