Thursday, July 31, 2008

Stealing America, Vote by Vote

A new film on voting in America makes its New York City premier this Friday, August 1st.


August 1st thru 7th at the Quad Cinema
34 West 13th St. New York City, NY

SCREENINGS 1:00, 2:50, 5:00, 6:50, 9:00
Q&A's on Friday and Saturday after the 6:50 and 9:00 shows and on Sunday after the 2:50 show

Andi Novick of Re-media Election Transparency Coalition and NY VOTERS will be on hand for the Q&A.

Contact your local theater and urge them to show this fim.

Wednesday, July 30, 2008

NYC Elections Board Hires Spin Doctors

From Bhopal to Blackwater a p.r. agency whose specialty is grooming the face of corporate inflicted human disaster has been hired for electronic voting “education” in NYC.

NYC Elections Board Hires Spin Doctors for $6.5 million

By Rady Ananda

Originally posted at OpEdNews

Today, the New York City Board of Elections announced its contract with global public relations firm Burson-Marstellar for a $6.5 million campaign to "educate" New York residents about the wholly non securable computerized voting systems NY plans to implement in 2009.

Also today, B-M announced it appointed former U.S. Army Reserve Public Affairs Officer Pamela Keeton as a managing director in its U.S. Public Affairs Practice. Earlier this month, B-M hired Karen Hughes, the former U.S. Under Secretary of State for Public Diplomacy and Public Affairs, as Global Vice Chair based in Washington, D.C.

This $6.5 million expenditure follows yesterday's Financial Control Board meeting where Governor Paterson admonished city workers for "failing to appreciate" the economic crisis faced by the city and the state. Mayor Bloomberg warned that since he expected a $1 billion deficit in FY 2009 and a $2.3 billion deficit in 2010:

"That's why we've put the lid on City-funded spending... We've directed City agencies to be very judicious in identifying where and how to save, in order to maintain our essential services and our economic competitiveness."

The lid has slipped, Your Honor. The NYC Board of Elections cannot justify $6.5 million in promoting a brand new, high-tech, exorbitantly expensive voting system that doesn't work. Nor is it "essential" to switch to a new system when fiscal prudence demands that NYC retain its secure, reliable lever voting machine in light of such grave fiscal deficits.

Burson-Marsteller's Clients :

According to Wiki, B-M's most notorious client is Blackwater USA, the mercenary group alleged to have murdered 17 Iraqi civilians last year. B-M was hired following the September 2007 incident and helped Eric Prince, the company's CEO prepare his testimony before Congress. Though the Iraq Prime Minister's office sought murder charges, Blackwater has never been brought to justice. Blackwater's Iraq contract was extended for another year in April. Apparently B-M did its job.

B-M also headed the PR campaign to dispute allegations of genocide against the Nigerian government, and represented Argentina's military junta government of General Jorge Videla to attract industrial investment.

The military takeover ended a protracted civil war and was hailed by world media as a prelude to peace in Argentina. Burson-Marsteller's client was the Ministry of the Economy. During the Videla government's reign, thousands of Argentine citizens disappeared and many more were tortured for their political beliefs, known as the Dirty War. Burson-Marsteller has maintained through the years that it was never asked by its client to defend human rights violations, but in
The Shock Doctrine, Naomi Klein states:

Victor Emmanuel, the Burson-Marsteller public relations executive who was in charge of selling the Argentine junta's new business-friendly regime to the outside world, told a researcher that violence was necessary to open up Argentina's "protective, statist" economy. "No one, but no one, invests in a country involved in a civil war," he said, but he admitted that it wasn't just guerrillas who died. "A lot of innocent people were probably killed," he told the author Marguerite Feitlowitz, but, "given the situation, immense force was required."

No stranger to defending oppressive regimes, B-M also represents multinational corporations, like:
"Union Carbide Corporation, jointly responsible for the Bhopal disaster that killed some 2,000 employees and nearby neighbors and seriously injured thousands more. The plant was a joint venture of Union Carbide Corporation, a long time B-M client, and the Indian government. While originally operated by Union Carbide, it was taken over by local Indian management prior to the accidental discharge of a deadly gas used in the manufacture of insecticides." (Wiki)

Corporate Watch reports this list of B-M clients:

BP Chemicals - In 1992, it was found that BP's Hull facility discharges twice the level of methyl ethyl ketone (MEK) - a chemical which can cause genetic damage, fetal damage or birth defects at unsafe levels of exposure - into the water than the total amount of MEK released in the United States.

