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RULING IN FAVORITO vs. HANDEL OPENS DOORS TO POTENTIAL OF CONTINUOUS ELECTION FRAUD IN THE STATE

Legal Analysis by John Charlton

(Oct. 2, 2009) — In a State ruling that challenges the very notions of an open democracy and common sense, the Georgia Supreme Court has ruled in Favorito et al. v. Handlel et al., that the easily tampered with electronic voting machinery used by the State in no way infringes upon the rights of citizens to a fair and verifiable election.

This ruling, handed down on Sept. 28th, follows the controversial decision of the U.S. Justice Department to constrain Georgia not to request identification verification at the polls, so as to prevent non-U.S. citizens from voting.

The unanimous ruling of the Georgia Supreme Court is notable for its deftness of argument to cleverly conceal its unreasonable pretentions.  Presiding Justice George H. Carley wrote on behalf of the entire court.

Justice Carley begins his ruling thus, by explaining the historical context of the case:

After a Pilot Project was conducted in 2001 pursuant to Ga. L. 2001, pp. 269, 285, § 19, the General Assembly established a uniform direct recording electronic (DRE) voting system. Ga. L. 2002, p. 598. See also Ga. L. 2003, p. 517. The Secretary of State examined, purchased, and distributed touch-screen voting machines, testing them at various points during the process. In 2006, several Georgia residents (Appellants) filed a multi-count complaint for declaratory judgment, injunction, and mandamus against the Secretary of State, the Governor of Georgia, and the Georgia State Election Board (Appellees), challenging the authorization and use of the DRE equipment. On cross-motions for summary judgment, the trial court entered an extensive order granting Appellees’ motion in its entirety. Appellants appeal from that order.

He then summarizes the Plaintiff’s claims, which he is going to reject in his ruling:

1. In three counts of their complaint, Appellants allege that this state’s use of the DRE equipment denies them equal protection under the Federal and State Constitutions and the fundamental right to vote under the due process clause of the Fourteenth Amendment. Appellants contend that the trial court erred by failing to recognize that voting is a fundamental right and improperly applying a “rational basis” test instead of a “strict scrutiny” test to those three counts. Unless governmental action infringes upon a fundamental right or the complaining party is a member of a suspect class, a substantive due process or equal protection challenge is examined under the “rational basis” test. Georgia Dept. of Human Resources v. Sweat, 276 Ga. 627, 628 (2), 630 (3) (580 SE2d 206) (2003).

Appellants argue that their fundamental right to vote is currently being injured because the recording, counting, and retention of their votes, unlike paper ballots, are not being properly protected either by an independent audit trail or by county and state tabulators which can prevent fraudulent manipulation.

To these claims, Justice Carley advances the specious argument in reference to the possible fraud in elections with paper ballots and electronic voting machines, citing from Weber v. Shelley, a ruling from the notorious Federal 9th Circuit Court:

The unfortunate reality is that the possibility of electoral fraud can never be completely eliminated, no matter which type of ballot is used.

And then continues the citation to argue that citizens should trust their elected officials, even when those officials make decisions that would allow election fraud to be perpetrated with impunity:

[Even assuming that] none of the advantages of touch-screen systems over traditional methods would be sacrificed if voter-verified paper ballots were added to touchscreen systems . . . , it is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. [Cits.] So long as their choice is reasonable and neutral, it is free from judicial second-guessing. In this instance, [Georgia] made a reasonable, politically neutral and non-discriminatory choice to certify touchscreen systems as an alternative to paper ballots. . . . Nothing in the Constitution forbids this choice.

In short, as long as both parties can equally defraud the voters, the system is “equitable” and “fair”!

Judge Carley then dispatches the claims of the plaintiffs that those who vote electronically are disadvantaged, as to the verifiability of their vote, arguing that since the voters choose the electronic system over the absentee paper ballot, its their responsibility, not that of the State:

Appellants argue that electronic voters are treated differently from those voters who cast absentee ballots on paper, as the procedures for and accuracy of any recount would differ. As the trial court found, however, Appellants and all other Georgia voters “have the option of casting an absentee ballot or using the touch screen electronic voting machines on election day. Under Georgia law, every eligible voter in Georgia can make a decision to vote utilizing absentee ballots.” (Order, p. 13) See OCGA § 21-2-380 (b). Appellants argue that this option ends the week prior to an election day. However, in deciding to forego the privilege of voting early on a paper ballot, voters assume the risk of necessarily different procedures if a recount is required. Therefore, absentee voters “have not been treated differently from the polling place voters, except in a manner permissible under the election statutes” and as a result of their own choice. State v. Cahill, 575 SW2d 229, 235 (Mo. App. 1978).

Then contrary to all reason and logic, the ruling cites Wexler v. Anderson to argue that the greater risk of voter fraud with electronic systems does not merit stricter vigilance by the State:

[If touchscreen voters] are burdened at all, that burden is the mere possibility that . . . [their] ballots will receive a different, and allegedly inferior, type of review in the event of a . . . recount. Such a burden, borne of a reasonable, nondiscriminatory regulation, is not so substantial that strict scrutiny is appropriate.

Judge Carley then cites on p. 8 of his ruling, that other state Court rulings on the point that electronic voting is a reasonable interpretation of the constitutional provisions for “balloting”, and  on that these systems do not obviate the right of “the people” to verify their own elections, since such systems are under the control of people.  The Judge fails to note that those who have the duty of oversee the systems are not the general public, for that would undermine his logic.

The Presiding Justice then addresses the third claim of the Plaintiffs, first by summarizing it:

Appellants assert that current implementation of the DRE voting system fails to assure that each vote is accurately counted and, thus, fails to comply with the statutory requirement that “[i]t shall, when properly operated, record correctly and accurately every vote cast.” OCGA § 21-2-379.1 (8).

To which he responds without citing evidence for his claim:

However, the undisputed evidence shows that the touch-screen machines accurately record each vote when they are “properly operated.”

It should be noted that any evidence that the machines count votes correctly depends upon what you mean by “properly operated.”  Operated in a mechanically correct manner, or operated in a politically correct manner.  The Judge seems indifferent to this distinction.

The Judge Carley, to rebut the 4th argument of the Plaintiffs that non-paper balloting obviates the intent of the Georgia Law on recounts, cites the Circuit court’s decision that the mere contention of a hypothetical problem cannot be used as a basis to seek Court intervention to prevent that problem.  In other words, just because the State uses a system in which you could never prove a crime has been committed, is not basis for Court intervention, since we only intervene when there is a proven crime.  A very neat argument, for a dictatorship.

Evidently Justice Carley believes the voters of Georgia are idiots.  Happily for the voters, Justice Carley’s position is an elected one and he is up for election in 2012.  Perhaps they should take his advice and use paper absentee ballots to send him a twofold message.


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