This is the twelfth blog in our election integrity series.

Some people would like to interpret Obama’s wins in 2008 and 2012 as evidence that the U.S. election system isn’t really rigged.  Unfortunately, it appears that the same shenanigans that were used in 2000 and 2004 were very much in play in the later elections.  They didn’t succeed for a number of reasons.  In 2008 we had the great recession, which was generally blamed on Republicans.  Plus, as Obama reportedly said: “You can’t steal all the votes all the time.  Turn out so massively, they just can’t steal it.”

The Brookings Institution’s analysis of  the Census Bureau’s Election Survey sheds further light on what happened.  They note that shifts in election outcomes can occur for three reasons: (1) demographic changes in the eligible voter population; (2) changes in the turnout of different groups of eligible voters; and (3) voters’ candidate preferences.

Demographics: The typically Republican-leaning white share of voters declined from 75.5 to 71.1 percent between 2004 and 2012 while the typically Democratic-leaning black and Hispanic share of voters rose to nearly a quarter of eligible voters.

Turnout: White turnout declined while black, Hispanic, and Asian turnout rose. Minorities seemed more enthusiastic in 2008 and 2012 than whites were.

Candidates: The margin by which whites favored the Republican candidate was much smaller than the margin by which blacks, Hispanics, and Asians favored the Democratic candidate.

Compared with 2004, minorities showed: higher shares of eligible voters, higher turnout rates, and higher Democratic margins in 2008 and 2012 while whites showed smaller shares of eligible voters and lower turnout. White voters did vote more strongly Republican in 2012, but this was offset by reduced turnout.  The election fraud techniques were not sufficient to overcome these factors, so Obama won.

The Brookings Institution article, written in 2013, went on to predict Democratic victories in 2016 and 2020 because the demographics will continue to change in ways that favor Democrats, which will make turnout less important so long as the Democratic margins for black, Hispanic, and Asian voters remain strong. They noted that Republicans can’t win unless they attract more votes among minorities.  What the Brookings Institution did not take into account is that there is another option for Republican victories: more election rigging.

Voter suppression

The Brennan Center for Justice has provided a comprehensive synopsis of incidents of voter suppression in the 2008 election that were reported to them, including no match-no vote policies, partisan challenges to voter eligibility, voter purges, misguided voter matching policies, and voter intimidation, as well as other systemic problems, such as problems with ballots and voting technology.

No Match, No Vote

This refers to the practice in some states of refusing to register voters or purging registered voters from the rolls if their voter registration information does not match their information in other government databases.  The problem is that the matching processes that states use are unreliable; between 15% and 30% of matches fail because of typos, errors, and minor discrepancies, such as using a maiden name in one database and a married name in another.  This technique can block hundreds of thousands of eligible voters.  In 2008, the states using it included Ohio, Florida, Wisconsin, Louisiana, Iowa, and South Dakota.

Voter Purges

Although voter purges are needed in order to keep the rolls up to date, some states use techniques that are vulnerable to error and manipulation, without any notice to the purged voters or the public, and without any public scrutiny.  According to a front-page article by the New York Times, several states were illegally purging their voter rolls in 2008, including Colorado, Georgia, Indiana, Louisiana, Michigan, Ohio, and Nevada.

Voter Challenges

Using partisan caging lists or other lists they develop, operatives sometimes challenge voters’ eligibility, either before Election Day or at the polls. These challenges typically target minority voters, immigrants, students, and homeless citizens.  The challenges can result in voter intimidation, long lines at the polls, and voter disenfranchisement.  In 2008, incidents were reported in Montana, Michigan, Ohio, Illinois, and Indiana.

 Technical Barriers to Voter Registration and Voting

One type of technical barrier is the failure to check unnecessary boxes on forms. This techniques was used to invalidate voter registration forms, absentee ballots, and/or hand-tallied paper ballots in Colorado, Florida, Ohio, Nevada, and New Mexico.

 Student Voting Barriers

Students who attend school away from their homes often encounter obstacles and efforts to discourage them from registering and voting.  Across the country, there have been reports of widespread misinformation about student voting rights, misleading and intimidating statements, and registration and residency barriers unique to students.  

Dorm room addresses.  Local registrars in several states, including in Virginia, were denying registration to students who provided dorm room addresses even though those are valid registration addresses.

Misleading and intimidating information.

