Inside Job

by Steven Rosenfeld

  By “red shift,” Simons meant exit polls that predicted Democratic victories in contrast to results adding up to a Republican sweep. He wrote, “Ohio had shifted from an exit poll dead heat to an 8.1 percent Trump win; North Carolina from a 2.1 percent Clinton win to a 3.6 percent Trump win; Pennsylvania from 4.4 percent Clinton to 0.7 percent Trump; Wisconsin from 3.9 percent Clinton to 0.7 percent Trump; Florida from 1.3 percent Clinton to 1.2 percent Trump; and Michigan from a dead heat to 0.3 percent Trump … If the exit polls rather than the vote counts were accurately capturing voter intent, the Electoral College majority would have gone to Clinton and it would not have been close.”219

  Simons and his colleagues were grabbing at the only available information to question whether the counts had been hijacked. Needless to say, they believed that it had. Election officials ignored them, as did the media consortium and its pollsters. As has been the case for years, the consortium refused to release any raw precinct-level data. (During the day, they revise projections to reflect a better picture of electorate.) As number crunchers on list-serves screamed this was proof of yet another stolen election, exit pollsters countered these activists were gadflies reading too much into imperfect exit polls. (One of their team who conducted exit polls in Berkeley, California, the publisher of Ballot Access News, Richard Winger, told me that no voter he interviewed said that they had voted for Trump—but there were several who did in the official count at his precinct.) The exit poll discrepancy stalemate left a trail of dots that could not be connected without more proof, which was not forthcoming.

  Another early line of inquiry came from computer scientists and voting rights lawyers who were not convinced that foreign or domestic hackers—Russians or Republicans—had not targeted and planted malware that fractionally readjusted the electronically tabulated counts. Barbara Simons, a retired IBM programmer, past president of the Association for Computing Machinery, advisor to the US Election Assistance Commission since 2008, and board chair of the advocacy group Verified Voting, suspected there was more going on than what the White House and federal intelligence agencies said. James Clapper, then National Director of Intelligence, said the spy agencies had concluded that the Russian government was behind the hacks and thefts of emails from the Democratic National Committee and Clinton campaign that were posted on Wikileaks. While that theft and publication served its purpose as anti-Clinton propaganda, FBI Director Comey and President Obama said the voting machinery was separate, secure, and that the vote count could be trusted. Simons knew the machinery was not secure. For more than a decade, her colleagues had routinely used voting machines in university classrooms to demonstrate hacking. Some reproduced those same experiments in congressional hearings as far back as 2006, where she was among those testifying to the House Committee on Administration.220

  Barbara Simons talked to associates in North Carolina. In blue epicenters like Raleigh-Durham, there had been problems with electronic poll books producing precinct voter lists. She knew that the private contractor that had maintained that database and other state voter registration databases—Florida-based VR Systems—had been hacked by Russians.221 Simons wondered if Russian hackers had scrambled North Carolina’s poll books. As Steve Friess wrote in a lengthy piece in February 2017 for the New Republic, five days after November 8, Simons, Amy Rao—a Silicon Valley CEO and Democratic fund-raiser, and David Jefferson—a computer scientist at Lawrence Livermore National Laboratory—got John Podesta on a conference call to urge he “call for an official review of the election results.”222

  The scientists made the case that has been the baseline for more than a decade in activist circles seeking transparent and verifiable elections. The voting machines and tabulators installed after Florida’s 2000 disaster with computer punch cards were aging, prone to inaccuracies, easily breached by hackers, maintained by private companies with partisan leanings, and, in a quarter of the country where voting systems were paperless—like most of Pennsylvania—impossible to recount. Podesta asked if they had proof the vote had been stolen. They replied no, but said a targeted audit of key counties and states would affirm who had won. Podesta demurred.223

  Meanwhile, another line of inquiry was developing. John Bonifaz, a voting rights attorney who won a MacArthur “genius” award in the 1990s, also saw anomalies. Bonifaz was not another attorney frustrated with the prospect of a Trump presidency. He was the Green Party’s lead attorney in their 2004 presidential recount in Ohio. (He also represented the Libertarian party.) When he realized that the Greens’ 2016 presidential candidate, Jill Stein, could file for recounts if she and her party acted quickly, Bonifaz took on convincing her and trying to raise the legal fees. I’ve known John for two decades and wasn’t surprised when he called a week after Election Day and asked whether I could write an article that suggested a recount could address serious questions.

