South Carolina's primary election for Republican governor heads to a runoff today amid calls for Attorney General Eric Holder to investigate whether the ES&S iVotronic voting machines used in the June 8, 2010 Democratic primary election for U.S. Senate were faulty or corrupt. Voter Action, a non-profit, non-partisan election integrity group, is urging Holder to seize the electronic voting equipment before critical data from that election is erased during usage in the Republican run-off.
Voter Action Legal Director John C. Bonifaz, in a letter to Holder, wrote, "there is a substantial disparity between the results of the absentee vote count and the primary day vote count. That disparity may be attributable to the use by voters of paperless touchscreen voting machines on primary day, whereas most absentee voters marked their votes on paper ballots that were thereafter tabulated by optical scanner equipment."
Despite disparities and statewide reports of lost votes, broken equipment and missing names on the ballot, the South Carolina Democratic Party voted against former state legislator and Circuit Court Judge Vic Rawl's calls for a new primary election against opponent Alvin Greene. Greene, an unemployed Army veteran defeated Rawls with 59% of the vote without campaigning or fundraising. Greene has also refused to disclose how he was able to come up with the $10,000 filing fee to run for office.
Reporter Brad Friedman says during the five -hour hearing to consider Rawl's complaint, there was some belief that the election was going to be thrown out until a closed session was held. "The Rawl team presented tremendous evidence to show there was a serious problem with the ES&S voting machines. There was a moment when the Board voted to go into executive session and meet with attorneys to discuss the legal ramifications of overturning the election. My sources tell me that the attorneys told the Democratic Executive Committee that the State Board of Elections is broke and if the Committee voted to invalidate the election and run a new one - the State would sue them."
But the state of South Carolina may have a few legal problems of its own if it allows voters to cast their ballots on the same machines used in the Democratic primary.
According to Section 301 of the Civil Rights Act of 1964, election results records must be preserved for nearly two years after an election.
Every officer of election shall retain and preserve, for a period of twenty-two months from the date of any general, special, or primary election of which candidates for the office of President, Vice President, presidential elector, Member of the Senate, Member of the House of Representatives, or Resident Commissioner from the Commonwealth of Puerto Rico are voted for, all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election, except that, when required by law such records and papers may be delivered to another officer of election and except that, if a State or the Commonwealth of Puerto Rico designates a custodian to retain and preserve these records and papers at a specified place, then such records and papers may be deposited with such custodian, and the duty to retain and preserve any record or paper so deposited shall devolve upon such custodian. Any officer of election or custodian who willfully fails to comply with this section shall be fined not more than $1,000 or imprisoned not more than one year, or both.
If the results are erased, the South Carolina Board of Elections will be in violation of federal law. But Friedman points out, it's quite common to see federal election results destroyed.
"Jurisdictions across the country destroy and erase the memory card hard drive chips which contain any evidence of malfunction or malfeasance. The U.S. Department of Justice has never moved to force any jurisdiction to maintain that information despite Federal Law and common sense. These are primary election materials and yet they're routinely scrubbed and erased in preparation of the next election almost immediately after the previous election. It's insane. It's absolutely insane."
Friedman notes if the information was retained and investigators were allowed to inspect first hand evidence, then the election results could be confirmed. However, even if election results are not destroyed, no candidate, election official, governor or secretary of state can even view the results because the electronic voting machine companies claim the source code is proprietary software, even though it's the record of how people voted. So even in the event of a contested election, private voting machine companies refuse to allow anyone to verify the results. Some states have this proprietary source code in escrow accounts (a public relations stunt on the part of voting machine companies) but even though it's in escrow - it still cannot be viewed by anyone except the very people who make the software.
He adds, "We have seen this situation happen over and over and over again in election after election. The plain fact is, it remains 100% impossible to verify that the voters' intent was recorded with direct recording electronic voting machines with or without a paper trail."
Friedman calls the bizarre nature of the Rawl/Greene race one of the plainest examples of a system that is completely compromised. Meanwhile, the South Carolina Democratic Party's refusal to conduct a proper investigation sends a clear message to the South Carolina GOP:
"Do anything you want with any election this November and beyond and we won't do a damn thing about it. Corrupt any part of the system and it's okay with us. If this was a test run for November or 2010 - Mission Accomplished."
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