A pdf of My Reply Brief is now up.
http://dragonflihost.net/...
Thanks again to dragonfli for being such a helpful and gracious host. And as promised, the Reply Brief is based entirely on my statute of frauds argument.
For framing purposes, for those of you who know lawyers, always tell lawyers we need a Statute of Frauds for Voting. Don't say paper record or paper ballot; it will not compute. Tell them we need a Statute of Frauds for Voting, just like we have for commercial transactions, and the light bulb should (finally) come on.
Snippets from the brief:
After many months of looking at the election process, it has dawned on the Appellant [that's me] that the election process must be viewed in reverse.... We need to look at the election contest lawsuit first and then work backwards to the actual casting of the ballot.
More after the flip:
Snippets of the brief continued:
When one puts the microscope on the disparities between, and the differences between, an election contest that depends upon the evidence of paper ballots and an election contest that depends upon the evidence of expert opinion, the disparities and differences are stark.
Appellant believes that the usage of paper in human transactions is the greatest fraud and perjury deterrent yet invented by the legal system. This is the lesson of the original "Statute of Frauds and Perjuries," (29 Car. II c. 3) [1677]. The act of voting is a human transaction, one between the government and the people. If the original "Statute of Frauds and Perjuries" teaches us anything, it teaches that the absence of paper in any human transaction, not just a business transaction, is a fraud and perjury inducer. The global lesson of the "Statute of Frauds and Perjuries" is that the law disfavors testimony based outcomes (fraud and perjury producers) when it is possible to avoid them in advance. Those of us who must vote without the benefit of a paper record of our vote must vote in a system that encourages or promotes fraud; those of us who get to vote on a paper based system get to vote in a system that deters it.
Fraud deterrence begins and ends at the courthouse, the turf of the judicial branch of government. If the judicial branch of government cannot deter fraudulent elections through its processes, there will be no democratic government. When Article IV, § 1 of the Tennessee Constitution is viewed literally, and as it was intended to be viewed, its paper component becomes a "Statute of Frauds and Perjuries" for voting, and similarly by deterring fraud, protects the democratic process. "The purity of the ballot box" is the paper ballot and its box; the ballot box was not a paperless system in its "pure" form.
Appellant would argue that turning to paperless voting has produced the same legal infirmities in the voting context that existed in the commercial context prior to the enactment of the "Statute of Frauds and Perjuries." The original "Statute of Frauds and Perjuries" recognized the legal infirmities of paperless business transactions and rectified them. So too should this court recognize the legal infirmities brought about by paperless voting and rectify them.
The Court will recall that in 1677 the British enacted the original "Statute of Frauds and Perjuries." Often lawyers, because of the shortening of the title of the statute to simply the "Statute of Frauds," forget about the perjury aspect of the statute's enactment. The "Statute of Frauds and Perjuries" was originally enacted because experience had shown, that without paper evidence of the essential terms of a business transaction, business transaction cases became little more than a contest of who was the best perjurer. The perjury contest made business transactions ripe for fraud.
So ever since its enactment, as the court well knows, the "Statute of Frauds" has been used to eject from court, most business transaction cases which are not based upon a proper paper record, to avoid the unsavory swearing contest. Furthermore, as this court well knows, the "Statute of Frauds and Perjuries" became first the law of the colonies, and later, of each and every state, because the courts recognized the value of paper as a deterrent to fraud and perjury. Ever since its enactment, the law has disfavored testimony based outcomes when it is possible to avoid them in advance.
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But yet, we have the near equivalent of the perjury contest in the election contest case every time citizens are required to vote on a paperless system. A paperless voting system produces a testimony-based outcome, just like a paperless commercial case does, when both are avoidable in advance.
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Consider for a moment two different types of voting election contests -- one with paper and one without. Note what paper evidence does to an election contest lawsuit in one case and what its absence does in the other.
Suppose in one election, where the outcome was in doubt, the voting was done on paper ballots. The challenger files suit and asks the court to subpoena all of the paper ballots. Once the ballots get to the courthouse, trial can proceed, the paper ballots can be marked as evidence (just like a contract, or a cancelled check, or a receipt or a letter of correspondence) and be handed to the jury to count. After the jury's verdict of who got the most votes, the judge declares a winner. The case is fast, cheap, highly effective and final. It is a significant fraud deterrent because there is no perjury contest or testimonial contest determining the outcome. Anyone who monkeys with this system has a good chance of being caught if proper care is taken to protect the paper ballots.
Contrast that election contest with the election contest where there is no paper, like the paperless electronic computerized voting systems being pushed on many of us (and like Appellant will be voting on and has voted on). A challenger who wishes to contest a dubious outcome in a paperless voting system faces a much different election suit.
This election contest becomes a battle of whose software expert is most believed. It is a classic opinion-based testimonial contest. Moreover, the challenger and his expert will face overwhelming odds and the contest is rigged against the challenger. The Challenger's expert will likely have to testify without ever getting to properly examine the equipment. Why? Because the equipment is owned by private manufacturers who assert that their software is proprietary and is a trade secret. Before the challenger can ever get his expert to examine the equipment he will likely have to endure the expense and delay of a trade secrets' war.
But, to reiterate, the most serious problem for the system is that such a battle of the experts is little more than an upscale twist on the perjury contest. As with most such testimonial battles, both the jury and the court are likely to have justifiable qualms about whom they should believe. The outcome of such a case will always be somewhat dubious in the best of circumstances. Was the expert who said the voting equipment was working properly the one who was right, or was the expert who said the voting equipment was not working properly the one who was right? Most likely no one (or very few) will ever know.
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Without paper ballots, the fate of democracy entirely rests upon opinion evidence. Upon an opinion based testimonial contest. It is that simple; and it is clearly avoidable with paper ballots.