  “A lot is happening. We’re looking at anomalies beyond the exit poll questions. We’re looking at potential recounts in several states—not audits, but recounts,” he said. “Jill Stein, on Sunday, said she’s prepared to take this on. Only candidates can ask for recounts. She’s willing to do it.”

  Bonifaz explained the filing deadlines and trail they hoped to follow. In Wisconsin, he said paperless machines had markedly different victory margins than scanned paper ballots. In Michigan, the secretary of state’s office reported eighty-seven thousand paper ballots lacked presidential votes—almost double the number from 2012. (That would soon be adjusted to 75,335 undervotes.) In Pennsylvania, sixteen counties were using the same vote-count tabulators that computer scientists had shown a decade before were hackable. Bonifaz cited VR Systems’ work in North Carolina and said there were questions about whether volumes of absentee ballots could be fabricated in Michigan, Wisconsin, and Pennsylvania. He wondered if the VR Systems hack could provide a pathway where election workers would unwittingly transport malware from voter registration databases to separate vote-counting computers. “That’s the theory. It’s strong enough for us to use as a basis for a recount,” he said.

  On November 18, AlterNet published my story suggesting that lingering questions were raising the prospect of filing for recounts in several states.224 While Bonifaz tried to raise money for the filings, which were estimated to cost several million dollars, I reached out to state officials and others I knew from my work with Pew to see what they were hearing and knew. They frowned on Bonifaz’s theories as dots that would not connect, even as they said they also were trying to figure out what had happened. “People are flailing and looking for something,” a former official who ran elections in blue and red states said. He was skeptical that recounts would change anything, but suggested the Greens look at the machines’ “logic and accuracy” tests. (Activists counter that’s insufficient, as it doesn’t reflect what happened on Election Day.)

  “If they don’t have them, that gives you something to poke at then,” he said, before making what turned out to be the most prescient point. “What judges are looking for when you file suits is real evidence that results should be overturned. It has to be so screwed up that a judge will overturn it. That’s not the same as a recount … recounts don’t prove much.”

  Later that week, in the small world of election activists, it was inevitable that Bonifaz and Simons would join forces to again try to persuade Podesta to help—privately if not publicly. The Clinton campaign, like John Kerry in Ohio in 2004, met their voters’ desire for answers with silence, not even suggesting they were evaluating the outcome. Alex Halderman, the director of the Center for Computer Security and Society at the University of Michigan, had listened to the first conference call with Podesta while aboard a flight. Afterward, he recruited thirty nationally known computer security experts and statisticians to join him to discuss possibly auditing the results. Some wanted to hand count seven hundred thousand ballots in twenty-nine states, saying such selective audits would provide certainty about the election. Others said auditing ten states could s
uffice. As the New Republic noted, the prospect of audits was more of an academic opportunity to examine the machinery than a legal procedure that could overturn results. Nonetheless, Halderman and the experts added credibility. A second conference call was held with Podesta, longtime Clinton adviser Jake Sullivan, DNC general counsel Marc Elias, and others.225 By this point, Bonifaz was hoping the Clinton campaign—which had taken no public position—would quietly point major donors his way.

  However, that didn’t happen either. Instead, news of the conference call slipped out and was reported by New York magazine, which named Bonifaz and Halderman as coleaders of a likely recount effort. It wrote they “found persuasive evidence that results in Wisconsin, Michigan, and Pennsylvania may have been manipulated or hacked.”226 Needless to say, that breathy assertion was quickly seized upon by many—from Democrats in Congress to journalists to voters everywhere—as an offer of hope that somehow the election results could be challenged or even reversed. Bonifaz asked me to hold off on writing more about formally filing in those states, as he was trying to raise millions for filing and legal fees.