A registrar in Montgomery County, Virginia, affecting Virginia Tech University, issued a memo giving incorrect and intimidating information to students about the consequences of registering to vote, including possible loss of financial aid and tax dependence status.  Similarly, a county clerk in Colorado Springs, Colorado incorrectly told students at Colorado College that they could not vote at school if their parents claimed them as dependents on their federal tax returns.  In 2008, the websites of the Virginia and Indiana Secretary of States contained misleading information that could dissuade eligible student voters.

Invalid registration practices

The Justice Department’s Civil Right Division alleged that Waller county, Texas had violated the Voting Rights Act (gutted by the Supreme Court in 2013) by implementing invalid registration practices that primarily impacted students at Prairie View A&M University, a historically black college in Waller County. The changes relate to the County’s administration of its volunteer deputy registrar program, standards for accepting voter registration applications and notice requirements. In addition, the suit alleges that the County violated a provision of the Civil Rights Act, by rejecting certain registration applications on immaterial grounds. Under the terms of the consent decree, the County agreed to abandon implementation of the invalid registration practices, reprocess those applications which were wrongly rejected, and initiate voter registration programs on the Prairie View A&M University campus.

Restrictive residency rules

Several states make it very difficult for students to establish residency for voting purposes.  In Idaho and Tennessee, for example, students cannot establish voting residency unless they have affirmative plans to remain in the state after graduation.  Virginia and Indiana also make it difficult for students to establish residency.

Restrictive absentee voting

Michigan and Tennessee require all first-time voters who registered by mail to vote in person; they cannot vote absentee.  This makes it nearly impossible for college students (a great percentage of whom are young, first-time voters) to vote in their hometowns.  Sixty six of Michigan’s 83 county clerks have partnered to verify students’ identities where they attend school to allow these first-time voters to cast absentee ballots instead of crossing the state to vote in their hometowns.  A state legislator has asked the Attorney General to block the practice.

Intimidation aimed at students.

flier recently disseminated on the campus of Drexel University in Philadelphia warned that undercover officers would be present at the polls, looking for voters with outstanding warrants or parking violations.

Voter Registration Access

Several states have enacted laws that impose unnecessary burdens on organized efforts to register voters, which target communities that have the greatest barriers to registration.  Threats of criminal penalties and crippling civil fines for failure to comply with requirements have forced community groups to stop or substantially cut down on registering voters.  A policy brief on restrictions to voter registration drives can be found here.

  • The Department of Veterans’ Affairs denied voter registration access to residents and patients of its facilities, refusing to allow election officials or nonpartisan groups to offer voter registration services, and failing to provide such services itself.  A last-minute change in policy offered only a partial fix to this problem.  More information is available here.
  • Voter registration drive restrictions. Several states, including New Mexico and Florida, have enacted restrictive laws that interfere with the ability of groups to do voter registration drives.  The Florida law was tied up in litigation filed by the Brennan Center and so has not been in effect for this election season.  A court refused to block the New Mexico law, and a number of community groups, especially those that work with volunteers, have not been able to register new voters.
  • Noncompliance with federal voter registration law.  A number of states have not been providing voter registration services at social service agencies, as required by the federal Motor Voter law.  Recent lawsuits filed by Project Vote and Demos seek to enforce states’ compliance with the implementation of the NVRA.  On October 28, 2008, a federal appeals court ruled that Ohio state officials violated federal law by failing to provide voter registration services at public assistance offices.

Voter Intimidation and Deceptive Practices

 In recent elections, robo-phone calls and misleading flyers, often targeting minority and low-income communities, have spread false information regarding elections and voting qualifications. For examples of such documents, click here.

