Electronic voting in Venezuela: a new Dogma?, @adrianavigi

By Adriana Vigilanza, 05/13/2015

An excerpt of the book "Bumeran Chávez", by journalist Emili Blasco, narrating how electronic fraud was committed in the Venezuela April 14, 2013 Presidential election, was revealed in the newspaper “ABC”of Spain,this April 19, 2015 (see: http://www.abc.es/internacional/20150420/abci- Venezuela-elections-vote-false-201504191837.html) That “revelation” is based on the testimony of one of the most enigmatic characters of Venezuelan chavismo, a “deserter” by the name of Leamsy Salazar, currently collaborating with the U.S. in its fight against organized crime, under a protected witness program.

Blasco´s revelation of Lemansy´sconfessions prompted us to write about a subject that has been vetoed in our country, both by those in governmentand by those who are the most prominent leaders in the opposition. What a great many of us Venezuelans suspected has been confirmed. It all started in 2004, when Venezuela´s Supreme Electoral Councilor “CNE”, for its initials in Spanish (“Consejo Nacional Electoral”) adopted an electronic voting system, which was used for the first time in the Recall Referendum in which Chavez could have been removed from power by the will of the people, but wasinstead supposedly reaffirmed in his term, as President.

CNE, an arguably “impartial” institution, purchased the voting machines from a recently incorporated corporation with no previous expertise in this matter, called “Smartmatic”[1]. This raised many alarms within Venezuelans because no one knew who Smartmatic´s shareholders were (and still nobody knows) and why was it chosen by CNE. Ironically, a company which raised so many questions about its transparency and performance, after the Recall referendum of 2004 in Venezuela, already in 2006was operating in more than 400 counties located throughout the US, directly or through its subsidiary, “Sequoia Voting Systems” and even President Obama himself voted using one of its machines, in the last presidential election

Even so, with the passing of time things got onlyworse for Venezuelans, in terms of transparency of their voting system. When commenting to the press the results of the last two Venezuelan presidential elections, former CNE Director, Vicente Diaz (who was considered the only “impartial” member among the Board of Directors of CNE, composed of 5 members) as well as repeating Directors, Sandra Oblitas and Tibisay Lucena, placed much emphasis in assuring that since the voting process in Venezuela is electronic the physical proof or "ballot" that every Smartmatic voting machine produces for  each voter, “does not count as a Vote and the “papers” are no included in the count.

In reply to Henrique Capriles´ request that CNE gave the opposition at leastthe opportunity to audit the Electoral Books (“cuadernos” or records of voterswho are registered to vote in a given voting center and who actually voted) which were used in the Presidential elections of April 14, 2013), CNE Director Sandra Oblitas, for example, saidthat:

"(...) In order to preserve the peace and calm in the country, the National Electoral Council agreed on Thursday to extend the phase 2 of the so called“Citizen Verification””. But this audit is not a recount of votes aiming at reviewing the results The votes that are the sovereign expression of Venezuelans, who spoke this Sunday,are those captured within the voting machines (...) "See: http://impactocna.com/?p=98243

"(...) The possibility of changing the outcome of an election is none (...)" See: http://operaciontransparencia.wordpress.com/2013/04/21/oblitas-han-hecho-circular-falsas-expectativas-sobre-auditorias/comment-page-1/#comment-394

Also, when CNE former Director Vicente Diaz, whilestillbeing a Director at CNE, declared thatany audit:

"(...) will not carry out a recount of votesbecause in Venezuela the voting system is electronic and the audit is not a comprehensive review of the voting Books (...) "See: http://www.lapatilla.com/site/2013/04/26/vicente-diaz-habla-desde-el-cne/

And TibisayLucena,twice President of CNE, declared almost in identical terms,when she said, that:

"(...) It is not the decision of the National Electoral Council to proceed to a recount of votes, the 'head count', as it is called, is not to be questioned, because in Venezuela the vote counting is automated. The votes which count, the ones that are the sovereign expression of Venezuelans who expressed themselves on Sunday, are in the voting machine; that's where the votes are". Lucena said this during the act where Nicolas Maduro was been sworned as President of the Republic, before the National Assembly (...)". See: http://www.noticierovenevision.net/politica/2013/abril/19/62012=tibisay-lucena-reitera-que-sistema-electoral-de-venezuela-es-robusto-y-transparente

For 2006 Presidential elections there was a similar positioning of CNE, embodied in Resolution No. 061011-0873, dated October 11, 2006, containing the "Instructions for the Auditing Procedure in the Automated Voting and Scrutiny System". It literally reads:

“(...) under no circumstances the audit shall be regarded as recounting of votes (“scrutiny”), nor shall it be considered a part of that act (...) ".

