It’s been 22 years since Bush v. Gore, and we are still waiting for the results. Not of the election outcome, but about whether we have the proper infrastructure for democracy. We have been told repeatedly that the 2020 election was the most secure, honest, and accurate election ever. But was it really?
Amid all the noise and dust that Trump has thrown up, have some of us just wanted to believe that “the system worked,” as a way of shutting down Stop the Steal?
There are over 3,000 counties in the US, each with its own election procedure. Each uses machines from a limited number of vendors, who have lobbied and made promises in order to get that county’s business.
It’s a system that, like the Wizard of Oz, hides behind an obfuscatory curtain.
In an age of digital voting, and digital recording of even paper ballots, there is really no way to know if the announced results of any given election faithfully express the intent of the voters. At the very least, we need to follow Ronald Reagan’s advice (proffered in another context): “Trust but verify.”
That’s the subject of this special WhoWhatWhy forum with Jonathan Simon and Lynn Bernstein.
Jonathan Simon is a senior editor at WhoWhatWhy and a former executive director of Election Defense Alliance. A longtime expert on election procedures, he is the author of the seminal book CODE RED: Computerized Election Theft and the New American Century.
Lynn Bernstein is the founder of Transparent Elections NC. She is a trained international election observer and a member of the national voting rights task force. Her background as an aerospace engineer gives her deep insight into how complex systems work, and how they can go wrong.
Full Text Transcript:
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Jeff Schechtman: Welcome to this special WhoWhatWhy Forum. I’m your host, Jeff Schechtman. It’s been 22 years since Bush v. Gore, and we’re still waiting for the results, not of the election, but whether we have an appropriate infrastructure for democracy. We have been told repeatedly that our most recent national election of 2020 was the most secure, honest, and accurate election ever. As we might have expected, we’ve had partisan pendulum swings back and forth.
We had Bush reelected in 2004, Obama in 2008 and 2012, Trump in 2016, and Biden in 2020. On the surface, it appears that everyone is getting a fair shot, that the system works. But does it, amidst all the noise and dust that Trump has thrown up? Have we just wanted to argue that the system works in response to that noise, as a way of shutting it up, stopping Stop the Steal? Have we reached a point where elections can be rigged without being challenged, and elections are challenged without being rigged?
We have over 3,000 counties in the US, each with its own system of elections, each using machines from a limited number of vendors, who have lobbied and made promises in order to get those county contracts. It’s a system that, like the Wizard of Oz, hides behind the curtain and may not actually be what it seems. In an age of digital voting and digital reading even of paper ballots, there really is no way to know if the announced results of any given election faithfully express the intent of the voters.
This is not only because digitized voting machines can be hacked or manipulated, but because often these modern-day ballots are not available as public documents, even after the election. It seems that at the very least, we need to follow Ronald Reagan’s advice, “Trust, but verify.” Or as Stalin so correctly said, “It’s not who votes that counts, it’s who counts the votes.” This is the subject of this WhoWhatWhy special forum and joining me for it is Jonathan Simon.
Jonathan is a senior editor at WhoWhatWhy, a former executive director of Election Defense Alliance, a long-time expert on election procedures, and the author of the seminal work on the subject, CODE RED: Computerized Election and the War on American Democracy.
And we’re also joined by Lynn Bernstein. Lynn is the founder of Transparent Elections North Carolina. She’s a trained international election observer and a member of the National Voting Rights Task Force. She’s trained as an aerospace engineer and has experience in understanding and integrating complex systems like elections. She’s worked tirelessly to bring more fairness to the election process in North Carolina. Jonathan, Lynn, thank you both so much for being with us today.
Jonathan Simon: Thank you, Jeff.
Lynn Bernstein: Thanks for having us.
Jeff: I’m going to start, first of all, with a little further background on the two of you. A lot of people have said, in the run-up to this election, that people don’t really care enough about this issue, that it’s not a sexy enough issue for voters, given all the other noise that’s out there today. I want to start first with you, Jonathan, how you came to this, how you came to the subject of election integrity and voting machines as something that you were going to devote so much of your life to?
Jonathan: Well, it began with Bush v. Gore. I was down at the Supreme Court when that was argued, saw what happened, saw how the electoral system, some of its flaws, were manifest. And then in 2002, building on the debacle that was particularly in Florida — the hanging chads and whatnot — the Congress in its infinite wisdom passed the Help America Vote Act, which hastened along the computerization of our elections.
They’d been using computers for quite some time but — with various incentives, carrots, and sticks — this brought in a particular kind of computer. It brought in the direct recording electronic computer — the DRE, or touchscreen. And you really had no idea. You had no paper record, you had nothing to verify these vote counts. And in 2002, there were some results that were shocking. One was in Georgia, the defeat of Democratic Senator Max Cleland, who was well ahead in the polls and then lost by a good margin.
And there was absolutely no way of checking it. And the exit polls that year were so far off that they were withheld from the public — they were actually spiked by the networks. So that piqued my interest. And then when 2004 came around, I was advocating, early on, for some sort of burglar alarm system, whether it was exit poll-based or whatever, to help with the verification process, and make sure that things like 2002 didn’t happen again. And then, lo and behold, it happened again.
And it happened again in a big way in 2004, in Ohio, which was very controversial, not unlike 2020, with Stop the Steal. And I was the person who basically– I didn’t have a screen capture tool so I actually printed out several hundred pages worth of exit poll data, and analyzed it, and basically had a back-of-the-envelope calculation by about 4 a.m., that this pattern of exit-poll-to-vote-count disparities was very anomalous. And if that sounds familiar, this predated Stop the Steal by 18 years, but it’s a system that begs to be questioned.
Because it doesn’t provide solid evidence, and solid data. And so there I was with this trove, and it turned out that nobody else had it. I thought hundreds of thousands of people would have been doing the same thing, but they didn’t. And so, I had this data, and that became the basis for challenging that election. And then it hooks you in, as I think Lynn will probably testify, how you get into this. And no, it’s not sexy on the surface, but boy, it’s very, very compelling once you get involved.
Lynn: Yes. So, I came at this from a similar point, although I did come on the scene a lot later. I got into this, for better or for worse, just after the 2016 election. There were people who were wondering about our elections. People did see what happened in Florida [in 2000], and they did see the system really changed to electronic voting. And so people had doubts, people already had doubts, in 2016. It wasn’t necessarily the same people who we’re seeing, who have a lot of doubts right now.