Kerr McGee - owners of a uranium mine in the Navajo Nation, New Mexico. Accused of paying low wages and not informing the workers about the hazardous effects of uranium. Deaths are being recorded every month.

Malaysian Timber Industry Development Council - has felled vast areas of tropical rainforest, particularly in the states of Sarawak and Sabah, threatening the livelihoods of the indigenous peoples who lived there. BM has been hired to "repel falsehood and lies spread by evil-minded environmentalists." However, even the pro-business Malaysian Government has reported that 5 states have over-logged; and although the International Tropical Timber Organisation warned the loggers in 1990 to cut their output to 9m m3/yr it has remained at 16-19m; and at the present rate the primary forest will be finished in 7-8 years.

Monsanto and Eli Lilly - both companies produce the growth hormone BST to increase milk yields in cattle. It has been criticised for risk of infection in the cows, the fact that there is already a milk surplus, and unknown effects of this hormone on human beings. Acting on this concern, state legislators in Wisconsin, Minnesota, California and Vermont attempted to enforce labeling of milk produced with, and containing, this hormone. Their efforts were thwarted by Burson-Marsteller acting on behalf of these companies.

Pfizer - a pharmaceutical company accused in 1990 by the US Generic Pharmaceutical Industry of fraudulent and deceptive practices for its failure to report severe side effects of its Feldene drug before it obtained US approval. Listed by the Multinational Monitor as one of the ten worst companies in 1988 for supplying faulty heart-valves. At least 394 of these valves ruptured killing 252 people by 1990. The company has also conducted extensive tests on animals, was listed by a US group as one of the top fifteen corporate contributors to global pollution based on 1987 figures and had one of its plants listed by Greenpeace as one of the ten worst polluters in the South East of England.

SmithKline Beecham - A pharmaceutical and research company which, in the year to March 1991, exceeded its toxic waste discharge quota into the rivers and sea more than 30 times. The company also owns its own animal testing facilities and has been accused of unnecessary cruelty in housing its animals.

Unilever - food, chemical and household goods manufacturer. Implicated in pollution of rivers in the UK and convicted for water pollution offences between 1/9/89 and 31/8/91. Owner of Birds Eye Walls - a food manufacturer which admitted in 1991 to annually importing 30,000 tonnes of beef from Brazil (where much grazing land is felled rainforest). In June 1989, 87 workers at the plant in Sao Paulo, Brazil were fired for occupying the plant in an attempt to achieve better pay and conditions.

Why Is This Heavyweight Corporate Spin Doctor Involved In NY Elections?

New Yorkers reasonably must question why a global PR firm tied to such disreputable companies has been hired for $6.5 million by a cash-strapped board of elections to "educate" voters about the new election system.

Perhaps it's because 50+ scientific studies have proven that software driven voting systems can be hacked without detection. (For 12 fully cited quotes on what computer security experts say about the new systems, see Debunking Pre Election Testing Myths. For top shelf, crème de la crème, most succinct, in-plain-English, best quotes by computer security experts, see Warning: This Product Is Hazardous to Your Freedom.)

Beyond the damning evidence against using software driven voting systems, perhaps B-M was also hired for its specialization in "Grassroots Outreach" where it boasts:

"Our boutique, in-house Communications Center is built to manage larger scale data management and outreach activities directed at individuals and organizations relevant to a campaign.
We can narrowcast messages, or wide-cast them to thousands via strategic online outreach. We deliver products ranging from online targeting and recruitment to managing data for future activations."

Complete Market Failure

As expert spin doctors, B-M no doubt has been set upon New York voters to hoodwink them, despite the fact that software driven voting systems can be hacked without detection, despite their exorbitant price, and despite the widespread failures of these products.

None of the vendors hawking computerized technology meet NY's guidelines for doing business only with responsible vendors. Last year, attorney Andi Novick sent a 60-page, well-researched memo to NY officials, providing details of the shady connections, failed performance, and efforts of vendors to suppress damning evidence of their product. She later supplemented that research with a 21-page memo. Yet, as she points out, NY officials proceed with Eyes Wide Shut.

