FL-13, Fl Judge Issues Catch 22 Ruling, Sat 12/30/2006

This diary is part of a continuing series of diaries to focus attention on the FL-13 missing votes.

Catch 22 - only in Bushs legal system.  Everyone knows 18,000 votes disappeared. The only place the votes existed was in the Electronic Machines.  Judge says no proof software was bad, but you can't see it to prove that it was bad, and rule the machines were "100%" accurate.

In the Democratic Candidates words:

It’s shocking that there is more concern for protecting a company’s profits rather than protecting our right to vote.  The secrecy and question marks surrounding electronic voting is creating a real crisis in confidence among America’s voters, and the only way to resolve this is by conducting a thorough review by outside experts.

More details on the Florida Judges Catch 22, appeal promised, what Congress may do, below the fold:

The Catch 22 part of the Florida Judges ruling said:

D. The machines now challenged were tested as required by law prior to the early voting and election day voting and were found to be working properly.
F. Two parallel tests were conducted on the subject screen systems and representatives of both Plaintiffs and Defendants were present. The test results revealed 100% accuracy of the equipment in reporting the vote selections.
G. Plaintiffs have presented no evidence to demonstrate that the parallel testing was flawed and or the results not valid.
H. The testimony of Plaintiffs' experts was nothing more than conjecture and not supported by credible evidence.
I. For this Court to grant Plaintiffs' motions would require this Court to find that it is reasonably necessary for the Plaintiffs to have access to the trade secrets of Defendant, Election Systems & Software, Inc., based on nothing more than speculation and conjecture, and would result in destroying or at least gutting the protections afforded those who own the trade secrets. Florida Judges 12/29/2006 Ruling

From VoterAction.org press release (love the title):

Court Sides With Corporate Interests Over Florida Voters – Voters Will Appeal

TALLAHASSEE, FL. On Friday, December 29, 2006, Judge William L. Gary denied the Motion to Compel Florida elections vendor Elections Systems & Software (ES&S) to turnover the software, hardware, and source code used in the Congressional District 13 election for independent expert examination in the election contest lawsuit brought by Sarasota voters. As a result, Florida voters have once again been relegated to last place behind corporate and political interests.

"The voter plaintiffs will challenge this ruling in a state appellate court during the first week of January," declared lead counsel Lowell Finley, Co-director of Voter Action. "Something went very wrong in this election, in which thousands and thousands of voters were disenfranchised solely because they voted on ES&S touchscreen machines. Plaintiffs must have access to the critical evidence of the inner workings of the ES&S machines to identify the source of the problem. Corporate secrecy should never trump the public right to know when it comes to our elections, the cornerstone of our democracy."

It seems that Congress will seat the Republican, conduct their own investigation, and maker it clear to the courts that they can proceed with hearing the appeal.

The House Administration Committee is reviewing Jennings’s challenge under the Federal Contested Elections Act (PL 91-138), and the committee will decide whether to proceed with an investigation. The legal proceedings in Florida would provide information for the committee to decide if it wants to go forward.

Holt said his formal inquiry on the House floor, after the swearing-in of Nancy Pelosi as Speaker but before members are sworn in, will ensure that nothing the House does will prejudice either of those proceedings. He said he expects the parliamentarian to affirm his move without need of a vote.

"Under federal law, there is a procedure in place for reviewing contested elections. The House should do nothing to compromise or prejudice the case Ms. Jennings has before the Florida courts. I expect the evidence will show that the certification did not reflect the will of the voters and a re-vote is necessary," he said at a Friday news conference.

Holt has been a leading proponent of election procedure overhauls and sponsored legislation in the 109th Congress that would require all voting systems to use or produce a voter-verified paper ballot so that electronic tallies can be independently verified. New York Times/CQPolitics

Of course Brad always gets us to the critical point:

... even ES&S's only expert put on the stand during the hearings in Florida --- notably, he was a political scientist, not a computer expert --- concurred that had it not been for problems with the voting machines, Jennings would have won the race. A study of the undervote ballots in the race had previously found the same thing. According to the study, had votes been recorded on those ballots, Jennings would have won the election by a near 3,000 vote margin. Brad Blog

Links

great link to vote counting news stories, updated daily
Voting news articles at VotersUnite.org

donate
Christine Jennings Recount Fund

Special Sarasota Herald Tribune Page, with Story and Background Links, Would Get my Vote for Pulitzer Prize
Special 13th Congressional Sarasota Herald Tribune Page

No compromise, sign the Move On Petition
Move On Petition: Congress must call for a re-vote in Florida

Stories, Diaries and Editorials
FL-13, Jennings Has Gone Through Hell to Ensure Every Vote Was Counted, Thurs, 12/28/2006
FL-13, Why Has The MSM Ignored The FL-13 Story? Wed 12/27/2006
FL-13, Plea to Every Member of Congress: Read The Jennings Election Protest, Mon 12/25/2006
FL-13, Will A Single House Member Stand Up For 18,000 Voters? Sun 12/24/2006 Update
FL-13, "Nothing Off the Table" Nancy Pelosi, Sat 12/23/06
FL-13. CQ's 3 choices for Congress. Which do you want Congress to do? Fri 12/22/2006 Update
FL-13, Jennings Contests Election in U.S. House of Representatives, Th 12/21/2006 Update
FL-13: FL Republicans thinks problem is that voters were "blind, drunk or on drugs" 12/21/06
FL-13, Christine Jennings won by as much as 3,100 votes, Wed 12/20/2006 Update
Tune In: Christine Jennings (FL-13 recount) on Lou Dobbs Tonight 6PM 12/19/2006
FL-13 Monday 12/18/2006 Update
FL-13: Carl Hiassen lays the smackdown, Sun 12/17/2006
FL-13 Sat 12/16/2006 Update
FL-13 18,000 Missing Votes, Noon to 1 PM Daily Protest Idea
FL-13 Democrats Giving Up the Local Media War? Not fighting back?
Sarasota Diaries
FL-13: RALLY FOR A REVOTE LIVEBLOG
FL-13: Fireworks ahead
Jennings, Voters Describe Voting Machine Failures in Sarasota County
FL-13 Bumper Stickers? Keep The Issue Visible!
ACLU sees clear case for a revote in disputed District 13 election
Story quote for the Democrat: won by at many as 3,100 votes
if it hadn't been for the undervote in the only county she carried, Jennings would have won by 3,100 votes.
Call to Action from Bradenton Herald

