My meeting with candidate for attorney general Senator Hilgers to discuss election integrity concerns
The statutes below are the ones which were being referenced in the audio of the meeting that Rex Schroder and I had with Senator Hilgers (and his legal assistant) yesterday to discuss election integrity concerns.
32-119.01.
Voting system, defined.
Voting system means the process of creating, casting, and counting ballots and includes any software or service used in such process.
32-110.01.
Electronic voting system, defined.
Electronic voting system means a voting system in which each part of the process is done electronically.
32-1041.
Voting and counting methods and locations authorized; approval required; when; electronic voting system prohibited.(1) The election commissioner or county clerk may use optical-scan ballots or voting systems approved by the Secretary of State to allow registered voters to cast their votes at any election. The election commissioner or county clerk may use vote counting devices and voting systems approved by the Secretary of State for tabulating the votes cast at any election. Vote counting devices shall include electronic counting devices such as optical scanners.(2) No electronic voting system shall be used under the Election Act.(3) Any new voting or counting system shall be approved by the Secretary of State prior to use by an election commissioner or county clerk. The Secretary of State may adopt and promulgate rules and regulations to establish different procedures and locations for voting and counting votes pursuant to the use of any new voting or counting system. The procedures shall be designed to preserve the safety and confidentiality of each vote cast and the secrecy and security of the counting process, to establish security provisions for the prevention of fraud, and to ensure that the election is conducted in a fair manner.
Let’s break down what Senator Hilgers’ answer to me was regarding his claim that the revised definition of “voting system” in our state does not equate to the definition of an “electronic voting system”--which is prohibited.
The argument being made by Senator Hilgers is that, in a court of law, the definition of “voting system” as defined by Nebraska statute would NOT be interpreted as being the same as how the statutes define “electronic voting system.” He says that in a court of law the definition of “voting system” would be read “very differently” (I think that’s how he worded it) than the definition of “electronic voting system.” I believe that Senator Hilgers is wrong and that this revised definition opens up a door to potential abuse regarding how our elections are conducted. I believe that the addition of "any software or service" into the definition of "voting system" also provides our government with cover to continue with the abuse of our elections which we already knew was taking place with regard to the use of vulnerable software. It cements into our elections the very thing which many Nebraskans had hoped our representatives would work instead to rid us of.
Hilgers argues that the definition of an “electronic voting system” requires for “each part,” or as he puts it, “A, B, and C,” to be conducted electronically. He claims that the revised definition of “voting system” does not include “each part” of the process and that it only states that electronics may be used in “A, B. or C” of the process. But is that what the revised definition of "voting system" says? I don’t think so. I will explain why I disagree with Hilgers’ reading of the statute, which he claims is the logical reading of it.
Let’s start here, with the full definition of “voting system” and then break it down from there.
Voting system means the process of creating, casting, and counting ballots and includes any software or service used in such process.
Okay, so “the process of creating, casting, and counting ballots” is something that, I believe, must be read together—just as it states. As in, “each part” contained within that phrase is what constitutes our “voting system.” So now we have this:
Look, I’m not a lawyer, but I know that if I have a check that I want to cash that is written out to me AND my husband jointly, then the bank isn’t going to cash that check unless BOTH of us sign it. If it were permissible for only one of us to cash the check, then the check would have to be written out to state that it may be cashed by me “OR” my husband. The definition of “voting system” doesn’t state that voting system means A, B, or C. It says that “voting system means” A, B, and C.
Hilgers claims that “what people have the authority to do or not to do is unchanged” by this revised definition, and that the changes did not make the statute “more permissive or more restrictive.” But I think the addition of “any software of service” into the definition of “voting system” DOES now make it permissible to include “any software of service” in the “creating, casting, and counting” of ballots—which is essentially “each part” of our voting system. (I still have not received a satisfactory answer as to why it is this change to the definition of "voting system" was made in the first place.)
