With Donald Trump formally installed in the Oval Office, election integrity activist Jonathan Simon crunches the numbers and reflects on Election 2016, the death of electoral transparency and the thwarting of public will.
SANTA CRUZ, California — (Insights) Whether viewed in terms of outcome or of process, the story of the 2016 presidential election is one so grim that it calls for a trigger warning for anyone of ethical sensibilities or faith in the workings of democracy.
In a year that will be remembered by many for the number of revered individuals we lost, it is an open question whether our democracy itself should top the list of the dearly departed, or whether rumors of its demise are premature and it is with us still, lingering on in the ICU and facing a long and arduous road to recovery.
If one of democracy’s vital organs is acknowledged to be an electoral process that permits the undistorted translation of collective public will into the electoral results that determine leadership, policy, and national direction, then 2016 goes down as the year that this vital organ, long diseased, finally failed. If the patient is to be nursed back to health, our search for a cure begins with a thorough case history and an unblinking examination of our stage 4 electoral pathology.
How did we get here?
An election year is made up of innumerable events and constant flux. If we take an alpha-to-omega overview of the 2016 presidential election, the first thing that jumps out from the thousands of event pixels is the fact that America entered 2016 with the near consensus recognition that something serious needed to be done to deal with runaway economic inequality. The year ended, however, with a president-elect and Cabinet representing not the “1%,” but the “0.1%,” portending not merely a step but a giant leap away from economic equality and toward outright plutocracy.
The nation that came into the year coalescing around the need to seriously address climate change and the easy availability of guns, exited it in the hands of a climate change denier and new darling of the NRA. A nation that seemed anxious about the relatively mild pay-to-play concerns raised by the Clinton Foundation, wound up with an all but branded White House, its chief and ancillary occupants boasting more and deeper conflicts of interest than any in our long history.
In reviewing the elections of the year 2016, we will want to ask how we wound up, in virtually every dimension, zigging when we meant to zag. How did such a seemingly fundamental reversal of public will (and taste) come to pass? How did the gears of our electoral process mesh (or slip) to lead us to such a bleak moment in our national journey, as we rang in the New Year in our hospital bed, a “Get Well Soon” balloon bobbing from the bedpost.
Emergence of the politics of disgust
In the dog days of 2015, the ho-hum assumption was the “inevitability” of a Jeb Bush/Hillary Clinton matchup, or at least some tight variation on that theme. But as the campaigns got started in earnest and the public began to displace the pundits and weigh in with their votes, a very different picture began to emerge. It seemed that “upstarts” like Donald Trump and Bernie Sanders were pulling bigger crowds and generating far more enthusiasm than any of the “establishment” candidates, wherever those candidates attempted to position themselves on the traditional political spectrum. Voters — right, left, and center — registered their distress at the dysfunctionality and unresponsiveness of the political hierarchy by turning to candidates promising some sort of fundamental change.
Trump, who promised change from the right, melted his various, more conventional opponents and became the Republican nominee. Sanders, who promised change from the left (and who consistently far out-polled both Trump straight-up and Clinton when tested in matchups against Trump), was sent packing. Was there any more to that primary season outcome than simply one upstart winning and one upstart losing? The forensic answer to this question was troubling.
Attempting (and failing) to verify computerized vote counting in the primaries
Since votes are counted unobservably in the pitch-dark of cyberspace and our voting equipment and programming (unlike our footballs) are essentially off-limits to inspection, election forensics comes down perforce to indirect measures of patterns and anomalies, from which red flags may emerge to suggest “problems” with the vote counting process. Baselines commonly used for this verification process range from exit polls and pre-election polls, to hand counts (in the very few places where they still exist), to parallel contests too noncompetitive to be likely targets for malfeasance, to vote count patterns correlated with type or brand of counting equipment (e.g., paperless touchscreen vs. optical scanner or Dominion Voting vs. ES&S). In the 2016 primaries, it was primarily the exit polls that waved the red flags, although there were other strongly corroborating indicators.
Unlike previous eras, exit polls — or at least those in competitive elections bearing national significance — in the era of computerized voting have been so habitually “off” in the same direction (to the “left” of the vote counts) that many, having first presumed the accuracy of the vote counts, have come to dismiss the polls as faulty, the pollsters as biased or incompetent. This jaundiced view prevails despite the existence of studies confirming the demographic validity of exit poll samples.
