the 500 lb gorilla

the spirit and letter of the law

Dear Friends,

Dean Christensen knocks it out of the park with this response to Doug Peterson’s unrighteous opinion about hand-counted ballots. (Will Mike Hilgers serve us any better? Pray that he does.)

There are “experts” and then there are experts.

In this case, Mr. Christensen stands as a real expert, over and against Peterson’s extreme naïveté in regard to computers and black box voting machines.

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Quoting Mr. Christensen (you’ll love this…be sure to see my thoughts at the end):

Computing is one of the least understood, most poorly managed components of business.  Because of this reality, computerized vote tabulation systems are ripe for corruption.  That Nebraska (and other states) does not require a security/integrity audit of the entire, critically important vote tabulation process is unthinkable.  Furthermore, I am quite sure the system in place would never pass such an audit which suggests a reason why it has not been done.

Here are my comments regarding the AG’s opinion.  

1. Why is the AG’s focus on how the ballots are counted, but no concern for integrity and accuracy (i.e., the 500 pound gorilla in the room)?

2. What’s the deal with approval to use a “new” manual counting system?  How about the “old” manual counting system, the one in use for 100 years or so?

3. It appears the AG’s opinion is just that, an opinion (i.e., arbitrary).  On the basis he provides for his decision the result could go either direction.  If there were a “shall” in the law as in the clerk/election commissioner shall use the approved electronic vote counting machinery, then there would be no need for an opinion, but the opinion, as issued, suggests this is not the case and without a “shall,” use of the machines is not lawful requirement.  

4. At the time this legislation was written, the people who wrote it very likely thought computers were goodness and light, as many did at the time (and some still do), and assumed if automated equipment were made available, all clerks/commissioners would be eager to use it.  That assumption may be why “shall” is not in the law.  At the time these laws were written, large scale computer corruption was unheard of by most.

5. The risk of corruption inherent in the automated vote tabulation system in place in Nebraska, detailed below, is such that it justifies hand counting. 

Accurate vote counting is of strategic importance, and must be, and be seen as, a squeaky-clean, transparent process.  Here are my comments regarding secure operation of the current electronic vote counting machinery.

1. It seems the AG’s opinion ignores the threats to accurate vote tabulation introduced by this porous tabulating system.  Anyone who understands computing would realize the danger in not recognizing this threat.  The equipment used by Nebraska is ripe for and invites corruption, particularly given the importance of the outcome.

2. As someone who’s authored hundreds of thousands of lines of code, I can say with certainty (and this should be obvious to everyone) computers are not all goodness and light.  They are a black box and no one can be sure what’s going on inside them.  They could be doing anything to the vote count and no one, especially a clerk or commissioner standing beside the machinery, would have a clue. 

3. An audit of the process in place would reveal the system and the environment in which it is used is not secure nor is it securable due to the many paths for breaches of equipment and personnel.

4. Giving State officials the authority to specify the method of vote tabulation usurps the authority of local officials.  It gives State officials, and other entities inside and outside our state, the ability to corrupt and override the results in which they have a vested interest, and this should raise security/integrity flags.

5. If vote counting were performed manually in a busy public location (e.g., a train station or a mall) and the general public, some of whom may be nefarious, were allowed to walk among the tabulation worktables, no one would consider this a secure election.  The black box vote counting machinery is the digital equivalent of a busy public lobby.  Nefarious digital entities may be corrupting the counting, and no one can prove they aren’t because it’s not a transparent process.

6. Visualize a locked, windowless room and election officials feeding ballots into the room through a mail slot.  No one knows with certainty who’s in the room or what they are doing, but at a later time vote totals are returned to the election officials via a paper slipped under the door.  Would anyone consider this a fair and open process?  Such a room is the functional equivalent of the black box vote counting machinery.

7. Not only is it possible to corrupt the code the machines use, it’s possible to use the machines to facilitate ballot corruption.

8. It’s my understanding these computers all have wireless communication capability despite what vendors may have claimed and this opens another path to yet another means of corruption.

9. The S of S says he has the assurance of the vendor that the vote counting machinery is accurate, that is, the assurance of an unelected and unresponsive-to-voters vendor.  In what other critically important processes do we accept only the word of the vendor to ensure integrity?  Even this vendor can’t know for sure what’s going on inside the machines.  Nebraska relies on vendor support to perform critical maintenance processes to the vote counting machinery before, after and perhaps during the counting process.  How are we assured no corruption is introduced?

