Here is do-it-yourself letter & cautionary note on senate antitrust hearing

From: Bev Harris <bev_at_blackboxvoting_dot_org>
Date: Mon Oct 12 2009 - 15:16:14 CDT

You may have heard: There will be a hearing in the U.S. Senate about the ES&S
monopolistic takeover of America's voting system. (ES&S bought Diebold's
Premier Election Solutions, giving it control over 75% of our jurisdictions).

Here is a copy of the letter BLACK BOX VOTING has sent to every senator on the
committee, and a downloadable do-it-yourself letter in Word format so you can
edit and customize to your own liking and send your own, plus all the
addresses, fax numbers and phone numbers.

LINK TO DO IT YOURSELF LETTER:

http://www.blackboxvoting.org/senate-hearing-doityourself-letter.doc

NEW RESEARCH

Note that the letter provides some new research to counteract claims that it's
too late because the acquisition has already taken place, and that the
acquisition doesn't fall under antitrust laws.

We encourage you to take an hour or so and start making contacts to help block
the takeover!

We have learned to send by fax AND snail mail. Please consider this approach,
with perhaps phone calls also if you have time, and please pass this along and
recommend that others make contacts as well.

I have added a link to the Associated Press story on this article down at the
end so you can see the announcement. The hearing will be by the Senate Rules
and Administration Committee.

AND NOW FOR A FEW CAUTIONARY NOTES

1) It is the US Dept. of Justice and the Federal Trade Commission that have
enforcement jurisdiction over antitrust matters. The Senate action may or not
be effective. We need to be careful that the hearing heads the remedies in the
right direction. Suggested remedies, based on past antitrust remedies by
enforcement agencies, are provided in the do-it-yourself letter. We framed the
letter to head off possible unintended consequences of a senate hearing on this
matter -- specifically, we don't want them using this as an excuse to further
expand EAC powers.

2) Some of the people on the Senate Rules and Administration Committee don't
give us a lot of confidence:

- Both sponsors of the e-voting force-feed Help America Vote legislation (HAVA)
are on the committee: Chris Dodd and Mitch McConnell.

- Head of the committee Charles Schumer currently has a proposed bill to force
Internet voter registration into all 50 states.

- Dianne Feinstein has participated in some of the most horrific voting
technology legislative proposals. And the list goes on.

For this reason, Black Box Voting has framed the letter into the CRUCIAL
"rights" approach.

We recommend making it clear that any additional techno-extravaganza or
concentration of power harm must not result from this committee review of the
ES&S monopoly actions.

Here is our letter, with contact list and links to a Word document version of
the do-it-yourselfer letter:

* * * * *

The Honorable Senator Charles Schumer
United States Senate
Rm 313, Hart Office Building
Washington, DC 20510-3203

Dear Senator:
Oct. 12, 2009

Black Box Voting is writing to urge you to remedy efforts to centralize power
over U.S. elections, specifically the sale of Diebold Inc's Premier Election
Solutions to Election Systems & Software, Inc. ("ES&S"), a monopoly which we
contend is illegal under U.S. antitrust laws, specifically the Clayton Act,
Title 15 U.S.C. 18 et. al.

We commend you for undertaking to review this acquisition and urge you to take
appropriate steps to undo the deal and remedy its consequences. However, this
is also a cautionary letter urging you to "at least, do no harm" -- we ask that
you address this while also avoiding further centralization such as additional
empowerment of the Election Assistance Commission (EAC), which is another form
of consolidation of power.

At issue here is our public right to public elections -- a human right, because
without public elections we lose sovereignty over the instruments of government
we created and pay for. Without sovereignty over our government, we lose
liberty itself. Concealing crucial election processes from the public makes
elections no longer public and in fact, executes a subtle change in our
originally designed democratic form of government. Consolidating and concealing
election processes from the public transfers power from the public to a small
group of insiders.

Consolidation of the industry that executes the mechanics of elections puts both
the public and election officials in an untenable position: If ES&S is
permitted to monopolize elections, the public will be confined to a position of
reliance on its continued management in perpetuity as well as the unregulated
good will of the company. ES&S will have achieved a transfer of power from
elections officials to itself, and also from the public to itself, and will put
itself in a position to shut down or delay time-sensitive federal elections --
in fact, a national security consideration.

So, while avoiding any further centralization or consolidation, we urge you to
examine and remedy the ES&S monopoly.

COMPLAINT THAT THIS ACQUISITION IS A MONOPOLY, SHOULD BE PROHIBITED UNDER THE
CLAYTON ACT, TITLE 15 U.S.C. 1-27 et. al.: Prior to the acquisition, ES&S has
served 47.7% of the purchasing jurisdictions in the United States. If the
acquisition is allowed to stand, ES&S will hold 74.7% of the U.S.
electronic/computerized supply of voting devices as market share.(1)

Below is a link to evidence that it IS a monopoly, along with examples and
citations showing its anticompetitive and harmful effects. But before getting
to that, let's deal with the issue of whether the eggs can be unscrambled after
an acquisition like this.