Sequoia's ballot marking devices (BMD) which allow special needs voters to prepare their own ballot unassisted (when they work) cost $12,000 each. Nassau County reported an 85% failure rate of over 250 machines, while the statewide failure rate stands at 50%. As Nassau County Commissioner William Biamonte said, "Can you imagine buying a $2,000 computer from Best Buy and it doesn't work right out of the box?" The cost for BMDs is sixfold his example.

New Yorkers can resist the move to computerized elections by signing this PETITION, and by following the reports at Election Transparency Coalition.

Joanne Lukacher contributed to this article.

In July 2006, Burson-Marsteller announced a new partnership with the broadcast PR firm The NewsMarket, which produces video news releases for clients. Video news releases (VNRs ) are fake tv news reports which are distributed to television news rooms where they are used interchangeably with independently produced legitimate news stories.
We are awarding a re-media t-shirt to our New York readers who report a sighting of a VNR designed to "educate" New Yorkers about the switch to electronic voting machines.


Monday, July 28, 2008

Keeping the Air and the Facts Clear

The Fight to Hold on to Our HAVA-Compliant Lever Voting System:
Keeping the Air and the Facts Clear

By Andi Novick and Rady Ananda
July 28, 2008

“If citizens mistakenly believe that a court has already ruled against the legality of our lever voting system, they will give up and accept the unconstitutional system planned for 2009.”

Let’s Clear the Air distinguishes the facts from the myths about the status of New York State's electoral system. New York is the only state not to have computerized its electoral system and the only state that still has a secure, reliable, transparent, functioning electoral system. Since New York is in the process of installing ballot marking devices in every poll site, providing an accessible means for voters with special needs to vote independently, there is no justification for the State to abandon its now HAVA-compliant lever voting system.

Software-driven optical scanners and DRE voting systems have proven to be vulnerable to undetectable tampering. New York voters must fight to hold onto their theft-deterring lever voting system before they lose it. New York courts must defend our proud history of transparent, safeguarded, trustworthy elections and proclaim to the State's legislature and to the rest of the nation:

Exposing our elections to the risk of massive tampering using hidden, unprotectable vote counting software is unconstitutional.

Computerized voting systems disenfranchise citizens in numerous ways, including depriving us of the right to know our votes are counted as cast and by permitting the count to be diluted by undetectable fraud. Because New York still enjoys a constitutionally-compliant, viable electoral system, we are uniquely positioned to seek a court ruling on the unconstitutionality of the proposed computerized system.

What happens next in New York will reverberate around the nation. It is therefore critical that we keep these facts straight.

In 2005, New York's Legislature passed the Election Reform and Modernization Act (ERMA), determining that it would comply with HAVA by replacing our lever voting system with a computerized voting system. Subsequently, it consented to an Order in federal court, implementing a timeline to replace our levers with computerized "crap" by 2009.

Maybe our legislators didn't realize what they were doing in 2005, but since then, dozens of scientific studies corroborate that optical scanners and DRES are grossly vulnerable to undetectable and massive election fraud. The computerized electoral system planned by our Legislature eviscerates all that was secure, transparent and constitutional about our lever voting system, depriving New Yorkers of the right to a meaningful vote. And yet, New York State proceeds with Eyes Wide Shut.


The Election Transparency Coalition is a New York based group, formed to preserve open, secure elections. It is prepared to commence legal action to prevent concealed, theft-inviting software from replacing New York's secure, theft-deterring lever voting system. Sign this petition if you agree with us.

If citizens mistakenly believe that a court has already ruled against the legality of our lever voting system, they will give up and accept the unconstitutional system planned for 2009.

We cannot give up.

We are the last state with a democratically-compliant, transparent, trustworthy, non-computerized, non-privatized electoral system. We are entitled to our day in court before we surrender our safeguarded electoral system to one that opens the door to known and new opportunities to fraud. We must fight to preserve our lever voting system now before it is replaced.

Originally posted at OpEdNews

Friday, July 25, 2008

Op-Scans Unlikely to Meet Certification Testing Deadline

As our readers know, New York State is under federal court order to adhere to a schedule for testing and certifying the software driven electronic optical scanners which will replace our lever machines as a means of counting our ballots. The deadline for certification testing is October 1st 2008. Earlier this month we noted that 85% of the Sequoia Ballot Marking Devices (BMDs) purchased by Nassau County were defective. Now, in a public letter, New York State Election Commissioner Douglas Kellner reveals why it is increasingly unlikely that the two Op-Scan systems ordered by New York counties, Dominion Voting Systems Image Cast (marketed by Sequoia Pacific ) and the ES&S DS-200, will meet state certification standards by the target date.