10. To guarantee the accuracy of the voting machinery and associated processes would require modification of the environment and would take far more resources than could be justified given that a cheap, accurate and transparent alternative (i.e., hand counting) is readily available.

11. I have heard the S of S say he is convinced by the vendor representative of the integrity of the vote counting machinery because if the rep were to lie, his reputation and the reputation of the vendor’s company would be ruined.  Has the S of S considered that this would also be the result if the rep said anything else?

12. Unlike the electronic vote counting machinery that can never be transparent (or secure), the hand counting procedure can be audited, certified and publicly reviewed.

13. Because no one can prove the machines and surrounding processes are functioning accurately, that in itself is grounds for the clerk/commissioner to resort to manual counting.  Counting by precinct with totals publicly posted by precinct will allow all citizens to view and thus validate city/district/state totals.  This is the only known and reasonable method of assuring vote counting integrity.

P.S.  Computers always follow what the code tells it to do and unlike law, legal opinions can’t change that.  😊 

[End quote]

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the spirit and letter of the law
Allow me to offer some concluding remarks, based on this quote from Mr. Christensen above:

“At the time this legislation was written, the people who wrote it very likely thought computers were goodness and light…”

Speaking from a place of agreement with Mr. Christensen, let me point out that the people who wrote our election statutes used the language “optical scanner” not “digital scanner,” as the machines are referenced today. (References are included in the postscript.)

Where we stand today, “optical scanner” is outdated language that refers to outdated technology.

But this doesn’t mean the intent of those who wrote the statutes is outdated.

If we put the best construction (i.e., interpretation) on things, election statutes reflect a time, as Mr. Christensen suggested, when lawmakers were naive about black box voting machines and thought they were all “goodness and light,” i.e., that they were simply reading voter selection marks (votes on a ballot) directly from the ballots and tallying them, with no shenanigans.

IF this is the case, IF lawmakers were truly naive, or just lacked foresight (after all, the father of American jurisprudence, William Blackstone wrote: “in laws, all [contingencies] cannot be foreseen or expressed”) and IF they thought black box voting machines were simply reading voter selection marks and tallying them with near perfect integrity, then this thinking constitutes the spirit of (reason behind) the law they wrote. And that spirit cannot be put away (violated) in the name of, or by stubbornly following, the old letter of the law.

The letter of the law is nothing without an equitable spirit (intent or reason) behind it, other than tyranny.

To sum up so far, let’s assume the intent of lawmakers back then was election integrity (who among them would say otherwise?—they would have to admit of breaking their oath).

“…the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

“From this method of interpreting laws, by the reason of them, arises what we call equity”
—William Blackstone, father of American Law

the spirit of the law and the letter of the law can diverge
So then, what happens when the letter of the law ceases to serve the spirit/reason of the law, or it comes to be realized that the letter NEVER DID serve the spirit of the law?

If the letter of the law has outlived its usefulness (again, assuming it ever had any real usefulness), it must be retired/repealed/replaced.

We now know that the black box voting machines can never be secured. So the statutes calling for their use must be repealed.

Nevermind that we don’t even use “optical” scanners anymore, as called for by statute. In other words, there’s no longer any basis for following the literal, strict letter of the law.

ES&S used to refer to their tabulators as “optical scanners.” They now refer to them as digital scanners. It’s not simply a name change. The machines function differently. Digital scanners read voter selection marks from a scanned image of the ballot, not directly from the ballot itself, like optical scanners.

If state statute only allows for “optical” scanners, our tyrannical SoS is out of luck.

Of course, we know how this game is usually played. Bad actors start redefining words. (But statutory words must retain their original definition.)

In reality, whether voter selection marks are read directly from the ballot, via optical scan, or from an image of the ballot, via digital scan, the machines can perform all kinds of “gymnastics” with our votes. There is no way to guarantee integrity without complete transparency.

So, we may as well begin and end with election transparency (in opposition to secret counting followed by hand counting). And the only way we can do that is the old fashion way—hand counts, monitored by technology (HD video) that makes the process transparent to all and verifiable by all.

The side benefit to election integrity is that we save tens of millions of hard-earned taxpayer dollars.

God bless.

Robert J. Borer

P.S. Statute references:

1) “In counties using optical scanners to count the ballots…” Click here and here to see reference in context.
Notice the language “In counties using…” This implies there are counties NOT using optical scanners. ?? So much for the mandate to use the machines.

2) ”…if an optical-scan ballot is used.” Click here and here to see reference in context.
Notice the “if”!