Second in a series (first installment here)
One way or another, and maybe in more ways than one, the 2016 U.S. presidential election was stolen. There are several ways it could have happened — not did happen, but could have happened — so let’s look at them first.
We’ll start with FBI director James Comey’s late-October announcement that investigators were examining “additional evidence concerning Clinton’s use of a private email server.” And if we’re going to start there, we need to look at the context of that issue.
Yes, it was a dumb goddamned thing to do for Clinton to have used a private email server for government business. But some of her predecessors had done the same, including Colin Powell under President George W. Bush. And the W. Bush White House ran tens of millions of emails through a private server at the Republican National Committee without many complaints from the media or any complaints from Republicans. Meanwhile, Republicans conducted multiple congressional investigations in hopes of finding evidence of a crime, as did the FBI itself. And what did they all come up with? Bupkus.
Still, Comey’s 11th-hour announcement did affect Clinton’s standing in the polls:
An ABC/Washington Post tracking survey released Sunday [Oct. 30], conducted both before and after Comey’s letter was made public on Friday, found that about one-third of likely voters, including 7 percent of Clinton supporters, said the new e-mail revelations made them less likely to support the former secretary of state.
The poll found that Clinton received support from 46 percent of likely voters to Trump’s 45 percent, suggesting the race is a toss-up. That contrasts with the 12-point advantage that Clinton held in the same poll a week ago.
And what Comey did wasn’t just damaging, it was also wrong. He caught hell from some of his Justice Department colleagues for having spoken out so close to the election on a matter likely to influence it (such matters usually aren’t supposed to be discussed by federal investigators or prosecutors within 60 days of an election):
“I got a lot of respect for Jim Comey, but I don’t understand this idea of dropping this bombshell which could be a big dud,” said former federal prosecutor Peter Zeidenberg, a veteran of politically sensitive investigations. “Doing it in the last week or 10 days of a presidential election without more information, I don’t think that he should because how does it inform a voter? It just invites speculation … I would question the timing of it. It’s not going to get done in a week.”
Nick Akerman, a former assistant U.S. attorney in the Southern District of New York, was more critical: “Director Comey acted totally inappropriately. He had no business writing to Congress about supposed new emails that neither he nor anyone in the FBI has ever reviewed.”
“It is not the function of the FBI director to be making public pronouncements about an investigation, never mind about an investigation based on evidence that he acknowledges may not be significant,” Akerman added. “The job of the FBI is simply to investigate and to provide the results of its investigation to the prosecutorial arm of the U.S. Department of Justice. His job is not to give a running commentary about any investigation or his opinion about any investigation. This is particularly egregious since Secretary Clinton has no way to respond to what amounts to nebulous and speculative innuendo.”
That was also a theme of a former Justice Department and former Democratic Senatorial Campaign Committee spokesman Matthew Miller.
“The Justice Department’s longstanding practice is don’t do anything seen as trying to influence an election. That’s usually interpreted as 60 days, let alone 11. … It’s completely unfair to Secretary Clinton and it’s really unfair to the voters. There’s no reason he had to send this letter,” Miller told POLITICO.
So what Comey did was wrong and damaged Clinton’s chances. Was what he did solely responsible for her Electoral College loss? I won’t say that because I don’t think anybody has proved it, and I doubt anyone can. What I am confident in saying is that it eroded Clinton’s lead significantly, possibly enough to have contributed to some swing-state losses and enough to have hurt some downballot Democrats’ chances as well.
What else hurt Clinton, or might have? For the first time, we have credible evidence that Russia tried to interfere with the outcome of a U.S. presidential election. The most spectacular accusation is that Russia hacked enough voting machines to give Trump the win, and let me say right up front that I don’t necessarily buy it. I am, for the moment and pending further research, agnostic as to whether the Russians hacked any voting machines and/or vote-counting systems at all, let alone enough in swing states to tip the election to Donald Trump in the Electoral College. I just don’t know. But what do we know?
We’ve known since at least as far back as my work on “Black Box Voting: Ballot-Tampering in the 21st Century” more than a decade ago that electronic voting machines simply are not secure. We know that hackers breached voter-registration databases in Illinois and Arizona this summer, and that Sen. Dianne Feinstein, vice-chair of the Senate Select Committee on Intelligence, claimed before the election that based on briefings she and other congresscritters had received, Russia was trying to influence the outcome of the election. And we know, from the Russians themselves, that Trump’s folks and Putin’s folks, if not the principals themselves, were in contact during the campaign, which should raise Logan Act red flags irrespective of questions about hacking.