Leaving aside for now the consensus of the scientific community that software based voting machines can never reach acceptable levels of reliability and security, Mr. Kellner's letter, outlining examples of specific problems with these machines, reveals the low to non-existent quality control standards and irresponsible business ethics of the vendors, an assessment which is perfectly consistent with the pattern of behaviour we have discussed previously in these pages.

We can also discern from this letter that the State may soon be under increasing pressure to lower or ignore its own testing standards in the interest of time. We urge the Legislature and the Attorney General to continue to stand firm against such pressure and to use this opportunity to re-examine the legal and/or practical necessity for abandoning the immutable technological genius of our lever machines.

-- Joanne Lukacher

From: Douglas A. Kellner
Date: Wed, Jul 23, 2008 at 6:36 PM
Subject: Systest Report on NY Certification Progress
To: "Douglas A. Kellner"

As most of you know, the New York State Board of Elections is doing certification testing on two precinct based digital optical scanning systems, the Dominion Voting System ImageCast (marketed in New York by Sequoia Pacific) and the ES&S DS-200. I believe that ours is the most comprehensive testing anywhere, including that done by the EAC.

The court ordered timetable provides for completion of certification testing by October 1, 2008, which appears to be increasingly unrealistic. The weekly report from SysTest, New York's independent testing authority, excertped below shows just how difficult it would be to meet this target date.

What is particularly distressing is discussion that New York should consider overlooking what some are describing as hundreds of "de minimis" discrepancies from the VVSG or NY regulations. In my view, if they are really de minimis, I do not understand why the vendors cannot address them. I am trying to keep an open mind, but I believe that this may become a major issue within a couple of months as pressure mounts to have us overlook the shortcomings in the interest of replacing the lever machines in 2009. The industry and the Department of Justice will argue that if every other state is using equipment that does not comply with current federal standards, why should New York be the exception?

I believe that there is still strong bi-partisan consensus within New York that we should stick to our policy that newly purchased voting equipment meet all of the currently applicable standards.

This is an excerpt from the SysTest Weekly Report to the New York State Board of Elections:

SCHEDULE RISKS: Time and schedule continue to be the major constraint and risk to the successful completion of this project. SysTest Labs remains committed to providing thorough and complete functional testing, as well as initiating the run-for-the-record test pass in accordance with the current schedule and timeline. However; NYSBOE's ability to meet its court-mandated timeline for complete and thorough testing is at significant risk for the reasons described below.

Issue 1: Test Case Execution. With only 16 working days until the commencement of the run-for-the-record test pass, there remains insufficient time for a complete test pass through the entire test case suite for both initial and regression test passes. Our risk mitigation strategy is to configure five test labs for each vendor, allowing us to execute test cases in parallel. The likely outcome, however, is that not all of the test cases will be completed within the remaining allotted time, and the Vendor's will be unable to address all of the discrepancies discovered.

Issue 2: Documentation Discrepancies. Numerous documentation discrepancies, caused in large part by missing information from both Vendors' documentation, prevent us from finalizing the test procedures in all of the test cases. As of close of business on Tuesday, July 22, Sequoia/Dominion has 148 open documentation discrepancies and ES&S has 414 open documentation discrepancies. Without timely receipt of this missing information and documentation discrepancy fixes, thorough and complete testing cannot be accomplished per the schedule.

Issue 3: Functional Discrepancies. Based on our experience, both as an ITA/VSTL and with the current NYSBOE test project, we anticipate that a large number of discrepancies will be discovered as part of the functional test effort. There is a significant risk, given the remaining allotted time, that the Vendors will be able to address all of the expected discrepancies and SysTest Labs will have sufficient time to regression test the fixes. If a significant number of discrepancies are uncovered, the run-for-the-record test pass will have to proceed with these remaining open.

Issue 4: Hardware/Software Deliveries. SysTest Labs does not yet have all of the necessary hardware and software, which is still being delivered by the Vendors. Moreover, as we configure the voting systems, we are discovering additional documentation and procedural discrepancies.

Issue 5: NYSBOE Approval of Deliverable 7. Based on direction from the NYSBOE, SysTest Labs cannot begin testing without formal approval of Deliverable 7, Voting System Specific Test Plans. Therefore, without timely approval, the start of functional testing will be delayed.

