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Departments Election Issues Why are legal scholars dismissing election fraud?: Manufactured skepticism and exit polls --Ron Suskind Uncovering election fraud is hard work. It’s hard work mostly done by ordinary citizens, with occasional help from scientists and mathematicians, who, when faced with results that don't pass the “smell test,” intervene to offer explanations that can only point to fraud, corruption and incompetence. We investigate. We report. We litigate. We determine reality and do what we can within the confines of our power as citizens to bring about justice. As our scholarship continues, the wealth of our evidence accumulates, and the volume of our reportage deepens, certain parties seem intent on poisoning both the well of public debate and stream of knowledge with the innuendo of conspiracy theory. Richard Hasen, Chancellor's Professor of Election Law at UC Irvine and author of Voting Wars: From Florida 2000 to the Next Election Meltdown, suggests that recounts are unneeded except in close elections, because he considers large scale fraud impossible. Of the people who investigate and document it he states “We cannot say with certainty that the people advancing these outlandish conspiracy theories are simply paranoid. But we can fairly ask: ‘What evidence exists that they are not?’” Nothing in his curriculum vitae suggests that Dr. Hasen is qualified to make either judgment as he lacks a background in both clinical psychology and computer science. In June 2006, Robert F. Kennedy Jr. wrote for Rolling Stone a definitive summation of the work that the Columbus Free Press, Black Box Voting and others had done entitled “Was the 2004 Election Stolen.” Hasen, ever quick to dismiss, erroneously claimed that Rolling Stone had removed the article from its website, when in fact it is available to subscribers. This action led attorney Cliff Arnebeck to say “This a gross misleading misrepresentation in violation of academic and legal ethics.” Hasen further claims in his book “Reports of flipped votes are often the result of a failure to calibrate voting machines touch screens properly.” This claim arrives stillborn. Calibration failures, human error, or “glitches,” if actually accidental, should error in favor of both parties nearly equally. Yet when an election machines falls, it seems to always to always land on its right side. This is statistically impossible. Hasen's major published work is a textbook, some would argue the textbook, on election law: Election Law - Cases and Materials. His co-author, Daniel P. Tokaji, also chairs the editorial board of the Election Law Review Journal (ELRJ), the leading trade publication on the subject. Tokaji, along with fellow ELRJ editorial board member Edward B. Foley occupy the Jones Day chair of Election Law at OSU's Moritz College of Law. The Moritz College of Law has given Republican operatives billing equal to Tokaji and Foley on their website. Both Tokaji and Foley have been consistent detractors of any kind of paper trail for direct recording electronic voting (DRE's) calling it “fool's gold.” Tokaji, parroting Karl Rove, has made frequent pronouncements about the inaccuracy of exit polls, despite these polls being the gold standard of election polling. Jones Day, who endowed Tokaji's and Foley's chairs, is the 19th largest law firm in the country. Interestingly, they surface often in the Free Press's research. In 2004, the firm defended those involved in the Heller Affair, in which Diebold Election Systems was founded to have continued to use illegal and uncertified software in California. The now-defunct Diebold later settled out of court for $2.6 million. Jones Day has represented both Bain and HIG capital, as well as Choicepoint, who were responsible for purging nearly a hundred thousand voters, a majority African American, from the Florida voting rolls right just prior to the 2000 election. The ELRJ editorial board contains a few Democrats (including David Magleby of Brigham Young University, a Democrat, Mormon and member of the Romney Campaign) and a token liberal or two, but also includes the leading lights of conservative election law scholarship. James Bopp Jr., Focus on the Family counsel and the lead attorney on the landmark Citizens United decision graces the board as does former FEC commissioner Bradley Smith, staunch opponent of any campaign financial regulation and fellow at the Goldwater Institute. Michael J. Malbin serves on the editorial board of ELRJ and works with the Campaign Finance Institute and the American Enterprise Institute. (See: Taking us back to 1851: Far Right Law Center seeks to bring SB5 battle to local Ohio governments). When not working for think tanks, Malbin is a speechwriter for Dick Cheney. The ELRJ is not alone in the effort to quell public fears of election fraud via electronic voting. The Election Technology Council (ETC), the industry's trade group, came up with a plan to: “create confidence and trust in the elections industry,” “promote the adoption of technology-based solutions for the elections industry,” and “repair short-term damage done by negative reports and media coverage of electronic voting.” Security and reliability seem to have a lower priority than image as they are listed further down the document. Michelle Shafer, PR-head and chairwoman of the ETC, has worked as the go-to PR person for 2 major players in the electronic voting industry: Sequoia Voting Systems and Hart InterCivic. She has also done media relations for CALIBRE systems, a defense department firm that bid on a portion of the money available through the FVAP program to assist military voters. She recently was hired as Vice President of Media Relations at Scytl, which the Free Press has addressed in previous articles. Shafer is the media fire-brigade of the electronic voting industry, appearing at the scene of any failure with bland reassurances at every failure of a DRE machine. Social media savvy, she often tweets about elections in Switzerland or at NASA or in her hometown of Austin, Texas. For a broader perspective, read Marta Steele’s “Grassroots, Geeks, Pros, and Pols: The Election Integrity Movement’s Rise and Nonstop Battle to Win Back the People’s Vote, 2000-2008” which documents a plethora of electronic voting machine malfunctions. Time and again, the scholarship of citizens, programmers, engineers and others has proved beyond a shadow of a doubt that direct recording electronic voting machines fail, fail often, and fail in ways that primarily benefit the Republican Party. But to the self-interested, including the self-appointed legal scholar “experts,” the well placed, and those who benefit from those failures a different dynamic than fact is at work. A faith-based reality is being enforced for narrow interests by a few people who are very close to Karl Rove, the inventor of faith based reality and a leading proponent of push-and-pray voting. ------------------ Bob Fitrakis has a Ph.D. in Political Science and a J.D. from the Moritz College of Law, Ohio State University. Gerry Bello has a degree in computer security from Antioch College. Revised October 23, 2012. |
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