Friday, January 21, 2022

Bad Election Policy Coming from the Nevada County Election Office and Washington DC

At this moment, the US Senate is embroiled over the "Freedom to Vote Act." Democrats are even threatening the nuke the filibuster in order to entirely revamp the national and state election systems on a partisan, party-line vote. Some pretty heavy-handed politics for sure. The question becomes why. Democrats say that they need to expand voting access. One of our candidates, who recently moved to Nevada County from Washington DC and is running to head our local Nevada County election office, vehemently supports the policies as outlined in the "Freedom to Vote Act." I believe that any rational American agrees with expanding voting access and making it easy for legally registered voters to vote. That said, and in expanding voting access as outlined in the "Freedom to Vote Act," partisan politicians, including our local candidate, support election policy which sacrifices election security for easy voting and is ultimately very dangerous to our democracy. Allow me to explain is more detail.

We are a republic and elect leaders who we think will implement good policy which creates a healthy democracy. While experience in running elections is desirable, electing an election official who supports good and sound election policy is paramount. It is paramount, because the health and vibrance of our democracy foundationally depends upon the legitimacy of our elections. There can never be a shred of doubt as to who won an election. If there is any doubt in the legitimacy of an elected official, the very foundation of our democracy is seriously damaged.

Look no further to the actions of certain presidential candidates who point to their opponents' illegitimacy. The Washington Post wrote, "Al Gore conceded after the Supreme Court curtailed his legal efforts to count more ballots in Florida, but many Democrats continued to view Bush as an accidental, if not illegitimate, president." Hillary Clinton, who handily lost the 2016 presidential election, called the winner, Donald J. Trump, an "illegitimate president." In lieu of posting a link to the millions of times which Trump has opined on the 2020 election, there is no doubt that Trump and over a third of Americans, question the legitimacy of Joe Biden. And presently, Joe Biden is calling into question the 2022 elections which has not even happened yet. As a side note, the legacy media seem to believe that somehow Gore's, Clinton's, and Biden's questioning the legitimacy of elections is okay, but when Trump questions the legitimacy of elections, then (and only then) our democracy is imperiled, and the world is about to end, but I digress.

In order to remove any doubt about the legitimacy of our elections, reasonable citizens support easy and efficient voting balanced by reasonable and common-sense security measures. Elections are a balancing act between these two issues. On one extreme, we could err in the direction of sending ballots to anyone and everyone everywhere for months before and after an election in order to maximize voter turnout by removing all common-sense chain of custody procedures. On the other hand, we could make it more cumbersome to vote by requiring voter identification with no mail-in ballots at all, with only in person voting on election day, and with auditable chain of custody requirements.  

The question then becomes how much security is required to stop politicians from politicizing election results and questioning the legitimacy of elected officials who beat them.  I realize that the premise of the question is ridiculous and even hilarious.  How do you stop self-interested politicians from politicizing elections for personal gain?  While the question seems to presuppose an impossible reply, the answer is quite simple.  We must err on the side of common-sense security measures and sacrifice convenience in voting in order to put an end to these self-interested legitimacy claims.  In order to put an end to the politicians questioning the legitimacy of elections after each election, the public must conclude that, beyond a reasonable doubt, the winners are the people that actually won.  

Let's analyze a few of the election policies advocated by our local election officials and congressional Democrats as outlined in the proposed "Freedom to Vote Act ("FVA").

First, let's look at automatic voter registration requirements in the FVA.  California enacted very similar, if not identical, automatic voter registration requirements as found in FVA. What happened?  Judicial Watch "sued the county and state voter-registration agencies in Los Angeles federal court, arguing that the state was not complying with a federal law requiring the removal of inactive registrations that remain after two general elections, or two to four years."  Los Angeles ended up with 112% registration and was forced by a court to purge 1.5 million inactive registrants.  A Pew Study discovered that California DMV officials found more than 100,000 registration errors in the first year including non-citizens.  Imagine delegating election integrity to the DMV.  The thought, in and of itself, is ridiculous yet California did exactly that and it failed spectacularly.  In conclusion, automatic voter requirements flood the zone with voter registrations of which neither the state nor the counties can keep track.  In order to have secure election with integrity, voter registration must be in person and done at your local election office which is actually charged with the responsibility of keeping our local registration rolls accurate.