Background Reports. Laws, Polls, & Document Links
Full Text of Jennings "Notice of Contest" to Congress
Goofy Florida State Election "Test" of election equipment
Federal Contested Election Act
Only 3% of dKos readers want Congress to seat the Republican in Poll
11/3 (3 days before Election Day) Email by Sarasota Election Supervisor Admitting Problem
Florida Judges 12/29/2006 Ruling
Florida Courts Jurisdiction - Case Heard In Nov/Dec in Circuit Court
Link to All Circuit Court Documents - 2006 CA 002973: JENNINGS, CHRISTINE vs ELECTIONS CANVASSING COMMISSION OF THE STATE OF FL

Christine Jennings Links
Christine Jennings for Congress's diary
Christine Jennings for Congress web site

Other Links
Florida Democratic Party Web Page (FL-13 updates)

YouTube Videos
Lou Dobbs interview, meet the candidate and the case attorney, 12/19/06, 6+ minutes
ABC News Story, Great Background Info, 11/22/06, 2+ minutes
Sarasota ReVote Rally Set to a Wonderful & Catchy Voting Song by Ellen Bustel - 12/3/06, 4+ minutes
SARASOTA RECOUNT:Part 2-"Machines always count better..." - you get a feel for the persons involved, 8+ minutes
Sarasota Election Day Video shows anmolies on that day

6 days until Congress Must Decide What to do.

•  tipjar

  6 days until Congress Must Decide What to do.

  by ca democrat on Sat Dec 30, 2006 at 09:05:27 AM PDT

  •  I think they've decided.

    They're going to seat Buchanan, and refer Jennings' appeal to the House Administration Committee.

    by Kagro X on Sat Dec 30, 2006 at 09:54:31 AM PDT

    •  The Devil is in the details?

      by ca democrat on Sat Dec 30, 2006 at 10:37:36 AM PDT

    •  Ridiculous, Just Ridiculous.

      Everyone admits Jennings actually won and Buchanan is still going to be recognized?

      HUH?

      Has the incoming House majority actually caucassed on this?  My new Rep said she wanted a revote.

      Is it because of deference to a legal process outside of the House's authority?  How does that exist independent of the House?

      I don't know, am I unduly ranting, or something?  Just having followed it a bit and read this diary, these are some layman's outrages.

      This stinks.

      by potownman on Sat Dec 30, 2006 at 10:46:36 AM PDT

      •  Seating Buchanan is a huge mistake...

        Facts on the ground are what usually decides these situations.  They sure as hell did in 2000--Gore always faced an uphill battle against the "Sore/Loserman" argument.

        Once Buchanan is seated, a perception is created that he was the legitimate winner.  It becomes very hard to unseat him at that point.  As the saying goes, possession is 9/10 of the law.

        Seats have gone unfilled before.  Staff can be hired to provide constituent services while the investigation process proceeds.  The integrity of the electoral process and the need to let the GOP know that the old ways will no longer work for them are far more important here.

        by RFK Lives on Sat Dec 30, 2006 at 10:56:22 AM PDT

        •  I absolutely agree with you

          If the Dems back down on this, it seems to me they're acting from cowardice and some kind of weird perception of political expediency. I signed the Move On petition listed above. We all should and we should bombard Pelosi and others with pressure regarding this. It's huge; it should be front and center in the MSM. It's more important to the future of democracy than the execution of Saddam.

          by Circle on Sat Dec 30, 2006 at 11:33:47 AM PDT

          •  The Only Calcium to Be Found in Washington

            is embedded in the marble buildings.

            W.hiny, W.impy, W.ishy-W.ashy, W.eak, need I go on?

            They cower in fear of the mighty wurlitzer.

            Lefty!

            by LeftyLimblog on Sat Dec 30, 2006 at 11:52:12 AM PDT

            •  Yeah, I really don't understand their problem n/t

              by Circle on Sat Dec 30, 2006 at 12:03:44 PM PDT

        •  Yes - completely agree with you...

          Once he is seated, the house has implicitly approved of the election.  

          They should leave it vacant until ALL appeals are decided.  Refuse to seat either candidate.

          Also, this to some extent avoids states rights issues and the 10th amendment.  

          by DrWolfy on Sat Dec 30, 2006 at 12:00:03 PM PDT

    •  So Says the NYT

      Saturday's New York Times has another story on the contested race,
      "House Democrats to Object to Florida Election Outcome", which begins:

      WASHINGTON, Dec. 29 — Democrats said Friday that they would open the new Congress by formally objecting to the election result in Florida’s 13th District, in the hope that the Democrat who is contesting the narrow outcome there will ultimately take the place of the Republican whom the state has certified as the winner.

      The move will not prevent the Republican, Vern Buchanan, from taking office with the rest of the 110th Congress next Thursday. But Democrats say that because the House is the final certifier of House election results, they want to make certain that Mr. Buchanan’s swearing-in does not prejudice a legal challenge mounted by his opponent, Christine Jennings.

      The Democrats say that if they were to make no such objection, formally called a parliamentary inquiry, they would essentially be signaling the courts that the House agreed with the state-certified result. By contrast, their move will put the House on record as supporting Ms. Jennings’s challenge.

      Importantly, as the article notes, this can be done without a formal House vote, so long as Speaker Pelosi gives her approval, which she has apparently done.  We'll have to see whether this has any impact whatsoever on the court case, and its appeal.

      by The Maven on Sat Dec 30, 2006 at 10:56:37 AM PDT

      •  the possible logic here -

        I am just wild-ass guessing, but pelosi's logic here may be that she did not want to look like a "mean-spirited partisan" the very first day outta the gate, so she kicked this particular can down the road a little bit; there will still be a congressional investigation of this matter, which hopefully will deliver the message to the masses of how bizzare & how crappy & how ludicrous these unverifiable black-box voting machines really are.