But the pattern of exit poll and vote count results in the 2016 primaries was strange enough that it should have given pause to even the most hardened skeptics. While the exit poll results were consistently accurate throughout nearly all of the Republican primaries, they were wildly and broadly inaccurate in the Democratic primaries, exhibiting a pervasive intra-party shift to the detriment of Sanders (i.e., Hillary Clinton’s vote count percentages consistently exceeded her exit poll percentages, the disparity often far beyond the poll margin of error). It seems highly unlikely that the same pollsters employing the same methodological techniques and polling voters at the same precincts on the same days, would be competent and consistently successful with Republicans but somehow incompetent and consistently unsuccessful with Democrats. This second-order comparison of one set of exit polls and vote counts against another greatly strengthens the probative value of the exit poll/vote count evidence by providing in effect a baseline that testifies to the overall competence and accuracy of the exit polls as a secondary measure of collective voter intent.
This evidence was further bolstered by the curious outlier case of Oklahoma, where the exit poll to vote count shift was reversed, favoring Sanders in the vote count. Oklahoma was one of only three states to display this reverse shift, and it was by far the largest shift of the three. In considering what made Oklahoma such an outlier, it is worth noting that the Oklahoma state government prides itself for having taken over from the private vendors most of the tasks and duties related to the programming of the voting equipment. Thus, the method of and control over programming appear to correlate with the forensic outcome. It is an open question whether the difference in access to the programming process was responsible for the egregious reversal of the exit poll to vote count shift direction relative to the pattern in virtually all of the other states.
Nor was the extraordinary run of exit poll to vote count shifts the only red flag suggesting vote counting issues negatively impacting the Sanders candidacy. There was also a glaring divergence between election results in states that chose their delegates via primaries and those that did so via caucuses. There were 14 Democratic caucus states, and in these states vote counting was primarily public and observable, with records kept at each local caucus meeting. In the primaries, of course, vote counting was almost entirely by computer and thus unobservable.
The first two caucuses, in Iowa and Nevada, were very close. Following that, heading into March as Clinton-Sanders was shaping up to be a full-blown battle, there remained 12 state caucuses. Sanders not only won them all, but did so with an average margin of 36.6 percent of the vote. In states including Alaska, Hawaii, Maine, Minnesota, and Washington, where the vote counting was done by hand, Sanders racked up routs, while in the computer-counted primary states Clinton was building her narrow margin of pledged delegates.
North and South Dakota offered a telling example of the stark contrast: The neighboring states have a highly comparable demographic composition, and each held its election on June 7 — North Dakota’s election was a caucus and South Dakota’s a primary. While Clinton edged Sanders 51 percent to 49 percent in the primary state, Sanders blew out Clinton 64 percent to 26 percent in the caucus state bordering to the north.
Were caucus and primary states nationwide so apples-to-oranges in terms of demographics and dynamics that those differences could account for such a consistent and glaring contrast right down the line? These were not modest or marginal differences; caucuses and primaries behaved like completely separate universes, the most obvious difference between them being the processes used to count the votes.
These questions are explored in greater detail in my book, “CODE RED: Computerized Election Theft and The New American Century,” but the fundamental patterns noted above were weird and damning enough to persuade millions of Sanders supporters that the nomination had been effectively stolen from their candidate — especially when coupled with the more overt thumbs on the scale, such as voter suppression tactics, favorable treatment of Clinton by the Democratic National Committee, and Clinton’s 400+ “superdelegate” handicap. There was also an understandable leap to assume that skulduggery which had benefited Clinton had ipso facto been perpetrated by Clinton, though there were bad actors, affiliated neither with the Clinton campaign nor with the Democratic Party, with powerful motivation to stop Sanders. The resulting anger and bitterness ultimately proved devastating to the Clinton campaign in November.
The road to November
We all experienced the general election campaign of 2016. I have yet to encounter anyone who gave it high marks. For most Americans it was a brutal affair that, even by the low standards of the modern era, broke new ground for mendacity, lack of substance, and, for lack of a better term, personal and political plug-ugliness. Internationally, it was an embarrassment.
While Clinton generally maintained personal decorum, she rattled around with the cowbells of a festering email investigation and vague suspicions of pay-to-play Clinton Foundation improprieties tied to her tail. In four-and-a-half hours of primetime debates, not once was the question of climate change posed in any serious way, while emails and hot mic tapes and personal threats sucked up the air time.