Let me put it another way. If you never knew that our statutes prohibited an “electronic voting system,” and someone asked you if the revised definition of “voting system” would permit software to be used in the creating, casting, and counting of ballots, what would your answer be? I think the answer to that question would certainly have to be “yes,” that the revised language of the statute would provide cover for the use of software in “each part” of our voting system. And that is why I believe that this change in the language did not bring the clarity to our elections, but only made things more of a mess, given that it is essentially “in name only” that we aren’t already using an “electronic voting system” in practice.
And so what is my point in focusing on all of this? I want people to see with clear eyes what it is that we are up against. We need to honestly assess who in our government is on the side of the people and who is not when it comes to allowing us to have transparency in our elections. I would argue that any elected official who is adamantly defending how our elections are currently being conducted is NOT someone who is on the side of the people, for it is no secret that a very large number of people have lost complete faith in the process. A true public servant would seek to restore that faith, not to defend the current practices which the people believe have been denying them their right to a constitutionally conducted election.
I do believe it is a problem that we have redefined “voting system” in a way that I think may validly be argued as being fundamentally the same as an “electronic voting system”—which is prohibited. I’m under no illusions that this revision of “voting system” is reflective of any recent changes to how our elections are conducted. Weren’t we all already aware that our government condescends to us when they say, “Hey, you got to mark your choice on a ballot,” but then they negate what making that mark even means when, at no point in our current process, is that “mark” on a paper ballot ever permitted to stand alone, separate and apart from being touched by electronics? The casting of one’s ballot is truly more than just the making of the mark on a piece of paper. What gives that mark meaning is how it is interpreted, and it is machines that carry out that part of our exercise of the elective franchise.
I think it is fair to presume that our statutes prohibit an "electronic voting system" for a reason. When I asked Senator Slama about this, her answer was that we prohibit an electronic voting system so that we can "stick to paper ballots." (I believe that is how she worded her answer.) And she said that we would want to do that because paper ballots provide us with the assurances that a person's vote is being counted as it was cast. But what we effectively have in place is a voting system--staunchly defended by politicians on both sides of the aisle--that negates the very purpose for which we claim to be using paper ballots.
Senator Hilgers said in this meeting that if he becomes our next attorney general (and he almost certainly will), he will look into the concerns that I and many Nebraskans have regarding the constitutionality of the contract between ES&S and the State of Nebraska. Hilgers says that he will represent the interests of the people and not the interests of his political peers. Hold him to it and make him get to work on this on Day One. Find out if he will do what he says he will do. For if he does not, then you may rest assured that it is our very own government which is the “hindrance” and the “impediment” to our right to exercise the elective franchise. (We already see that on full display by the actions--and in some cases, inactions--of Secretary of State Bob Evnen.)
Take note of how often Hilgers seems to agree in this meeting that our elections are fraught with problems. I wish you could have seen his face when I told him about the joint statement which was issued in November 2020 proclaiming that election to have been "the most secure in American history." His response, if you can hear it, was something to the effect of, "Who would say that?" He seemed bewildered. Hilgers should not have been surprised to learn that ES&S was represented on that joint statement. (And I mean he REALLY should not have been surprised, because I know I have emailed him and every other senator on this topic in the past.) You will also hear Hilgers say that he has met with Col. Sean Smith the cyber expert who came to Nebraska with Dr. Frank to speak to our senators about the vulnerabilities that the software poses to our elections. But what actions has he taken?
It isn't difficult to get elected officials to nod their heads and agree with you when you share your concerns. They do tend to agree that "something" needs to be done. When will they understand that the "someone" who should "do something" about it is THEM? After all, they did ask for the job. And Senator Hilgers is asking for the job of being our next attorney general right now. Listen to what he says here and let it be a baseline to hold him accountable and to carry out the measure of the man.
When are our elected officials going to seek to remove the barriers to our right to know that our votes are counted as they were cast? And why do they work so hard against us instead of FOR us when it comes to providing us with the transparency that a fair election process requires?
Here is a history of some of my recent correspondence with Senator Hilgers regarding this topic.
This is the response from our current AG on the matter.