Second, let's look at mail-in ballot requirements in the FVA. The Brennan Center for Justice summarized the FVA as follows:

The bill would create a national standard permitting no-excuse vote by mail for every eligible voter. States would be required to permit voters to apply for absentee ballots online and prohibited from imposing onerous requirements like requiring mail ballots to be notarized. Apart from returning ballots by mail, the bill would allow voters to return mail ballots in person to a polling place or to a drop box. The bill also includes safeguards to ensure fair resolution of discrepancies between a voter’s signature on a mail ballot and their signature on file with election authorities. Any mail ballot postmarked on Election Day that arrives within seven days would need to be counted, and ballots could not be discarded for minor errors, like failing to use an outer security envelope. [emphasis added].

I have only one comment - "Auditable Chain of Custody." The term "chain of custody" is defined as a "process that tracks the movement of evidence through its collection, safeguarding, and analysis lifecycle by documenting each person who handled the evidence, the date and time it was collected or transferred, and the purpose for the transfer."  Chain of custody "is the most critical process of evidence documentation.  It is a must to assure the court of law that the evidence is authentic, i.e., it is the same evidence seized at the crime scene.  It was, at all times, in the custody of a person designated to handle it and for which it was never unaccounted."  The chain of custody of evidence is very important in relation to criminal trials where the burden of proof is beyond a reasonable doubt.  The prosecutor must demonstrate to a jury (beyond a reasonable doubt) that the accused committed the crime.  If the chain of custody of evidence is broken, a jury can infer a reasonable doubt that the evidence presented in not authentic and find an accused not guilty based upon such reasonable doubt created by the chain of custody being broken.  In fact, a criminal defendant can move the court to exclude evidence when the chain of custody has been broken meaning a jury will never even see the evidence.

While the BARD standard is applied to criminal cases, the burden of proof in the civil context is by a preponderance of the evidence.  The plaintiff must show the jury that, more likely than not, the defendant committed the civil wrong.  I always use the OJ Simpson case to illustrate.  When Johnny Cochran told the jury, "if the glove does not fit, you must acquit," he created a reasonable doubt that OJ killed Ron Goldman, and the jury acquitted OJ.  That said, when Ron Goldman's family sued OJ for wrongful death in a civil suit based upon the same evidence, the Goldman family proved that, more likely than not, OJ killed Ron Goldman, and the jury awarded the Goldman family millions of dollars in damages.

Chain of custody of ballots in elections is equally important, as it is in a criminal court.  Our society has long ago concluded that it is better to set 10 guilty people free than to send one innocent person to jail.  In this same vein, it is better to not count any ballots where the chain of custody has been broken than to count any of them at all.  From a purely statistical point of view and assuming that all ballots cast have been done so legally despite the broken chain of custody, the result of the election will be exactly the same.  However, this paradigm contains a ridiculous assumption in connection with our elections and the nature of man.  It is ridiculous to assume that all ballots cast have been done so legally despite the broken chain of custody.  Further, it is absolutely improper for the government to be able to say after an election that it is more likely than not that Candidate A won.  For the health of our democracy, election results must be beyond any reasonable doubt.

This assumption brings us full-circle back to mail-in ballots as defined by FVA.  Anyone can register online, receive a ballot by mail, and return it to a drop box.  The obvious first issue is that the elections official never sees the individual voter.  There is simply no way to prove, beyond a reasonable doubt, who this new registrant is.  The second issue is the completely shattered chain of custody of the evidence in an election - the mail-in ballot.  As soon as the election official deposits the ballot in the mail, the chain of custody is broken.  Period, full stop.  If a police officer mailed a murder weapon to a prosecutor, absent a clean process that "tracks the movement of evidence through its collection, safeguarding, and analysis lifecycle by documenting each person who handled the evidence, the date and time it was collected or transferred, and the purpose for the transfer," such evidence is going to be inadmissible.  There is no chain of custody in mail-in ballots.  Partisan election officials point to signature requirements as evidence, but a signature on an envelope only proves that the voter signed the envelope.  A signature on a security envelope, while having its own problems of verification, does not necessarily prove that the voter filled out the ballot.  In fact, and absent expert testimony, a signature on a security envelope cannot be conclusively determined to be the actual recipient of the ballot.  As far as dropboxes are concerned, nothing prevents individuals from harvesting blank ballots from nursing homes (as happened in Wisconsin in 2020) or apartment complexes and dropping off thousands of ballots at a time dropboxes (as happened in Georgia in 2020).  These two issues are exacerbated by the bulk mailing of blank ballots pursuant to ill-kept voter registration rolls.  In short, partisan policies of mail-in ballots and dropboxes create reasonable doubt in the results of elections.  The partisan policies of dropboxes and mailing a ballot to any voter, thus shattering the chain of custody, allows a person like Donald Trump (or any politician) to sow reasonable doubt in the results of an election.  While partisan Democrats point to Donald Trump and other politicians as the destroyers of democracy for sowing reasonable doubt in the results of elections, the truth is that the elections policies advocated and implemented by our elected officials including our local election officials (mail-in ballots and dropboxes) created the playing field where reasonable doubt can be sown.