For Trump’s part, it was literally impossible to keep up with the falsehoods he and his surrogates spouted, quite apart from the “fake news” affiliates supporting his campaign. His rallies rang with chants of “Lock her up!” “Drain the swamp!” “Build the wall!” He took on the Muslim parents of a dead American war hero. He gleefully mocked the disabled, including a journalist questioning him at a press conference. He gave vent to the kind of misogyny and bigotry that would have been instantly fatal in any previous campaign at any level. He appeared to celebrate and revel in his own boasts of groping women and unwanted sexual advances bordering on assault. It took the media some time to catch on, but even then there seemed little point to pointing out Trump’s daily, sometimes hourly, “inconsistencies.” For supporters and detractors alike, it seemed to simply become the new normal.
It was a campaign of scandal, but any equivalence of conduct portrayed here would be a spectacularly false one. The incivility and the mendacity were, if not strictly one-sided, predominantly so. The voters emerged from it all mutually disgusted and more horribly hyperpolarized than at any time in living memory. But Clinton, in spite of FBI Director James Comey’s (late) October surprise, emerged from the muck with a lead in virtually every poll (and there were scores of them) tracking both the national vote and the key states that were the focus of the battle for the Electoral College majority.
On the eve of the election, Nate Silver’s traditionally reliable aggregating algorithm, reflecting up-to-the-minute shifts and trends, gave Clinton a 72 percent and Trump a 28 percent likelihood of winning the presidency. Silver’s FiveThirtyEight.com also predicted Clinton wins in the swing states of Wisconsin (84 percent probability), Michigan (80 percent), Pennsylvania (77 percent), North Carolina (55 percent), and Florida (55 percent). Trump’s likelihood of pulling out victories in all of these states was on the order of one in 600. Beyond the numbers, expectations were such that, when a Trump victory became apparent, the words “Shocking” and “Upset” and “Unexpected” were attached to it in headlines across America.
Shock, screen-capture, and shock
Election integrity advocates approach every election with concerns born of the long history of red-flag forensics and suspect results in the era of computerized vote counting. Beginning with the passage of the Help America Vote Act in 2002 and the consequent proliferation of computerized voting and counting technology, competitive elections of national significance have displayed recurrent symptoms of what has been dubbed the “red shift” — vote counts to the right of exit polls, tracking polls, hand counts, and other baseline measures such as noncompetitive contests.
Not just the election integrity crowd, however, but much of America approached Nov. 8, 2016 with concerns about the fidelity of the vote counting process, not the least because Trump himself kept raising the specter of a “rigged” election, going so far as to demur when questioned as to whether he would accept the results of the election should he lose.
There was also substantial media coverage of foreign attempts to “meddle” in the election, including hacking of DNC emails and voter databases. Naturally, this raised the question of whether such meddling could be taken further, even to include interference with the vote counting itself. As Russia or Russian actors were implicated as suspects, and the pro-Trump sympathies of President Vladimir Putin became obvious, the story grew longer legs. Hasty reassurances were provided that, because our voting computers were not hooked up to the internet, vulnerability to Russian or any outside hacking was minimal.
In keeping with the long-standing refusal to acknowledge the possibility of insider interference with the vote counting process — that is, by anyone with access to the programming and servicing of the equipment — not a word was written or spoken about this corollary concern despite the far greater likelihood that it would present as a vector for manipulation.
Trump’s “shocking” victory was sealed before the dishes were done in the Pacific time zone, and its contours subject to analysis by network pundits by bedtime on the East Coast. This is the boon of computerized voting, giving us the media property known as “Decision 20XX,” an extravaganza to rival the Super Bowl. Election forensics specialists (myself included) forego the entertainment value of Election Night in order to capture vital data before it disappears.
The first public posting of exit poll results provides an alternate measure of the intent of the electorate, a baseline against which to attempt to check and verify (one hopes) the reported electoral results, which have been tallied unobservably by privately programmed computers. In other countries, such exit poll data is relied upon routinely to verify the validity of official vote counts.
In America, ostensibly because here in such an unimpeachable democracy no such check is needed, the exit poll results are “adjusted” to ultimate congruence with the vote tallies, and this process begins from the moment the polls close and the exit poll is first posted (if not sooner in some cases). Any disparities between the unadjusted exit polls and the vote counts are regarded as exit poll errors (the vote counts being unquestioned and unquestionable) that need to be fixed if the exit polls are to become accurate and useful for demographic and political analysis of the electorate. Once the adjustment process begins, no record of the relatively pristine, unadjusted exit poll results is retained — unless those results are screen-captured, which is what forensics specialists do.