        I am excited that no longer are we limited to making our theoretical intellectual arguments on the web; here we now have an actual real case for a new Dem congress to seriously put under the microscope.

        for the record, I myself called both pelosi's office and my rep john larson's office and asked that they keep this seat vacant, but perhaps in their minds there is a biggger picture here to consider,

        which is that we do not want to look like vicious mean-spirited DeLay-like partisans, because the ultimate assignment for pelosi & reid is to prepare the american people to psychologically accept the eventual forced resignation/impeachment of both bush & cheney, thus, I can live with the temporary seating of a vern buchanan, who is a nobody.

        by hartford for lamont on Sat Dec 30, 2006 at 04:17:07 PM PDT

    •  What happens if he's seated

      and they win in court???  Can they (Congress) remove him and reseat her?

      by victoria2dc on Sat Dec 30, 2006 at 11:10:51 AM PDT

      •  Yes.

        If that's what they choose to do.

        by Kagro X on Sat Dec 30, 2006 at 11:44:31 AM PDT

        •  Why Can't They Just Declare the Seat Vacant?

          And if the state holds a revote seat the winner.

          As it is there is STILL no demand for auditable elections.

          What IS it? Do the DC Dems have no desire to actually fix the problem?

          Lefty!

          by LeftyLimblog on Sat Dec 30, 2006 at 11:54:55 AM PDT

          •  They could do that, too.

            But the governor of Florida would probably just keep sending us Buchanan's certification, saying the Democrats are holding their breath like a bunch of babies.

            And it'd probably stick.

            The House can't tell Florida how to resolve this. It can suggest that there are certain resolutions they would accept, but it can't make them execute.

            by Kagro X on Sat Dec 30, 2006 at 12:05:39 PM PDT

            •  Then Voters R W/out Representation

              I believe Jennings herself was quoted today as saying that she can live with Congress seating Buchanan "temporarily," because otherwise the voters of FL-13 would be left with absolutely no representation in Congress during the investigaton. This may be just bullshit spin by Jennings in view of a bad situation,  but I think it is very good spin, and there's an element of truth there too.

              by OtisIsHungry on Sat Dec 30, 2006 at 02:49:46 PM PDT

        •  How?

          Once he's seated, how can they remove him?

          Article I, Section 5 of the Constitution of the United States of America

          Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

          US Constitution

          Once he becomes a Member, the only way he can be removed is by a 2/3 vote to expel him.  Don't see that happening.

          Will Buchanan be a full-fledged member with voting privileges and committee assignments?  If so, I don't see how he can be removed without a 2/3 vote.

          Perhaps there is a deal that says Buchanan can take the seat now, but if there is enough evidence of electoral fraud or malfeasance, he will resign and trigger a special election.

          Otherwise, allowing him to take the seat pending an investigation makes no sense to me.

          by Buckeye Terry on Sat Dec 30, 2006 at 02:55:58 PM PDT

          •  I think the play goes like this:

            Expulsion is the way the House rids itself of a Member whose credentials are undisputed, but who has fallen into disfavor.

            But when a Member's credentials, by which he or she is even recognized as a bona fide Member of the House are in question, it's not an expulsion. It's merely a determination of a purported Member's qualification to serve and be included on the Clerk's roll.

            Apparently that's something they believe they can decide differently, and with less votes, than expulsion.

            by Kagro X on Sat Dec 30, 2006 at 04:10:37 PM PDT

            •  Has this ever happened before?

              In the disputed election in Indiana in 1984, the House didn't seat either candidate for a number of months before seating Dem Frank McCloskey.

              Reading Article 1, Section 5, I just don't see how a Member could be ousted after being seated.  Of course, the House can determine its own rules, so maybe that's how they get around it.

              I also just don't see why the Repubs would go along with this.  If the House Dems decide, in say May, that Buchanan has to go, the Repubs will scream bloody murder.  "He's been there for 5 months, doing fine, now the partisan Dems just want to get rid of him without the 2/3 votes, etc, etc."  Especially if the House replaces him with Jennings, rather than declare the seat vacant.

              Looks like Buchanan will get the seat and the rest of this is just window dressing.

              by Buckeye Terry on Sat Dec 30, 2006 at 04:39:55 PM PDT

              •  Apparently, it has.

                I can't quite tell from the precedents exactly how many times, but at least one example is provided in the notes of Deschler's Precedents, Chapter 2, Sec. 6.

                In the case of Dale Alford (D-AR) -- Lieberman fans take note: Alford called himself an "Independent Democrat" -- in the 86th Congress, the House adopted the following resolution:

                Resolved, That the Speaker is hereby authorized and directed to administer the oath of office to the gentleman from Arkansas, Mr. Dale Alford.

                Resolved, That the question of the final right of Dale Alford to a seat in the 86th Congress be referred to the Committee on House Administration, when elected, and said committee shall have the power to send for persons and papers and examine witnesses on oath in relation to the subject matter of this resolution.

                Apparently, that resolution was effective in reserving the objection to Alford's right to the seat, which was only later confirmed, again by resolution.

                It should be noted, however, that Democrats held the majority in the 86th Congress, and Republicans would have had no particular reason to disrupt proceedings that could potentially unseat a Democrat.

                Still, I think with a Democrat in the chair, it should be nearly impossible to effectively block the game plan as it's been laid out. It'd probably be helpful if the House adopted a resolution like that adopted in Alford's case, but that'd lead to a contested vote right off the bat. Instead, my understanding is that they'll simply entertain a parliamentary inquiry asking whether they really can undo this later, to which the chair will answer, "Yes."

                by Kagro X on Sat Dec 30, 2006 at 05:00:30 PM PDT

                •  check out Roy v. Jenks

                  Jenks was seated from NH-1 at the beginning of 1937, but was removed by a majority vote in June 1938. Of course the House rules aren't exactly the same now, but at any rate, there is another precedent.