The sale was announced Sept. 2, 2009. I wish to direct your attention to
after-the-sale antitrust actions pertaining to similar situations. U.S.
antritrust enforcers have required other companies to divest themselves of
acquisitions, even if the acquisition was done many months earlier(2) and even
when it was not subject to permerger notification(3).

ES&S has claimed that this acquisition is not subject to U.S. antitrust laws
because the deal was under $60 million. First, that is not true because there
is no specific dollar figure exempting corporations from antitrust laws.
Second, while there are calculations to determine whether premerger
notification is required, U.S. antitrust laws apply regardless of whether a
deal meets premerger notification requirements.

REMEDIES REQUESTED: Black Box Voting urges the U.S. Senate to: (a) Investigate
the issues raised with this acquisition; (b) Assist the appropriate agencies to
compel ES&S to divest itself of all of Diebold/Premier's tangible and
intangible assets related to the development, manufacture and sale of the
relevant products; (c) Assist in obtaining an award to the United States for
the cost of this action; and (d) Grant the United States such other and further
relief as the case requires.

CONCISE, SOURCED BACKGROUND MATERIAL (21 pgs, incl. footnotes & appendix):
http://www.blackboxvoting.org/BBV-AntiTrust-Letter.pdf (1,100 KB)

To help you prepare for your review of this acquisition, above is a link to
sourced documentation related to this monopoly: It contains specific data
including citations and links to original sources, pertaining to: (a) the
companies (b) horizontal and vertical monopoly criteria and how these apply to
the ES&S acquisition; (c) elections industry regulatory environment and
history; (d) past history of anticompetitive behavior; (e) past history of the
effect of lack of competition; and (f) ownership research for ES&S.

Thank you for your energetic investigation into these matters.

Bev Harris - Director
Black Box Voting - 330 SW 43rd St Suite K, PMB 547 - Renton, WA, 98057

(1) Secretaries of State and Boards of Elections, compiled and tabulated into
spreadsheet form by Black Box Voting;; Sourced US Voting Systems by
jurisdiction; links to documents from states contained in spreadsheet.
http://www.blackboxvoting.org/Sourced-US-Voting-Systems-by-jurisdiction-2009.xls

(2) On Dec. 16, 2008, the Federal Trade Commission filed a federal court
challenge to Ovation Pharmaceuticals' January 2006 acquisition of the drug
NeoProfen. In Dec. 2008, a lawsuit challenged Microsemi's July 2008 acquisition
of Semicoa.

(3) U.S. antitrust enforcers can challenge mergers even after closing, and even
for deals not subject to premerger notification:
http://www.jonesday.com/pubs/pubs_detail.aspx?pubID=S5712

CONTACT LIST:

SNAIL MAIL ADDRESS:

The Honorable Senator Charles Schumer
Rm 313 Hart Senate Office Building
United States Senate
Washington, DC 20510-3203

The Honorable Senator Robert Bennett
431 Dirksen Senate Office Building
United States Senate
Washington, DC 20510-4403

The Honorable Senator Robert Byrd
311 Hart Senate Office Building
United States Senate
Washington, DC 20510-4801

The Honorable Senator Daniel Inouye
722 Hart Senate Office Building
United States Senate
Washington, DC 20510-1102

The Honorable Senator Christopher Dodd
448 Russell Senate Office Building
United States Senate
Washington, DC 20510-0702

The Honorable Senator Dianne Feinstein
331 Hart Senate Office Building
United States Senate
Washington, DC 20510-0504

The Honorable Senator Richard Durbin
309 Hart Senate Office Building
United States Senate
Washington, DC 20510-1304

The Honorable Senator Ben Nelson
720 Hart Senate Office Building
United States Senate
Washington, DC 20510-2706

The Honorable Senator Patty Murray
173 Russell Senate Office Building
United States Senate
Washington, DC 20510-4704

The Honorable Senator Mark Pryor
255 Dirksen Senate Office Building
United States Senate
Washington, DC 20510-0403

The Honorable Senator Tom Udall
110 Hart Senate Office Building
United States Senate
Washington, DC 20510-3101

The Honorable Senator Mark Warner
459A Russell Senate Office Building
United States Senate
Washington, DC 20510-4601

The Honorable Senator Mitch McConnell
361A Russell Senate Office Building
United States Senate
Washington, DC 20510-1702

The Honorable Senator Thad Cochran
113 Dirksen Senate Office Building
United States Senate
Washington, DC 20510-2402

The Honorable Senator Kay Bailey Hutchison
284 Russell Senate Office Building
United States Senate
Washington, DC 20510-4304

The Honorable Senator Saxby Chambliss
416 Russell Senate Office Building
United States Senate
Washington, DC 20510-1005

The Honorable Senator Lamar Alexander
455 Dirksen Senate Office Building
United States Senate
Washington, DC 20510-4204