The exit polls we screen-captured as each state’s polls closed and they were posted, projected a solid Clinton win, a better than 3 million vote popular vote margin and over 300 Electoral College votes (270 being needed for a majority). Experience, however, counseled caution: In the past, red shift changes have diminished such Democratic exit poll margins and even reversed apparent victories. We witnessed, for example, a 4 percent John Kerry lead over George Bush in Ohio flip at midnight in 2004, and with it the presidential election. And now we began to see signs of such reversals, not in a single state as in 2004, but in a swath of states, the ones that everyone understood would be decisive in electing our next president.
The polls in all the key states had closed and the work of screen-capturing and spreadsheeting the key exit polls was done. Now, the vote tallies rolled in and the picture began to emerge from the darkroom developing tank with ever increasing clarity: Clinton would win the popular vote, the only question being how embarrassingly large for Trump her ultimate margin would turn out to be. But, courtesy of a table-run of victories ranging from narrow to razor-thin in what Nate Silver had termed Clinton’s “firewall” states, Trump would capture an Electoral College majority and become our next president.
Red shift on steroids
By early morning I had begun circulating tables documenting the most egregious “red shift” exit poll to vote count disparities ever recorded in the computerized voting era. Even for those accustomed to the mysterious and pervasive rightward shifts between exit poll and vote count results, the results were eye-popping.
Ohio had shifted from an exit poll dead heat to an 8.1 percent Trump win; North Carolina from a 2.1 percent Clinton win to a 3.6 percent Trump win; Pennsylvania from 4.4 percent Clinton to 0.7 percent Trump; Wisconsin from 3.9 percent Clinton to 0.7 percent Trump; Florida from 1.3 percent Clinton to 1.2 percent Trump; and Michigan from a dead heat to 0.3 percent Trump. (In Florida and Michigan, a very small portion of each state extends from the Eastern into the Central time zone. The effect of this is to delay the first public posting of exit poll results until an hour after the polls have closed and vote counting begun in the main part of the state. This, in turn, allows the adjustment process toward congruence with the vote counts to begin prior to first public posting and consequently reduces the exit poll to vote count disparity, compromising the utility of the exit polls as a baseline for vote count verification in these states).
[Writer’s note: The full tables, for both the presidency and the Senate, can be accessed here.]
Not only were the red shifts in Ohio, North Carolina, Pennsylvania, Wisconsin, and even compromised Florida well beyond the margin of error for the exit polls, in the states of North Carolina, Pennsylvania, Wisconsin, and Florida, those shifts clearly resulted in reversals of outcome, such that if the exit polls rather than the vote counts were accurately capturing voter intent, the Electoral College majority would have gone to Clinton and it would not have been close. Ultimately, fewer than 80,000 votes out of many millions in the soon-to-be-recounted states of Wisconsin, Pennsylvania, and Michigan determined the outcome of the presidential election.
As noted above in my examination of the 2016 primaries, exit polls in the United States have been subject to devaluation and, often, dismissal based on the assumption that the causes for their chronic (and unidirectional) “inaccuracy” are all intrinsic to the exit polls themselves, errors in design or execution. In the primaries, the probative value of the exit polls was boosted greatly by the finding that they were highly accurate throughout the Republican primaries and wildly inaccurate for the Democratic primaries, even though administered by the same firm, with the same interviewers, on the same days, at the same precincts, using the same protocols.
A similar baseline was available for the general election: Although 22 “safe” states were not exit polled specifically, depriving us of the kind of “safe state baseline” that was so telling in 2004, a national sample was drawn, representative of the electorate throughout the United States.
It was quickly apparent that the red shift for America as a whole — which, of course, included all of the safe states where manipulation would have been, from an Electoral College standpoint, pointless — was far smaller than that found in the key swing states cited above. Indeed, once the final vote counts were compiled, swelling Clinton’s popular vote victory to just short of 3 million votes, the disparity between the national exit poll and the national vote count wound up at just 1.1 percent — just about the margin of error for a poll of that sample size.
Thus, the same poll that had performed accurately and commendably across much of the country had apparently broken down spectacularly and unidirectionally where it counted in the key swing states that were logically the suspect targets for mistabulation or, as Trump would have had no trouble calling it, “rigging.”