And some people approached me and they said, “Hey, you used to do testing of systems, and we want to know, could you look into whether or not these election systems that we have were tested properly, whether or not they were really, truly tested?” And I remember being very arrogant, and saying, “Oh, come on, this is America, our elections are fine.” But then I spent a couple of weeks really digging in and doing research.
One of the first things I found was CODE RED, and I was just blown away by that. And so, then I started going and getting documentation from the EAC, the [federal] Elections Assistance Commission, and looking into the test labs that test these systems. I really read everything that I possibly could — it wasn’t a lot. There are these test documents and these test reports. What they’re calling a test report is really a test summary — there’s no real data in there.
I don’t know for sure if these machines are actually tested at the federal level, properly. That’s a bit of a rabbit hole, but once you start seeing things, you really can’t unsee them. I really was actually looking forward to going back to school — I was going to go to grad school, and I really wanted to hand this off to somebody else in North Carolina. Because I really didn’t want to deal with it, but I knew it needed to get done.
So I reached out to local organizations, [including] the League of Women Voters, and they were not interested in it. It’s not something that people really want to dig into. One of the reasons I think organizations shy away from doing this kind of work is that it’s really hard to quantify how successful you are.
If you’re an organization, and you’re trying to get out the vote or improve voting in some way, you can go at the end of the day and show some numbers and say, “Look, we increased voting in this community by 20 percent, because we did this initiative.” [But with machine testing and security] there’s not a lot to quantify, other than what I would argue would be confidence, people’s confidence — because I really just don’t think elections can be considered successful if people don’t have confidence. So that’s the number that I look at, as to whether or not we’re where we need to be. And based on the level of confidence people have in this country, we are very far from where we need to be.
Jeff: And to that point, Jonathan, it seems that the more people like you and Lynn do the work that you do and uncover the things that you uncover — the more we kill confidence that people might have in the electoral process, discourage voting and really discourage them from even looking deeper into the process — then it is a self-defeating process, the more successful people like you and Lynn might be.
Jonathan: I don’t think we have to worry about that too much, because we weren’t very successful, at least for many years. And of course, we heard that argument all the time. And whether it was articulated or just implicit, certainly from the guardians of the system, the poobahs: “We don’t want to undermine voter confidence.” And it’s a serious argument and it was a big problem. Because in trying to reform a system that has these vulnerabilities, you need to point out the vulnerabilities. That’s certainly important.
Although, again, it does make at least some people question whether their vote will be counted. And if you’re questioning whether your vote’s going to be counted, it’s a very small, not even a leap, just a nudge over to whether anybody’s votes are going to be counted correctly.
But where it got very, very hairy for people in my field, which is election forensics, is when we came forward with evidence or data that suggested that those vulnerabilities had been exploited, that there was actual theft going on. [Analyses that indicated that] in the pitch dark of cyberspace, things were going bump in the night, and that’s when we really would get shut down.
And I could understand that, because I can see what the potential is, what you can do with a little conspiracy theory and a little fear-mongering. You really can undermine the system. So it’s really posed a tremendous quandary for people that want to do conscientious and objective investigation of this process.
Jeff: Lynn, has this all been made worse, piggybacking on what Jonathan was saying, by how close elections are today? There was a point when somebody would win, somebody would lose, by larger numbers than we see today. The country and states and communities were not as equally divided. And so the rules of big numbers came into play. And even with a little cheating here, a little cheating there, the results weren’t fundamentally different.
Lynn: I think the closeness of the counts, the closeness of how– people say you really want wide margins. But I think it’s less about the wide margin and more about just that we have an election pretty much every year, and so there’s really never a “good time” to reform the election system. And so people are throwing ideas out there and, as Jonathan said, when there are issues, we can’t ignore them.
It’s very dangerous to yell fire in a theater. But it’s also very irresponsible to not say anything when you see smoke coming from the theater. And so when you go to elections officials and you say, ”Hey, I’m seeing some smoke,” they say, ”Oh gosh, it’s too close [to the election]. We can’t deal with this right now.”
And the media thinks it’s too close to report anything because they don’t want to scare people. And so I just feel like we’re in this cycle and it has been this way for a long time, where we patch up our elections, going from year to year. Rather than starting from an engineering perspective and saying, “What does a well-designed election look like? What are the requirements for this election?”
We want elections that are transparent and trackable and publicly verified, and we want to be able to verify our vote before we cast it. And the election machine vendors, their systems don’t necessarily even meet those standards. And so I feel like the bigger problem is how close elections are to one another, and how hesitant elections officials are to change anything.
Jeff: Jonathan, you wanted to comment on that?
Jonathan: I have a little different take on the closeness. Though I think what Lynn said is absolutely valid. My take on that would be that elections have always been close. Kennedy-Nixon was close, and Bush-Gore was close. And what’s really changed is not necessarily the closeness of elections, but the view of what is at stake in elections. That has changed. Karl Rove — who I think is a seminal figure in all of this more recent development and how we’ve gone down this road — really did speak about a perpetual Republican majority, perpetual rule, et cetera, et cetera.
Jeff: Wasn’t that fantasy, though, on his part? Wasn’t that just talking politics? The fact is, as I talked about in the introduction, we have had that pendulum swinging over the past 30 years.
Jonathan: We have. And up until Donald Trump, I would say that in spite of Karl Rove’s wishful thinking, if you want to call it that, or his wool-gathering, the pendulum did continue to swing. But forensically, the pendulum– and it’s hard to see this on the surface, but if you dig down a little bit, the pendulum instead of swinging from here to here [holds out hands symmetrically spaced from right to left], it swung from here to here [holds out hands at same distance but shifted over to the right]. And it got pulled off, and veered, and our country veered with it.
Jeff: Stay on this for a moment. We had the Reagan-Bush period, we had had eight years of Bill Clinton, we had George W. Bush, we had Obama, we had Trump, we have Biden. The pendulum has been swinging.
Jonathan: Yeah. And during all that, that swinging, we had Reaganism, and we had [Bush’s] “compassionate conservatism.” But if you remember, Bill Clinton triangulated and Barack Obama was basically a political eunuch, from almost the get-go. So it appears to swing, you get these parties that, yes, win elections and lose elections. But the national direction has taken a veer. And then when Trump came along, it really became what I would call existential.
Because the idea was that if “they” win, whichever “they” it is, they’re going to destroy us [i.e., our party] and we’ll never see the light of day again.
