Tea Party-backed Repub reportedly trails challenger Murphy by less than 2,500 votes as tallied by FL's flawed, failed voting systems

UPDATE: Court denies West's motion to impound, though he still may file for contest, hand-count, after election is certified by state...

Brad Friedman Byon 11/9/2012, 6:05am PT

On Election Night, Democrats and progressives celebrated the reported defeat of far Rightwing Tea Party-backed Rep. Allen West (R-FL22) by his Democratic challenger Patrick Murphy in Florida's newly redistricted 18th Congressional district in Eastern Florida.

With precinct votes unofficially tabulated in the three counties which comprise the new Democratic-leaning district --- Martin, St. Lucie and part of Palm Beach --- Murphy reportedly leads West by 2,456 votes out of 318,200 electronically tallied to date. That number does not include what West's campaign manager describes as "tens of thousands of absentee ballots to be counted in Palm Beach County and potential provisional ballots across the district."

Nonetheless, Murphy has declared victory, which carries no particular legal weight, while West has filed legal documents in St. Lucie and Palm Beach calling for the impounding of voting systems, paper ballots and a hand-count of those ballots.

West may be a far Right extremist. A fair amount of evidence even suggests that West may be certifiably insane. But, even far right, possibly insane candidates, and especially their supporters, deserve to have their votes counted in a way that they can know, for certain, that they either won or lost an election.

Given the oft-failed, easily-manipulated, unoverseeable electronic voting and tabulation systems --- each with a long and well-documented record of failure and miscounts --- used in the three counties that make up Florida's new 18th district (as well as the rest of the state of Florida, and the rest of the 50 states for that matter), West and his supporters have every reason to demand a public, 100% hand-count of paper ballots before conceding defeat. Particularly in an election with such a slim margin, as reported by the flawed electronic systems, said to stand between the two candidates...

Machine tallied results to date

Here are the results of FL-18 as currently known at this hour, according to the Florida Division of Elections website...

That .78% difference between West and Murphy, if it holds after absentees and provisionals are added in, puts the race just outside of the .5% margin that would otherwise trigger a state-sponsored "recount" (albeit on the same faulty machines that tallied the ballots, either accurately or inaccurately, in the first place, as per FL law.)

The county-by-county results for FL-18 show where the race is even tighter, particularly in Palm Beach County, where just 11 votes(!) out of 123,903 tallied there currently separate the two candidates...

On Election Night, as reported by the Sen-Sentinel, Democrats were giddy about the prospect of the controversial West being tossed out of the House.

Florida's U.S. Rep. Debbie Wasserman Schultz, who also serves as chair of the DNC, optimistically trumpeted that "moderate voters totally rejected Allen West's brand of extremism [and] his outrageous commentary. I think they didn't want a member of Congress who was in the news every day for all the wrong reasons."

Indeed, West has made a name for himself by declaring, for example, that he has "heard" some 76 of the 81 members of the Progressive Caucus in the U.S. House are "communists", and, as the Sun-Sentinel also reports, suggesting that "Nazi propaganda chief Joeseph Goebbels would be envious of the Democrats' 'incredible propaganda machine.'"

Wasserman Schultz, the paper notes, "was the subject of one of West's most talked-about tirades, when he called her 'the most vile, unprofessional and despicable' member of the House, labeled her a 'coward,' told her to 'shut the heck up,' and said she had 'proven repeatedly that you are not a lady.'"

For his part, West's campaign chief Tim Edson issued a statement on Wednesday blasting what he described as "hostility and demonstrated incompetence of the St. Lucie County Supervisor of Elections," making it "critical that a full hand recount of the ballots takes place in St. Lucie County."

But, in truth, none of the political grenades --- accurate or otherwise --- matter when it comes to tallying the votes and determining who actually won and who actually lost the election. The only thing that matters is whether all legally cast ballots are counted and counted accurately in a way that the citenzry can know they've been counted and counted accurately.

Flawed, failed electronic systems used to tally race

The systems used for tallying votes, to date, in each of the three counties, and the failed history of those systems (even the very recently failed history in at least one of the counties) that make up FL-18 offer no such confidence to anybody who has paid attention the systems being used to determine the winner and loser of the election.

Palm Beach County uses the the Optech paper ballot optical-scan systems made by Sequoia Voting Systems (which is now owned by the Canadian firm Dominion Voting) for standard, polling place voting, and 100% unverifiable AVC Edge touch-screen systems, made by Sequoia as well, are available as disabled-accessible voting machines at the polling place.

In March of this year, those same exact systems in Palm Beach declared erroneous results of three different municipal elections. The errors were only noticed after Palm Beach Supervisor of Elections Susan Bucher bothered to examine a few of the paper ballots by hand and determined that the results were amiss. She received permission from the court to carry out a full, 100% hand-count during which it was determined that the Sequoia/Dominion computers had declared two different losing candidates to be "winners". Without that hand-count, nobody would have ever known.

