Waldron Kraken-Busting

ED. NOTE: This article is the product of substantial input by John Sebes, OSET Institute Chief Technology Officer with the balance by Gregory Miller, OSET Institute Chief Operating Officer and non-practicing lawyer.

Following the recent broader disclosure of James “Philip” Waldron’s slide deck presentation that was circulating inside the Trump Administration in the weeks leading up to January 6th 2021, we reviewed the deck in detail and realized that with its wider availability, the “Kraken” we all experienced a year ago has reared its ugly head.  Thus, it’s time once again for some “Kraken-busting,” because this misleading information cannot be left to stand without intellectually honest clarification.  And in the past two weeks we’ve received enough media requests about the content of the Waldron deck that we feel compelled to more broadly respond.

If you’ve seen the deck—now easily accessible—then it’s likely you focused on (or squinted at) Slide 11.  And that’s as good a place to start as any, and probably the most important part of that presentation to straighten out, because one could spend days squeezing the ignorance or intentional misleading out of this whole deck. To be honest, the most difficult part of understanding the Waldron deck is determining whether the underlying author(s) were just simply clueless, or artfully cobbling together something with enough buzz to alarm people who don’t know enough to recognize the foolishness of the presentation.

Focusing on Slide 11

We start by observing the title of this slide is just completely wrong — “Where and How it’s Done.”  First, ask any actual state or local election administrator or official about where central counting is done, and they will tell you:

“In our offices.”

And the answer to how it is done is:

“On our own election management system with nothing in the AWS cloud, without any Internet connection for that purpose, and no AWS credentials to be snatched.”  

They’ll further inform you there are no “Vote Co’s” or “Mid-level Co’s” with access to the “database,” because the so-called “database” is just simply vote tally data on a stand-alone PC in a county elections office.

All of the content in this slide about Clarity, voter registration systems, etc., illustrates fundamental misunderstanding and a mistake about a key point: “tabulation” of results compared to “publishing” those results. Specifically:  

• The election management systems (or “EMS”) performs the tabulation.
• Clarity, etc. are systems used to publish election results to the public on the Internet World Wide Web.

By analogy it’s very similar to this:

1. We add up some numbers on an abacus;
2. Write down the total on a piece of paper;
3. Then we have the paper notarized;
4. Next, we take a photo of that notarized piece of paper; and finally,
5. We upload that photo on to a web server hosted by the AWS Cloud.

Now, it’s certainly possible that malicious actors could access the web server and get to the uploaded image, but they cannot get at (access or manipulate) the original notarized piece of paper itself!

It doesn’t really matter that the election officials used a standalone desktop PC with EMS software rather than an abacus; the principle is the same: the official tallies reside on the PC, in the election office, and not connected to the Internet. That doesn’t mean that the PC is perfectly secure; of course not, but it does mean that the Slide-11 garbage about AWS and “backwards uploaded” and “harvested credentials” is completely nonsense and inapplicable in this setting.

ED. NOTE: To be sure, QSnatch is a real piece of malware that can infect a certain class of network attached storage devices, but none of that infrastructure was in use for election administration activities in 2020. It surfaced 2 years ago (late 2019) and a patch for QNAP devices has been available to prevent the malware since August 2020 (well before the election).

Slide-11 is an attempt to fraudulently (and we do not use that word lightly) convince the readers (and importantly, influencers and decision-makers) of an election process that does not exist.  It is a disservice to election integrity; and at the risk of stepping into a lane we’ll leave for legal and policy professionals—we argue it is seditious to our democracy.

Perhaps the most pernicious part of the Slide-11 diagram is the label, “Air Gap Myth” noting the digital transfer of vote tally data from counties to “Secretary of State.”  The is really the “Myth of the Air Gap Myth.”  