And at that point, elections have to be held to a much, much higher standard.
Because fundamentally, once it becomes existential, once it becomes a political “total war” like that, you really have to persuade the losers that they’ve lost. And not necessarily beyond just a reasonable doubt but, as we’ve seen with Stop the Steal, beyond an unreasonable doubt.
And that places a much, much higher burden on the electoral process, which it has failed to meet.
Jeff: But isn’t all of that simply reflective of the country growing more towards the middle? And don’t forget, Donald Trump did lose.
Jonathan: Yes, but 40 million people — however many I lost count, but however many of them — would not agree with you. And we basically need those people, too. We may disagree with them, but we need them to be a well-functioning, a healthy body politic. But look at the political environment we’re in. You have hundreds now of candidates on the ballot for November who deny that Trump lost. And this becomes a mission, and a jihad of sorts.
Jeff: But aren’t those political questions, as opposed to questions about the conduct of the election? I want to come back to Lynn. How do we begin thinking about trying to design a system that is the most efficient and is the most functional, as you were talking about? How does one do that in a framework where there are 3,000+ separate systems?
Lynn: I think you just have to start with straight-up common sense. You talked at the beginning about how vendors peddle these systems, and we saw a lot of this in North Carolina, where vendors would come in, they would have lobbyists, they would tell elections officials information about the machines that just was flat out not true. And if they had given it more than five minutes of thought, [the officials] would’ve known it wasn’t true.
That brings into some question what is their motivation for doing that? But then you have elections officials at the county level saying things like, “Oh, it’s more expensive to use hand-marked paper ballots than it would be to have every person cast their vote on an electronic machine, fill out their ballot on the electronic machine.” Counting is a different process, but filling out your ballot–
And so we went to these counties on the ground and we said, ”Wait a second. Why are you picking these ballot-marking devices for everyone [i.e., for fully able as well as impaired voters], when a piece of paper and a pen really is all you need?” Because we’re switching from all-electronic voting to something that has a paper record. And they said, ”Well, where are we going to store all that paper?” And I said, ”Well, you’re going to have to store the paper and the machines now.”
And they just looked at me deer-in-the-headlights, like they had never thought of that before, because they’re getting this information from the state, that in some cases is actually misleading people.
Jeff: Talk about the vendors, Jonathan, without getting too deep into it. There are really a limited number of vendors that are providing all of these machines — the ballot marking devices, the machines that count the paper ballots, the optical scanning machines, et cetera.
Jonathan: Not only are there a limited number; all but one, as far as I know, are privately held. So there’s very little record-keeping accountability that you’d normally have with a publicly held corporation. So there’s a lot of secrecy. Of course, they have pretty glistening websites to tell you how wonderful their equipment is, but it started post-Help America Vote Act, 2002. The two big, 800-pound gorillas were Diebold, and then you had ES&S, and they were counting about 80 percent or so of the vote.
So it’s a very decentralized system that’s almost monopolistic when it comes to equipment. And if you think of it like military contracting, there’s a hell of a lot of palm greasing. You get these contracts, you promise the moon, you do whatever is necessary to get these contracts. And there isn’t a lot of scrutiny or pushback from the vast majority of election officials. There are a few exceptions out there, that were notable for pushing back, but the exceptions prove the rule.
The vast majority go along with it. And the other thing is that most election administrators just do not have the technical chops to really handle the maintenance aspects, reprogramming, all the things that have to be done with these machines. So they have a tremendous reliance on the vendors to get the job done, without which their elections would be disastrous. So that kind of dependency breeds a great deal of cooperation and willingness to look the other way.
And as I said, there are just a few main vendors and then you have a bunch of satellites [i.e., subcontractors], which the public knows even less about.
Lynn: Further up the stream from that, though, is– When I was looking into these voting machine vendor test labs, there’s conflicts of interest among that, as well. So you have the EAC and they require that you get these machines tested from a voluntary—
Jeff: Tell us what EAC is, for people who don’t know.
Lynn: The EAC is the [federal] Election Assistance Commission.
— And so you have these test labs– Well, there’s only two certified test labs, and the vendors pay the test labs to test their equipment. And these test labs, half of their business comes from election vendors. So if I’m a test lab, half of my business comes from election vendors, and they get to choose between me or somebody else to test their equipment: If I don’t pass them, and I’m really rigorous and I scrutinize their system really well, they’re going to go to the other guy.
So the bones of the system are actually set up, already, to fail.
Jeff: How do we make the leap, though, from palms being greased and all of this defense contracting going on in this voting arena, to being concerned about fraud and vendors actually having a hand in outcomes?
Lynn: I guess I would look at it this way– I’ll give you an example. In college, I took an electrical engineering class, and our final exam was a black-box test. Essentially, they put some input into that box, we don’t know what’s in the black box, and then you get to test the stuff that comes out of the box, and you need to figure out what’s in the box.
We’re never going to know what’s in those black boxes for those election systems. What we need to know is: The people who voted, are they all eligible to vote? Did they only vote once? And then on the other end of it, let’s count the ballots.
But the method that people use to fill in their ballots [with computerized ballot-marking devices] and counting ballots — that’s a black box. The election vendors, we don’t even really know who owns these companies. And so I look at it like a black box, and instead of trying to figure out what is inside the box, which we’ll never do, you really have to make sure that you’re doing robust audits, that you’re doing chain-of-custody audits [of what goes into and comes out of the black boxes].
We’re looking at the election like a linked chain, where each link is its own process. So, you’ve got the process of registering voters, you have the process of checking in voters, you have the process of printing ballots. How many ballots got printed? How many ballots are left at the end?
All of these things are what should be done in an audit, and they aren’t being done. And I think part of the frustration, for me, is that I see elections officials standing there and saying, “Trust us, we audited everything.”
But I think what people assume is that they’re doing some independent and external audit. In every industry, there are external audits that are independent, and those give confidence. We can’t assume that this industry doesn’t have fraud. I think of any industry, it’s most logical [and compelling] for people to want to have their candidate [and party] win. And so you have to look at it from that. But it doesn’t give me confidence when people who are running an election self-audit a few internal things and then say, “Trust me, we audited.”
Of course, you’re going to give yourself a good grade. Why wouldn’t you? I think if people looked at audits from across each little jurisdiction, what percentage of them are coming out perfect? Because that is a big red flag for me, that I’m seeing jurisdiction after jurisdiction saying, “Nope, we got everything perfect.” And that just really doesn’t happen. Maybe Jonathan can figure out the likelihood of that happening, but it’s not likely, based on the experience that I have had.