The company subsequently admitted that the problem was caused by a bug in every version of its WinEDS central tabulation software, which is also used, according to VerifiedVoting.org's database, in some 285 jurisdictions in 14 states, including Arizona, California, Colorado, Florida, Idaho, Illinois, Louisiana, Michigan, Missouri, New Jersey, Oregon, Pennsylvania, Virginia and Wisconsin.

Despite a recommended work-around from the company, the problem occurred once again in Palm Beach during their state primary in August, as Bucher explained to The BRAD BLOG during an exclusive interview in late September, in regard to this year's GOP Voter Registration Fraud Scandal that was first discovered in Palm Beach and has since expanded to nearly a dozen other Florida states, as well as Virginia, Colorado, Nevada and elsewhere.

In other words, the only way to know if the paper ballots tallied by the Sequoia systems in the West/Murphy race were actually counted as per voters' intent is to count those paper ballots by hand, as West has suggested he will be demanding.

Moreoever, while far fewer voters use the 100% unverifable Sequoia AVC Edge touch-screen systems in Florida (they are mostly used only by disabled voters who choose to vote on them) those systems also work off of the WinEDS tabulator and, in any case, as demonstrated on video tape by the Computer Security Group at the University of California Santa Barbara in 2009, can be hacked by a single person in such a way that even a 100% hand-count of the touch-screen systems' so-callled "Voter Verifiable Paper Audit Trails" would be unlikely to reveal that the results had been manipulated. In examining the AVC Edge/WinEDS system for the CA Secretary of State's 2007 review of all electronic voting systems used in the state, UCSB found they could easily insert "virus-like software that can spread across the voting system, modifying the firmware of the voting machines. The modified firmware is able to steal votes even in the presence of a Voter-Verified Paper Audit Trail (VVPAT)."

When the systems were subsequently decertified by the CA Sec. of State in 2007 [PDF], the state described "multiple vulnerabilities" on the systems found by the expert reviewers who "demonstrated that the physical and technology security mechanisms...were inadequate to ensure accuracy of integrity of the elections results." (Much more on those particular systems can be found in this recent article describing President Obama foolishly casting his own 100% unverifiable vote on the very same system which is used by all Early Voters in Chicago.)

In this case, one can only hope that a hand-count of paper ballots in Palm Beach results in a wider margin than the number of votes cast on the touch-screen systems there, since there is no way of verifying for certain whether any of the touch-screen votes actually reflect any voter's intent.

For its part, Martin County uses relies on the ES&S DS200 paper ballot optical-scan system for standard voting and the 100% unverifiable ES&S iVotronic touch-screen system for disabled-accessible voting.

The DS200 is the same system which was recently found by the New York Daily News to have simply dropped the votes of thousands of voters during the 2010 primary and general election. In just one South Bronx precinct, the paper discovered after an examination of graphic images of the paper ballots obtained via a public records request two years later in 2012, in the 2010 September primary, the scanner had "a failure rate approaching 70%". In the November general election that year, the scanner experienced "a 54% failure rate."

"Time after time," the NY Daily News reported, "looking at photographic images of the ballots that are recorded by the scanners, we found ballots that were perfectly filled out," and yet, they describe, "time after time, we also saw that the machine had registered overvotes where none existed."

In December of 2011, we also reported that the U.S. Election Assistance Commission (EAC), in a first-of-its-kind warning from the agency responsible for federal certification of electronic voting systems, issued what they described as a "Formal Investigative Report" confirming the April 2010 findings by the Cleveland Plain Dealer that some 10% of Cuyahoga County (Cleveland)'s EAC-certified ES&S DS200 systems and electronic tabulators sytems had failed during pre-election testing that year.

The EAC found that the system they had supposedly tested previously when granting federal certification, would freeze up during elections, fail to log system events correctly, and, perhaps most disturbingly, misread ballots and votes, some of which were lost entirely. In fact, similar problems reportedly occurred with those same scanners once again in Cuyahoga County during last Tuesday's election.

As to the ES&S iVotronic touch-screen systems used largely by disabled voters in Martin, those have a storied history of failure, including inexplicably losing some 18,000 votes entirely during a U.S. House Special Election in Florida in 2006 --- in a race that was ultimately decided by just 369 votes --- leading the state to finally ban touch-screens for anything other than disabled-accessible voting. They're also the same 100% unverifiable system which resulted in Alvin Greene, a 32-year old unemployed man who lived with his father, had never campaigned, had no campaign website, or even a cell phone, somehow reportedly winning the Democratic nomination for U.S. Senate in South Carolina in 2010.

The company, the largest e-voting manufacture in the nation, and its central tabulators also happen to have a disastrous, years-long record of failed voting systems across the country, featuring entirely lost votes, misreported tallies and, occasionally, impossible numbers reported by them.