Yes, a computer in a county office is used to send tally data over a network to a Secretary of State computer. However, the computer that county election officials use to send the data is not the election management system (EMS) machine!  This is critical to understand.  Ask any actual trained and experienced county election official, and they will explain the process of “air gap” very simply, without any myths, ands, or buts. It goes like this:

1. They copy the data from the tabulation system onto a USB stick or similar portable data storage device.
2. Then they walk that data stick over to an ordinary Internet-connected desktop computer, and
3. Use that machine to transfer the data from the stick and upload it across the Internet to a specific machine at the Secretary’s office. 

Walking that data stick from the tabulation machine to the machine used to upload it to the Secretary’s machine is the “air gap” – the gap between the two machines that requires a human to physically transfer the data.  There is no digital direct connection between those machines, and thus no way any data or digital traffic can “back-flow” across that gap in absence of a human interaction.

Probably the most embarrassingly wrong part about Slide-11 is the blob of words in the lower right corner about adjudication. This, too, is important and simple and we offer 8 clarifications…

1. First, remember, ballots are pieces of paper.
2. These pieces of paper are not “routed” or “downloaded” or “re-uploaded” or “manipulated” with a spreadsheet.
3. The “adjudicated” ballots are just centrally counted ballots (usually absentee ballots) that the ballot scanner choked on because there was an ambiguous mark.
4. When that happens, election officials gather over them to follow specific processes for multiple people to adhere to state law in interpreting those stray or ambiguous marks; the resulting human interpreted votes are recorded in the EMS, just the same as the votes recorded by the ballot scanner devices.
5. There is no “malicious actor;” just election officials, and no “whims” either because the tabulation is re-checked during the canvass process.
6. Nobody can just “on a whim” adjudicate (examine and rule on) a bunch of ballots and make up a bunch of fake votes, because the discrepancies will be detected during canvass.
7. Anybody who insists that these “whims” happen is basically alleging that everybody in the county elections office, the county canvass body, and the state canvas body, are all corrupt and in cahoots, conspiring to hide these nefarious activities.
8. However, if you believe that, then you should realize that this sprawling, undetected conspiracy could falsify any election results with far less effort and certainly no help needed from a foreign nation, like China.

OK, the Kraken has been busted on the root of that fraudulent slide deck, which is Slide-11.  We could spend volumes dissecting and correcting the balance of some 34 slides, however assuming you understand that most of this presentation falls apart once Slide-11 is corrected and debunked, we offer some shorter points about the remainder of the content starting by returning to slides 5 thru 10.

Slides 5-9:

The allegation, claim, or idea of “Injections” after a “pause” in counting is confusing the process of counting with the process of reporting.

Counting did not pause after releasing vote totals from in-person voting on election day. In fact, whether on camera or not, LEOs spent a lot of time processing the absentee ballots—and with COVID there were more than usual.  The “pause” was simply a gap in reporting time caused by incremental progress reports at irregular time intervals while election administrators continued counting ballots.

A “spike” due to a new batch being reported is not an “injection” — it’s just a report of some more votes from another batch of ballots, where the proportion of votes reported is different than in previous batches.  To use an intentionally charged word (injection) that is wholly inapplicable and incorrect to describe the reality, is provocatively misleading.  Everyone needs to stop using the intellectually dishonest and wrong word “injection” in this context.

Ask any regular election administrator or official (“EO” we call them) if “a normal vote pattern would look like a natural progression” and they will tell you,

“No; absentee ballot counting is released in batches, and there is nothing ‘normal’ or ‘smooth’ about the batches. In fact, it would be really weird if every batch had nearly the same vote percentage for each candidate.”

ED. NOTE: with all of these references to election administrators, we’re fortunate to have on our team at the Institute and TrustTheVote Project several veteran election administrators from major jurisdictions in Georgia, Texas and Virginia—so we can offer you the real, straight scoop.

Slide 10:

“The Algorithm” in Georgia is simply a histogram—a fancy and often useful statistical picture. In this case, we don’t know what it is supposed to indicate, but whatever patterns it shows are 100% irrelevant to the Georgia presidential election. Those paper ballots were counted — by hand — 3 different times, and we know the outcome. The histogram of Edison-updates is interesting to look at it, but it says absolutely nothing about the results of the hand counts. Again, it’s an intellectually dishonest attempt to fraudulently convince viewers with far less experience or knowledge of election processes (let alone statistics) that something went awry.

