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November 15, 2004
"Confessions of an Unwitting Accessory"--A Commentary by Assoc. Dean Ian Solomon
(This essay originally appeared in the November 11, 2004, edition of the Hartford Courant.)
Confessions of an Unwitting Accessory
By Ian H. Solomon, associate dean
Could we have been so naive? Thousands of the country's most credentialed lawyers flocked to Florida to guarantee a fair election. Did we inadvertently miss an election debacle even greater than that of 2000 and negligently allow our client to concede?
I am a Kerry supporter and a Bush critic. I went to Florida because my mother, a Florida resident, asked me to help protect the right of all citizens to vote and to ensure that all votes counted. I walked the polling lines for early voting in Daytona Beach, distributing sample ballots and helping citizens understand their rights. I tried to ensure that poll workers obeyed the laws about provisional ballots and that ballots were correctly fed through the optical scanner machines. And by my presence, along with other Democratic lawyers, I lent an air of legitimacy to the voting process, which, by and large, seemed fair enough.
But one thing really troubled me: Who was checking to make sure the data contained in the digital memory cards actually matched the voters' intentions marked on the paper ballots? Could we take the accurate counting of computer votes for granted, since the CEO of the leading voting machine manufacturer promised to "deliver" Ohio's electoral votes for Bush?
At first, the question didn't matter, because I, like most others, thought Kerry would win. In fact, I was shocked when the official election results started coming in so different from historically reliable exit poll results and my own gut sense of the results in Florida.
But then the stories of voting irregularities poured in. There was the Ohio county where a memory card showed several thousand more votes for Bush than there were total votes cast. There was the machine in North Carolina that "lost" several thousand votes. There were the reports of several counties in Florida, all using optical scanner machines, where democratic precincts voted overwhelmingly for Bush. There was the realization that exit poll errors were correlated with the use of electronic voting machines. There was the sense that the data from the precincts where I had worked understated what felt like a Kerry landslide. And there were the increasing allegations of machine vulnerability to hacking made public by Blackboxvoting.org and others.
And that's when I realized that I might have been an unwitting accessory to fraud. Like every other Democrat, I had prepared to avoid the problems of 2000 only to be blindsided by new problems in 2004. We had been so worried about the safekeeping of paper ballots that we neglected the security of digital memory devices. We had been so worried about voting law that we neglected voting technology. Most important, we had been so worried about voter suppression in poor and minority areas that we didn't pay attention to voter inflation in Republican areas.
We should have had trained observers - computer scientists, not lawyers! - verifying the integrity of polling data from machine upload through the tabulation of countywide and statewide results. Somehow we neglected the most vulnerable step in the vote-counting process, leaving a gaping hole for error and fraud, casting in doubt the validity of election results in many states.
So what is to be done now? My client conceded the race on the belief that the results were clear. The results are anything but clear, however, and American democratic legitimacy requires an honest reappraisal of the events in Florida and around the country. Three members of Congress have already requested that the General Accounting Office conduct an investigation into the troubling reports of problems with voting machines. The mainstream press must immediately realize that this issue rises above partisanship and demands attention. The time is now for voters from all states that used electronic voting machines to request an audit of results and a manual recount of ballots if possible.
We have a duty as Americans to fix these problems for the future and make sure there is a transparent and trustworthy voting system. What's at stake is not merely the outcome of a close election; what's at stake is our faith in democratic government and the rule of law.
Ian H. Solomon is associate dean at the Yale Law School.