Hillary Clinton, being a Democrat and not Donald Trump, lost no time in conceding the election. President Barack Obama dutifully gave Trump the White House tour and spoke of a “smooth transition” as shockwaves spread across the country and around the world.
As the post-election days began to pass and the pundits pitched around for reasons “why,” election integrity advocates and forensics specialists continued to examine the numbers and ask “Whether?” We recognized that, as usual, the election circus was pulling up stakes and leaving town, never having verified the unseen and unobservable counting of tens of millions of votes. We also recognized that, worse still, the airwaves were flooded with theories and explanations for the shocking outcome, which had the profound side-effect of validating by assumption that which had in no way been verified in fact.
Reports had begun to come in about machine breakdowns, voting problems, large numbers of uncounted provisional ballots, suspiciously high (and low) turnout rates, and big batches of “undervotes” (where votes are recorded for the down-ballot offices but none for president). But what was the import of these glimpses of what appeared to be targeted dysfunction?
It was clear that the openly touted tactics of voter suppression had reaped enormous dividends for Trump and his fellow Republicans. But the reality is that the remedies for any such schemes, even if they were found to be law-breaking rather than simply legislatively or administratively shrewd, would be, as in the past, legal or administrative penalties, wrist-slaps on this or that clerk or official — not any amendment to the tally of votes nor fundamental reform of the voting system. Earlier in the year, Austria’s supreme court had decreed a “re-vote” when hints of electoral improprieties had surfaced in their presidential election, but that was not about to happen in the United States of America.
The question became whether, apart from the general odor of Jim Crow disenfranchisement, there was any evidence of the kind of improprieties that would be actionable, leading to remedies that would alter electoral results or expose a nationally unpalatable type and degree of electoral fraud.
It was clear that such evidence — “hard evidence,” as we call it to distinguish it from statistical evidence, the probative value of which is discounted to near zero by governmental and media gatekeepers concerned above all about undermining public “confidence” in the electoral process — could emerge only from recounting of all ballots in places where the statistical red flags were flying. This was, after all, the whole point of having paper ballots: “If there’s any question,” the reassuring line always went, “they can always be recounted.”
Green Party presidential candidate Jill Stein, having considered the recommendations of election forensics specialists who had begun to drill down into county- and precinct-level data, petitioned for recounts in the three key states of Wisconsin, Michigan, and Pennsylvania.
The motivation for these recounts, in which the Clinton campaign played no role other than that of an observer, was to address issues of electoral integrity and help shine light on the hidden processes of vote counting in places where less direct evidence pointed to problems. Many hoped, and some feared, that the recount process might result in a reversal of outcome in the three states and, by virtue of that, in the election itself.
For Stein and the electoral integrity community, that could only come about as an incidental byproduct of a far more fundamental revelation about the validity of our vote counting system.
Recount not a real count
That there was broad-based support for the recount effort was immediately obvious. Stein raised more than $7.3 million from over 161,000 small donors in less than three weeks (contributions were limited by federal law to $2,700 and the average contribution received was $45). It also quickly became clear that there would be ferocious resistance to the achievement of Stein’s goal.
Although Trump had himself raised suspicions that the election could be “rigged,” and was now claiming that he would have won the popular vote if not for the “millions of illegal voters” casting ballots for Clinton, the Trump campaign showed little interest in permitting the recounting of any ballots to substantiate this claim. Indeed, the Trump campaign and/or its surrogates promptly filed suit in each of the states to block or restrict the recount efforts.
Given what Trump stood to lose, this behavior was not especially surprising. It was the behavior of the rest of officialdom — administrative and judicial — that made a mockery of both electoral integrity and due process.
“Officialdom” comes down to individuals, and particularly in the corridors of power, individuals tend to sort themselves into parties and exhibit strong partisan allegiance. Who were the officials in whose hands the fate of the 2016 recounts rested? This is where the taproot of computerized elections grows long, snaking its way back through mid-term and down-ballot elections for 15 years. In every midterm election since the turn of the century — 2002, 2006, 2010, 2014 — Republican performance has far exceeded consensus expectations, tracking polling, and exit polling.
All but 2006 were Republican routs. And 2006, with President George W. Bush’s approval rating at a dismal 36 percent, was far less than the expected Democratic landslide. In every case, pundits scrambled post-election to explain the unanticipated reddening of America. In 2014, no amount of scrambling could make sense of the result: With a congressional job approval rating of 8 percent, Republicans saw 220 out of 222 members of their U.S. House majority re-elected — a better than 99 percent re-election rate on the back of that 8 percent approval rating — and actually gained 13 seats overall!