                  Unfortunately, I don't happen to have the 1937 Congressional Record lying around the house and can't immediately tell what was said when Jenks took his seat, although unmistakably the seat was contested at that time.

                  by HudsonValleyMark on Sat Dec 30, 2006 at 05:36:45 PM PDT

                  •  Interesting.

                    I see that Jenks was a Republican, unseated by a Democratic majority in favor of fellow Democrat Roy.

                    Now, here's the lesson: the voters of New Hampshire subsequently Roy, reelecting Jenks. Twice. Over Roy both times.

                    Roy subsequently ran for Congress once more, and Senate once more. But New Hampshire was apparently uninterested, and that one contested seat was all he was ever permitted to hold.

                    by Kagro X on Sat Dec 30, 2006 at 05:52:33 PM PDT

                    •  well, in fairness...

                      Jenks had been elected a couple of times before that. I think it's a bit of a stretch to infer (if this is the "lesson" you have in mind) that the voters were punishing Roy for whining about the seat. Not that I rule it out.

                      As to what voters in FL-13 might think, for now I can only refer to my gut. Awarding the seat to Jennings: a reach, no matter how solid I think the statistical evidence is that she should have (slam dunk). Insisting that an election with double-digit overvotes should be rerun: pretty reasonable. Leaving the outcome as stands after an incisive investigation: also pretty reasonable. I'm not sure how capricious an election has to be before most people would be inclined just to throw out the result. The resemblance to Russian roulette in this one is enough for me. I can see other sides.

                      by HudsonValleyMark on Sat Dec 30, 2006 at 06:29:35 PM PDT

                      •  No he hadn't.

                        That was Jenks' first successful election to the House.

                        by Kagro X on Sat Dec 30, 2006 at 07:34:26 PM PDT

                        •  oops, my dumb

                          I misread one of my sources.

                          I'm curious what happened in the preceding and following election(s), but not curious enough actually to look it up. It's probably moot anyway: that was a pretty different fact pattern, prolonged bickering over a small number of votes (missing ballots?). Not that I am venturing any stronger prediction about how the FL-13 fact pattern would play.

                          by HudsonValleyMark on Sun Dec 31, 2006 at 05:34:43 AM PDT

              •  Link

                http://frwebgate.access.gpo.gov/...

                by Kagro X on Sat Dec 30, 2006 at 05:16:54 PM PDT

                •  Thanks for the information

                  Thank you, Kagro X and Hudson Valley Mark for the information about the Arkansas and New Hampshire affairs.

                  The link that Kagro X provides concerns the House rules regarding the seating of Representatives.  This passage stuck out to me.

                  The authority to challenge the right of a Member-elect to be sworn is based on U.S. Const. art. I, Sec. 5, clause 1, which constitutes the House as the sole judge of the elections, returns, and qualifications of Members.

                  and

                  When the right to be sworn of an individual Member-elect is challenged, he generally loses no rights thereby except for his right to vote While his case is pending, he may be permitted to debate his own right to the seat and may serve on committees

                  http://frwebgate.access.gpo.gov/...

                  The operative words for me in the first passage are sole judge of the elections.  This would seem to indicate that after the House meets, any court action is moot.  Am I correct?

                  Also, from the way I read the the second passage, Buchanan would not have the right to vote on the floor, but would have all other privileges, including committee assignments.  He becomes like the delegate from American Samoa, Puerto Rico, DC, etc.  Again, am I reading this correctly?

                  There was also a mention that the objection to seating Buchanan can be a ruling from the chair.  Can this ruling be appealed to the entire House?  If so, this would force a recorded vote.  I don't think that is necessarily bad, but some Dems in the House might.  (Although I think all of the Dems would vote to sustain the chair.)

                  Is this ruling from the chair done before Pelosi has assumed the Speakership?  Is the Speaker chosen before or after the members are sworn in?

                  Usually, we think of these procedural matters as questions for Jeopardy or Trivial Pursuit .  Funny how it actually matters.

                  If Buchanan can't vote on the floor until after an investigation, then I'm not as upset about this as I first thought.  I would still prefer that the seat remain vacant until the matter is resolved/special election held.  But, I think this is an acceptable compromise.  Thanks for helping to clarify.

                  by Buckeye Terry on Sat Dec 30, 2006 at 08:41:34 PM PDT

                  •  Hurrah for nuance.

                    Here's what I think happens:

                    1. The House is the sole judge of elections and qualifications, but can surely accede to the findings of others. So while it could act to defy the findings of a judge, it probably wouldn't. And in agreeing to the findings of an actual judicial branch judge, it could still claim to be the "sole judge," because it's still up to them to decide whether or not to tell him to take a flying leap.

                    2. Buchanan would not have the right to vote on the floor if the House opted not to swear him in. But I think the plan is to swear him in. So I anticipate that he'll be a fully functional Representative. Just one with a cloud over his head.

                    3. If the plan really is to go forward with nothing but a parliamentary inquiry, I suppose the answer from the chair is subject to appeal, but the appeal is itself subject to a motion to table. That, even though we'll all know exactly what the vote is really all about, gives some important breathing room. Technically, that vote would be about whether or not to sustain the power of the Speaker to interpret the precedents, and a loss on that vote would be tantamount to a vote of no confidence in the Speaker. You probably won't find a single Democrat on the wrong side of that, even if the underlying reality might be one they'd prefer to go the other way on.

                    Finally, procedure always matters. We'll learn more about that as we proceed in the majority, and people learn how the use of procedure and the rules can change the substantive outcome completely.

                    by Kagro X on Sat Dec 30, 2006 at 08:56:33 PM PDT

                    •  somewhere in the mists of the Cong Record...

                      I think I saw some member -- I somehow think it was Steny Hoyer -- making the point of order that a member was being sworn without prejudice to an ongiong contest. As I recall(?), the Speaker allowed as how that was so, and there was no other comment. I took it at the time that under the precedents of the House, there was no other plausible conclusion.

                      Not that such debates are always constrained by plausibility.

