Massachusetts Sanders Supporters File Lawsuit to Hand-Count Sampling of Ballots, Citing Exit Polls
A group of Massachusetts voting rights activists is hoping to spark a nationwide wave of court orders to hand-count samplings of ballots in states where, they claim, statistical indicators suggest that Bernie Sanders won more votes than he was credited for.
One indicator cited by Election Justice Massachusetts (EJMA) is the finding by an Arizona voting rights activist that, in the small number of towns in Massachusetts where ballots are still counted by hand, rather than optical scan machine, Sanders won by an average of 18%. In contrast, in districts where ballots are counted by machine, Clinton won by an average of roughly 1.4%.
Massachusetts uses Diebold's AccuVote optical scan machine to tabulate ballots in most towns and precincts. The ease of "hacking" Diebold machines has been the subject of numerous studies and documentaries.
Citing another indicator, exit polls, Election Justice Massachusetts says that in at least eleven primaries, the data would be sufficient to flag an election for possible further investigation by the UN, in its international election monitor capacity.
The complaint (Docket #16-1747E) filed by the group in Suffolk Superior Court begins:
"The hand-count audit of paper ballots is the most fundamental mechanism by which confidence is maintained in electronic ballot counting systems...Such audits are arguably the most economical component of a quality voting system, adding a very small cost for a large set of benefits."
Massachusetts law requires an audit only of general elections. The examination or audit of ballots cast during primaries requires a court order. State audit laws vary.
The citizen watchdog, of which the author is a member, claims that, across the country, in 24 out of the last 26 Democratic primaries, exit polls were in error in the same direction, showing Sanders getting more votes than officially polled. The complaint states that: "Absent a cause for this, the statistical probability of this occurring as a chance pattern is the same as the odds of 26 total coin tosses coming up heads 24 times."
In Massachusetts, the discrepancy between the exit polls and the official vote count for Sanders was 8%, well outside the margin of error. Some election experts have argued that the Sanders - Clinton exit poll pattern is the result of Hillary Clinton's older demographic, which tends to use early voting allowances more often and who therefore would not be reflected in polls of voters exiting polling stations on election day. However, the state of New York, one place where the pattern was pronounced, does not have early voting.
The lawsuit contends that vote totals can be manipulated with ease by parties who are so motivated, whether they are election officials or people with access to the outside vendors which manufacture and maintain the machines and software from which official vote totals are taken. The lawsuit cites a 2016 HBO documentary, "Hacking Democracy."
The lawsuit asks the court to order a "small sampling of voting districts" including the City of Worcester, where Clinton beat Sanders by a fraction of a percent, doing better in Worcester than adjoining in Shrewsbury, a town with markedly different demographics. Worcester is an economically stressed community with many colleges, the kind of demographic in which Sanders tends to do well. Shrewsbury, a leafy suburb, has approximately double the average household income as Worcester. The unemployment rate in Worcester has been as high as 10% recently.
The lawsuit concludes:
"To date, the Democratic primaries this season have been the most controversial in many years. Official investigations are open in New York by the New York City comptroller's office and the NYC state attorney general. In Arizona, investigations are ongoing by the US Department of Justice and the state attorney general. In Illinois, another state where Clinton edged out a razor-thin victory, a county state's attorney filed suit on behalf of voters who did not get to vote in the primary because some precincts ran out of ballots...In short, the confidence of many voters in the voting system is at an all-time low, and Reuters reported on April 27, 2016 that more than half of Americans believe the primary process is “rigged.” In light of this, measures favoring transparency have become especially important."
There are at least ten other states, according to mathematician Richard Charnin, where exit polls alone show discrepancies large enough to strongly encourage hand-count audits: Alabama, Arizona, Georgia, New York, Ohio, Mississippi, South Carolina, Texas, Wisconsin, and West Virginia. Some of the states are critical ones which either contribute greatly to delegate count, or greatly shape the election narrative in the media.
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The voting rights group cites precedents which it says establish the jurisdiction of courts over the primary process, refuting the argument, sometimes made, that primaries are private affairs run by political parties. In Smith v. Allwright, the US Supreme Court wrote:
“The party takes its character as a state agency from the duties imposed upon it by state statutes; the duties do not become matters of private law because they are performed by a political party.”
EJMA says: "It is axiomatic that in any democratic process, the ballots ultimately belong to the people, for the people to examine if necessary to confirm the verdict of officialdom. Were it otherwise, there would be no need for ballots at all, for what use are ballots if no one can look at them?"
The legal action follows an eventful year for activists concerned with democracy and voting rights. In April over 900 people were arrested in Washington, DC, as part of "Democracy Spring," a new organization dedicated to ending "the corruption of big money in our politics and ensure free and fair elections in which every American has an equal voice," in the words of Democracy Spring activist actress Rosario Dawson.