Integrity Intercept: Eyes on the Truth – Intercept #13
October 20, 2024
DID HAVA (HELP AMERICA VOTE ACT) STOP THE UNWANTED LITIGATION BROUGHT ON BY BUSH v. GORE? OR DID IT SPEED UP AN ELECTION DEMISE?
The very moment you thought you were an anonymous silent partner – someone starts messing with your work, and you must come out of the shadows. This became the stumbling block for Harry Haury – one of the architects of the Help America Vote Act.
In this article, we examine Mr. Haury’s most recent testimony in Georgia (September 20, 2024). He acknowledged that HAVA was the brainchild that emerged after Bush v. Gore, in the General Election of 2000.
He begins, “I am Harry Haury. I have been active in elections since the 1990’s. Most people do not know this, but the Help America Vote Act (HAVA) was written by Missourians. I am from Missouri. As were John Ashcroft and Paul Degregorio.”(1)
John Ashcroft served as President Reagan’s Attorney General, he was also the Governor of Missouri and the 38th Missouri Attorney General and Auditor of Missouri in the 1970’s. He is the father of Missouri Secretary of State Jay Ashcroft. (2)
Paul Degregorio specializes in election administration and is considered one of the world’s top election experts. He has worked in over 30 countries and served as United States chief election official. He has testified before many organizations throughout the globe and received numerous awards in recognition of his work; for example, from the National Association of Secretaries of State for achievements in promoting freedom and democracy throughout the world. He is the Director of Smartmatic, USA. (3)
As Harry Haury describes himself, “I was the cyber and operational consultant. There were hundreds of people involved in [shaping] HAVA. We got involved because of Bush v. Gore.”
Mr. Haury has an impressive cybersecurity resume. He claims HAVA security is designed around the banking model for securing checks. At the time only the Banking system had the structure to process large images with the demand for extreme accuracy. Mr. Haury’s laundry list of experience ranges from systems designers that aid Amber Alerts, to nuclear command and control systems (1)(4).
It was Bush v. Gore, 531 U.S. 98 (2000) which opened the “election eyes” of the nation or at least cut slits in them as Americans began the focus over Florida Supreme Court’s order to recount 61,000 undervotes missed by vote tabulation machines in the presidential election. It was a no brainer like anyone in the trenches working with election equipment, deadlines, legalities, hanging chads, dimples, Butterfly ballots (see the end), and AUDITS will attest too. The United States had a hole in the election dike, and it was leaking out of Florida.(5)
It is Mr. Haury’s insights at the Georgia hearing that awoke questions from twenty-two years earlier that catapulted HAVA into existence. Mr. Haury came out swinging at the Georgia hearing, and it was about time someone linked back to HAVA explained the point of its existence.
“ …the goal of HAVA is very simple. We did not want litigation. We wanted a pristine election system. The concept behind HAVA or the Help Americans Vote Act was to create a self-proving system. That implies a system that is meant to audit and reconcile. What we find here across the whole country is a lack of reconciliation and control points. I have both financial auditing and cyber forensic auditing experience. Everyone knows you have to have control measures, so you can figure out when errors occur.”
Obviously, it is easier to find election counting errors at the beginning than at the end. Mr. Haury also weighed in on the proposal to count ballots at 65 cents, “this is ridiculous, and a chain of custody is not broken simply because someone opens a machine, and counts. This is nonsense. People may need to sign off and oversee. Yet we have adjudication, provisional reconciliation and mail-in ballots that we are not doing anything with. We also are not determining if all the mail-in ballots got into the system to count.”
Mr. Haury continues, “Most people don’t realize that the vote count for Georgia in 2022 is 39,000 lower than the official vote count. I am not saying there is an error in the count. I am saying the control systems are not working.” (1)
The Bush v Gore election – Following the unprecedented 2000 presidential race between Governor George W. Bush and Vice President Al Gore. One thing remains obvious, there are now triple the election litigation cases since HAVA came into existence.(5)
How did the controls put in place under HAVA fare? Did they end up being ignored? Or were they never officially implemented? “In the hundreds of lawsuits over 2020, HAVA should have been front and center. It was only invoked nine times.” (5)
Courtroom drama for the 2000 presidential election:
The United States Supreme Court decision settled a recount dispute in Florida between Governor George W. Bush and Vice President Al Gore. “On December 8, 2000, the Florida Supreme Court ordered a statewide recount of all undervotes, over 61,000 of which the vote tabulation machines had missed.”
In a 4-3 Florida Supreme Court decision the recount was to continue, and Leon County was to count by hand.