Slides 13-21:

Regarding the intellectually dishonest use of content, the China slides are a great example of using lots of detail to tell a story about “suspicious activity” that turns out to be irrelevant.  True, we have no idea if the CCP controls the Chinese company that supposedly tested some Smartmatic software, and it’s irrelevant because of these 3 points:  

1. Obtaining a copy of some software to test it, does not give the tester “complete control” or any control of the software that they test.
2. Plenty of test labs test U.S. voting system products—its required by the Federal government and every state—and it’s clear to all involved that the labs are testing a copy, while the vendors control the master originals.
3. Furthermore, changes by the vendor (after testing and certification) are forbidden, and can be detected by election officials. 

To say, “Ergo, they embedded anything they wanted” is to demonstrate the presentation author(s) have less than zero understanding of software testing. Thus, the entire CCP angle is irrelevant; regardless of whether any part of the “money trail” story is true.

Slide 24:

Further, each of the “vote shifting” stories were debunked or clarified in the first quarter of 2021; however, the most telling example is that the Georgia statewide hand counts produced the same election results as the alleged “vote shifting” electronic voting machines (!)

Slide 25:

Perhaps the most ignorant statement is about the assertion: “First disqualify counterfeit ballots so that we count only legal ballots and Trump wins.” (Paraphrasing; see slide 25 of the deck.) Three points:

1. Once a county has completed its ballot counting process and has archived all the counted ballots, there is no method to look at them all and identify a “counterfeit” — all the counted ballots look alike.
   
2. Even if crooked election officials did make fraudulent ballots — without being caught — they would use the same pre-printed blank ballots that voters marked by hand, or by a ballot marking device. There would be no way to “disqualify” a “counterfeit” ballot.
   
3. The only people who thought that was possible were those who examined Maricopa ballots for bamboo fibers as though that would be a sign of a Chinese counterfeit. And as we now know, there were no counterfeits found in Maricopa, County, AZ.

Slides 31-33:

Lastly, the most legally embarrassing statement is the one about the Supreme Count “suspending” Article II, Section 1, Clause 2 of the Constitution.  Seriously? Three points:

1. There is no part of the U.S. Constitution that allows the Supreme Court to “suspend” part of the Constitution!  Those who’ve suggested that the Suspension Clause is applicable may want to do some simple reading to understand the absurdity of that argument—the suspension clause addresses the writ of habeas corpus, which is not at all the issue here.  And similarly, it is unfathomable, even for this SCOTUS to take on such a request to literally “suspend” an element of the Constitution.[1]
   
2. In fact, the entire fantasy about a nationwide hand count (by a “Federalized National Guard”) would be a direct violation of the Article 2 specification of elections being the right and responsibility of the states.
   
3. There’s no legal framework that we understand for any part of the Federal government to grab all of a state’s already-counted ballots, recounting them, and throwing out ballots deemed “illegal” by the military.  And it is funny that many of the same people involved in producing, distributing, and relying on this Waldron slide deck are quick to complain about any other effort by the federal government to enforce fairness in elections as a federal takeover of a states’ right.

And here is the kicker: whoever authored the Waldron presentation seemed oblivious to the fact that in these closing slides what they were describing is a coup… not a recount.

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[1]     Further, neither Congress nor the president has the power to set aside any other constitutional right. As the Supreme Court explained in the 1866 case Ex parte Milligan, “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” In that decision, the Supreme Court affirmed that even during the Civil War — undoubtedly the most dangerous emergency this country has ever faced — the Constitution still applied. This from the Brennan Center for Justice, a March 3, 2021 article, “There Are No Extraordinary Powers a President Can Use to Reverse an Election.” See:
https://www.brennancenter.org/our-work/analysis-opinion/there-are-no-extraordinary-powers-president-can-use-reverse-election