                      All you say makes sense.

                      by HudsonValleyMark on Sun Dec 31, 2006 at 05:46:05 AM PDT

                      •  ah, here's what actually happened

                        Hoyer was on the other side, of course -- it was Dornan v. Sanchez. So, in fact, there was another comment, but there was no debate.

                        The SPEAKER. According to the precedents, the Chair will swear in all Members of the House at this time.

                        For what purpose does the gentleman from California rise?

                        PARLIAMENTARY INQUIRIES

                        Mr. HUNTER. Parliamentary inquiry, Mr. Speaker.

                        The SPEAKER. The gentleman will state his parliamentary inquiry.

                        Mr. HUNTER. Mr. Speaker, In lieu of requesting Representative-elect Sanchez to step aside, is it the fact that a notice of contest filed on behalf of Robert Dornan pursuant to the law is on file with the Clerk?

                        The SPEAKER. The Chair is advised by the Clerk that a notice of contest pursuant to the statute, section 382 of title 2, United States Code, has been filed with the Clerk. Under section 5 of article I of the Constitution and the statute, the House remains the judge of the elections of its Members. The seating of a Member-elect does not prejudice a contest over final right to the seat.

                        Mr. HOYER. Parliamentary inquiry, Mr. Speaker.

                        The SPEAKER. The gentleman will state his parliamentary inquiry.

                        Mr. HOYER. Mr. Speaker, am I correct that the gentlewoman from California [Ms. Sanchez], has been duly certified by the Secretary of State as duly elected from the 46th District of California?

                        The SPEAKER. That is the information that has been submitted to the Chair by the Clerk.

                        The SPEAKER. If the Members will rise, the Chair will now administer the oath of office.

                        Congressional Record, 1/7/97, page H7

                        by HudsonValleyMark on Mon Jan 01, 2007 at 06:38:02 AM PDT

                    •  If Buchanan is sworn in and allowed to vote on

                      the floor, how can they remove him should the Congressional investigation find that the election is tainted?

                      In fact, I would be concerned if the majority can decide, at any time, that the election of a member is suspect and that the member has to go.  The Constitution requires a 2/3 vote to expel for a reason.

                      In the hands of an unscrupulous majority, I could see the following scenario.

                      1.  A member of the opposition party, say a Maxine Waters or Cynthia McKinney is elected.  The losing candidate cries foul and appeals to the House.

                      2.  The House member is sworn in, but the majority reserves the right to investigate the election.

                      3.  A cursory investigation is conducted, decides the election was bogus and says the sworn in member must go.

                      4.  By a simple majority, the House removes the suspect Member and seats the losing candidate of its party.

                      Irregularities can be found in just about every election.  I realize I'm being overly conspiratorial, but this does concern me.

                      One of the following what should happen.

                      1.  Buchanan is seated and that's the end of it.  He can be removed at the next election.

                      2.  Buchanan is seated, but cannot vote on the floor.  After the investigation is completed, the House can decide if Buchanan is a full member, or if he should be removed and either Jennings is seated or a new election held.

                      3.  Neither candidate is seated until the investigation is completed.  The House investigation decides

                                     a. Buchanan won fair and square.
                                     b. Jennings won fair and square.
                                     c. We have no idea who really won, the seat is vacant.  If Florida wants to be represented, there will need to be a special election.

                      Personally, I prefer the last option; we don't know who won, and I'm very uncomfortable using computer analysis, voting patterns, etc. to count votes.  You can't count what isn't there.

                      But, allowing Buchanan to be become a full member, with the provision that he can be removed whenever the majority decides, is a dangerous precedent.  I have no love for Buchanan, but let's be careful.

                      by Buckeye Terry on Sun Dec 31, 2006 at 07:35:09 AM PDT

                      •  see the branch above

                        As far as we can tell, a member was in fact seated in 1937 and unseated in 1938, upon conclusion of the investigation into his election.

                        The minority did (apparently) consider this unscrupulous, just as Republicans considered it unscrupulous when Democrats voted to seat McCloskey instead of McIntyre. There is no good way to make it impossible for unscrupulous majorities to do bad things. (However, I don't think what the Democrats did in either of those cases was unscrupulous. Most likely, members on both sides believed that their side was right.)

                        In any case, seating Buchanan without prejudice to the ongoing contest doesn't appear to be a precedent at all. It's not that I don't see your point. In fact, people are debating whether even voiding the election would constitute an abuse of majority power. These arguments are normal. If a majority party started unseating members capriciously, that would be something else again.

                        by HudsonValleyMark on Sun Dec 31, 2006 at 07:54:58 AM PDT

                      •  Underlying all of this...

                        is the majoritarian power built into the House (and, in some special instances, the Senate).

                        Here's what happens if you make a constitutional objection to a majority vote to unseat a Member by rejecting his credentials:

                        1. You make a constitutional objection.

                        2. The chair either:

                          A. overrules your objection, or;
                          B. correctly states that constitutional questions are settled by a vote of the body

                        Option A leads to an appeal of the ruling, then a tabling of the appeal by the majority.

                        Option B leads to a majority vote resolving the constitutional question in favor of the interpretation I gave earlier -- that rejecting credentials is not the same as expelling a properly credentialed Member.

                        An outside lawsuit gets bounced. Political question, and the rules of procedure in the House are constitutionally reserved to its [the House's] interpretation.

                        by Kagro X on Sun Dec 31, 2006 at 09:10:40 AM PDT

                        •  I understand that rejecting the credentials of

                          a Member-elect prior to a swearing in would and should only take a majority vote.

                          My concern is removing a Member based on credentials after a Member has been sworn in and has exercised voting privileges.  

                          I can see the opportunity for abuse.  For instance, Dennis Kucinich was re-elected in 2006.  But, there were lots of problems with the election (recent headline in Cleveland Plain Dealer:  Thousands vote illegally).  If the Repubs still had the majority, a Repub, say Virgil Goode, could object to DK's credentials.  Bob Ney and the House Administration conducts a cursory investigation, and determines that yes, indeed, the election in Cleveland was so screwed up, we think DK's opponent actually won.  The Repubs vote on a party-line basis, DK's out and his Repub opponent is in.