During President Obama’s eight-year tenure, Democratic losses at all down-ballot levels have been staggering: nine U.S. Senate seats; 62 U.S. House seats; 12 governor’s mansions; control of 15 state upper houses and 14 state lower houses; and a net of 959 state legislative seats lost. It’s far worse than under any other president of either party in our history.
You would think that Obama has been a national pariah, his tenure marked by incompetence, misconduct, and catastrophe. But Obama left office with an approval rating of 59 percent and never in his tenure had the number fallen below 40 percent. It simply does not add up or follow any previously comprehended political geometry that his years have been such an electoral disaster for Democratic office-holders at every other level of the political ladder.
In the computerized voting era, irrespective of events and the flux of public opinion, the Democrats have progressively surrendered control of the down-ballot political infrastructure of America to Republicans — in fact, to the increasingly radical Republicans who have displaced in primary election battles virtually all moderates in the party ranks. Nowhere has this rolling coup been more spectacular than in formerly “blue” states like Wisconsin and Michigan, now bright-red Republican trifectas (control of the executive branch and both houses of the legislature). Such power is of great utility in controlling, both legislatively and judicially, the electoral process, including, as we have now witnessed, recounts.
While Jill Stein was not so naïve as to suppose that her path through Wisconsin, Michigan, and Pennsylvania would be strewn with rose petals, nothing could prepare her, her legal team, or the electoral integrity specialists providing support, for what ensued. The following list of impediments is, in the interests of space, highly selective:
- Ruling by a Republican Wisconsin judge that, while she could recommend hand recounting as the “gold standard,” she would nevertheless permit counties to decide whether to follow that recommendation or run the ballots back through the same machines which had counted them initially.
- Subsequent refusal to hand count by some of the largest counties in Wisconsin, including counties with the brightest forensic red flags (Outagamie, Brown, Rock, e.g., where Trump vote shares dramatically exceeded expectations based on past voting patterns). Clerks in these counties “recounted” votes by running the ballots back through the same optical scanners that had produced the suspect first counts. The reasoning offered by Fred Woodhams, spokesperson for Michigan’s secretary of state, was that “machines are generally agreed to be more accurate than human beings.”
- Once the Stein campaign had, with surprising rapidity, raised over $6 million to cover the recount expenses in a matter of days, Wisconsin suddenly jacked up its bill from an estimated $1 million to $3.5 million. In 2011, Wisconsin had charged less than $600,000 for a full statewide hand recount, and was now billing more than six times that amount for a less laborious mixed machine/hand recount. Certain counties, under Republican control, led the way: Racine County, for example, charged more than 50 times as much to count by machine as it had charged for its last county-wide recount, which was done by hand. These ransoms had the effect of draining Stein’s recount funds and thus making it impossible to meet the administrative and judicial fees levied by the other recount states, as well as precluding completely any hopes of initiating recounts or contests in other suspect states like Florida and North Carolina.
- Suits filed to block recounts in Wisconsin, Pennsylvania, and Michigan by the Trump campaign or its surrogates. The legal expense associated with adequately responding to such suits, and appealing lower court losses, is prohibitive.
- Ruling in Pennsylvania that at least three voters in each of the state’s more than 9,000 precincts had to file a petition in order to proceed with a recount at all.
- Pennsylvania state court requiring the posting of a $1 million bond by Stein to consider her petition for a statewide recount.
- Michigan lower court halting the recount on the legal basis that Stein couldn’t win even if some votes had been miscounted (there is no such requirement in applicable state law), and that no credible evidence of fraud (which, of course, was what the recount was looking for) had been presented.
- Michigan Court of Appeals affirming the lower court ruling on straight 3-2 party-line vote, ruling that Stein was not an “aggrieved candidate.”
- Bush-appointed federal judge stating in his ruling that it “borders on the irrational” to suspect hacking occurred in Pennsylvania, where the vast majority of ballots were electronic and unable to be recounted, while ignoring tens of thousands of provisional (paper) ballots which could have been recounted.
The end result of these and a host of other financial, administrative, operational, and judicial roadblocks was that in one state, Wisconsin, officials chose which ballots to actually recount and which to just run through the computers again (begging the question of the basis on which those decisions were made), and in the other two states the recounts were blocked almost entirely.