This fact was considered "an electoral outburst" by Ana Mercedes Diaz, former Manager of Political Parties, within CNE, who complained about such absurdity and filed a formal complaint there of, dated December 3, 2006, in which she said:

 "(...) the PHYSICAL VOTE is, no less than the authentic will of the electors and not is a simple paper without value, as  CNE wants Venezuelans to believe(...) ".

In simple words, CNE wants Venezuelans to accept that "what counts" in an election, what decides its outcome, is an electronic circuit which remains in a machine and this is, an intangible element. Several opposition electoral advisors, gathered under an umbrella called “La Colina”, emphasize this position as being correct.  On the contrary, we support Ana Díaz´s understanding of Venezuelan elections legal framework and consider that, besides being unfounded, CNE´s reasoning contradicts the 1999 Venezuelan Constitution and represents a clear violation of a human rights principles. Here's why:

In its Preamble, the Constitution of the Bolivarian Republic of Venezuela ("CRBV") provides that it has been enacted "…with the supreme end of reshaping the Republic to establish a democratic, participatory and protagonist society….which embodies the values “of freedom, independence, peace, solidarity, common good, territorial integrity, coexistence and the rule of law ... ". Furthermore, the Constitution in its Article 5 declares that popular sovereignty is not transferable and it is the source of power for those who hold the authority of the State.

The Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the United Nations ("UN") in Resolution 217 A (III) of 10 December 1948 and signed by Venezuela, also states:

"Article 21: (...) 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in genuine and periodic elections to be held by universal and equal suffrage and by secret vote or by equivalent procedure to ensure free voting ".

Also, the "International Covenant on Civil and Political Rights", adopted by the General Assembly of the United Nations in its Resolution 2200 A (XXI) of 16 December 1966, provides:

"Article 25: Every citizen shall, without any of the distinctions mentioned in article 2 and without unreasonable restrictions, have the following rights and opportunities (...)
(...) B) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the voters. (...) "

Furthermore, Article 294 of the Venezuelan Constitution expressly states that the counting of ballots must be transparent for the citizens. An electronic circuit, we are fully aware, is anything but transparent.

These arguments, that for us Venezuelans are simple deductions based on constitutional norms, led the Supreme Court of Justice of Germany to declare that German Constitution prohibits the use of voting machines. The German Court based its conclusion on two grounds: 1) There should be no technological element that stands between the voter and the vote and 2) The counting of votes must be public and vote counting, made in machines, are not. View: https://www.youtube.com/watch?v=Jt4LYYgtv5o.

Precisely because of the need to preserve transparency, electoral legislation in Venezuela foresees that citizens are entitled to open a percentage of the electoral boxes containing the votes and verify the machine printed count against the number of ballots contained in the ballot box. This is contemplated in the “Voting Process Act” (“Ley de Procesos Electorales”) as follows:

"TITLE XI

AUDITS

Definition
Article 156. The audit is the verification of all materials, technology and data used in the execution of the various phases of the electoral process, so that they ensure the transparency and reliability of the process. Audits may apply to all or some of the phases of the electoral process (...).

Phases of the audit

Article 159. The audit process has two phases: the electoral audit and the verification by the citizens.

Auditability of the electoral system

Article 160. The electoral audit must ensure auditability of the automated electoral system and includes the certification of the automated election system in every one of its phases.

Certification automated election system

Article 161. With the electoral audit, the legality and reliability of the process of automated election system will be certified.