                          T guess I really don't object to allowing a person who's credentials are being questioned (Vern Buchanan) being allowed to sit on committees, etc but not be able to vote.)  But once you are a voting member of the House of Representative, the Constitution says that it takes a 2/3 majority to expel you.  I think the Founding Fathers required a 2/3 to prevent a scenario like I outlined above.

                          by Buckeye Terry on Sun Dec 31, 2006 at 09:33:03 AM PDT

                          •  They may well have.

                            But the practical effect of it is nil, if the courts won't intervene. And they won't.

                            Instead, they'll say the question of whether or not the House was behaving inappropriately should be settled at the ballot box, where citizens can punish the capriciousness of the offending Party.

                            by Kagro X on Sun Dec 31, 2006 at 10:07:23 AM PDT

    •  Well, the chair of the CHA

      (Committee on House Administration) will be Juanita Millender-McDonald, who says on her website:

      In her role as Ranking Member of the Committee on House Administration, Congresswoman Millender-McDonald has investigated widespread voting irregularities and voter disenfranchisement and called for a hearing in Ohio, the first election reform field hearing in Congressional history.

      Our chances are a damn sight better than they would have been with Vernon Ehlers or Bob Ney.

      Unfortunately, her website also says that she's only able to respond to her constituents. Any DK-ers from CA-37? Long Beach? Compton? Carson? (I checked the Frappr DK map and sent e-mail to one person, but so far haven't heard back.)

      by AlanF on Sat Dec 30, 2006 at 12:38:50 PM PDT

      •  That's promising indeed

        I'd like to see her use any reseating as a lead-in to the whole voting issue, and it seems she has the background and commitment to do so.

        by lizah on Sat Dec 30, 2006 at 01:35:09 PM PDT

  •  Do a daily diary on this, please.

    Some of us are old & tend to forget ... short attention span disorder.   Not enough RAM (or is it ROM?)

    by ezdidit on Sat Dec 30, 2006 at 11:55:49 AM PDT

•  My own view from afar

  1. The problem was ballot design IMHO: where races appeared on the screen

  2. Paper ballots are much less likely to have these problems (but they do sometimes, see "butterfly ballot"). Reading a book or magazine is inherently less confusing that navigating poorly-designed computer menus

  3. If the code is examined and found to be accurate, the press will tend to say "Machine voting vindicated"

  4. There should be a legal right to examine the code, under circumstances that ensure competitors do not see it

  5. But it may be a tactical mistake to press on this issue, rather than simply say: "Whether by coding error or ballot design error, 18,000 voters were disenfranchised, and that is unacceptable."

  by Elwood Dowd on Sat Dec 30, 2006 at 09:14:41 AM PDT

  •  Great Points, especially the end game:

    My fantasy is that Congress investigates quickly and broadly, reaches your conclusion:

    Whether by coding error or ballot design error, 18,000 voters were disenfranchised, and that is unacceptable."

    declares the seat vacant, and a re-vote occurs.

    by ca democrat on Sat Dec 30, 2006 at 09:21:24 AM PDT

    •  My own fantasy goes in a different direction

      Congress investigates, and regardless of how they address FL-13, passes a House resolution that recommends that the House elected in 2008 refuse to seat any candidates "elected" through non-verifiable means (machines with no paper trail). As a result of this resolution, voting machines are abandoned throughout the nation before November 2008.

      by Elwood Dowd on Sat Dec 30, 2006 at 09:29:18 AM PDT

      •  Would that they would! n/t

        by Circle on Sat Dec 30, 2006 at 09:30:57 AM PDT

      •  I agree with you 100% !!!!!!!!!!!!!!!

        The other side has power, money, and an attack machine working 24/7.  They wear you down a little bit at a time, in insideous ways. It's a formidable and necessary war to wage. A war for the right to vote, and have every vote counted.

        by ca democrat on Sat Dec 30, 2006 at 09:35:50 AM PDT

        •  I Wish, Though,

          That there were not such a short statute of limitations on stealing elections, "flawed balot design" or no.

          by potownman on Sat Dec 30, 2006 at 10:48:29 AM PDT

  •  good comment!

    but I wanna take issue with item number 4! I think we need to have legislation against any part of our voting system being proprietary to a corporation. We cannot have fair elections without absolute transparency.

    by srkp23 on Sat Dec 30, 2006 at 09:45:52 AM PDT

    •  Right On.

      Like that was ever a good idea.  I'm a bit puzzled as to why HAVA was passed in the first place, for example.

      Or, maybe it's not so puzzling, after all.

      by potownman on Sat Dec 30, 2006 at 10:49:57 AM PDT

    •  No ex post facto stuff

      The machines were purchased according to one agreement.

      I generally agree on the need for transparency, although I don't see a particular need for open source on an optical scanner that is subject to random recounts. Open source would be a plus; but IMHO not an absolute requirement.

      by Elwood Dowd on Sat Dec 30, 2006 at 11:11:02 AM PDT

      •  Optical scan readers are basically a computer

        reading code.  It would be just as easy to "fix" an optical scan reader as a DRE.

        Requiring a paper trail with DRE's and a random audit of paper trail vs. DRE results is a good idea.

        by Buckeye Terry on Sat Dec 30, 2006 at 03:07:37 PM PDT

        •  (I wouldn't have mentioned...

          ...open source on a scanner, if I didn't know it was a computer.)

          by Elwood Dowd on Sat Dec 30, 2006 at 03:35:27 PM PDT

          •  I took your comment to be that

            you think open source is needed on DRE's but isn't really needed on optical scan readers.  If that was not your intention, I apologize for misunderstanding.