Issue 6: Required NYSBOE Policy Guidance. SysTest Labs requested from NYSBOE policy guidance with respect to the configuration files for both Sequoia/Dominion and ES&S. At issue here is whether the State will allow changes to configurations in set-up parameters for individual counties or whether a single configuration will be mandated. This decision impacts vendor-specific test case development and thus will effect test schedules.

The following is a sample of the Vendor-specific delays that are keeping us from beginning functional testing:
It was discovered while configuring the Sequoia/Dominion EED computer that the election setup procedures do not match the documentation. Sequoia/Dominion reports that the procedures were changed, but the documentation was not updated. Discrepancies have been entered.
Because we do not have documentation from Sequoia/Dominion that tells us how to set up a single tower as a standalone system (all documentation still references the network), the Sequoia/Dominion rep had to walk us through several hours of the installation to get to a point where we could proceed with the current documentation. This document does NOT address several necessary printer drivers and Adobe configurations. Discrepancies are being entered.
Sequoia/Dominion is still delivering and building the voting systems for Lot 1. This is impacting the configuration of the test labs and the start of functional testing.
We are still waiting for Sequoia/Dominion to deliver the COTS software to be installed on the voting test computers. This is impacting the configuration of the test computers and the start of functional testing.
Please reference the risks in the Vendor-specific progress report below. SysTest Labs is still waiting for Sequoia/Dominion to send source code mapping, information concerning crypto algorithms, additional test hardware, and additional documentation.
ES&S provided expired licenses for RM COBOL. They are in the process of activating the licenses, but this is impacting the configuration of the test computers and the start of functional testing.
ES&S has pulled all of the VAT A200-00 units from testing. We are waiting for ES&S to deliver updated A200 units for testing.
Some of the equipment for the test computers delivered from ES&S failed (i.e. 2 test computers, keyboards, mouse, and switches). ES&S is replacing the failing equipment, but this is delaying the configuration of the test labs.
The installation of COTS software has been slowed because of missing and/or incomplete documentation and instructions. This is resulting in multiple emails and calls to ES&S and is delaying the configuration of the test computers.
There is no documentation or instructions from ES&S concerning what COTS software is to be installed on the AIMS computer.
Please reference the risks in the Vendor-specific progress report below. SysTest Labs is still waiting for ES&S to send compilers for augmented source code review, information concerning crypto algorithms, additional test hardware, and additional documentation.

I have no objection if you post or forward this e-mail. If you want a copy of the full Systest Weekly Report, please send me an e-mail.

Douglas A. Kellner
New York State Board of Elections

Tel. (212) 889-2121
Fax (212) 684-6224

Sunday, July 20, 2008

Warning: This Product Is Hazardous To Your Freedom

Voting activist, blogger and citizen journalist Rady Ananda is a senior editor at OpEdNews and Executive Director for Re-media Election Transparency Coalition. Here she and Andi Novick have assembled the " Top shelf, the crème de la crème, the most succinct, in-plain-English, best quotes by computer security experts."

Warning: This Product Is Hazardous To Your Freedom

by Rady Ananda and Andi Novick

Originally posted at OpEdNews.

For full quotes and citations, see Debunking Pre-Election Testing Myths or read the 50+ reports listed in this bibliography.

"...testing to high degrees of security and reliability is from a practical perspective not possible."

"...insufficient to guarantee a trustworthy election."

"... provides the opportunity for new kinds of attacks, from new kinds of attackers."

"An attack could plausibly be accomplished by a single skilled individual with temporary access to a single voting machine. The damage could be extensive – malicious code could spread to every voting machine in polling places and to county election servers."

"..., numerous studies have shown that currently deployed voting systems are susceptible to undetectable malicious attacks....”

"Malware in a voting system could be designed to operate in very subtle ways.... be inserted at any of a number of different stages ... from the precinct all the way back to initial manufacture - and lie in wait for the appropriate moment."

"This is a classic computer security problem. Whoever gets into the machine first wins. So if the Trojan horse software is in there first, you ask it to test itself -- it will always lie to you and tell you everything is fine.”

"There would be no way to know that any of these attacks occurred…”

"...'logic-and-accuracy testing' ... will never be comprehensive; important flaws will always escape any amount of testing."

"The current certification process may have been appropriate [with] a 900 lb lever voting machine ...But software is different. ..[Y]ou cannot certify an electronic voting machine the way you certify a lever machine.... [W]e absolutely expect that vulnerabilities will be discovered all the time....”