  • New Mexico.  Two families reported visits by a private investigator inquiring about relatives that the state Republican Party alleges voted fraudulently in the June primary.  The private investigator requested identification for relatives in question as proof of their eligibility, potentially in violation of federal law.  The Bernalillo County Clerk confirmed both individuals’ legitimate registrations.  On October 27, 2008, the Mexican American Legal Defense and Education Fund filed a lawsuit seeking an injunction to stop further intimidation.
  • A phony State Board of Elections flier was posted around the Hampton Roads area, stating that Republicans vote on Tuesday, November 4th, and Democrats vote on Wednesday, November 5th.  The Virginia State Police determined that flier was an “office joke” and not intended to deceive voters.
  • Philadelphia fliers. Deceptive fliers about the consequences of voting were distributed in a predominantly African American neighborhood in Philadelphia.
  • Greene County, Ohio.  A law enforcement officer in Greene County, Ohio sought the names of 300 voters who registered and voted at the beginning of Ohio’s early voting period in a town made up largely of students. The effort, which was later withdrawn, was criticized as an effort to intimidate student voters and deter others from voting.
  • Hamilton County, Ohio.  In a move that could intimidate and deter voters, Hamilton County Prosecutor Joe Deters recently requested, via subpoena, personal information for 40% of the voters who registered and immediately cast a ballot during the weeklong period in which Ohio allows same-day registration and voting.
  • California.  Dozens of voters reported that a firm hired by the California Republican Party tricked them into registering with the GOP when signing a petition they believed to toughen penalties against child molesters.  The Los Angeles County Registrar-Recorder is reviewing 9,000 registration affidavits submitted by the firm to determine if any of the party affiliation changes were involuntary.
  • Travis County, Texas.  County officials are looking for a man who may be providing misleading information regarding the state’s straight-party voting option, telling voters that in addition to a straight-party vote, they must also select the name of the candidate they would like vote for president.  In actuality, doing this would de-select the mark automatically made by the straight-party vote.
  • Madison County, North Carolina.  Residents have complained of misleading calls that provide inaccurate information regarding absentee ballot deadlines.  The State Board of Elections is investigating.
  • Kern County, California.  A radio host announced that Republicans are being urged to vote on November 4 and Democrats on November 5.  Although the host has said he meant it as a joke, the county elections chief has asked the radio station to stop providing misleading information.
  • Baltimore City, Maryland. In Maryland, people with felony convictions can register to vote when they have completed the terms of their sentence, including probation and parole.  The Baltimore city elections board sent letters to 422 people with felony convictions who registered to vote asking them to verify that they had completed their sentence, but the letter did not provide any information on what proof these voters must provide, who to contact, or a deadline for response.  Although the state Attorney General has said it would attempt to contact these individuals, it is unclear if they will be added to the rolls for the November election.
  • In early October, a widely circulated email falsely warned voters that a straight-party vote would not register a vote for president.  In fact, if a voter using Texas ballots separately records a vote for president after voting straight-party, the vote for president will be deselected and will not count.
  • The St. Petersburg Times reported that the Republican National Committee sent non-forwardable mailings to older Democratic voters, falsely stating that recipients are registered as Republicans and suggested that undeliverable mailings could be used to compile challenge lists.  The RNC claimed that the controversial mailing was just a fundraising piece.
  • Wisconsin.  The Wisconsin Attorney General announced that he will deploy more than 50 assistant attorney generals and state agents on Election Day to polling places around the state to guard against voter fraud.  This is expected to intimidate voters.
  • The non-profit group Minnesota Majority, pretending to be from the Secretary of State’s office, made calls to voters questioning their registrations in a supposed attempt to uncover voting irregularities.

 Poor Ballot Design

Poorly designed ballots–remember the butterfly ballot?–can lead to the loss of thousands of votes.  A recent Brennan Center report demonstrates that ballot design problems are still widespread and have caused thousands of lost votes in recent elections.  Already, there have been problems relating to November’s election:

  • Mississippi Senate race.  Mississippi election officials were sharply criticized, in a New York Times editorial and in a letter sent by the Brennan Center, for their decision to place the Wicker-Musgrove U.S. Senate race at the bottom of Mississippi’s ballot.  This “ballot trick” placed the Senate race far below the other federal races listed in the 2008 election, creating a confusing layout for the ballot, one that could potentially mislead and disenfranchise hundreds of thousands of Mississippi voters in that race, particularly low-income and minority voters. More information can be found here.
  • Twelve Ohio counties.  Twelve Ohio counties released sample paper ballots that split the presidential contest over two columns for this November’s election. As the Brennan Center’s study found, this particular layout often confuses voters and causes them to double-vote, an action which ultimately results in an uncounted ballot.  On September 17, 2008, the Brennan Center sent a letter to the board of elections in all Ohio counties, urging them to reconsider their ballot layout and place the presidential contest in a single column on the paper ballot.  The Ohio Secretary of State forwarded the letter to all county board of elections as well. Further details can be found here.
  • North Carolina straight-party voting.  As a result of a ballot design problem in North Carolina, votes for president may have already been lost in the early voting period.  The ballot is designed, counter-intuitively, so that a straight-party vote does not include a vote for president; voters must separately mark their presidential contest choice.  In previous federal elections, between 2.5% and 3.2% of ballots in North Carolina did not include a vote for president.  A Brennan Center study found that if more than 1% of voters fail to cast a vote for president, it is typically an indication of a ballot design flaw or other problem.

