Saving the Future by Verifying the Vote:
Breaking the Link between Election Fraud and America’s
Dysfunctional National Politics
By Daniel H. Wolf, Esq.
We were taught in high school that voting and free elections represent the essence of American democracy. But most Americans no longer believe that. They believe that the rich run the store and that their voices are heard and listened to only occasionally. (Research shows that they are right.) As a consequence, nearly half of all eligible voters, and 70 percent of people under 30, don’t bother to vote. Why should they? There’s no visible connection between who they vote for and what government does.
Of course if 80 percent of Americans voted instead of 50, we would see a different crop of elected officials, because that extra 30 percent would be regular folk — working – and middle-class Americans whose interests would have to be catered to by politicians wanting to get reelected. And that would change everything. In the future. When, as John Maynard Keynes said, we’re all dead.
What we have in the present is a lot of very close elections, And in close elections between entrenched party establishments and their challengers, there is a lot of good evidence that the establishment machines, both Republican and Democrat, are resorting to fraud to defeat challengers.
This is a bad portent: If we lose our ability to throw out corrupt old guards with our votes, then we will lose our ability to hold our government accountable through peaceful, legal means. Our democracy will become a sham, and change will only become possible as a result of civil disobedience or violence.
To be fair, when times are mild and the choice is between Tweedledum and Tweedledee, election fraud doesn’t matter much, because whoever gets elected is going to implement relatively similar and centrist policies. But when the times get dangerous, and Tweedledum and Tweedledee start beating up on each other and on us, then our choices start to matter. A lot.
This is the case now: Education and healthcare systems fail too many of us, incarceration and drug deaths are epidemic, inequality and impoverishment are at full gallop, nuclear war is once again on the radar (literally as well as figuratively) and intrusion into reproductive rights again on the table, climate change is threatening human existence, etc. etc., and increasingly ugly national politics and dysfunction put practical solutions out of reach.
Taking a bite out of these real-world problems requires leaders who believe in facts and good government, who believe in the greatest good for the greatest number, who are willing to rise above partisanship and loyalty to rich benefactors, and who do not fear being “primaried” by extremists in their party when they act responsibly.
Unfortunately, big money, gerrymandering, socioeconomic concentration, and election fraud and voter suppression have knocked our present political system seriously out of whack. It rewards and promotes those who believe that all government is bad and all uncomfortable facts are fake, who live in the gutter of hyperpartisanship, who click their heels for rich campaign donors, and who live in fear of losing their gilded government jobs to someone even more craven than themselves.
Three of those four systemic problems are not fixable in the very near term.
Big money in elections is temporarily off limits for fixing because of the Citizens United Supreme Court decision. Eliminating gerrymandering requires that the “out” parties recapture state legislatures before the 2020 redistricting, or that initiatives mandating nonpartisan redistricting commissions be passed in dozens of states, so that’s not a quick solution. And socioeconomic concentration requires decades to shift, given that it’s tied to infrastructure and economics.
That leaves the fourth: fixing our elections.
We start with demanding provably accurate vote counting. But how do we get an accurate count if insiders control the systems? Ideally every election would be run by nonpartisan professionals who acted like financial advisers and attorneys, i.e., like fiduciaries. Instead we have partisan Secretaries of States who act as co-chairs of presidential campaigns or run for higher office while controlling the apparatus that will determine whether they are elected. These are conflicts of interest that would be illegal were the same officials not in charge of writing the laws.
The response of most election integrity groups to this conundrum is to lobby legislatures to adopt transparent, verifiable voting and counting systems, return to paper ballots, stricter official audits, greater transparency, etc. These are all good technical solutions, but their chances of adoption are greatest where they are needed least. Where they are needed most the solutions require the consent of the very politicians who owe their seats to the working of unclean systems. They are not likely to voluntarily change the rules that won them their seats – they will have to be compelled. The question is, how to compel them?
We need a game-changer, a way to empower Americans to force the issue – something that can blow the lid off the game that’s being played, put officials defending the status quo on the defensive themselves, and unleash forces that will result in the institutionalization of verifiably accurate elections.
Our audit system is designed to be that game-changer.
We have designed the tools so that their use does not require the cooperation or permission of public officials.
Let me repeat that: Implementation of our audit system does not require the cooperation or permission of public officials – it is done entirely under the protection of the First Amendment to the US Constitution. Public officials do not have the legal right to prevent people from implementing our audit system; their authority is limited solely to restricting how close to polling stations that auditors can position themselves.
It generates independent audit data that meets the direct evidence requirement of the courts. When audits turn up suspicious discrepancies the evidence is turned over to injured parties (usually the losing candidates but it could include civic groups and others). Attorneys for these parties can then file lawsuits requesting injunctions against certification of questionable elections, and requesting orders requiring law enforcement to investigate to determine the causes of documented discrepancies.
This is a two-step strategy: Injured parties have to meet a relatively low burden of proof to obtain an injunction against certification. The court then requires investigation into the sources of the alleged discrepancies, which then unleashes the full power of the state to seize and examine documents, machines and other evidence belonging to election authorities, to interview officials and workers under oath, to comb through their emails and texts, et cetera. This is a level of inspection that no private party can possibly hope to achieve. Then, should investigators find evidence of fraud, the resulting controversy will have the potential to force defenders of the status quo onto the defensive and open space for reformers to push through election system reforms.
Our audit system also attacks voter suppression.
The US Constitution does not protect the right to vote. This is why, after the Supreme Court eviscerated the 1965 Voting Rights Act, so many Republican legislatures could suppress the voting strength of communities that traditionally vote Democratic. Legal challenges so far have been unsuccessful except when clear racial animus has been demonstrated. Our voter suppression audit tool reliably quantifies the amount of voter suppression and its probable impact on election outcomes, thereby establishing the extent of public and private Constitutional injury. Our hope is that it will be used to power a new voting rights movement and to eventually enshrine in Constitutional principles the right of Americans to vote and to have their vote counted accurately.
We don’t see ourselves as observers or guarantors of fair elections, only as effective probers into the accuracy of the count, and as pathbreakers for reformers who will enter the space we open and then agitate for reform. Once reforms are in place and working, then outside independent audits will no longer be necessary, except perhaps as an occasional quality control tool.
This effort is nonpartisan. All parties are held to the same standard. Conservatives as well as liberals, and every other political stripe, are welcome to use the software. We hope to set off an audit arms race between parties, producing a condition of Mutual Assured Accountability (to coin a phrase). This can only be beneficial: It will force ruling parties to compete on the playing field of policy popularity and performance rather than vote manipulation.
This entire effort is a calculated bet: There is no guarantee that injured parties will always succeed in court; judges are sensitive to politics, after all, and the strength of the data will wax and wane. But the courtroom quiets the shouting and allows evidence to be presented systematically and rationally, which establishes facts with a high degree of confidence. So even if victory in court does not always follow, the evidence generated can be used to affect public opinion. And achieving even occasional victories will serve to erode the status quo of judicial deference to partisan operation of electoral machinery and aid the goal of increasing demands for electoral reform.
If we are successful in promoting the use of our tools throughout the United States our elected officials will begin doing a better job of representing all of their constituents. This will reset the relationship between voters and elected officials, improve congruence between voter desires and policy outcomes, strengthen our system of checks and balances, and reduce the apathy that keeps voting turnout low.
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