A Call to Legal Arms -- The Unconstitutionality of Paperless Voting

Hardly a day goes by that I do not see a diary here concerned with the verification of elections.

As many of you know, I filed a suit last August in my own name alleging that paperless voting violated the Tennessee Constitution.  Many of you wanted to be updated.  Not much has happened yet but a Motion to Dismiss is pending and will be heard Friday.  I am quite optimistic that I will be allowed to go forward.

The reason for my optimism is that voting paperless and voting on paper are two different systems which produce very unequal voting rights.  My suit is the fraternal twin of Brown v. Board of Education.  Also Baker v. Carr, the very suit (on apportionment) that my trip up Alito's nomination is also right on point.

This is a call to arms for lawyers.  This suit is cheap and we need copycats around the country.  Four or five state victories should make precedence.  Please volunteer!

My abridged version of the case is below the fold with a link to the last Amended Complaint.

My lawsuit, styled Mills vs. Shelby County Election Commission, was riginally filed August 24, 2005 in Memphis; an amended version was filed this week. The lawsuit is a request to have the provisions of the Tennessee Election Code that permit paperless voting declared to be unconstitutional under the Tennessee Constitution.

My lawsuit is the fraternal twin of Brown vs. Board of Education, the landmark case that abolished separate and unequal educational systems. In Brown, the Plaintiff alleged that black and white educational systems did not produce equal educational systems. Similarly, in my suit, I allege that paper and paperless voting systems do not produce equal voting systems and that voting rights are substantially reduced when paper is taken away. The legal principals of inequality are the same.

The Tennessee Constitution has two Articles that pertain to elections. One Article of the Tennessee Constitution requires that all elections be "free and equal." The other Article states that the General Assembly shall have the power to secure the "purity of the ballot box."

Interestingly, the General Assembly, when it enacted the Tennessee Election Code, in its preamble to the code, as it tracked the language of the two Articles of the Constitution, left out two important words from the Tennessee Constitution: "equal" and "box." Instead of using the language from both Articles of the Constituition, the General Assembly reduced the language in the preamble to the Election Code to this: "The freedom and purity of the ballot are secured."

Given these omissions in the opening preamble of the Election Code, it is apparent that the legislature recognized a Constitutional problem with paperless mechanical and/or electronic voting; and it also appears that it drafted legislation hoping to hide the Constitutional problem that paperless mechanical and/or electronic voting created.

The first thing I have asked the Tennessee courts to decide is whether the words "purity of the ballot box" mean that the Tennessee Constitution requires that there be a paper ballot to place in a ballot box. If the courts decide that to preserve the purity of the voting system a paper ballot is required, then that will summarily answer almost all of the constitutional questions except for the questions of privatization.

If the courts decide that these words do not require a paper ballot, then they will still have to decide whether paper systems and paperless systems are systems which give the citizens substantially the same voting rights. If the courts decide that they don't give the citizens the same rights, the courts will have to choose one over the other.

I allege that if they have to choose between systems, they should choose the voting system that gives the voters the most rights, not the system that gives them the least voting rights.

I allege that the system which "secures the purity of the ballot box" is a system of duality; there is the paper ballot, and there is its depository, its ballot box.

I also allege that a paperless system is an integrated all-in-one system; it is a system of singularity.

I allege that when a voting system of duality is reduced to a voting system of singularity, many important legal rights are lost in the process.

The losses of legal rights are stark. When you vote paperless you lose:

(1) the right to an individual ballot, a tangible ballot that you can inspect and verify;

(2) the right to have a poll worker inspect your individual ballot to decipher voter intent;

(3) the right to have poll workers hand count a ballot or count a ballot both mechanically and by hand;

(4) the right to have poll workers do statistical checks counting every "nth" (pick a number) ballot;

(5) the right to have a full meaningful recount of individual ballots vs. the recount of ballots pasted onto a spreadsheet;

(6) the right to have a meaningful election contest where once again an individual ballot can be counted vs. a ballot stored on a computer where the software is claimed to be proprietary and where experts are unable to verify what happened;

(7) the right in Presidential elections to have an election contest that could actually be completed before the "federal clock" runs out;

(8) the right to have the government run the election process rather than the private sector which de facto occurs when the machinery can only be operated by the private sector; and

(9) the right to vote at all which one might possibly lose, if too few machines are available, or if the machines malfunction, or if a power outage occurs.

I also allege that trade secret software privatizes the voting system which was always intended to be a governmental process.

I believe that the smart money is on any lawsuit that uses Brown v. Board of Education as its template.

I also believe that the smart money is on the courts proscribing a system which gives the voters more voting rights, rather than fewer.

I am also hopeful that the courts will see that privatizing the system with trade secret software is a horrible idea and will say privatization destroys the purity of what has historically been a governmental process.

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Link to a copy of the last Amended Complaint:

http://www.progressiveindependent.com/...