 Election Day Preparedness

Inadequate staffing, poor resource allocation, ballot shortages, and machine malfunctions can lead to long lines at the polls, or worse, discourage people from voting at all.  These problems have already been reported from across the country in early voting.  The Brennan Center, Common Cause, and Verified Voting recently released a 50-state study of states’ contingency plans and vote counting procedures, finding that many states need improvement.  A report released by the Advancement Project finds that several battleground states are not prepared for unprecedented voter turnout in November, and that resources are inequitably allocated.  This document is not tracking the incidence of these problems.

Electronic fraud

The Brennan Center just listed tactics involving voter suppression.  It did not include electronic vote rigging.

Since at least the Florida 2000 election, security researchers have been demonstrating that direct-recording electronic (DRE) voting systems and optical scanning systems from every manufacturer are susceptible to hacking.  However, instead of securing our voting systems, the U.S. has relied on verified voter paper audit trails (VVPATs) which are also vulnerable to hacking.

Voters imagine that manufacturers of DRE machines have taken steps to protect the results from tampering — but that is unfortunately not true.  Numerous studies, including this one from Princeton University, demonstrate that rigging election results is quite easy.  If fact, anyone who wants to learn to rig our elections can watch this YouTube videowhich explains how to do it.

Two private companies count nearly all our votes with secret proprietary hardware and software, the most notable being ES&S, with its strong ties to the Christian Right.  Because every standard of election transparency is regularly violated in the U.S., our version of electronic voting is often referred to as “faith-based voting.” Of course, the results from rigged machines don’t match the exit polls, but the corporate-dominated media takes care of that problem by “adjusting the exit polls.”  Although exit polls are the international gold standard for detecting election fraud, our corporate media instead takes the vote as recorded on privately programmed and easily hacked machines as the number that is correct.   This leaves the door wide open for corruption and, since the stakes are so high for elections, the motivation for corruption is clear.

The principal beneficiary of election stealing is the right wing, even though its demographic base –older white males–keeps shrinking.  According to an analysis in Harper’s:

 The engine of this seismic movement is a strategic alliance of corporate interests promoted by Rupert Murdoch’s News Corp. empire and orchestrated by Karl Rove and the Koch-funded American Legislative Exchange Council. And meanwhile, the American right has in recent years been empowered by a slew of upset victories that range from unexpected to implausible, and that have frequently been accompanied by technical failures and anomalies, which are swept under the rug as rapidly as possible.

In 2002, the G.O.P. regained control of the Senate with such victories. In Georgia, for example, Diebold’s voting machines reported the defeat of Democratic senator Max Cleland. Early polls had given the highly popular Cleland a solid lead over his Republican opponent, Saxby Chambliss, a favorite of the Christian right, the NRA, and George W. Bush (who made several campaign appearances on his behalf). As Election Day drew near, the contest narrowed. Chambliss, who had avoided military service, ran attack ads denouncing Cleland—a Silver Star recipient who lost three limbs in Vietnam—as a traitor for voting against the creation of the Department of Homeland Security. Two days before the election, a Zogby poll gave Chambliss a one-point lead among likely voters, while the Atlanta Journal-Constitution reported that Cleland maintained a three-point advantage with the same group.

Cleland lost by seven points. In his 2009 autobiography, he accused computerized voting machines of being “ripe for fraud.” Patched for fraud might have been more apt. In the month leading up to the election, Diebold employees, led by Bob Urosevich, applied a mysterious, uncertified software patch to 5,000 voting machines that Georgia had purchased in May.

“We were told that it was intended to fix the clock in the system, which it didn’t do,” Diebold consultant and whistle-blower Chris Hood recounted in a 2006 Rolling Stone article. “The curious thing is the very swift, covert way this was done. It was an unauthorized patch, and they were trying to keep it secret from the state. We were told not to talk to county personnel about it. I received instructions directly from [Bob] Urosevich. It was very unusual that a president of the company would give an order like that and be involved at that level.”