There were things about the differences between vote totals and exit polls — more on those in a second — that simply weren’t explainable by random chance, whether you think Russians were involved or not. Journalist Bill Palmer summarizes them pretty well here. As he says, they don’t conclusively prove that the election was rigged, but if the polling really was simply off, it should have been off in a different way.
And we also know, thanks to journalist Greg Palast (and more about him below) that electronic voting machines in Ohio had an audit security feature — which a Republican judge allowed Republican state election officials to turn off for the Nov. 8 election. That still blows my mind: A judge basically issued an order making it possible for machines to be hacked without detection.
And there are other discrepancies. A group of prominent computer scientists affiliated with the University of Michigan’s Center for Computer Security and Society is pressing Clinton to seek a recount in Wisconsin and Pennsylvania, which went to Trump, and Michigan, where votes are still being counted and it’s too close to call. Flipping those three states to Clinton would give her the White House. Again, the experts are not claiming they have proof of fraud, but they have found what they consider statistically suspicious differences in voting patterns in areas with electronic touch-screen machines compared with areas with other forms of vote tabulation. As I wrote this tonight, Jill Stein, former Green Party candidate for president, was pressing for a recount in those three states.
Now, about exit polling: The exit polls failed to match up with vote tallies in a number of key states, particularly Florida, Pennsylvania, Wisconsin, and North Carolina, any three of which — or, with Florida, any two — would have swung the Electoral College to Clinton. Exit polling is generally more accurate than pre-election polling, for obvious reasons. In pre-election polling you’re asking people to tell you what they’re going to do, which they might not get around to doing or might change their mind on, or what-have-you. In exit polling, you’re asking people what they actually did, right after they did it. Exit polling generally is so reliable that the U.S. has used it as a gauge of voting integrity in other countries around the world. It could be wrong here, but its record here and in other countries makes that less likely. That said, Election Day-only exit polling fails to account for early voting in states that have it, and, like all election polling, is only as strong as its computer models.
So although I am suspicious that the vote totals may have been monkeyed with by agents foreign and/or domestic, I grant that all the evidence — and there is a lot — is circumstantial, not directly probative. Therefore, as I said, I remain agnostic on that point, subject to the discovery of new information one way or the other.
So why am I stating as a fact that the election was stolen? Because while there’s some doubt about the shenanigans I’ve listed above, I am much more certain about another effort: Republican officials conspired to purge the voter rolls of a number of states in ways that overwhelmingly affected people likely to vote Democratic.
Journalist Greg Palast, whom I mentioned above, first documented in Chapter 1 of the first (2004) edition of his book “The Best Democracy Money Can Buy” how this approach was used in the run-up to the 2000 election to kick enough minority and other likely Democratic voters off the Florida voter rolls improperly — and I’ll explain “improperly” in a second — to have swung the vote totals there, and thus the 2000 election, to George W. Bush.
I say “improperly” for this reason. The purging was supposed to remove from the rolls primarily convicted felons who had not yet had their civil rights restored and people who were, inadvertently or otherwise, registered to vote in two different places at once. However, the database query used only the loosest matching criteria, so that fathers ended up being purged because of their felon sons with the same name and vice versa, the John Smith on Main Street was purged when it was the John Smith on Elm Street who was the felon, John Adam Smith got purged when the felon was actually John Benjamin Smith, and so on. This work was done by a contractor with ties to the family of George W. Bush and retained by W’s brother Jeb Bush, then governor of Florida.
The scheme worked then, so the Republicans decided to take it national. No sooner had the Supreme Court struck down parts of the Voting Rights Act, Palast has found in an updated version of his book, than in 2013 a group of Republicans led by Kris Kobach, secretary of state in Kansas (and more about him to come), developed a system called Crosscheck to apply the technique to more than a dozen other states (most controlled by Republicans), looking for people who were, or who appeared to be, registered in two different states. From Palast’s article in the Aug. 24 issue of Rolling Stone:
The data is processed through a system called the Interstate Voter Registration Crosscheck Program, which is being promoted by a powerful Republican operative, and its lists of potential duplicate voters are kept confidential. But Rolling Stone obtained a portion of the list and the names of 1 million targeted voters. According to our analysis, the Crosscheck list disproportionately threatens solid Democratic constituencies: young, black, Hispanic and Asian-American voters – with some of the biggest possible purges underway in Ohio and North Carolina, two crucial swing states with tight Senate races. (snip)
On its surface, Crosscheck seems quite reasonable. Twenty-eight participating states share their voter lists and, in the name of dispassionate, race-blind Big Data, seek to ensure the rolls are up to date. To make sure the system finds suspect voters, Crosscheck supposedly matches first, middle and last name, plus birth date, and provides the last four digits of a Social Security number for additional verification.