  As the Thanksgiving holiday neared, he wasn’t succeeding. Stein and the Greens decided to try to crowdfund the effort by turning to their grassroots base and frustrated voters. To everybody’s surprise, starting midday Wednesday and continuing over the weekend, the Greens raised $7.3 million in donations from 161,000 online donors, and began recruiting what became ten thousand volunteers.227 That unprecedented response for an unprecedented multistate presidential recount was treated with scorn and suspicion by mainstream media and the Republicans’ top propaganda outlets, Fox News and Breitbart.com.

  Even though it was starting late—two weeks after Election Day—the recounts held a faint prospect of getting some answers. Namely, were the votes cast accurately and legitimately counted? That would begin to reveal which communities had surprisingly supported Trump and the GOP, abandoned the Democrats, or had not voted at all. What ensued frustrated all those expectations. As Stein wrote in an email blast on the eve of Trump’s inauguration, “We had little idea how hard the political establishment would fight against transparent, accountable elections.”228

  15

  THE FINAL SWING STATES

  THE BIGGEST PLAYERS IN OUR ELECTIONS—STATE administrators, political parties, the press, voting technology companies—all take it as gospel that the system is as democratic, above board, and as free from malfeasance and error as any major endeavor can be. That credo becomes an excuse to defend a status quo that serves them differently, even as power shifts. Nowhere is this more forcefully seen than with the subject of hacking or electronically stealing votes.

  To dismiss hacking as trivial or conspiratorial in 2017 is naive. Yet that’s been the line for years—continuing even as Russia got caught stealing DNC and Clinton campaign email, fabricating emails from contractors sent to election officials, and getting inside the Illinois voter registration database.229 As ex-CIA and NSA Director Michael Hayden told a Heritage Foundation audience in October 2016, hacking adversaries’ electronic data is old hat. “I have to admit my definition of what the Russians did is, unfortunately, honorable state espionage,” he said. “A foreign intelligence service getting the internal emails of a major political party in a major foreign adversary? Game on. That’s what we do. By the way, I would not want to be in an America court of law and be forced to deny I never did anything like that as director of the NSA.”230

  Closer to home, police regularly use hacking technology to intercept and capture online, Wi-Fi, and cell phone-band communications, including devices where the FBI has gone to court to try to keep a lid on sales to departments. These are the same data pathways that voting machines use to report precinct results to central tabulators.231 More concretely, former state election directors have told me that state motor vehicles databases, which are linked to voter registration databases, are hit routinely—“on a weekly basis”—by overseas hackers, especially from China. There is a false equivalency in the media, which covers GOP claims about voter fraud extensively—even though it barely exists, while ignoring hacking of government systems including those tied to voting and elections. There is an establishment bias that does not want to admit that shortcomings can undermine public trust in elections, instead of proactively addressing them and showing the results can be trusted.

  The central problem in this sphere is that there haven’t been any serious public examinations, ever, of looking for hacking in voting systems in the immediate aftermath of nationwide elections for the purpose of possibly overturning results. Some academics say it would be impossible to trace malware that fractionally adjusted vote totals at key central tabulation nodes, because these bits of code can erase their electronic footprints. Others say it’s still worth looking at. Either way, the voting machinery, with few exceptions, is privatized, protected from scrutiny as trade secrets, and maintained in most counties by contractors. All that feeds the accurate characterizations that it is an unnecessary black box. None of this is reassuring.

  Still, I do not first plant myself in the company of those who say nothing else in elections matters if votes can be electronically stolen, because that is ignoring too many other antidemocratic features. It’s not an either-or choice. The GOP’s attacks on voting are politically shrewd but administratively crude. They take aim at broad swaths of the electorate in a do-everything strategy, because elections are so full of unanticipated twists and turns.