(An undervote is less than the maximum number allowed for a contest or when no selection is made for a particular election.)
The Bush Camp immediately sued over the Florida decision and asked the U.S. Supreme Court to Stay Florida superior court decision to recount the undervotes.
Justice Antonin Scalia was convinced all manual recounts were illegitimate and urged his colleagues to vote with him. All five conservative justices voted with him, citing “irreparable harm” that would cause a “needless and unjustified cloud” over Bush’s legitimacy. Justice Paul Stevens dissents, saying, “counting every legally cast vote cannot constitute irreparable harm.”
The Oral arguments began on December 11, 2000. United States Supreme Court – In a 5-4 per curiam decision, the Supreme Court ruled that the recount should be halted. It specifically held that different counting standards in different counties violated the Equal Protection Clause of the U.S. Constitution; it was also argued on Article II jurisdictional grounds, which found favor with the opinions of Scalia, Thomas and Rehnquist. The Court then ruled on a remedy, deciding against Justice Breyer and Justice Souter to send the case back to Florida, for a complete recount using a uniform statewide system before the scheduled December 18 meeting of Florida’s electors in Tallahassee.
The majority of the Supreme Court established that the “safe harbor” deadline of December 12th could not be established, “which was set by Title 3 of the U.S. Code (3 U.S.C.) which the Florida legislature intended to meet.”
(The safe harbor is a provision of a statute or regulation that specifies that certain conduct is not deemed to violate a law, in this case Title 3 of the US Code.)
In essence, the United States Supreme Court allowed Katherine Harris, Florida Secretary of State’s certification to stand. Governor Bush was awarded the 25 electoral votes. (6)
Florida State – Florida had another significant case Palm Beach County Canvassing Board v. Harris. 772 So.2d 1220 (Fla.) It asked the question, “could the county canvassing boards have conducted recounts to correct errors in the vote tabulation?”
The machines may have performed properly, yet did not detect votes that manual inspection could have detected. The state had conflicting interpretations of state’s election statutes, “delaying otherwise applicable statutory deadline for certification of results in order to allow for manual recount in certain counties.” The case opinion stated that there was “no legal impediment” to the manual recounts continuing. (7)
Katherine Harris worked for the Bush campaign and Bob Butterworth, the Democrat Attorney General for Florida, ran Al Gore’s campaign. The Florida Supreme Court appeared to favor Gore; whereas, the United States Supreme Court favored Bush. There is no surprise in these decisions. (8)
Bush Camp: This decision gave Bush 271 electoral votes, one more than the 270 required to win the Electoral College. The Florida Division of Elections reported Bush won with 48.8% of the vote in Florida, a margin of victory of 1,784 votes (0.5%), this statutorily mandated the recount.
Later examination showed the original limited recount of undervotes of several large counties would give Bush the victory. However, a state recount according to the Florida Ballot Project would have handed Al Gore the popular vote.
The machine recount “apparently” finished, except for one county on November 10, reducing Bush to a win of only 327 votes.
Bush argued that the Florida Supreme Court acted outside of its authority violated Article II, § 1, cl. 2 of the U.S. Constitution. Essentially, Bush claimed that the Florida Court made new election law which had not been enacted by the Florida legislature, it violated Article II.
The Gore Camp: Gore argued that the State was within its rights, and it did not violate the Equal Protection Clause or Due Process Clause of the Fourteenth Amendment.
The decision gave Al Gore 267 electoral votes, but he received 266, as a “faithless elector” abstained. There were only four recounts requested by Gore in Democratic counties – Volusia, Palm Beach, Broward, and Miami-Dade. Only Volusia could finish its recount by the November 14th deadline given by Secretary of State Katherine Harris. (6)
The Supreme Court made its decision in two parts – Justice Breyer and Souter joined the Conservative justices that the Florida Supreme Court did violate the Equal Protection Clause. Justice Rehnquist argued that the Florida Supreme Court created new election law in its purview. However, Breyer and Souter said a recount could take place in a timely manner since important Constitutional laws were at stake. Despite the flaws in the system, Justice Ginsburg argued that every vote must be counted no matter how long it takes, and that a recount argument has not been tested and should not become the precedent for all future elections. (8)
Florida State – Secretary of State Harris had to justify certifying the election and asked Gore counties why they could not originally finish their recount? Palm Beach cited the discrepancies between its limited manual recount and machine recount. Broward was aware of its large voter turnout and accompanying logistical problems. Miami-Dade argued that the votes it had recounted so far would provide a different total result. SoS Harris rejected all objections, and announced she would certify Friday, November 17. As a result of this decision, the Florida Supreme Court intervened and said she could not do that. They could wait until November 26, or until Monday, November 27 if Harris wanted.