Two years later, of course, John Kerry lost the presidency in Ohio. In this key swing state, election monitors were besieged by complaints of G.O.P. orchestrated voter suppression, intimidation, and fraud. Myriad voting-machine anomalies were reported, including “glitches” that flipped votes from Kerry to Bush. A phony terror alert in Republican Warren County (the FBI later denied issuing any such warning) allowed officials to move ballots illegally to an auxiliary building and count them out of public view. Presiding over the election was the Republican secretary of state, J. Kenneth Blackwell, a fiercely partisan fundamentalist Christian who also served as co-chair of Ohio’s Committee to Re-Elect George W. Bush.

In last month’s blog, we reported on the King Lincoln Bronzeville Neighborhood Association et al v. J. Kenneth Blackwell et al. lawsuit, filedAug. 31,2006. The plaintiffs, a combination of individual voters and voters’ rights groups, charged Ohio Secretary of State Kenneth Blackwell and other Ohio officials with: “election fraud, vote dilution, vote suppression, recount fraud and other violations,” including allocating election resources in a racially discriminatory manner and instituting racially discriminatory procedures for provisional voting, purging voters from the statewide voter registration database, and maintaining the chain of custody of ballots. Plaintiff’s counsel was noted voting rights attorney Cliff Arnebeck

During the Bronzeville case, Secretary of State Blackwell’s office was forced to produce the election computer system configuration chart that was used in Ohio’s 2004 presidential election when there was a sudden and unexpected shift in votes for George W. Bush. This “architectural map” clearly shows the election night server layout system from the Ohio Secretary of State’s office to servers owned by SMARTech at the Old Pioneer Bank in Chattanooga, Tennessee.

Stephen Spoonamore, a renowned bank and computer fraud expert and a Republican, agreed to serve as an expert witness for the plaintiffs in the Ohio vote-rigging lawsuit.

Spoonamore concluded from the architectural maps of the Ohio 2004 election reporting system that: the Republicans had stolen the election using a “man-in-the-middle” method, which is a deliberate computer hacking setup that allows a third party to sit in between computer transmissions and illegally alter the data. In a sworn affidavit to the court, Spoonamore declared: “The SMARTech system was set up precisely as a King Pin computer used in criminal acts against banking or credit card processes and had the needed level of access to both county tabulators and Secretary of State computers to allow whoever was running SMARTech computers to decide the output of the county tabulators under its control….The King Pin is a computer with a person sitting at it that doesn’t just steal the information and then use it later like we saw, it’s a person who has onboard their Kingpin computer the code and instructions for the Secretary of State’s office and the code and the instructions for a county tabulator. Spoonamore also swore that “…the architecture further confirms how this election was stolen. The computer system and SMARTech had the correct placement, connectivity, and computer experts necessary to change the election in any manner desired by the controllers of the SmarTech computers. I do not believe George Bush won, I believe Kerry won and I’m a member of the GOP.”

In a September 2008 affidavit filed in federal court in the same case, Spoonamore described the vulnerabilities of touch screen voting machines:  “In my opinion, there is NO POSSIBLE WAY to make a secure touch screen voting system.  None. That is because the voting systems are designed to mask the identity of voters, whereas in banking, each account holder is identified by several layers of secure authentication. It is impossible to have a system that does both.” It is possible to design relatively secure optical scan machines, but even these can be hacked in even the best of cases. In the case of optical scan (systems where hand-marked paper ballots are scanned by computer counters) you have the ability to recount manually the paper ballot itself, and the ability to spot check the machines for errors against a sample of hand recounting.”

You can watch an interview with Stephen Spoonamore in which he discusses the shortcomings of electronic voting machines and how elections have been stolen here.

Michael Connell, a zealous anti-abortion activist, was the Bush campaign’s chief IT strategist. His two Ohio-based companies built websites and email systems for the Republican National Committee and for the most powerful figures in the GOP, including Karl Rove, Jeb Bush, and Jack Abramoff. It was one of Connell’s websites that reported the surge of votes in Ohio that handed George W. Bush the White House in 2004.  Connell was hired by Blackwell to design a website that would post Ohio election results to the public. Connell’s contract also required that he create a “mirror site” that would kick in to display the vote totals if the official Ohio servers were overwhelmed by Election Day traffic. For the latter portion of the job, he turned to SmarTech, a little-known company headquartered in Chattanooga, Tennessee. SmarTech was as partisan as Connell himself, and the company’s servers hosted hundreds of high-profile Republican websites (and, later on, an assortment of anti-Obama websites). During the Bronzeville vs. Blackwell lawsuit, Cliff Arnebeck began gathering evidence to file a racketeering claim against Karl Rove, which included the charge that Rove had masterminded the theft of the 2004 election. “We detected a pattern of criminal activity,” Arnebeck told the British journalist Simon Worrall. “We identified Connell as a key witness, as the implementer for Rove.” Arnebeck hoped to have Connell testify in open court against Rove.