And, finally, there's St. Lucie County which uses the AccuVote OS paper ballot optical-scan system made by Diebold/Premier (also now owned by Dominion as well), and the 100% unverifiable Diebold AccuVote TSX touch-screen for disabled-accessing voting.

The Diebold system, both paper-based op-scan and touch-screen, have their own storied history of failure, from the Accuvote optical-scan system seen at the center of the climactic finale of HBO's 2006 Emmy-nominated documentary Hacking Democracy, when a hacker had manipulated it's memory card so that the reported results of a mock election were the opposite of the paper ballots actually cast, to the viral hack that was implanted on its touch-screen system, through its memory card, in 30 seconds time, by Princeton University computer scientists in such a way that the virus could pass itself from machine to machine to the central tabulator and flip the results of an election with little possibility of detection, as we originally reported at Salon in September of 2006.

In short, all three of the optical scan systems, as well as all three of the unverifiable touch-screen systems made by the three different companies, have a dismal record of failure during multiple elections, as well as documented findings in numerous scientific studies that each is highly vulnerable to malicious attack or simple malfunction that could result in election tallies being incorrectly, with little possibility of detection. Only a hand-count of the paper ballots tallied on the systems, presuming the chain of custody has been secure, can possibly determine whether or not the results reported by them are actually accurate.

'Fight to ensure every vote is counted properly and fairly'

In West's motion for injunctive relief [PDF], filed in Palm Beach County's Circuit Court on Wednesday, the Republican Congressman demanded the court "impound all paper ballots cast and voting machines used...for a recount pursuant" to Florida election law.

(The motion was filed by an attorney at the Warrenton, VA law firm of Holtzman Vogel Josefiak PLLC. That's the same firm where we reported in October, that Strategic Allied Consulting --- the shell corporation created by shadowy GOP operative and Mitt Romney consultant Nathan Sproul, whose workers are alleged to have submitted fraudulent voter registration forms in Florida this year, as well as having allegedly destroyed Democratic voter registration forms in Colorado, Nevada and Virginia --- has its corporate registration papers. The same high-power RNC election law firm is also the corporate home to Karl Rove's American Crossroads as well as the Koch Brothers' Americans for Prosperity. The firm's partners have long been at the center of Republican election law battles from the aborted 2000 Presidential Recount in Florida to the years-long GOP attempt to institute disenfranchising polling place Photo ID restriction laws around the country.)

West's pleading asks the court to "Issue immediately a mandatory injunction...to impound all of the Voting Machines and any associated equipment or documentary or record evidence, used in connection with the Election in the Election District forthwith at a secure location within the County until further order of this Court."

In his statement issued on Wednesday, West's campaign manager promised focused on a hand-count in St. Lucie, though surely his attorneys will recall the 2000 Florida Supreme Court ruling that Al Gore could not pick and choose only certain counties for a recount. If one is ordered, it is likely that all three counties in the district would be ordered to carry them out.

"Given the hostility and demonstrated incompetence of the St. Lucie County Supervisor of Elections," West's campaign statement said, "we believe it is critical that a full hand recount of the ballots take place in St. Lucie County. We will continue to fight to ensure every vote is counted properly and fairly, and accordingly will pursue all legal means necessary."

Good. West is absolutely right to do so, if he hopes for a citizen-overseeable count in which both his supporters and those of Murphy's may all have confidence. All voters in Florida --- and in the other 49 states where these same flawed and unreliable systems are, shamefully, still used --- also deserve such a fully public hand-count of those ballots.

While, ironically enough, years of Republican-supported election statutes in Florida may make the possibilities of a full, citizen-overseeable hand-count nearly impossible in the state, West is absolutely right to fight for one nonetheless.

Yes, even crazy, hard right Republicans deserve fully accurate and transparent elections. And so do we all.

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UPDATE 4:00pm PT: Palm Beach Circuit Judge David Crow denied West's motion to impound ballots and voting machines today, according to AP, saying "The law is clear: The manner and method of conducting an election, the process of recounting ballots, the process of contesting an election is specifically a legislative function."

AP reports: "Kenneth Spillias, representing the canvassing board, said everything West’s campaign was seeking to have ordered — to protect and preserve ballots and allow monitoring of their counting — is already mandated under election guidelines."

A court hearing for West's similar filing in St. Lucie County has not yet been scheduled, but we'd presume he'll find the same result there.

West may still contest the election in court, and try to ask for a hand-count at that time, after the election is certified by the state of Florida which, if memory serves, must be done an impossible 6 days after the election. So, by next Monday.

UPDATE 11/12/12: A partial re-tally, prompted by "issues" with the Diebold memory cards in St. Lucie County, leads to 800 votes simply disappearing, and West gaining 500 votes on Murphy. Full details now here...

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