The multi-level, multi-branch full-court press to keep the recounts from happening does not betoken a high level of confidence in either the electoral outcomes the recounts were attempting to verify or the electoral processes that generated those outcomes. What it makes all too clear, however, is the critical importance of partisan control on the state and local levels, achieved by the steady capture of down-ballot offices in elections for which there are no effective forensic baselines and which receive essentially no scrutiny. The capstone was placed in 2016 on the edifice of a “permanent Republican majority,” to borrow a phrase from Karl Rove, that has been built brick by brick, obscure election by obscure election, since the dawn of the computerized voting era.
Stein, for her part, was publicly accused of running a “scam” on the one hand (which brought to mind the Humphrey Bogart line about getting his teeth knocked out and then being kicked in the stomach for mumbling) and doing Clinton’s bidding on the other — neither of which held a grain of truth. The media seemed to breathe a collective sigh of relief when the crippled recounts ended, having produced no earth-shaking changes in results. Few bothered to note that the recounts were shams, and fewer still expressed any outrage that this should be the case.
Did the Russians really come?
At the same time that the recount efforts were being beaten back and squelched, the “Russian meddling” story was gathering steam. Various investigations appear to be underway, some more extensive than others in scope. Since assurances have already been given by none other than FBI Director James Comey, and echoed by the Obama administration, that our voting equipment is not hooked up to the internet and therefore not vulnerable to foreign state (or individual) hacking, it is hard to imagine that the investigators will look for or uncover any internet-based interference with the vote counting process. (However, they may find of interest the discovery by forensic investigators Jim and Jill Simpson that the ES&S DS200 optical scanner, used in Wisconsin and elsewhere, does indeed feature a cellular phone signal modem which exposes it and its programming to outsider hacking and is an effective connection to the internet.)
It is also hard to believe that any such interference, if it were found to have compromised the outcome of the election, would avoid the fate of the sections of the Warren Commission Report which were sealed away until some future time when the matter would be of primarily historical interest.
Finally, while it would be simple enough to follow Roger Goodell’s “Deflategate” example and impound some active memory cards which contain the programming that counts the votes or subpoena some code heretofore off-limits to all inspection as corporate trade-secret property, since all concerns expressed have involved outsider hacking exclusively, it is to be expected that the various investigations will not be searching for evidence of insider rigging.
It is pretty clear where the election, from Point A to Point Z, has left America: angry, distrustful, horribly divided, and under the rule of a president without precedent and a locked-in Republican majority. Bernie Sanders — who threatened single-handedly to rewrite the rules of campaign finance and, indeed, politics by raising an enormous war chest from small, individual contributions, without once stooping to drink at the corporate trough — was stopped in a series of primaries so red-shifted that the exit polls had to be canceled entirely for the last several states.
Trump, Sanders’ far-right “populist” counterpart, was installed, the capstone of the quest for right-wing hegemony. All this was built, year by year, on the quicksand of computerized elections which presented opportunity after opportunity to steer America away from a path the voters might otherwise have chosen. So we cannot know whether the electoral outcomes of the computerized voting age, and where they have brought us, are at least in part a chimera, a figment of manipulated bits and bytes. But the results are real enough. The laws passed and repealed will be real. Supreme Court and lower court appointments and decisions will be real. Policy and direction will be real, actual, historical. History does not permit re-dos.
For election integrity advocates, the current reality presents a special challenge. On the one hand, the ranks of the concerned, the ranks of the alarmed, the ranks of the outraged, and the ranks of the committed have all swelled far beyond the small band of probers that gathered and analyzed data in the wake of the 2004 election. Not only were there hundreds, even thousands, of individuals crunching numbers and asking questions this year, there were tens of millions of Sanders supporters, then Trump supporters, and finally Clinton (and, of course, Stein) supporters who, at various points and for various reasons, began to listen to and echo those questions, who were at least somewhere on the road to “getting it” about the need for a less concealed vote counting process.
They were even joined at times by a media that had previously been all but impervious to coverage of this elephant in the room (though it remains impervious to regarding numerical or statistical anomalies, no matter how egregious, as “evidence” of anything).
On the other hand, though, the prospects for positive and meaningful reform toward a genuinely secure, public and observable vote counting system have, with this election, slipped from slim to none. Ten years ago I first cautioned about a horrible Catch-22 that would one day confront those seeking meaningful electoral reform. It stems from the fact that the adoption of any electoral reform that would presumably impact and rescue the existing electoral and political systems is dependent on the realities of those existing political and electoral systems.