Verification of voting ballots

Article 162. The verification by citizens of the voting ballots shall be made by reviewing  voting ballots in comparison to the data contained exclusively in the Scrutiny Minutes of the voting results gathered by members of each voting table (...).

Article 441 (the of Regulations) . The verification by the citizens will be undertaken under this procedure: 1. After the act of voting has ended and it is declared closed, the data in the voting machines will be transmitted and printed and copies of Scrutiny Minutes will be signed; the President or chairman of every Polling Stations will loudly announce the beginning of the “Process of Verification by theCitizens”. 2. Next, the President or chairman of the Polling Stations will select the Polling Stations to be verified.

The “Process of Verification by theCitizens” is considered essential by the law, as it is the only act that endorses popular sovereignty. It is the only moment, apart from the act of voting itself, where the average citizen takes center stage or is a “protagonist” in the voting process. The citizen verification is a part of the complex process of voting, when voting machines are used for voting. It is what gives transparency to the scrutiny. Therefore, where this process is not achieved, the whole voting process should be considered null and void, in the corresponding polling table.

As mentioned, for votes to fulfill its ultimate purpose, which is to be effective asa an election instrument and therefore capable to materializing popular sovereignty and securing peace in a society, it must meet several requirements. Among them, it must be free. And for that freedom to exist, citizens must understand, unaided, what was his/herchoice.Precisely because of this, when electronic voting in Venezuela was instituted, Smartmatic was careful enough to make the machines capable of issuing a ballot or “ticket”, which is the physical expression of a vote. No Venezuelan would have ever accepted to vote using onlya machine. The printed proof of his/her selection is essential. Because of this, it must be recognized as proof of what was the will of the voter.

For elections to be free,not only there must be no coercion. It is necessary, too, that votesare printedin a physical and reliableinstrument which the voter may check, free from the aid of anyone oranything. And precluding that physical element ofdecisive value wouldbetantamount to depriving voters of their right to choose and leaving it to a machine.

Any citizen, even if a layman, knows that machines do not program themselves and that they will do everything that the man who designed their programs, orders them to do. For example, in the context of the recent US Presidential election, an electronic voting machine used in Pennsylvania had tobe removed after a voter denounced through a video that though he had chosenthe Democratic candidate and current President of the United States, Barack Obama,and insisted that the machine had selected the Republican candidate, MrMitt Romney.  The complainant -a software developer- said that when Obama was selected on the touch screen, the Romney option was checked. After verifying that that was not due to human error, he began to systematically review the machine to see if it was a calibration problem and noticed that it was simply impossible to make the selection for the current USA President, as the active area for the Romney option ran down to the box for Obama, while the other two candidates could be selected smoothly. The voter uploaded the video which showed this failure in the well-known internet portal (web) "www.YouTube". See: http://www.fayerwayer.com/2012/11/denuncian-que-maquina-de-voto-electronico-en-ee-uu-cambia-la-eleccion-de-obama-por-romney/. The importance of this news is that it makes noteworthy that the machines can be damaged –intentionally or not- and can change the voters' will.

A voting system which eliminates the efficiency of physical ballots, as evidence, would be a system where voters would have transferred popular sovereignty to third parties, such as technicians (those who program the machines), the members of a political party (in Venezuela, political parties normally claim to have audited the machines on behalf of everybody, not counting with there presentation of the whole society) or, in the case of Venezuela, even the so called “Republic Plan”, this is, the military accountable for preserving the machines that normally spend up to one month before the within a store house election (but after having been audited by the opposition). But this, at least in Venezuela, it is not possible, because as stated above, the Constitution declares that popular sovereignty is not transferable and that the act of counting votes(“scrutiny”) has to be transparent.

