Attorney Paul Lehto Says "Patience" is This Voting Day's Operative Word

A truism says that we prepare to fight the last war, not the next one. Tuesday morning, we are now figuring out the nature of the next war. The apparent attacks are in part revealed below, and they mean that election results will NOT be known tonight in most jurisdictions, and media pressure or interpretation of those numbers will be more pro-Republican than necessary. The republican advantages will be of two types: one type never shows up in the numbers at any time (suppression) and they don't show up in exit polls either (voter suppression) and the other types do eventually show up in totals, but only if they are properly counted (slow counting paper, and forcing into provisional ballots, more on that below). Watch for all of this to be blamed on partisan Democrats and progressive groups, even though we've kept our principles all along and they are nonpartisan, even though our votes personally may not be.

The ultimate problem of our elections system is the perverse incentives all incumbents of all parties have regarding the redesign of elections systems: not only do they favor incumbents, leading to 98% re-election rates for incumbents, but if they REALLY screw them up, in the worst case scenario in which invalid elections are produced, the incumbents can't be replaced!! Keep that in mind when you contemplate the passage of the Help America Vote Act (HAVA).

Late Monday morning November 6, Judge Vargas in San Diego Superior Court ruled that he saw no legal bar to delaying the count of emergency paper ballots obtained at the polls pursuant to the order of the CA Secretary of State requiring those ballots to be available upon request. In essence counting the emergency paper ballots starting only on Thursday, two full days after the election, did not violate due process, equal protection, the CA elections statutes or the CA constitution, all because it will eventually get counted and included in final totals. Since the judge alluded to the risk of early swearing in rendering the rest of the votes irrelevant as well as the fact that election night results will be artificially increased in favor of republicans, this is a curious conclusion to come to.

Thus, as applied in San Diego County, there are the following possible types of ballots: absentee ballots obtained outside the polls, Diebold touch screen early voting, Diebold touch screen poll voting, emergency paper ballots at polls, and provisional ballots. A record number of absentee ballots were already requested such that the Registrar's office completely ran out of them and started sending out regular photocopies of ballots, then transferring the voters votes manually to card stock when the completed ballot was received back. Most photocopy machines of any sophistication can copy onto card thickness stock (I used to own a small photocopy business) so this is a curious procedure indeed.

There are additional forms of damage to counting on different days: (1) if the race is close, the DRE votes come in automatically on election night while the paper votes can get scrutinized later on and have opscan settings set to be more strict, etc., or loose, either way it's a problem (2) it gives parties time to run into court to stop the counting entirely (3) we have had to purchase an exit poll to compensate in part for the fact that we won't get intelligence information or results about our paper votes on election night.

Oh yeah, the Registrar's office won't even bother to DECIDE when a precinct breakdown of results will be released until Wednesday morning, even though the precinct breakdown shows polling place and absentee votes separately, and thus as soon as the DRE results cartridges are uploaded the numbers for polling place results will be final and should not change. It is useful forensically to have these snapshots as we go along, and having the final DRE results isolated before we add in those emergency paper ballots on Thursday would allow us to see how the numbers are different between those different types of ballots. The ROV appears to be committed to obfuscating the data. Since I co-published a scientific study that made much light shine on situations of "parallel voting systems" because it allows for interesting comparisons, the ROVs office is wise to do this, but only from the standpoint of hiding the ball.

An emergency appeal will be filed this morning to the Court of Appeals. Unless the Court of Appeals is prepared to endorse the totally discredited concept of "separate but equal" like Judge Vargas did (in effect, without using those exact words), we should fare better on appeal, subject only to the risk of time running out. We have till perhaps Wednesday noon to get a rule to accelerate things.

Bush v. Gore means that Equal Protection has to be applied to ballots. Can you even imagine a ruling whereby a court upholds counting African American ballots starting on Thursday and counts white votes first on Tuesday?? This starkly reveals the utter moral and legal corruption of the ROVs approach to democracy together with the court's misunderstanding of the law.

Be aware that jurisdictions around the country that DO make emergency ballots available will likely engage in slow counting, slow reporting and other tactics. MEDIA MUST REALIZE that because paper ballots will be heavily Dem since Dems are more interested right now in election integrity overall, that Republican numbers will be enhanced on election night and PATIENCE MUST BE THE WATCHWORD.

In a close race, with any paper ballots mixed with electronic ballots, we will most likely NOT know the results even late on Election night, it will likely be days. In the meantime, let's fight against "separate but equal." It's not equal, but even if it were, that whole notion was completely rejected by Brown v. Board of Education, and we refuse to roll back that clock, especially as applied to democracy.

Paul Lehto
Attorney at Law
lehtolawyer@gmail.com
425-422-1387