Put bluntly: How is it possible to force reform upon a majority (even assuming we had the full cooperation of the minority, which, of course, we don’t) that had achieved that majority status, and now hegemony, via the very system we would be urging them to replace with something “fairer?” For a majority that has, by whatever means, managed to achieve 99 percent-plus re-election with an 8 percent approval rating, it would seem that virtually no amount of public pressure within the bounds of ordinary politics would suffice to move the needle, let alone the mountain.
This is not an abstract dilemma.
There has been no positive action whatsoever from Congress since the Help America Vote Act brought us near-universal computerized counting in 2002. Meanwhile, the Republican-majority Supreme Court has (with its combined Citizens United and McCutcheon decisions) opened the floodgates to unlimited dark money (undisclosed campaign contributions) in our elections, and, just for good measure (in Shelby County v. Holder), gutted the key provision of the Voting Rights Act of 1965 that had been instrumental in holding back the new wave of voter suppression in the very states with a sordid history of Jim Crow disenfranchisement. And the recount debacle has demonstrated what prospects positive electoral reform will have at the state level, in the beet-red fiefdoms into which key swing states like Michigan, Wisconsin, and Ohio have been transmogrified.
The trend in virtually all of the red states has been backwards: more “efficient” gerrymandering; more restrictions on voting (rationalized as the need to combat a virtually nonexistent paper tiger of individual “voter fraud”); less accessible polling places; diminished voting hours; longer voting lines; and less transparency (e.g., voter-marked ballots removed from public record status). It is no wonder that the Harvard-based Electoral Integrity Project earlier this month ranked American elections last among those of all western democracies.
The recent political “coup” in North Carolina, stripping the newly elected Democratic governor of powers and effectively seizing control of the state’s election administration, serves as fair warning about the greeting election integrity reformers can expect for their legislative initiatives. Researchers at the Electoral Integrity Project scored North Carolina 58/100 for its handling of the 2016 election, in line with Cuba, Indonesia, and Sierra Leone; meanwhile its legislative districting plan — i.e., gerrymandering — scored 7/100, not only the worst in the United States, but the worst in the world.
Some have attributed my depiction of this whole situation to cynicism. Aside from the fact that it would not be possible to be a cynic and continue for 15 years to advocate for election integrity in the United States, as I have, there is a world of difference between cynicism and a realistic appraisal of the cynicism of others.
There is nothing in my observation and understanding of human nature, modern American politics, or the specific behavior of those now in control of the federal and key state governments that leads to any real hope at all of positive legislative reform in the direction of a secure, transparent, accountable, and above all observable vote counting process for America.
Our electoral process was designed to be concealed. That concealment is fortified with a host of ancillary provisions designed to impede and ultimately thwart efforts, like the recent “recounts,” to “unconceal” it, and the office-holders it has elected have no incentive whatsoever to change that.
They are very unlikely to be moved by appeals to “fairness” or “democracy,” by letters or petitions or symbolic little protests. As for “lobbying,” the electoral integrity forces have yet to tap into the cash reserves of Big Oil, Big Pharma, or Big Finance.
As I argue in proposing action steps in “CODE RED,” it is critical that we take stock of things as they are, not as we would wish them to be, so that we can begin to plan, organize, and do what needs to be done.
What might move our “representatives” to reform our electoral and vote counting processes and thereby restore public sovereignty to our nation? Mass action? Tax revolt? General strike? Uncharted territory for Americans — unfamiliar, anxiety-provoking. But one thing is evident as we face our new, disrupted, post-2016 election world: Our hope lies not in mere public pressure but rather in public insistence. That is the cure, and likely the only cure, for our failed electoral organ and our democracy’s grave illness.
What I wanted for Christmas
“Dear Santa,” I wrote, “please send us just one honest, verified, observably, publicly hand-counted election so we can find out, finally, what is really what in our country, and perhaps begin the sacred work of healing it.”
Santa, either too busy or perhaps a Republican, did not deliver. We should not be counting on the Easter Bunny, the Great Pumpkin, or our elected officials, either.
That leaves it to the people.
Jonathan Simon is Executive Director of Election Defense Alliance, a nonprofit organization dedicated to restoring observable vote counting and electoral integrity. He’s also the author of “CODE RED: Computerized Election Theft and The New American Century.” His related blog can be found at www.CodeRed2016.com/blog.