In July 2008, Cliff Arnebeck sent a letter to U.S. Attorney General Michael Mukasey seeking protection for Connell as a witness in the case, saying he had been threatened. Arnebeck wrote, “We have been confidentially informed by a source we believe to be credible that Karl Rove has threatened Michael Connell, a principal witness we have identified in our King Lincoln case in federal court in Columbus, Ohio, that if he does not agree to ‘take the fall’ for election fraud in Ohio, his wife Heather will be prosecuted for supposed lobby law violations.”  Arnebeck claimed that months later, his source called back and warned that Connell’s life was in danger.

On December 19, 2008, Michael Connell was killed in a plane crash. An accomplished pilot, he was heading home from Washington D.C. when his Piper Saratoga plane suddenly dove to the ground. The site was roped off, cleaned up within two hours at night against protocol, and the next day his wife found his Blackberry missing from his still intact knapsack.

Connell’s sister contacted the Columbus Free Press to voice doubts that the crash was an accident. She later told a Wisconsin newspaper, The Daily Page: “At first, it was really hard for me to believe Mike was dead because somebody wanted him dead. But as time goes on, it’s hard for me not to believe there was something deliberate about it.” Connell reportedly had canceled two flights because of suspicions that something was wrong with his plane.

After Connell’s death, a redacted government document arrived by mail at the Free Press office addressed to Arnebeck stating that Connell’s death was authorized since he was a “NST” – National Security Threat

Connell’s death came at a moment where election protection attorneys and others appeared to be closing in on critical irregularities and illegalities. Examining attorneys in the King-Lincoln-Bronzeville civil rights lawsuit, stemming from the 2004 election theft, were confident Connell had far more to tell. There was widespread concern that this might have been the reason he died.

On February 7, 2012, Judge Marbley dismissed the Bronzeville case, and that was the end of the investigation of the Ohio 2004 election.

In 2012, Cliff Arnebeck was in an Ohio courtroom, arguing again that a secret contract the state’s secretary of state had executed with a voting-tabulation company created the capacity to “flip the vote” in 25 Ohio counties.

To understand Arnebeck’s lawsuit, it is necessary to understand who the defendants were.

Jon Husted was the new Republican secretary of state who had spent much of the past two years working to restrict early voting, which in previous elections has been used by far more Democratic than Republican voters. When a law passed in haste by the Republican-dominated Ohio General Assembly created confusion about early voting, Husted issued an advisory opinion that allowed only members of the military to vote on the weekend before the election. He then fired Democratic election commissioners who challenged his ruling. And after a federal district judge held that Ohio’s ban on early voting was unconstitutional, Husted refused to comply with the court’s order, insisting he would not begin preparations for early voting until an appeals court ruled on the case. When the U.S. Sixth Circuit Court of Appeals upheld the lower court decision, Husted appealed to the U.S. Supreme Court in an attempt to run out the clock on early voting. Four days before the election, he issued restrictive rules on the counting of provisional ballots. (Husted was also the plaintiff in the disastrous Husted vs. Randolph Institute case, decided by the U.S. Supreme Court 5-4 along partisan lines on June 10, 2018, which allows states to purge voters for failing to vote in previous elections.)

“The surreptitious manner in which the Secretary went about implementing this last minute change to the election rules casts serious doubt on his protestations of good faith,” Federal District Judge Algenon Marbley wrote in a decision handed down after the election.

Arnebeck’s second defendant was Election System & Software (ES&S), one of the big two voting-technology companies that control 70 percent of elections in a U.S. voting system that is almost completely privatized.

ES&S made national news in 2006 when its tabulation program registered an 18,000 undervote in a South Florida congressional race that Republican Vern Buchanan won by 369 votes—out of 238,000 cast. Most observers, according to the Charlotte Sun, concluded that absent the undervote, the Democratic candidate would have won.

The Port Charlotte, Florida, daily newspaper also reported on a New York study that found an ES&S “precinct-based voter counter” that tends to add votes in some elections. The same model counter lost 11,000 presidential votes when it was used in Florida in 2008.