Jeff: And Jonathan, is the barrier to these kinds of audits and the kind of ideal things that Lynn is talking about, is the barrier money? Is it partisan resistance? What are the reasons that there’s pushback to doing things in the way that Lynn is talking about?
Jonathan: Part of it, Jeff, I think is inertia. Just as with any infrastructure — roads and bridges — they’ve been laid down over a period of time and it’s difficult to make real — more than incremental, small — changes. It’s difficult to overhaul an entire system. And especially, as Lynn said, given that elections are cyclical and you just don’t have 10 years to sit back and say, “How are we going to design a system?”
It’s funny, very early on, I think it was in 2002, there was a whole gathering of experts in Boston. They were working really hard to come up with the perfect election system, with encryption and all this stuff, and internet, and everything. It’s 2002, and they might be able to roll it out by 2028. And I remember I stood up and I said, “Wait a minute. You guys are theorizing about the perfect system. Meanwhile, Karl Rove is probably sticking pushpins into a map someplace, trying to figure out where the current vulnerabilities are and how to exploit them.”
So there’s that disconnect between the academic approach to all this, the long-term engineering approach, and the fact that basically, we have a crisis.
Jeff: What about the money though? If there was more money, would it make a difference? Could it make a difference?
Jonathan: Money should not be it. It’s not easy. It’s labor-intensive and it’s capital-intensive to set up a really, really solid, trustworthy electoral system.
As Lynn says, every place along that pipe that the votes go through — she sees it as a link chain, I see it as a pipe — if you have black duct tape around that clear pipe, at any point along the way, that’s where the person committing the fraud or wanting to influence the election is going to target. So to get that pipe to be completely clear, end to end, is a major challenge.
And yes, it is a heavy lift, but on the other scale of the balance is what’s at stake. And there probably is no higher-stakes game — and it is a game, in a way — than US biennial elections. State level, national level, county level, whatever.
So when you think about what we poured into just Iraq and Afghanistan alone, trillions of dollars to “promote democracy” around the world. But election administrators can’t get a couple of hundred thousand to have a better audit?
So we want our democracy to be the best in the world, but we want it on the cheap — and that’s a fundamental collision. We’re going to have to put in the effort and spend the money. It’s not all that much.
Jeff: We’re not the only country in the world, Lynn, doing elections. And there are other countries that do them and don’t have some of the problems that we’re talking about here. I’m talking about other western nations that do democracy reasonably well. What, if anything, can we learn from that? And what are they doing differently?
Lynn: One of the things I think that other countries do is– It just goes back to common sense. So when there was all this talk about hacking of machines, there were some countries that decided to just abandon those machines altogether. And as I had said before, filling out your ballot and counting your ballot are two separate processes. But elections officials love to conflate those two. And they say, “Well, we have to have this because we can’t possibly count these ballots by hand.”
But one thing that we could do in this country is what other countries do. They fill out their ballot using a hand-marked paper ballot. Because when somebody does that very direct method of voting, that gives them a lot of confidence. When you are going to cast your vote on a piece of electronic equipment, that leaves an unsettled feeling.
I’ll give you an example. We moved to California for a short time, and I went to go vote. First of all, it’s a little unnerving approaching a piece of equipment that you’ve never used before, you’ve never interacted with before — and you feel a little nervous because there’s people in line, and you don’t want to hold up the line. And so, already, you’re making people anxious about this process, rather than just doing a pen and a ballot.
And then at the end, I’m pushing a button and it says to vote, and then [chuckles] I start looking under the machine. I start looking around and one of the poll workers comes up to me and she said, “Well, what are you doing?” And I said, “Oh, I was looking to where my ballot was going to come out.” And she said, “Oh no, you just voted.” And I went, “Well, did I?” It was so unsettling.
I think to force people to vote on machines where what comes out are a bunch of barcodes that they can’t read, and they’re being expected to verify that– Yes, there is human-readable print on that ballot card that comes out, but when you put that into the tabulator, all that’s tabulating are those barcodes. So it doesn’t meet that federal standard of a voter being able to verify their vote. And people who are proponents of using barcodes— it’s really the most unnecessary. I think, actually, somebody wrote an article saying the most unnecessary part of voting are these barcodes.
I can’t verify that barcode, so it doesn’t even meet that basic requirement.
Rather than states and jurisdictions choosing equipment that would give people more confidence, a system that was mostly hand-marked paper ballots — with ballot-marking assistive devices for people who need them, and there are systems out there where those ballots; there’s no difference between one person’s ballot that has a barcode, or another person’s ballot that they filled out by hand—
There are systems that meet that requirement. And what I don’t understand is, this wouldn’t fly in other countries. They have a set of standards and if the machine doesn’t meet those standards, they get rid of the machine. And in this country, at least in North Carolina, 96 counties chose a system that can’t be verified.
Jeff: Jonathan, you can respond to this; in terms of machines, even hand-marked paper ballots have to go through an optical scanning process.
Jonathan: Yes. And that always brings up the issue of whether hand-marked paper ballots are enough, or if we have to do a hand count. And this is where the US really departs from some of these other countries, in terms of the level of challenge involved, because most of them, Lynn was mentioning that some of them switched — Norway, Ireland, the Netherlands, they went back to hand counting — but they have parliamentary systems; so often, in most elections, certainly in most national elections, you’re counting a single contest. And here, as we know, a lot of ballots can have 10, 20, 40 contests on them.
Jeff: You are in California? [laughs]
Jonathan: Yes, California. Welcome to California. It’s a different level of challenge. The question Why?, which Lynn asked, really is very much worth asking and pursuing to a satisfactory answer. Why? Why do we want to replace — and I’m talking about for able voters, which is the vast majority of voters, the disability community has, obviously, a stake in this and they need to have assistance; but what happened was that was leveraged, the rare exception was leveraged. And before you knew it, we had DREs, touchscreens, and then we had ballot marking devices, basically, for all voters.
And the question is– Why do you want to take a precinct, let’s say, where people come in, they get handed a ballot, there are 50 booths, they go to their little booth, there are 50 people voting at once, mark their ballot, go over to a scanner, drop it in, go home in five minutes, and replace that with maybe two or three ballot-marking devices, where you have to stand in line for two hours.