  Just as crucially, in more than a dozen years of covering electoral nuts and bolts, I have never seen sufficient proof of major federal elections being stolen electronically. By proof, I mean beyond inferring conclusions from suspicious data points such as exit poll discrepancies, or documenting dubious behavior like Ohio’s GOP secretary of state posting the 2004 results on a state website where the RNC had backdoor access to its server; and thus access to what was posted for the media and public. (I helped break that story. George W. Bush came from behind to defeat John Kerry after Ohio’s results were frozen for ninety minutes.)232 To know that the rest of the voting process has been micro-targeted by the GOP for partisan gain but to think that voting machines and tabulators are immune or sacred would be illogical. There may be proof of hacking that fractionally adjusts vote counts, but we just haven’t seen it. This fraught terrain set the stage for 2016’s recounts.

  What the Greens wanted was to verify the vote by having the country’s most respected computer scientists look inside the black boxes and share what they found. “History came knocking—who was I to say no to this effort,” Stein said. Also, her party had a track record, unlike the Democrats. In Ohio in 2004, the Greens’ involvement in the recount led to some structural reforms, at least by then Democratic secretaries of state in Ohio and California. Those states started a national wave of slowly replacing entirely paperless voting systems with hand-marked paper ballots that were electronically scanned, but could be manually examined in recounts and audits. Michigan used paper-based systems in 2016. That’s also true for Wisconsin, except for touch screens with printouts for voters with disabilities. Pennsylvania mostly used the oldest entirely paperless systems.233

  The Greens never came close to looking inside. As Stein summarized in her preinaugural email to donors,

  In Michigan, Trump’s GOP cronies stopped the recount [after one-third of the state reported] despite—or maybe because of—revelations about major problems with the vote count, particularly in under-resourced black and brown communities. In Wisconsin, although the law was on our side, many low-income communities of color most vulnerable to tampering never got the hand-count needed to verify the vote. But the worst mess was in Pennsylvania, where over 80 percent of voters use touch-screen machines with no tangible paper backup. These paperless voting machines are so vulnerable to hacking and so difficult to verify that they have been banned in most states.”234

  What emerged from the recount were more partisan attacks that were on par with the most anti
democratic features of the primary season and General Election. In Michigan, Bill Schuette, the Republican attorney general, led the legal charge on Trump’s behalf to convince its courts to stop the recount, because, among other arguments, Stein had no real chance of winning. What was overlooked in that argument was the most easily answered question surrounding the state with the closest margin between Clinton and Trump—why did seventy-five thousand ballots lack presidential votes? Most explanations were deeply unsatisfying, amounting to, as Philip Bump wrote in the Washington Post in December, “It happens.” He reported that nationally, 1.7 million people in thirty-three states cast no presidential vote. Michigan was in the bottom third of states, percentage-wise.235 What Bump and many mainstream media reporters never argued was that a hand recount of paper ballots, not just running them through high-speed scanners, would not just reveal whether those ballots missed votes. It would reveal where Trump’s base was, where people who skipped voting lived, and other important facts that would have helped the country move forward.

  The highest-profile snafus that emerged in Michigan’s brief recount were in Detroit. There, it became apparent that the city’s elections were a mess. More than half the precincts were barred from the recount because the number of ballots inside tabulator bins did not match the number of voters written on the outside of those bins by poll workers. As Jan BenDor, the Michigan Election Reform Alliance’s statewide coordinator, noted at the time, the state has a 1954 law giving full power to local officials to look at all the ballots in recounts. But state election officials, pressured by Republicans in constitutional offices, countered that a 1979 administrative rule prevented them from doing so. Many progressives and civil rights attorneys saw that decision as institutional racism, treating Detroit separately and unequally.236 When Secretary of State Ruth Johnson published a report on Detroit’s election woes in 2017, the incongruities were mostly blamed on poll workers. While their incompetence may have been real, just as local Iowans and Nevadans running Democratic Party presidential caucuses botched those contests, that explanation—beyond reassigning blame—underscores the system is not up to its assigned task.