Modern Ballot Box Stuffing: Can We Trust Team Bush

Democracy requires consent of the governed. Consent is measured by the results of fair and free elections. The midwives of our democracy were the founders who made the Revolution, and the leaders of the Civil Rights Movement that gave birth to The Voting Rights Act of 1964.

As we approach the November presidential election, the media treats us to daily updates on the razor-thin margin between the candidates as measured by the polls. The issues that divide Bush from Kerry are parsed in print and on television. We debate the state of the economy, the growing deficit, job loss, terrorism, and the War on Iraq.

Our conversations assume that voters, guided by the differences between the candidates on the issues, will go to the polls and cast their votes freely and fairly.

Casting a pall over that assumption, however, is the memory of Florida 2000, where 537 votes separated Bush from Gore. A confluence of factors led to the anointing of Bush as President.

A black vote in Florida was 50 percent more likely to be "spoiled"- and thus not counted - than a white vote, according to the U.S. Civil Rights Commission.

"Florida's 2000 felon purge program resulted in over 50,000 legal voters being disenfranchised," said Ion Sancho, Supervisor of Elections for Leon County in Florida.

And then there were the five members of the Supreme Court who diverged from their traditional deference to "states' rights" by second-guessing the Florida courts. The conservative justices who handed the election to Bush became one-time champions of "equal protection of the laws" when they stopped the recounting of ballots.

The horrors of hanging and dimpled chads led many to sing the praises of electronic balloting. One of the corporations that manufactures touch-screen voting machines is Diebold Election Systems. Its chief executive, Walden O'Dell, told Republicans in an August 14, 2003 fundraising letter that he is "committed to helping Ohio deliver its electoral votes to the president next year." As the state of Ohio will be pivotal in the upcoming election, O'Dell's statement galvanized Democrats to demand a "paper trail" for all votes.

Thanks to the efforts of organizations such as MoveOn.Org, TrueMajority, VerifiedVoting.org, and ACT, all votes cast in Ohio in November will now have a paper trail.

But Election Data Services estimates that nearly 30 percent of voters in the presidential election will not vote in systems that produce paper to be used if a recount becomes necessary.

David Dill, Professor of Computer Science at Stanford University and founder of VerifiedVoting.org, has no evidence of a conspiracy to fix the election. But, he told me, "We know people would steal elections if they get the chance, and it wouldn't be hard to steal." The easiest way to commit fraud, according to Dill, would be by an insider at the company, a programmer who makes a hidden change to the software. With the current procedures, he said, there's "not a ghost of a chance" the culprit would be caught.

Nearly 100 million of the 115 million votes cast in November will be tabulated by computers owned by four private corporations. Besides O'Dell's Diebold, Election Systems and Software, Sequoia Voting Systems, and Hart InterCivic will count 5 out of 6 of the votes. Tom Hicks, one of Hart's principal investors, has close financial ties with Bush.

Dill says, "It is not sufficient for an election to be accurate - the public has to know it's accurate." After Senator Max Cleland, the odds-on favorite to win reelection in Georgia in 2002, was defeated, 1 in 8 voters were "not very confident" or "not at all confident" that touch-screen voting machines had produced accurate results. Thirty-two percent were only "somewhat confident.”

Professor Dill advocates transparency in the process. People should watch, and audit trails must exist. With electronic voting, we can't see inside the machine. Dill admits that paper ballots result in fraud as well, but we can see them; they're transparent. He's worried about a system that's vulnerable to theft. Professor Dill endorses the optical scan system, which electronically scans the vote, and creates a paper backup.

In both the 2002 general election and the March 2004 presidential primary in Florida, there was a higher percentage of undervotes in counties that used touch-screen machines than in those using optical scanners. Undervotes occur when a voter apparently fails to make any choice at all. Moreover, nearly all the electronic records - 8 percent of the vote - from the 2002 primary in Miami-Dade County have been lost, leaving no audit trail. Voters using the touch-screen machines were 6 times as likely to record no votes as those in counties using optical scan machines. This suggests the possibility that intended votes were not recorded for some reason.

There is a bill pending in the House of Representatives that would require a voter-verified permanent record or hardcopy of every vote cast. H.R. 2239 has 150 co-sponsors. Dill maintains it is possible to provide paper backup for all votes cast in November, but thinks it "extremely unlikely," as the bill is bottled up in committee. He does predict it might pass with an amendment requiring compliance by 2006. A similar bill by Bob Graham and Hillary Clinton, and co-sponsored by seven Democrats and one Independent, is pending in the Senate.

A June editorial in The New York Times decried the foibles of electronic voting machines, which, it claimed, are less secure than slot machines: "Voting machine standards are out of date and inadequate. Machines are still tested with standards from 2002 that have gaping security holes. Nevertheless, election officials have rushed to spend hundreds of millions of dollars to buy them.”

An additional cause for concern is the wrongful disenfranchisement of ex-felons. Republicans planning another mass purge in Florida were caught with their pants down when a judge forced them to reveal that Hispanics - who notoriously vote Republican there - were excluded from the purge. (With Bush's latest anti-Cuba travel ban alienating many Florida Cubans, however, all bets are off on their votes).

Ion Sancho is alarmed at the lack of data to support the accuracy of Florida's new felon purge list database for 2004: "As the Supervisor of Elections for Leon County," Sancho said, "I will not be party to any effort, program or activity which may deny the voting rights of our citizens. I am outraged that our State officials, in an apparent pursuit of some imaginary voting fraud problem, are once again pursuing an ill-conceived program which may once again lead to the disenfranchisement of thousands of Floridians.”

In 2000, Florida denied the vote to 6 percent of its voting age citizens, 16 percent of its black voting age citizens, and 31 percent of its black citizen voting age men.

California attorney John R. Cosgrove argues in a new article in the Thomas Jefferson Law Review that the disenfranchisement of ex-felons in many states violates the Constitution. The Fourteenth Amendment carves out an exception to the Equal Protection Clause - intended to promote black male suffrage - for men who have committed a crime. Cosgrove maintains that this provision only excludes from voting those men who have committed crimes that were felonies at common law. Drug crimes, for example, are not common law crimes. He also notes there is no legal basis to disenfranchise female ex-felons.

The "Protect American Voters Act of 2004, "with 29 co-sponsors, is pending in the House of Representatives. It would require States to provide notice and an opportunity for review prior to removing any individual from the official list of eligible voters by reason of criminal conviction or mental incapacity.

It all boils down to trust. When Bush told us he was a "compassionate conservative," he said: trust me. When he assured us he would pursue a "humble foreign policy" with no "nation-building," he said: trust me. When Bush said Iraq was an imminent threat to us, he said: trust me. When he reassured us that the torture of prisoners was the work of but a few bad apples, he said: trust me. And most recently, when he raised the terror alert based on years-old intelligence data, he said: trust me.

Can we really trust this man, who has consistently lied to us about the most important matters of national security, not to engage in dirty tricks in the November election?

With many still smarting from the 2000 election stolen by George W. Bush, some have taken to quoting Joseph Stalin, who said: "Those who cast the votes decide nothing. Those who count the votes decide everything." But Professor Dill, the voting rights champion, cautions against pessimism that would lead people to sit out the election. Even if the only option is touch screen voting without a paper trail, says Dill, "don't stay away from the polls." Our lives depend on it.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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