And where they are notorious for freezing and breaking down and having to be patched and reprogrammed, and stuff. The question is why? Is it really just a financial thing? And by financial, I mean that there’s a vested interest in the vendors and they put this forward because they have a great interest in selling brand new computers, the way Apple has an interest in selling brand new iPhones. And is that enough to explain it?
Because when you look at the Stop the Steal movement, and you look at the unrest among, at this point, mostly MAGA people, a lot of them want to see hand-counted paper ballots. They don’t trust these machines. But if you look at the Republican — and even to some extent the Democratic, but primarily the Republican — poobahs, the Brain Trust, they have done everything in their power, including filibustering legislation at the federal level and basically blocking it, to make sure we keep these machines in service. It’s the computerized goose that’s laying their golden eggs.
Jeff: To Lynn’s point, though, these machines exist in red states and blue states. Lynn was talking about California. It doesn’t get bluer than California as a state, but there are the same kind of problematic machines, the same as they are in red states and purple states. So it’s not something that’s just limited to one particular party or the other. These machines are spread across blue, red, and purple.
Jonathan: Yes. But on the federal level, there have been legislative initiatives to mandate certain standards for these machines and stop them from doing certain things, like not generating paper, or generating QR codes that can’t be — it gets a little bit technical, but that are more difficult to verify — mandatory audit standards that have been blocked, and that all has been partisan. It’s been blocked by the Republicans. And that’s where I say, you go to ask why. What’s in it? What is in it, for one side or another, in doing some of this stuff?
Some of it is just go with the flow. We’re in a computerized age. There’s a certain amount of technological ignorance on the part of most elected officials, through no fault of their own. This stuff is specialized stuff. So it’s easy to be persuaded to go along, but at a decision-making level, there seems to be– The efforts to bring this system into a higher state of verifiability were proposed in Congress, in several sessions, by Democrats, blocked by Republicans.
One question that has to be asked, that the media really has fallen on its face in not asking, is– Why?
Lynn: So, I have a little bit of a different– I don’t know, I guess I’m viewing it a little bit differently. We were talking about scanning these ballots, and what happens to those. Well, after those ballots are scanned– It’s not an optical scan anymore, it’s a digital scanner. And so this ballot image is created, then the cast-vote record is created. And then you have the cast-vote record database. And some places are actually destroying those records. They’re destroying the ballot images and they’re destroying the cast-vote records.
And so you’ve got the ballot, they’re destroying the ballot image, they’re destroying the cast vote record, and then here’s a spreadsheet, that’s populated with all the vote totals, and how each ballot was voted. And so there are groups that are trying to fight and make jurisdictions save these records because those are federal records and, by law, they have to be saved for 22 months following an election.
Some states actually do save these. And there are some groups that are wanting to take these records, have these records be released publicly so that everyone can verify these records. What ended up happening in several states is that AuditUSA went and tried to get legislation to make these public record. And so the director went and he got a bunch of Republicans to get on board in one state, and he went to the Democrats and they said, “Oh, no, the Republicans are voting for that. So we can’t vote for that. There must be some nefarious thing.”
So John Brakey, he was very smart, and he said, “I’m going to go to Arizona” — that’s his home state. And he said, “I’m going to approach the Democrats first.” [laughs] So he is trying to approach the Democrats first. Well, he’s got Democrats on board. Oh, and in Florida he’s also getting Democrats on board. So then the Democrats are on board, and then there goes the Republicans. The Republicans say, “No, the Democrats are on board. We can’t vote for that.”
And so I see it less as a Republican versus Democratic thing because it’s different in different states. And yes, some states are blue and some states are red, and the local politics in each state can be pretty complicated, I guess. And so I don’t think I would put it all on one or the other. I think I’d go back to what Jeff was saying when he was quoting Reagan and saying, “Trust, but verify.” I think we’re at that point almost.
It does feel to me like these two sides are so skeptical of one another and so suspicious of one another, that really the only way to bridge that is to do the “trust, but verify” thing. And one of the things I was looking up a couple of weeks ago was this term “trust, but verify.” And what I wanted to know, what did that mean to them? And they came up with a bunch of procedures and processes that they could verify. To me, it just seems so on par with how dangerous that time period was for us as a country and how dangerous this time period is for us. And I think the solution, though, is the same.
Jeff: As somebody who comes to this with an engineering background, is the solution not going backwards to more paper, but is the solution going forward with maybe another leap of technology that solves some of these problems?
Lynn: No, absolutely not.
The smartest way forward is through hand-marked paper ballots. It’s through a system that is an analog system. When you design a system, you want redundancy. There are all these requirements that you want. And with electronic machines, there’s always hackers who are going to stay one step ahead and who can hack into that.
I know it seems strange for somebody who has an aerospace engineering degree, who loves technology, who loves new technologies, but that technology doesn’t belong everywhere. And the reason it doesn’t belong everywhere is that one of the very fundamental things I think people miss is that in order to have a successful election, the electorate has to believe in the results.
And specifically, the person who lost and the people who supported them, they have to believe in the results. And they’re not going to believe the results in a system that they themselves don’t understand. Everyone understands a piece of paper and a pencil, but not everyone understands computers.
And quite frankly, I don’t even understand these computers, these systems, and I’ve spent years reading the manuals. And there’s just so little that’s given to the public to verify.
Where I’m working in North Carolina, we’re getting volunteers to actually verify some of this information because evidence-based elections are really the solution.
I don’t think that we’re past the point of there being a solution, because I work with a lot of people. Even though we’re nonpartisan, Transparent Elections is nonpartisan, I do work with some groups where there are people who don’t believe that Trump lost.
But the solution is the same. We all want the same thing. We want the elections officials to give us enough of that information, that data, so that we can be assured that every link in that chain was secure.
And that’s something that we’re really running into in North Carolina. And actually, we’re seeing this in New York, we’re seeing this in Florida; we’re seeing this in Arizona, where we advocates who have been at this for much longer than just a few years, we’re asking for the same documents, we’re asking for the same observation opportunities [as we’ve had in the past]. And those opportunities are actually being taken away from us because elections officials, I think, are feeling threatened by people just asking for documents.
They’re taking this very personally. And the way that we view it is, look, we’re just asking for some boring documentation that we just want to verify and check. Why are we putting emotion into this? And I understand that there are people who are threatening elections officials and elections officials do have a legitimate gripe. And absolutely, they should not be threatened or harassed.