Bush Camp: Consigliere, James Baker, issued a public threat after the Florida Supreme Court’s “maddening decision.” If necessary, he implied Florida’s leading Republican Legislator, House Speaker Tom Feeney, would take matters into his own hands….since the House and Senate were Republican dominated, he could pass a bill to do that. (10)
Keep in mind that Clinton Curtis, who testified in 2004, wrote a prototype algorithm for voting machines in 2000 for Congressman Tom Feeney, but did not know if it had been implemented. Tom Feeney denies Clinton Curtis’ allegations and claims he never had the chance to meet with him. (11)
Gore Camp: Republican and Democratic lawyers began challenging every decision the canvassing board made in Palm Beach, Broward, and Miami-Dade after the week of grace. As the Gore votes accumulated “panic buttons were being pushed” said Attorney Kendall Coffey from the Gore campaign. (10)
Initial manual recounts demonstrated the following:
In Broward County, a recount of one percent of the ballots indicated a net increase of four votes for Gore; and in Palm Beach County, a recount of four sample precincts yielded a net increase of nineteen votes for Gore. Based on these recounts, several of the county canvassing boards determined that the manual recounts conducted indicated “an error in the vote tabulation which could affect the outcome of the election.” Based on this determination, several canvassing boards voted to conduct countywide manual recounts pursuant to section 102.166(5)(c). (12)
Florida State: Retired the punch card voting machines that produced the disputed ballots. (1) An examination of this election by Jeffrey Toobin asked two questions that eventually placed a fire in the belly of several people to repair our elections and keep such election issues out of the courts.
1. Were the recounts, as conducted, constitutional?
2. If the recounts were unconstitutional, what was the appropriate remedy?
Critics of the Supreme Court: A few critics of the Supreme Court described the decision as damaging the court’s reputation, increasing judges’ views of themselves as partisans, and decreasing Americans’ trust in election integrity, a result Stevens predicted in his dissent. It was argued that the Court’s decision was a perversion of the Equal Protection Clause.
Harvard Law Professor Charles Fried, for example, argued that the ultimate decision on the merits vindicated the validity of the Stay. Fried also contended that the only thing the Stay prevented was a recount, “done unconstitutionally.” (6)
The most prophetic opinion today, however, is that of Professor Charles Zelden, History and Political Science at Nova Southwestern University. According to him, the “per curiam” opinion in the case failed to make clear that the nation’s electoral system required significant reform. In his conclusion, Professor Zelden notes, “The Court’s failure to recognize this critical flaw in our electoral democracy made a repeat of Bush v. Gore more probable, not less probable, either in Florida or elsewhere.” (13).
In 2013, Justice O’Connor, who voted with the majority, said that the case “gave the court a less-than-perfect reputation.” She added, “maybe the court should have said, ‘we’re not going to take it, goodbye.’ … And probably the Supreme Court added to the problem at the end of the day.” (14)
Do we have present Day Election undoing?
We return to Harry Haury’s Georgia hearing. Although Mr. Haury does not name any election experts by name, except those that he worked with from the beginning.
The Smartmatic Director, Paul Degregorio, is an expert in election issues.
Mr. Haury states “ We get caught up in this whole narrative that we are insulting or replacing election workers. There are many great people out there. We can congratulate them on the work they do, yet at the same time we must have a provable system.” (1)
The three Missouri names Harry Haury mentions in his opening remarks for Georgia have all followed the election rabbit down its rabbit hole.
In a PBS discussion from Georgetown University Law Center, John Ashcroft was one of the most powerful Attorney Generals in history. He was also the first to resign after Bush won his second term as President. This is clearly a reaction to the Bush administration’s anti-terrorism policies in the wake of 9/11. (15)
John Ashcroft will be remembered as the man beat by a dead man; Governor Mel Carnahan was killed in a plane crash on October 16, 2000. His wife stepped into his place and won and became the first female Senator of Missouri.
John Ashcroft has consistently stood for voter integrity issues and is a staunch supporter of Voter I.D. and brought a second lawsuit from the NAACP and League of Women’s Voters (16).
This leaves Paul Degregorio, Director of Smartmatic and a former commissioner and chair of the U.S. Election Assistance Commission from 2003 to 2007. During his tenure he oversaw many election reforms, including HAVA and the first federal certification system. Smartmatic is also linked to Sequoia, later acquired by Dominion Voting Systems in 2010. For example, Sequoia supplied the “faulty punch cards during the 2000 election.” These are the questions that begin long journeys. (17)
In a letter to Ms. Favors, Issuing Officer in the State of Georgia, dated 2018. Smartmatic proudly explains their innovative development.