More closely related to the lawsuit that Arnebeck filed in Ohio was a forensic audit of ES&S software in Venango County, Pennsylvania, where two computer science professors from Carnegie Mellon University documented multiple unauthorized remote connections to ES&S tabulation servers. The outside access to the servers was unknown to election officials until the forensic audit was released.

The report was suppressed after ES&S threatened legal action. But the Brad Blog, which does in-depth election coverage, obtained and posted a copy along with a letter from ES&S that charged the Carnegie Mellon professors with unlawful possession of proprietary information.

Arnebeck was skeptical about a contract signed by Husted and ES&S less than two months before the election with no public review or bidding and no testing of the software.

“They are both behaving in a suspicious way,” Arnebeck said in phone interview. “Whether or not they are coordinating, I can’t say. But Husted has been involved in a lot of questionable activities going into the election.”

Arnebeck’s client was Bob Fitrakis, a journalism professor who has used the online Free Press to document election irregularities in 2004 in Ohio. Fitrakis has co-written several books on election theft. He is also a sophisticated political activist. He ran for Congress (as a Green Party candidate) so that he would have standing in election-related lawsuits. He and his co-author, Harvey Wasserman, are persistent critical observers of the election process in Ohio.

Before filing suit, Fitrakis got word that a software contract between Husted and ES&S had been signed within months of November’s election.

Fitrakis submitted an open-records request for the contract, and according to Arnebeck was “stonewalled” by the secretary of state’s office. (At the November 6 hearing, an attorney representing Husted said the secretary of state’s office had been working to pull the requested material together.) Less than a week before the election, a source inside the government quietly provided Fitrakis the 28-page document that was withheld by the secretary of state.

The contract describes “a stand-alone singularly focused” software application that could produce a “precinct-level, candidate, elections result file for all state requested offices.” Arnebeck’s description is not so benign. In court pleadings, he described a plan to install ES&S software “patches” on computers tabulating votes in 25 of Ohio’s counties, including the three most populous counties in the state. The patches had not been tested by an elections board as required by state law because they were designated as “experimental,” thus not subject to the requisite testing. Installing them created a “back door” that could allow outside access to the voter-tabulation system, Arnebeck told the state judge hearing the case.

An attorney representing ES&S wrote in a memorandum filed with the court that the software “does not have the capacity to access or alter a vote in Ohio, even if the imagined saboteur exists.” Arnebeck’s allegations are based on speculation, the attorney wrote (and argued in court).

At the November 6 state court hearing (Arnebeck made a similar argument in federal court the same morning), Arenebeck told the judge that the patches were the point at which the “man-in-the-middle attacks” that Karl Rove had used to flip Ohio’s votes in the 2004 election could be implemented in 2012.

No one expected Franklin County Court of Common Pleas Judge Mark Serrott to issue a restraining order postponing a national election. The lawsuit was a preemptive measure. Arnebeck and Fitrakis were creating a public record that documented the existence of potentially malicious software that was secretly put in place by the secretary of state. They would have filed suit earlier, if they had had the contract earlier, Arnebeck said.

Judge Serrott said a court order for a recount paid for by ES&S was premature and denied Arnebeck’s request for relief: “You can always ask for a recount [after the election]; if I draw that case I’m happy to look at it and maybe make a determination of who should pay for it.”

The story became more interesting in Nov. 2012, when hacker collective Anonymous claimed it stopped Karl Rove from hacking the vote in favor of Mitt Romney. The group says that it foiled Rove’s attempt to steal the election in Florida, Virginia and Ohio by using the GOP’s ORCA system.

Two weeks prior to Election Night, a typical Anonymous video was released warning Karl Rove against rigging the election. “We want you to know that we are watching you, waiting for you to make this mistake of thinking you can rig this election to your favor,” Anonymous’ ubiquitous Guy Fawkes character warned.

Then, following Obama’s win and Rove’s very public outburst on Fox News, a group calling themselves “The Protectors,” believed to be comprised of Anonymous hackers, sent a letter to election transparency non-profit, Velvet Revolution, claiming to have thwarted attempts by GOP strategists to flip votes and rig the election in three swing states.

The letter claims that the GOP’s ORCA — a GOTV (Get Out the Vote) system — was in fact designed upon orders from Karl Rove to rig votes in favor of Romney. The Protectors claim that they installed a password protected firewall to block attempts to digitally rig votes. The letter also warned that any further attempts to hack elections would result in them sending the evidence to Wikileaks.

We will probably never know the whole truth.