But they’re lumping people like me and Jonathan and other advocates into that same group of people who marched up the Capitol steps. And to lump us together, really, it doesn’t benefit them because we’re that bridge, actually. We’re that bridge between the elections officials and the people who don’t trust our elections.
We can say to them, what don’t you trust about it and what would you like to see? If you saw this, would you trust the system?
People continue to say the same thing. They want transparency. They want when they go to their elections officials and say, “Hey, can we have these documents that we’ve been asking for honestly, for every election cycle?” you don’t call these “predatory records requests” and make us out to be villains because we’re being citizens.
And so I really think that elections officials need to understand that it’s not that people don’t trust them, it’s that people don’t trust the process. They don’t trust the electronic voting systems. And unless these elections officials show what the process is, give the process manuals to people, let them see the process, bring them in, let them actually see it, let them ask questions—
I’d much rather have somebody go to one of these meetings where we’re opening ballots and scanning ballots, absentee ballots. I would much rather have people walk into that meeting having read the manual of what’s supposed to happen, because then when they see something, they’ll understand that yes, they’re supposed to be opening ballots right now.
Because what you don’t want is somebody to walk in having been told, “No, we’re not going to give you the process manual.” Because then they walk into that meeting and they see people opening ballots and they start, “Oh, they’re opening ballots and they shouldn’t.”
Okay, that should never happen. Elections officials need to understand that we deserve to understand the process and we deserve to understand the system. And elections officials, quite frankly, they [also] don’t understand these electronic voting systems.
Jeff: Jonathan, is that the answer? Better voting through better process?
Jonathan: Boy, a lot to chew on there. First of all, when it comes to “trust, but verify,” I’m in violent, nuclear agreement with Lynn that this is the solution that we’ve been aiming for from the very beginning. And I certainly didn’t mean to absolve the Democrats. I was talking specifically about legislation at the federal level. There’s a lot of stuff that goes on at state and county level in all these fiefdoms on the part of both parties that is pretty resistant to public scrutiny. And so they by no means get off scot-free.
I think what we’re seeing, and the ironies are so thick, is very, very difficult really to sort through. And it actually calls for a certain journalism that really isn’t out there, very much sorting through some of these ironies. And that is, the Stop the Stealers and election deniers are pointing to some very real flaws and vulnerabilities with this system. But when you come at it from the standpoint of whether it’s January 6th or any other form of this election denial, they basically want to take the shortcut, and haven’t produced even prima facie evidence.
And let’s be clear, it’s not easy to get your hands on the evidence you need. So again, they have a point: “How are we going to produce evidence when everything is secret?”
But for the past 20 years, I’ve been working in this field and actually producing some evidence — statistical patterns, anomalies, et cetera, et cetera. You’ve got to do the work. Instead, it’s been this teleological view that Donald Trump won, and because the election system didn’t confirm that victory — his victory or landslide or whatever it was supposed to be — it’s corrupt.
And therefore, any form of attack [is justified], whether it’s on election officials, threats or just the various kind of the overblown allegations, “audits” like what was done in Arizona.
These are all held to very low standards. We’re asking to hold the system to a high standard, but the assault on the system is anything goes. And that’s where it gets really dicey. And this is where an organization like WhoWhatWhy really has an opportunity to say, “Look, we have a both/and problem here. We have very irresponsible attacks on democracy, and yet at the same time we have a process that is fundamentally indefensible. And therefore, it’s drawing, it’s spurring these potshot attacks, which are very dangerous.”
I’m going to tease— we’re working on a democracy scorecard that goes state by state and looks at all these various aspects of democracy. And I will say it does have a bit of a partisan outcome to it, but the bottom line is that the vast majority of states did not do well. More than half of them outright failed, got a D or an F.
Jeff: I feel like we have two separate issues: Talking about making it easier or more difficult for people to vote, which is one set of issues. And the results once they do vote, which is the other part of it.
Jonathan: They’re both components of the ultimate outcome and we long ago coined the phrase “strip and flip.” You strip the electorate down by disenfranchising the people you don’t want to vote. And then when that’s not sufficient to get the outcome you desire, then you flip votes as needed in the pitch dark of cyberspace.
So I think we’re looking at an electoral system that is— Right now we’re in political total war. That’s part of the problem. That we’re in a place where it’s really no holds barred. Not only come out ahead but come out ahead in a way that it almost becomes irrevocable. And we’ve seen that in other countries. We’ve seen what happens when it becomes a “managed” democracy, and that is a real looming danger.
Jeff: But isn’t there a danger also in conflating all of these issues? Doesn’t it become too much talking about the ability to people to get out to vote, the machines, the counting of the ballots, all of the other things you’re talking about, the Electoral College, the independent legislature issue — all of these things when they get conflated makes it too much for anybody to pay attention to any of it.
Lynn: I think you’re right in some sense that you can use some of this stuff to conflate issues to make a point. So the voting vendors will conflate things like casting your ballot versus filling out your ballot, but it is tied because a lot of these ballot marking devices are actually being weaponized.
Where you do some calculation, there’s a 12-hour voting day, say everyone spends six minutes per— I think we probably spend more than that, but really what you’re talking is maybe 120 people per day can vote on that one machine. And so when you have a jurisdiction where you’ve got 5,000 people coming through the door, say I’m a jurisdiction where I want to see longer lines in some places. I’m going to put fewer voting machines in those places.
And so these systems that are being used, I think if people just used a little bit of common sense with these. I’m going to just keep going back to the ballot-marking devices because I just think they’re such a big issue to use them the way that they’re being used [for all voters, rather than just the small proportion that might need them]. But if you even just did a pros and cons list: you’re using a less secure system; it’s costing more money; it’s creating more skepticism. So why are we using it?
And I think it goes back to the “who” part of it. That’s the why. The who is, whom does this benefit? When you design a system, you keep the user in mind, and these systems don’t have the user in mind. They don’t have the voter in mind; they don’t have the election official in mind. One of these vendors was meeting with an election official and he’s a computer scientist and he asked, “Why does your system allow us to make this mistake that’s common enough to make, easy to make?” And they said, “Well, we just design the system and it’s up to you guys to figure out how to use it.” That’s not really responsible.
Jonathan: And I want to address the idea of conflation because I agree. You’re right. It becomes overwhelming and there’s an absolute threat that people will throw up their hands and just say, “I don’t want to deal with this. It’s too much on my plate.” And maybe even to the point where I’m not going to vote — you’ve demonstrated to my satisfaction that the whole system is a mess and so why should I bother?