“For the last 3 years, Smartmatic USA has had Georgia Tech Research Institute (GTRI) under contract to support the development of our next generation voting technology. Working closely with GTRI on key areas such as security, accessibility, usability and accuracy, has resulted in the development of a voting system that can take Georgia well into the future securely. Our solution has been developed to be compliant with VVSG 1.1 certification requirements– to date, no other vendor has a newly designed system that conforms to this latest federal standard.” Georgia has had numerous lawsuits (HAVA did not avoid having those occur there) over election issues. (18)
“Due to our skills, experience and financial capabilities, Smartmatic USA was recently awarded 7+ years contract with Los Angeles County, the largest electoral jurisdiction in the Country. Los Angeles has over 5.2M registered voters and 5,000 polling locations. We will be providing them 31,500 voting machines– this represents the single largest election procurement in the Unites States to date. The Los Angeles project requires Smartmatic to complete design, development, California Voting System Standards certification, manufacturing, implementation and support in time for the March 2020 primary election. All Smartmatic employees on the project were (are) subject to and have undergone FBI background checks and respective State Police background checks- security is taken very seriously by both Los Angeles County and Smartmatic. No one on the project is exempt from background checks.” (19)
Smartmatic has made sure in its lawsuits with OANN, that they had nothing to do with any voting machines in any county of California except, Los Angeles. The one county that dealt with the Konnech Investigation and has produced numerous investigations in various states and another country, Australia.
However, Konnech is employee data and Smartmatic is election software. To be clear, these three men have set out to educate themselves and engage their careers in election information and system structures not only in the United States, but the world. My point is that they wanted to avoid LEGALITIES. (20) (21)
In an ironic twist of fate, HAVA founder, Harry Haury, stands shoulder to shoulder with True the Vote, and was called in to the Grand Jury on the L.A. County Konnech investigation.
Did the Bush v. Gore fiasco bear any fruit? Yes, it managed in 2002 to have overwhelming bipartisan support. The House voted 357-49 and the Senate 92-2. Even if they agreed to pass the law, according to Doug Lewis, executive director of the Election Center. “It was a long, hard-fought deal. Both sides had to be convinced that neither side could get an upper hand for their own benefit; only then did they settle down and ask, truly, how do we make this work?’
HAVA set out to achieve:
1. A certification system called the Election Assistant Commission, EAC, which insists on certified election machines.
2. Made administrative changes and was fast paced on equipment for people with disabilities.
3. Set requirements and guidelines for voting equipment.
4. Provided funding to support these changes and
5. States were now required to have a centralized voter registration database, instead of relying on multiple county-based voter lists.
Before HAVA we did not have electronic pollbooks, ballot marking devices and statistically based post-election audits.
Did HAVA create another bureaucratic and inefficient government agency? To name one, the EAC, Election Assistant Commission.
The answer to that question is addressed in the next article, but for now, yes! In spades.
The Butterfly Ballot was designed by Palm Beach Elections Supervisor Theresa LePore. The larger ballot intended to accommodate the county’s larger senior population. It’s design to say the least only added to the chaos of the 2000 election. You can watch the 3-minute YouTube video about how it added to problems in the recount.
1. https://www.youtube.com/watch?v=c68IJ_gO1c8&t=2232s(2:37:34)
2. https://www.britannica.com/biography/John-Ashcroft
3. https://www.linkedin.com/in/pauldegregorio/
6. https://everything.explained.today/Bush_v._Gore/
7. https://caselaw.findlaw.com/court/fl-supreme-court/1489361.html
9. https://www.govexec.com/federal-news/2000/12/full-text-of-supreme-court-decision-in-florida-recount-case/8140/
10. https://www.vanityfair.com/news/2004/10/florida-election-2000
12. (https://casetext.com/case/palm-beach-county-canvassing-board-v-harris-8/)
13. Zelden, Charles (2010) Bush V. Gore: Exposing the Hidden Crisis in American Democracy: Abridged and Updated (Landmark Law Cases and American Society). (n.d.).
15. https://www.pbs.org/video/help-america-vote-act-35260/ 2019.
19. https://sos.ga.gov/sites/default/files/2022-03/smartmatic_rfi_redacted.pdf
21. https://www.newsweek.com/eugene-yu-konnech-ceo-arrested-over-alleged-data-theft-1748981
22. https://www.liebertpub.com/doi/10.1089/elj.2013.1223