The Honorable Senator John Ensign
119 Russell Senate Office Building
United States Senate
Washington, DC 20510-2805

The Honorable Senator Pat Roberts
109 Hart Senate Office Building
United States Senate
Washington, DC 20510-1605

FAX LIST (comma delimited; those with fax services know how handy that can be):

2022283027,Senator Charles Schumer
2124867693,Senator Charles Schumer
2124867693,Senator Robert Bennett
8015245730,Senator Robert Bennett
2022280002,Senator Robert Byrd
3043437144,Senator Robert Byrd
2022246747,Senator Daniel Inouye
8085412549,Senator Daniel Inouye
2022241083,Senator Christopher Dodd
8602586958,Senator Christopher Dodd
2022283954,Senator Dianne Feinstein
4153930710,Senator Dianne Feinstein
2022280400,Senator Richard Durbin
3123530150,Senator Richard Durbin
2022280012,Senator Ben Nelson
4024768753,Senator Ben Nelson
2022240238,Senator Patty Murray
2065530891,Senator Patty Murray
2022280908,Senator Mark Pryor
5013245320,Senator Mark Pryor
2022283261,Senator Tom Udall
5053466720,Senator Tom Udall
2022246295,Senator Mark Warner
8047393478,Senator Mark Warner
2022242499,Senator Mitch McConnell
5025825326,Senator Mitch McConnell
2022249450,Senator Thad Cochran
6019654919,Senator Thad Cochran
2022240776,Senator Kay Bailey Hutchison
2143613502,Senator Kay Bailey Hutchison
2022240103,Senator Saxby Chambliss
7702268633,Senator Saxby Chambliss
2022283398,Senator Lamar Alexander
6152694803,Senator Lamar Alexander
2022282193,Senator John Ensign
7023886501,Senator John Ensign
2022243514,Senator Pat Roberts
9134519446 ,Senator Pat Roberts

PHONE LIST
Charles Schumer
Phone: (202) 224-6542
Phone: (212) 486-4430

Robert Bennett
Phone: (202) 224-5444
Phone: (801) 524-5933

Robert Byrd
Phone: (202) 224-3954
Phone: (304) 342-5855

Daniel Inouye
Phone: (202) 224-3934
Phone: (808) 541-2542

Christopher Dodd
Phone: (202) 224-2823
Phone: (860) 258-6940

Dianne Feinstein
Phone: (202) 224-3841
Phone: (415) 393-0707

Richard Durbin
Phone: (202) 224-2152
Phone: (312) 353-4952

Ben Nelson
Phone: (202) 224-6551
Phone: (402) 441-4600

Patty Murray
Phone: (202) 224-2621
Phone: (206) 553-5545

Mark Pryor
Phone: (202) 224-2353
Phone: (501) 324-6336

Tom Udall
Phone: (202) 224-6621
Phone: (505) 346-6791

Sen. Mark Warner
Phone: (202) 224-2023
Phone: (804) 739-0247

Sen. Mitch McConnell
Phone: (202) 224-2541
Phone: (502) 582-6304

Sen. Thad Cochran
Phone: (202) 224-5054
Phone: (601) 965-4459

Sen. Kay Bailey Hutchison
Phone: (202) 224-5922
Phone: (214) 361-3500

Sen. Saxby Chambliss
Phone: (202) 224-3521
Phone: (770) 763-9090

Sen. Lamar Alexander
Phone: (202) 224-4944
Phone: (615) 736-5129

Sen. John Ensign
Phone: (202) 224-6244
Phone: (702) 388-6605

Sen. Pat Roberts
Phone: (202) 224-4774
Phone: (913) 451-9343

ASSOCIATED PRESS ARTICLE:

Senate panel to review election unit sale
(AP) – 2 days ago

http://www.google.com/hostednews/ap/article/ALeqM5ib_NsDixm28xH6QJph-EZNk5D-iAD9
B7P8KG0

WASHINGTON — A U.S. Senate committee plans to review potential problems in the
sale of an Ohio company's voting-machine unit to its market-leading rival.

The review of the Diebold (DEE'-bold) Inc. sale of Premier Election Solutions
was announced Friday by Sen. Charles Schumer, D-N.Y., head of the Senate Rules
and Administration Committee.

Schumer says the deal means Election Systems & Software Inc. of Omaha, Neb.,
controls a big majority of the U.S. voting-system market. He says that could
jeopardize the integrity of elections.

North Canton-based Diebold says the sale was completed last month and referred
questions to ES&S, which didn't immediately comment. A message seeking comment
was left at ES&S offices.

Bev Harris
Founder - Black Box Voting
http://www.blackboxvoting.org

* * * * *

Government is the servant of the people, and not the master of them. The
people, in delegating authority, do not give their public servants the right
to decide what is good for the people to know and what is not good for them to
know. We insist on remaining informed so that we may retain control over the
instruments of government we have created.

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Received on Mon Nov 30 23:17:02 2009

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