            If that was your intention, since they are both computers, why would open source be necessary on one type, but not the other? ES&S and Diebold manufacturer most of the optical scan readers in use.  But, for some reason, people seem to trust them to make the readers, but not the DRE's.  

            by Buckeye Terry on Sat Dec 30, 2006 at 03:56:00 PM PDT

            •  Several reasons

              1. Optical scanners inherently have a paper trail. With random precinct hand recounts, we can be far more certain of their reliability

              2. Optical scanners have been used for several decades with no evidence of malicious counting

              3. There is a very large installed base of optical scanners, and absent some evidence of an actual problem cities and towns should not be forced to replace them

              That doesn't mean that I think transparency isn't a virtue.

              by Elwood Dowd on Sat Dec 30, 2006 at 04:07:58 PM PDT

              •  But the paper trail only comes into

                play if there is a recount.  In some states, a recount is required if there is less than a .25% margin of victory.  In others, including Ohio and Florida, a recount is required if the margin is less than .5%.  (In other states, a recount only happens if a candidate requests it and pays for it.)

                That is not a lot of votes.  It wouldn't be very difficult to "fix" an election outside of those margins.  The difference in Ohio in 2004 was about 2%, about 150,000 votes IIRC, and there have been cries that the election was stolen.  (BTW, very few counties in Ohio used DRE's in 2004-it was mainly punch card and optical scan.)

                Many counties throughout the country purchased optical scan readers since 2004 to replace punch card voting, so the opportunity to install the malicious code in those machines is just as possible as with DRE's.

                I agree that a paper trail is needed and I also agree that random audits of any type of voting machine.  After the election, put the names of each precinct in hat, have a representative of every party on the ballot present and draw out enough to cover say 3% of the vote.  Hand count those ballots and compare to the machine totals.  

                by Buckeye Terry on Sat Dec 30, 2006 at 04:32:59 PM PDT

                •  Wrong

                  the paper trail only comes into play if there is a recount

                  That's the whole point of recounting random precincts. There's always a recount -- not of the entire electorate, admittedly.

                  An important provision even if the scanners are open source, since scanners are affected by mechanical and even environmental factors.

                  by Elwood Dowd on Sat Dec 30, 2006 at 04:44:31 PM PDT

                  •  You misunderstood what I wrote

                    Currently, at least in states I am familiar with, there is not a random audit of precincts.  

                    We agree that a random audit of paper trails is needed.  What I am asking is:  Are there any states that currently require such a random audit?

                    by Buckeye Terry on Sat Dec 30, 2006 at 08:45:29 PM PDT

                    •  here's some research on state audit requirements

                      courtesy of VerifiedVoting.org.

                      I don't have the tenacity right now to determine how many of these I would consider "random" audit requirements.

                      by HudsonValleyMark on Sun Dec 31, 2006 at 05:49:29 AM PDT

                      •  It appears from the link provided by

                        Hudson Valley Mark, there are a few states that do require a random audit of voting machines.  Included are some large states such as IL, CA and NY.  Most require any where from one or two machines up to 5% of precincts; although, Hawaii requires 10% of precincts using electronic machines.  

                        Arizona appears to be the only state to define random as being "selected by lot"; the other states left "random" undefined.  Interestingly enough, KY and PA require random audits, but those states do not require paper trails.

                        This is a good start, but all states need to have a paper trail and require random audits of all voting machines.  And random needs to be defined in detail.

                        by Buckeye Terry on Sun Dec 31, 2006 at 06:58:59 AM PDT

                        •  yeah, "random" can be pretty 'random'

                          You probably remember the details better than I do, but there were some pretty 'interesting' interpretations of "random" in the Ohio 2004 recount. Even setting aside the blatant abuses, clearly the term doesn't interpret itself.

                          by HudsonValleyMark on Sun Dec 31, 2006 at 07:37:48 AM PDT

                          •  Yes, I do remember

                            People in Cuyahoga County (Cleveland) are probably going to jail because of how the "random" precincts were selected.  There are 88 counties in Ohio, IIRC, 86 of them were sued because of how the "random" counties were selected.

                            Briefly, during a recount in Ohio, precincts representing at least 3% of the total vote are to be randomly selected for a hand count.  If the hand count exactly matches the machine count, the remainder of the recount can be done by machine.  If the hand count is different by even one vote, the entire county must be hand counted.

                            So, you can see, counties had a real incentive to make sure that the hand count and machine count matched.  Cuyahoga determined which precincts had no problems, then "randomly" selected those precincts.  Thus, the jail time.

                            If I may brag, I live in Lake County (suburban Cleveland) and work for the county Board of Elections during election cycles.  We were one of the 2 counties that didn't get sued over the recount.  On the first day, representatives of the Greens, (really Dems), Libertarians (really Repubs)-Green and Libertarian parties requested and paid for the recount-Dems, Repubs and a write-in candidate  came into the office.  Our Director had all of the sign-in books on a table and told the Green representative to pick what precincts he wanted us to recount.  (I believe she did the same with the Libertarian as well.)  The recount observers went with bipartisan teams to conduct the recount.  

                            No discrepancies were found and we were finished in about a day.  

                            There is a very funny story about the write-in candidate and his one vote, but this post is long enough.

                            by Buckeye Terry on Sun Dec 31, 2006 at 08:38:39 AM PDT

  •  Courts deal with sealed confidential material

    all the time.

    I don't understand why this is any different.

    Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

    by bronte17 on Sat Dec 30, 2006 at 11:22:35 AM PDT

    •  intellectual property

      Very good point and on any patent lawsuit case, they must expose trade secrets and intellectual property to win the case.

      What a bogus ruling.

      by BobOak on Sat Dec 30, 2006 at 11:48:47 AM PDT

  •  I've worked with the next generation of

    these types of machines.  My guess is that there were problems with the calibration of the machine.  On Election Day, our Director told me to re-calibrate all of the machines in one precinct, (there were 6) because a voter had called to complain about how difficult it was to get a vote to register.

    Perhaps the problem was a combination of ballot design and calibration.

    Anyone know the age demographics of this county?  Older people tend to have more difficulty with touchscreens, especially machines that have not been properly calibrated.

    In any case, Congress should declare the seat vacant and trigger a special election.

    by Buckeye Terry on Sat Dec 30, 2006 at 03:03:33 PM PDT

•  Why am I not surprised?

  Corporations win out over citizens again? Shocked, I am.