In order to properly secure our elections and prevent the sowing of reasonable doubt in election results, the burden of proof in connection with our elections should on the government to demonstrate that, beyond a reasonable doubt, so-and-so won. In order for the election offices to meet this high and necessary standard, there must always be a clean chain of custody of each and every ballot.  In these debates about elections and their legitimacy, the government attempts to shift the burden of proof to the electorate basically asserting that the "electorate must prove the government conducted the election unfairly and, oh by the way, you have a month to complete your audit."  Such an assertion is also ridiculous.  The election official ignores the chain of custody of a ballot and then demands that the public prove the ballot was illegally cast.  Talk about backward.  In order for our democracy to be healthy and vibrant, the burden is on the government, and not the governed, to prove beyond a reasonable doubt that the election is legitimate.  The only way the government can meet this high and necessary burden is to establish clean chain of custody of each ballot.  

The simple and easy solution to stopping self-interested politicians from politicizing elections for personal gain is a completely unbroken chain of custody of ballots.  After keeping meticulously clean voter rolls, the election official hands the voter a ballot in-person on election day, the voter fills out the ballot on election day, and the voter gives the ballot back to the election official on election day for counting. Knowing the number of ballots printed, the election official keeps track of how many ballots were cast, how many ballots were spoiled, and how many ballots are left over.  Aside from how many ballots were printed in 2020 and after mailing the ballots, our local elections officials cannot tell us how many ballots were cast legally, how many ballots were spoiled, and how many ballots are left over as there are ballots everywhere sent to people who many times are gone.  With mail-in ballots and dropboxes, there is no chain of custody of ballots, hence no reliability in the results of any election.  In order to increase voter participation to the greatest extent possible after in the implementation of these reasonable chain of custody requirements, election day should be a federal holiday.  

As stated previously, we are a republic and elect leaders who we think will implement good policy which creates a healthy democracy.  Our elected officials, both nationally and locally, who support very bad and dangerous policy related to the health of our democracy are hyper-partisans. They are such "true believers" that they are blind to the foreseeable consequences of their harmful policies which actually led to Donald Trump's "Big Lie."  These hyper-partisans created the policies that led to Trump actually being able to convince a third of the population that our sitting president is illegitimate.  Now, Biden is questioning the ability of election officials to conduct a fair election in 2022.  These hyper-partisan policies are like giving a kid dynamite (Trump and Biden) and matches. Our elected officials, nationally and locally, are either ignorant as to what good policy looks like, or they desire the ability of politicians to question the legitimacy of each election when it is politically advantageous.  Each possibility is horrible for the future of our democracy.

I would posit that intentionally breaking the chain of custody of ballots serves two functions for these hyper-partisans.  The first function is that these hyper-partisans are willing to sacrifice fair and secure elections for convenience.  In a society that values its conveniences, such as Amazon delivering to our doorstep just about anything we could possibly want, I understand trying to make elections convenient as well.  But if in exchange for convenience, we sacrifice chain of custody of ballots which self-interested politicians can exploit, we must err on the side of security and integrity in the conduct of elections in order to put an end to the shenanigans.  The second function of intentional breaking of the chain of custody of ballots is to create a campaign issue.  FVA makes these chain of custody issues worse thereby exacerbating the lack of security in our elections.  Like immigration and so many other issues, our elected officials do not desire to fix these problems but simply keep them going in order to increase the donations to their campaign coffers.

In conclusion and in connection with our local election officials who are also these hyper-partisans who supports the lack of chain of custody of ballots, we do not need another partisan election official who will always side with the election office and not the voter.  All you have to do is look at our local election official's Twitter account to find out that she is a hyper-partisan who supports loose elections which give the ability to people like Trump (and now Biden) to say that elections are illegitimate. These loose partisan election policies are what give Trump and Biden the ability to question elections.  Our local election officials are a step backward in election integrity.

1 comment:

  1. Good piece Barry - clear and concise. My summary takeaway is that the burden of proving election legitimacy must always rest on the agency conducting the election, and most certainly not on the voter casting his ballot. gjr