Especially if I’m a working person and I have to make sacrifices to vote. And especially if I’m going to a place where they’ve reduced the number of ballot boxes or reduced the number of ballot-marking devices, so I have to stand online. So there is that danger.
But the thing is, Jeff, elections are ultimately very soulless. They’re about numbers. At the end of the day there’s a winner’s number and a loser’s number and that’s it. And it really doesn’t matter how you get to that number.
So if you are a political force that is trying to figure out how to hold power, you could stage a military coup, there are a lot of things you could do to hold power. But if you’re going to do it through elections, your bottom line is your number’s got to be bigger than their number in enough places. And if you’re looking at how you work this system to win, it could be keeping people from the polls, reducing the number of ballot boxes, limiting vote by mail.
Jeff: Right, but isn’t there a fundamental difference between how one works the system within the legal framework of that system, such as it is, and the actual counting of the votes and the honesty of that count, and within the legal framework of that? It seems to me they’re two entirely different things. One is working a system that is just the legal system that we have, whether it’s gerrymandering, whether it’s how you get people to the polls, whether it’s encouraging or discouraging vote by mail in certain communities.
All those things are legal ways to work the system. Manipulating votes and fraudulent vote counts are a whole different animal.
Jonathan: And you would think there would be a bright ethical line between them. And that’s one of the cases that I began making long ago, is that we can’t count on that bright ethical line in all the actors who are involved in this process.
We’ve heard from former operatives, somebody like [former Republican operative] Tim Miller whom you interviewed, about what goes on. When you get into that “we are here to win” mentality, you don’t draw these nice distinctions about what’s within the legal system and what is just—
People cheat at poker. You can play a good game of poker and you could also palm ad ace. It’s harder to cheat at a game like chess for instance. It’s hard to move twice. But if your opponent left the room and went off someplace and you move twice and you won your chess game that way, where is that ethical line?
And I think in the mind of — especially once it’s become total war and your mentality is, “Look, we are entitled, we should be in charge here; we should rule this state, or we should rule this country! It’s divine, or whatever it is, benediction.”
The things that you’re talking about, they are different. One is working the system, its soft points and its flexibilities, and the other is really going deep into a very dark and dangerous place. And for the longest time in this country, people have said, “Nah, it’ll never happen here.” That’s what changed with Stop the Steal. All of a sudden you have tens of millions of people that are on the other side of the partisan divide from where I am, but they too began saying, “Whoa, wait a minute. It could happen here. It could happen here. Wow. I bet you it did happen here.”
And so we’re in a different environment now, and I don’t think you can really separate those things in the set. Pragmatically you can separate them, but from an ethical standpoint, if you’re going to manipulate the system, I think you go for wherever the vulnerabilities are.
There are plenty of vulnerabilities when it comes to disenfranchisement, plenty of vulnerabilities when it comes to disinformation, and we believe there are vulnerabilities when it comes to the vote counting process itself.
Jeff: Lynn, talk a little bit about that, that line that I was talking about before.
Lynn: Yes. There are a lot of, I’ll call them “skeptics” groups, that they’re election skeptics, and there are a lot of those groups. And I think the thing that I would caution the media against and I would caution election officials against is to ignore them. They do have some good points. On one hand they’re saying, our election system needs reform, and on the other hand they’re saying we believe this guy won, and we’re going to do whatever we can to prove that. Well, I started reaching across and talking to those groups because I wanted them to understand what they were saying.
Some of it was true, and some of it was complete fabrication from people who wanted to cause chaos, and so I think it’s very dangerous for us to just ignore them. And so one of the things that we have been trying to do in multiple places is to get people to say, “Okay, you think that Trump won? You understand that there’s no legal mechanism to go backwards, and the only thing we can do is move forward together.” And to say to them, “Look, we’ve been studying these elections for years. We’re asking for ballot images. We’re asking for poll tapes.”
Essentially a poll tape is a receipt that comes out of a tabulator that has vote totals on it, and so we’re asking them to come along with us and we say, “Look, you could spend your time screaming that Trump won, or you could spend your time helping us go image poll tapes,” and then that might compel them to actually change some things.
I’m seeing that elections officials at least in North Carolina are really digging in when you go to them to say, “Hey, this process is broken.” Or even in North Carolina back during the 2020 primary. I went to them and said, “The process that the two largest counties and many other counties are using to count our ballots, to process our absentee ballots, is actually illegal, and you guys need to stop doing this because the Stop the Steal people, they know you’re doing it [laughs], and they’re going to challenge all those ballots.”
And so it took me five months — and getting fired as a political observer because my political party didn’t like that I went public with it eventually — but the elections officials didn’t want actually to change something that was broken. And that to me is really troubling, that I’m seeing that in North Carolina and I’m seeing that in some other jurisdictions. In New York, Lulu Friesdat from Smart Elections, also found discrepancies in poll tapes, and they removed her observing credentials. I disclosed that these jurisdictions were processing absentee ballots illegally so that they would start processing them legally by the time the general election came around.
And that did happen, and I was successful at that, but since then I’ve been harassed, I’ve been targeted. [chuckles] There’s a whole story there, a saga of how I’ve been getting all this backlash because I’m going and saying, “Hey, there’s this issue. Please fix it. I’m seeing smoke coming out of this theater.”
And most media, they don’t really quite know what to do with people like us, who really our motivation is not to overturn an election; our motivation is to prevent future fraud, to shut down any avenues people have to commit insider fraud. And so we’re really preventing election fraud for future elections, and that’s not getting covered.
What’s getting covered is elections officials talking about how they’re so overwhelmed with all these records requests. So I met with a bunch of groups and they said, “Well, what can we do? We want to do something; we want to see some evidence.” And I said, “Well, look, we’ve been collecting these poll tapes and analyzing them. Why don’t I teach you how to do this?”
And so I’ve been teaching people how to do this, but then when we find some discrepancies and we go to elections officials, what I would expect from somebody who really wants to improve the system is for them to say, “Oh gosh, why does that poll tape look that way? Yes, let’s open an investigation.”
And instead what you end up having is them just removing our observing credentials.
That is a really dangerous trend, and I think a lot of the media is fueling that. The media says, “Oh, Stop the Steal. Don’t tell them anything’s wrong with our elections because it’ll give them fuel for the fire.” But it seems to me like the media is pitting elections officials against well-meaning members of the public who want to do meaningful observation.