In reality, however, there have been signs that the program doesn’t operate as advertised. Some states have dropped out of Crosscheck, citing problems with its methodology, as Oregon’s secretary of state recently explained: “We left [Crosscheck] because the data we received was unreliable.”
In our effort to report on the program, we contacted every state for their Crosscheck list. But because voting twice is a felony, state after state told us their lists of suspects were part of a criminal investigation and, as such, confidential. Then we got a break. A clerk in Virginia sent us its Crosscheck list of suspects, which a letter from the state later said was done “in error.”
The Virginia list was a revelation. In all, 342,556 names were listed as apparently registered to vote in both Virginia and another state as of January 2014. Thirteen percent of the people on the Crosscheck list, already flagged as inactive voters, were almost immediately removed, meaning a stunning 41,637 names were “canceled” from voter rolls, most of them just before Election Day.
We were able to obtain more lists – Georgia and Washington state, the total number of voters adding up to more than 1 million matches – and Crosscheck’s results seemed at best deeply flawed. We found that one-fourth of the names on the list actually lacked a middle-name match. The system can also mistakenly identify fathers and sons as the same voter, ignoring designations of Jr. and Sr. A whole lot of people named “James Brown” are suspected of voting or registering twice, 357 of them in Georgia alone. But according to Crosscheck, James Willie Brown is supposed to be the same voter as James Arthur Brown. James Clifford Brown is allegedly the same voter as James Lynn Brown.
And those promised birth dates and Social Security numbers? The Crosscheck instruction manual says that “Social Security numbers are included for verification; the numbers might or might not match” – which leaves a crucial step in the identification process up to the states. Social Security numbers weren’t even included in the state lists we obtained.
We had Mark Swedlund, a database expert whose clients include eBay and American Express, look at the data from Georgia and Virginia, and he was shocked by Crosscheck’s “childish methodology.” He added, “God forbid your name is Garcia, of which there are 858,000 in the U.S., and your first name is Joseph or Jose. You’re probably suspected of voting in 27 states.”
Swedlund’s statistical analysis found that African-American, Latino and Asian names predominate, a simple result of the Crosscheck matching process, which spews out little more than a bunch of common names. No surprise: The U.S. Census data shows that minorities are overrepresented in 85 of 100 of the most common last names. If your name is Washington, there’s an 89 percent chance you’re African-American. If your last name is Hernandez, there’s a 94 percent chance you’re Hispanic. If your name is Kim, there’s a 95 percent chance you’re Asian.
This inherent bias results in an astonishing one in six Hispanics, one in seven Asian-Americans and one in nine African-Americans in Crosscheck states landing on the list. Was the program designed to target voters of color? “I’m a data guy,” Swedlund says. “I can’t tell you what the intent was. I can only tell you what the outcome is. And the outcome is discriminatory against minorities.”
Confronted by Palast, Kobach lied about his purge lists being publicly available and insisted that what was manifestly happening couldn’t possibly be.
In addition, some voters about whose eligibility someone raised a question were forced to cast provisional ballots which, in many cases, were never counted and which, in some cases, were simply thrown out, Palast found.
Palast also has evidence of widespread, illegal vote caging; indeed, thousands of North Carolina voters successfully sued just a few weeks ago to have their voting eligibility restored after an incidence of attempted caging here by the state GOP in a process the federal judge in the case called “insane.” But similar efforts went on elsewhere and most likely were successful.
And that’s on top of the efforts by states to impose onerous voter-ID requirements and limits on early voting, both of which disproportionately affect young and senior voters, minorities and the poor — who disproportionately vote Democratic. The courts threw out some, but not all, of these changes, which carried the force of law and helped provide at least a small bit of help for the Republican ticket.
Palast has an updated version of his book out that discusses some of the 2016 fuckery, along with an identically titled documentary film that you can order on DVD from GregPalast.com or rent on Amazon or Vimeo.
Despite all of this, Hillary Clinton won the popular vote by more than 2 million votes (and counting, at this writing). She won more popular votes than anyone in history not named Barack Obama. But the GOP efforts provided a narrow edge — 1% or less — in a few key swing states to give the Electoral College vote, wrongly, to Trump. The question, which I’ll address in an upcoming post, is what can be done about it.