Claire McCaskill (Missouri), Beto O’Rourke (Texas), and other candidates who conceded owe it to their supporters and to themselves to conduct election integrity due diligence before results are certified.

By Jennifer Cohn
November 10, 2018

Before the midterms, I wrote an article advising candidates to refrain from making premature concessions. And yet, when those electronic results rolled in, it seemed that most of the official “losers” could not concede fast enough. Equally frustrating, I have learned that losing candidates do not undertake even the most basic due diligence to confirm that electronically reported outcomes are legitimate. This must change.

If these past few years have taught us anything, it is that our voting equipment, like our many flailing democratic institutions, is much less secure than we thought. Contrary to what election officials have led us to believe, all electronic tallies can be hacked through the internet because the election management system computers used to program voting machines, scanners, and ballot marking devices are themselves so connected.

The results generated by those voting machines and scanners at the precincts are then transferred via memory cards or USB sticks to county-based central tabulators, which aggregate and send the results to online reporting systems. Sometimes the same flash drive goes back and forth between the online system and the central tabulator, creating another opportunity for foreign or domestic hackers to attack vote tallies.

Moreover, voting machine vendor Election Systems & Software, LLC (“ES&S”), which accounts for 44 percent of US election equipment, has in the past few years sold scanners containing cellular modems to Florida and Wisconsin. As one Wisconsin election official acknowledged, these modems send results over the internet. According to computer science professor Andrew Appel (Princeton University), malevolent actors could erect fake cell towers to intercept vote tallies transmitted in this fashion.

Nor is our election system too “decentralized” to allow an outcome altering attack by corrupt insiders or other malevolent actors. On the contrary, just two vendors account for more than 80 percent of US election equipment: ES&S and Dominion Voting. ES&S, which has donated more than $30,000 to the Republican State Leadership Committee since 2013, has also sold election management systems containing remote access software to 300 jurisdictions, which it refuses to identify.

Despite these obvious vulnerabilities, courts preclude forensic analysis of voting equipment on the basis that the software and hardware is proprietary to the vendors.

Thus, as a practical matter, the only way to know if electronic outcomes have been manipulated is to conduct a manual recount or meaningful manual audit of the paper ballots (or other reliable record of voter intent), with a secure chain of custody between election night and the recount or audit. Fourteen states, however, still use paperless voting machines, which preclude manual audits and manual recounts altogether. And many others depend on Voter Verifiable Paper Audit Trails (generated by voting machines) or “Summary Cards” (generated by “universal use” ballot markers like the ExpressVote), even though studies suggest they are unreliable.

In addition, states typically require manual recounts only if the margin of victory is less than 1%. And twenty-six states do not require manual audits at all. According to IT experts, just three states (Colorado, New Mexico, and Rhode Island) conduct manual audits that are sufficiently robust to detect hacking.

Meanwhile, I have learned that most or all candidates fail to conduct the one important election-integrity protocol that is actually within their power: comparing the voting machine results tapes generated at the precincts to the reported results. Although such comparisons cannot detect potential rigging of the precinct results themselves, they can detect potential tampering that might occur after the results leave the precincts. As I learned during my investigation of the Kansas primaries earlier this year, we should not assume that counties conduct this type of analysis themselves. And even if they did, it would be unwise for campaigns to assume the people conducting those analyses are trustworthy.

Ordinary citizens are beginning to “wake up” to this election-integrity protocol. In Georgia, a handful of advocates are scrambling right now, as I type this article, to upload the many results-tapes photographs that they took on election night. The candidates themselves, which have both organizational and financial support, did not arrange to conduct this basic protocol and are not conducting it now.

Which brings me to my final point. These campaigns are not just about the candidates. They are also about the many voters who supported them. Candidates owe those supporters an obligation to confirm the legitimacy of their reported losses to the extent possible, including by undertaking a comparison of the precinct results and the reported results. This is especially true when the reported results differ from the polls (as occurred in the Missouri senate race) or follow widespread reports of problems with the voting equipment itself (as occurred in the Texas senate race) or when the campaign itself was targeted by Russia (as occurred with Claire McCaskill’s senate campaign in Missouri). These types of events raise obvious questions in the minds of voters, and it is irresponsible and unfair for the candidates to leave those questions hanging without conducting even the most basic due diligence to ensure that votes were counted as cast.

Please email this article to Claire McCaskill, Beto O’Rourke, and other candidates of your choosing, and insist that they collect and review the voting machine results tapes from their respective races before results are certified. I know they worked hard. I know they are tired. But they owe their supporters (and themselves) this much.

Please email this article to Claire McCaskill & Beto O’Rourke, and demand election integrity due diligence before their losses are certified. Thanks!

Campaign Phone: 314–918–8100
Likely election certification date: 11/30/18

Campaign Phone: (915) 730–3876
Certification date: 12/10/18




Attorney and Election Integrity Advocate #ProtectOurVotes #PaperBallotsNow @jennycohn1

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Jennifer Cohn

Jennifer Cohn

Attorney and Election Integrity Advocate #ProtectOurVotes #PaperBallotsNow @jennycohn1

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