I’m not seeing what the media is reporting. I’m seeing that I’m meeting with groups on the left who yes, they’re pointing the finger and saying, “We may have been cheated in some previous election.” And I’m working with groups on the right that think they were cheated in a different election. But they both agree what the solution is. The solution is transparency, the solution is more robust audits. But when you go to elections officials with that, they don’t want that. For some reason they don’t want that. I don’t understand why they’re so resistant to it.
Jeff: Jonathan, why do you think they’re resistant to it? We’re just about out of time. Why do you think they’re so opposed to it, especially in a situation like Lynn’s talking about, where there seems to be support on both sides for making some of these reforms?
Jonathan: Well, first I want to give a shout out to Lynn who’s here, and to her colleagues who are not here, for what they’re doing, for being in the trenches. We have very different seats at this play, and you’re really banging your nose against the spiked wall there, and we need that and we need more of that, and we need more responsible people doing that so that that becomes the narrative. Just tremendously appreciative. And then also the role for journalism, more sitting back and looking at it all and trying to get at the truth of what is going on.
And in response to your question, I don’t know. I’ve never been an administrator in that regard, so I’m not exactly sure what goes through their heads, but my sense is, from the bit of contact I’ve had with closed systems, is that they are like fiefdoms. Whether they’re hiding deep dark secrets and things that they’re letting slide with the vendors or things that have conflicts of interest as Lynn says, and the testing process, that may also be there in some cases.
But my sense is that the vast majority of election administrators, and certainly election workers, are really devoting themselves. They’re not getting a lot of pay out of this. This is not the corporate world, and they are devoting themselves to try to run elections, and run elections fairly, but their main goal is usually to run— they call it a good night when there’s no controversy. So there’s a kind of allergy to this kind of probing and controversy, which, again, comes up because the system itself is set up for concealment.
It’s basically designed for concealment, and these are worker bees in a system that’s designed for concealment. But they are human, and they take it personally when people come snooping and probing and demanding this and demanding that. It’s not an easy thing to adjudicate. In fact, very often it winds up in the courts, and you wind up with actual judges doing the adjudication of what you’re entitled to.
Jeff: Finally, what do we think happens with the counting process in the midterm elections this year and looking towards 2024? What are the flash points that you see right now? Jonathan, we’ll start with you.
Jonathan: A lot of predictions are made about elections. We’ve seen in the past that those predictions don’t necessarily pan out. We’ve thought that in some cases that’s not because the polling was off again, which is generally the conventional wisdom. We think that in some cases elections were manipulated, but one way or another it’s very hard to tell based on the polls.
Jeff: How much is polling a fundamental part of the problem?
Jonathan: Oh, well, if you go back, I started my career as a political pollster, an analyst in a polling firm in D.C. And right at the get-go, it struck me that polling was probably the footstep of doom for our democracy because in a very general sense, it sets up a very unhealthy feedback loop in which politicians can find out what the public is thinking and cater to it at least in the run-up to elections. So, I think polling, it’s a very, very double-edged sword.
But in a very general sense, in terms of what it’s doing now, there are a lot of problems with polling, including exit polling — especially when you have a lot of non-Election Day voting, early voting, mail-in voting, and what not becomes very more difficult. It’s a tricky thing. The pollsters work pretty hard to get it right.
Jeff: Is part of the problem that polling, for all of its good and bad quality, sets up a set of expectations that combined with the lack of trust in the system that we’ve been talking about, makes everything worse than it might ordinarily be?
Jonathan: That’s a possibility. But if you look at, for instance, the 2020 election, polling set up expectations that Trump would lose by 13 million votes and he winds up losing by only 7 million votes and his backers still went crazy. So, I don’t really think you can put it on the polls. Both the pre-election polls and the exit polls in that election had Biden winning by between 12 and 13 million votes nationwide, and that was cut in half.
So, I don’t think that’s the issue and I don’t think we want to do away with polling because then you’re completely blind. Unless we went to a system that was truly public and observable and verified.
But as it stands, this is one of the very few windows we have to even begin to assess whether an election was on the level. And of course, it’s a system that the US has been using in countries around the world for decades to assess whether elections have been honest. They’ve been using exit polls and it has enough times resulted in electoral re-dos even. So I think that’s shooting the wrong culprit.
I don’t know what’s going to happen in 2022, to go back to your original question, much less in 2024. But we are definitely skating on the edge of a cliff here because we’ve seen that it can break down in a hurry and the ingredients are in place for it to break down again. I think we’ll be very lucky if we come through this with a functioning democracy.
Jeff: And finally Lynn, how do you see that exactly what Jonathan says, “playing out on the ground,” in someplace like North Carolina?
Lynn: Yes. North Carolina’s quite divisive, it’s quite divisive here. I don’t know much about polling but when Jonathan was talking, I kept thinking, “Oh, yes, that’s a tool.” It’s a tool that other countries do use to decide, “Oh, was this election actually legitimate?” And some elections have been, as Jonathan said, redone because of that. And so any tools can really be used for good or for bad, right?
And so I think that’s how I see things going, is that we have tools that we can use to get through this. And I initially thought when I decided to devote as long as it took to getting our elections to be trustworthy, I actually thought it was going to just be, “Okay, just make these incremental changes every election season.” And I just am not sure that we have that much time left.
And so I think everyone needs to use the tools that they have and really pitch in to make sure that we are debunking disinformation. Whether it comes from people on the right or whether it comes from election vendors or election officials, I think the media needs to use their tools to make sure to call out the elections officials when they are spreading disinformation and call out the vendors when they’re spreading disinformation.
And so I’m hopeful that this new interest in elections and people understanding elections will ultimately make elections more trustworthy because there’ll be more people paying attention and understanding how the process works. I’m concerned that some people aren’t thinking about it in a rational way and there are people who have, I guess for lack of a better word, they’ve joined a cult where they wholeheartedly believe in one thing even though they haven’t actually seen any real evidence that would point to that.
And so I think we’re at a really scary time in our democracy, especially when well-meaning people of the public are asking questions and they’re being banned. In my jurisdiction, they’ve banned me so that I can’t go to public meetings anymore and I’m not allowed to vote in-person in my own county right now.
Jeff: Lynn Bernstein. Jonathan Simon. I thank you both so much.
Jonathan: Thanks for having us, Jeff.