  It looks like it's not going to take very long for us to find out whether our shiny new Democratic Congress is ready to do the right thing - I wish I had more confidence than I do.

  by sidnora on Sat Dec 30, 2006 at 09:15:20 AM PDT

  •  This puts the K in Kangaroo Court

    As always, I must have missed something.

    How can the judge issue a Finding of Facts that is contradicted by the evidence? The judge said, "The test results revealed 100% accuracy of the equipment in reporting the vote selections." When exactly the opposite is true, right?

    by Thistime on Sat Dec 30, 2006 at 10:31:03 AM PDT

    •  We can't even get to

      "contradicted by the evidence" if the judge refuses to look at the evidence.

      by sidnora on Sat Dec 30, 2006 at 03:30:50 PM PDT

•  Thanks for taking the time to put this together

  and keep us informed. Keep up the great work!

  by Naturegal on Sat Dec 30, 2006 at 09:15:50 AM PDT

•  Important Diary

  I'm recommending this, hope others do too.

  I've been following this story.  I think we should be pressuring Nancy Pelosi and other Dems to respond with some backbone. This is not about seating one more Democrat; it's about protecting the vote so we have a fair election in 2008. The only way it may get some mainstream attention is if the Dems stand up in Congress and say we have a problem.  Personally, the fact that this is happening in Florida, in Katherine Harris's district... is suspect from the get go.

  Thanks for doing a exception job of providing background.

  by Circle on Sat Dec 30, 2006 at 09:16:58 AM PDT

•  Educate me:

  What was "goofy" about the way the machines were tested?  

  Did Jennings suggest a different test methodology - or was the argument that the machines would no longer behave the same, for unknown but presumed nefarious reasons?

  I don't doubt that if all the intended votes had been counted Jennings would have won, just trying to figure out J's theory of why they weren't counted.

  In one hundred words or less, if possible.

  by Pinecone on Sat Dec 30, 2006 at 09:22:01 AM PDT

  •  We don't know who won, that's the point

    An 18,000 undervote in a contested Congressional race just defies logic.  That's about a 15% undervote.  In comparison, we had a mildly contested race between a 6-term Repub incumbent and a semi-serious Dem challenger. (Repub won 60-40).  The undervote in our county, using the next generation of these ES&S DRE's, was about 2.5%.

    Something went wrong and needs to be corrected.

    by Buckeye Terry on Sat Dec 30, 2006 at 03:13:51 PM PDT

•  What exactly was the threat to ES&S from.....

  a trade secret point of view?  Jennings lawyers agreed to non-disclosure protections so there was no risk that they would give away trade secrets.

  What the judge did here was to protect ES&S from embarrassment.  He placed the corporation above the voter.  This is unacceptable.

  We must make every effort to make this ruling irrelevant by ensuring that legislation is passed to prevent voting on anything other than open software.  Then ES&S can take their trade secrets and shove it up their collective corporate ass.

  by landrew on Sat Dec 30, 2006 at 09:24:44 AM PDT

  •  I do think ES&S may have overplayed their hand,

    or they know something they do not want us to know, not yet sure which one (if any) is true.

    by ca democrat on Sat Dec 30, 2006 at 09:27:59 AM PDT

  •  Keep in mind ...

    The machines that were tested after the race was over were not machines with the same serial numbers as the machines in the precincts that had the undervote problem.  They were the same model, ES&S iVotronic, and the same owner, county of Sarasota, but they weren't the ones that were in use.  So more like dummy machines than the machines.

    by joan reports on Sat Dec 30, 2006 at 09:38:08 AM PDT

    •  What kind of test is that?

      Call me silly, but why weren't the machines that generated the error used in the test?  Did Plaintiff's lawyers agree to that - or were they forced into it?

      What if a batch of bad components got into that set of machines?

      As for the Judge's ruling regarding trade secrets, what complete bilge. "Conjecture" is about all one could ever have regarding trade secrets - otherwise they're not secret - and therefore not protected at all.  

      Companies are forced to produce trade secrets all the time in, say, patent litigation.  Quite routine - it's done under carefully crafted protective orders.  Why not here?

      My personal tin-foil thought is that the "trade secret" being protected here is that voting machine software has little effective security built in.  (A trade secret is a secret that gives one an advantage in the marketplace.  It doesn't have to be legal - if you've found a way to undetectably dump toxic waste, thus saving on hazmat disposal costs, that's technically a trade secret.  It takes another statute, like a whistleblower law, to allow disclosure.)  Think how much a voting machine company can save by printing up press releases touting their product's "security" rather than  actually checking their code for flaws.  That would, of course, be a "trade secret" they'd never dare let anyone else see.

      Consider Microsoft's "security" in the Windows 95-NT era.  About the only effort they put into security was in press releases.  Microsoft didn't get serious about making their products secure until January of 2002:

      In January (of 2002), Microsoft Chairman Bill Gates issued a memo calling for an end to Microsoft's longstanding practice of rushing feature-rich software to market without adequate testing for security flaws. That's important. Last year, software code attacks cost companies and others $13.2 billion, Computer Economics estimates.
      (Source: USA TODAY Security flaws continue to plague Microsoft June 20, 2002 [emphasis added])

      Bottom line: votes need to be recorded on hard copy that can be double-checked by voters before being turned in.  What's the rush, after all?

      by RepubAnon on Sat Dec 30, 2006 at 10:16:23 AM PDT

      •  Very Well Said. n/t

        by potownman on Sat Dec 30, 2006 at 10:55:13 AM PDT

      •  I can tell you that in Ohio

        the machines used in an election are impounded for at least 60 days.  They cannot be used for anything during that time.

        Don't know if Florida has a similar law, though.

        by Buckeye Terry on Sat Dec 30, 2006 at 03:18:19 PM PDT

  •  It's absurd

    As I've said elsewhere, when proprietary information is involved in litigation, the judge just issues a protective order, limit who can see (and say) what. Happens every day in courtrooms across America.

    Hell, it's not like Jennings is even a competitor of ES&S - she doesn't want to steal the source code and use it herself! But even if the plaintiff were a competitor (say this was a case about trade secret misappropriation), then, again, you just issue