Having regard to the foregoing, depriving the physical ballots of value as evidenceis both irrational and unconstitutional. It would also be against a human right. It is so true what we say that even a former Director of the CNE, Jorge Rodriguez –who few years after his resignation to that position, was appointed Vice-President of Venezuela by Chavez– referring to the election process through which the opposition chose its presidential candidate but refused to give CNE that elections ballots an Minutes (for the sake of secrecy of participation in such elections), declared the following:

"(...)How do you audit an election? I'll give you an example: The Carter´s Center and the OAS, both formerly (for the 2004 Recall Referendum) proposed toCNE and the opposition that audits should be made. What did the Carter´s Center said? It said that votes casted by the voting machines should be compared with votes in ballots, to certify that the number of voters which appeared in the Voting Minutes was equal to the Votes in the ballot boxes (...)I think there are as much as 748,000 votes that we will never know if were truly issued or were (he hits the desktop with his finger as if pressinga voting machine) votes like this “I vote here or here or there .... ". Doing so violates the principle of one elector, one vote. So I think that's what happened (...) ". http://www.youtube.com/watch?v=LNn_g0Iegnk

In short: sovereignty is exercised through votingand both, sovereignty and votes are not transferable. Authorities such as the CNE (the so called in the 1999 Venezuelan Constitution the “Electoral Power”, as another branch of Public Power, such as the Judiciary and the Legislative), are subject to what electors decide (by their own senses) and not vice versa. Smartmatic machines were purchased at a high cost for the Nation and from a newly incorporated company whose owner is a Trust with no known identity and pioneering in Venezuela. The results are that what those machines shed are far from being like the Holy Trinity: a dogma of faith. If the ballot representing the vote serves only for the eyes of the voter at the time of voting and for nothing else, we are entitled to also ask why then,to dispose of the ballot, is considered by CNE an electoral offense?

Of course to avoid online fraud the easier and less expensive way would be to allow the people to open 100% of the polls where ballots are deposited and count them manually. But today, an instruction from CNE says that only a percentage of around 53% of the polls are to be opened. To be able to open a 100% would be more transparent and faster and does not require but a change in an instruction, not in a law" as some specialists in elections, such as journalist Eugenio Martinez affirms. Especially when CNE has appointed "Coordinators for the Elections Stations", an electoral position which is not foreseen in the law and that is given to people who CNE chooses without following any criteria previously established for such as election. The resulted has been that those selected are those who are loyal to the party in office.

CNE´s Coordinators have been accused of manipulating the selection of the voting boxes to be open, so that this is done early in the voting process and not at the end,so that it is possible to know, very early in that process, which voting box will be opened and which will not. This was denounced by the Independent Democratic Movement of Táchira ("MID"), 2008. MID complained to the opposition candidate Henrique Capriles, in 2013, that:

"(...) The application of article 441 of the Regulations was prevented shamelessly in the last election of Governors in of theTáchira Sate, to the point that the “Republic Plan”, under threat to our witnesses, authorized the selection of voting polls to be opened, before printing the results from the machines. In the rest of the country the “Citizen Verification Process” was performed only in 6% of the voting centers (...)”

The main problem we Venezuelans face in this matter is that our opposition electoral advisers accept CNE´s absurd and unconstitutional criteria and defend the thesis according to which all that counts for elections results is the electronic vote registered by and within the machine. They rely on an absolutely biased entity, such as the CNE and even in the “Republic Plan”, arguing that "we have no evidence that suggests that any of those institutions may adulterate the software, once audited by the opposition…" The person who declared that was Felix Arroyo, “Mobilization Coordinator” for the opposition party “Democratic Action” ("AD", although, strangely enough, he signed the audit Minutes as representing another party, named “ORA”).He made that statement in 2012 when General Molero,then Minister of Defense and the man commanding the “Republic Plan”, had declared publicly that the Armed Forces he commanded in Venezuela were “chavistas and anti-imperialists” (thus, pro-government) and threatened to (we will make the best we can to translate the slang he used: “darle en la madre a la oposición”) "take the shit out of the opposition”.

As Quixote said: “We shall see things, Sancho…”

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[1]Today, theSmartmaticmachinesare already being usedin most of LatinAmerica countries.As advertisedon their website, Smartmatic voting machines are now as well used in Barbados,Mexico, Taiwan and severalUS citieslikeBocaRaton,NewYork, Denver, Chicago andin the state ofCalifornia. On complaints inthe US forthe use ofelectronic voting,we refer to::http://www.washingtonsblog.com/2012/11/videos-of-vote-fraud-pour-in-from-both-liberal-and-conservative-sources.html