"... A certification system that requires freezing a version in stone is doomed to failure because of the inherent nature of software."

"... vulnerability of the system to malware infection and manipulation. ... large possibility that they could implement malicious programming (malware) into the system with little chance of detection. ...could likely spread from component to component throughout the system.”

"... the lack of capability to detect and report potential malware attacks against the system makes it the single largest threat."

Authors' Note:

Do we really want to vote on this "crap?"

Saturday, July 12, 2008

Mark Crispin Miller and Hacking Democracy

Mark Crispin Miller is a NYU professor and author of several books and plays including Fooled Again, an account of the theft and the cover-up of the theft of the 2004 election. Here he weighs in on the op-scan controversy in New York State:

NO op-scans in New York!

As a friend of Bo Lipari, and longtime champion of New Yorkers for Verified Voting (NYVV), I do regret that I must disagree profoundly with them on the matter of how New York casts its votes. While they call for replacing this state's lever system with op-scans, I see op-scans as unacceptable. As computerized machines, they don't permit the sort of open vote-count that democracy requires, but only partial and belated audits--a lousy substitute for the simplest and most honest counting method of them all: one that we can all observe together.

Moreover, those op-scans are manufactured and maintained by the same suspicious private companies that make and service DRE's: Diebold/Premier, ES&S, Hart InterCivic and the latest incarnation of Sequoia. These companies are as opaque as the machines themselves; and they're in bed with the Republicans. If they were in bed with the Democrats, they would be no more acceptable. The fact is that their very source is tainted, so they have no place here in New York (or anywhere else).

Finally--and unsurprisingly--those suckers can be hacked with ease, and clearly have been. (The New Hampshire primary, where Clinton won the op-scan-counted votes by some five points, while Obama won the hand-counted ballots by a little over six, is only one of many instances of fishy outcomes where they use op-scans instead of DRE's.) As Andi Novick reminds us...the hackability of op-scans was made crystal-clear in HBO's great documentary Hacking Democracy.

Hacking Democracy will be shown on Sunday, July 13th at 2:00 pm at The Muddy Cup, 305 Main Street, Poughkeepsie, NY. Andi Novick will be on hand to answer question about the NY VOTERS litigation and to sign up volunteers.

Mark Crispin Miller will be speaking at Vassar College on September 8th, 2008 in an event sponsored by Vassar College American Studies Program and Re-Media Election Transparency Coalition. Watch these pages for further information.

- Joanne Lukacher

Tuesday, July 8, 2008

Facts & Myths about Voting in New York State

Well worth a read: A short checklist of facts and myths about voting in New York State -- where we are, how we got here and where we could be headed -- "Let's Clear the Air" by Rady Ananda and Andi Novick at .

- Joanne Lukacher

[Introduction and footnote updated 7-28-08]


By Andi Novick and Rady Ananda

--Optical Scanners and DREs Operate on Undetectably Mutable Software, Depriving New York Voters of the Accuracy and Transparency We Have Enjoyed for More than a Century.

--No Court Has Ever Ruled that HAVA Requires Lever Machines Be Replaced.
Now Let's Go to Court and get a Ruling that Lever Voting Machines are HAVA-compliant so We Can Continue to Enjoy the Security and Transparency Offered by Our Lever Voting System.

Fact: New York has a secure, reliable electoral system that has served the State of New York for more than a century – preventing dilution of the franchise from fraud and ensuring that the will of the people is preserved.

Fact: The lever voting system in New York (and the hand-count voting system as it existed since 1896) provide a transparent process by which many eyes are involved in securing the electoral process, particularly the count. Both systems are designed to detect, deter and expose fraud.

Fact: The State of New York decided that rather than fight the federal government, which would like every state voting on new, budget-breaking, shoddy, vulnerable-to-undetectable fraud, software-driven optical scanners or DREs, it would capitulate, passing laws in 2005 to have New York surrender its secure lever voting system for these unreliable computers. The Election Reform and Modernization Act of 2005, Chapter 181, §11. (See NY Election Law)

Fact: The computerized voting systems that the federal government claims satisfy the Help America Vote Act (HAVA) - even in their "crappy," theft-inviting condition - disenfranchise those who are forced to vote on them, depriving citizens of the right to a transparent, open voting system and the ability to know that their votes are being counted as cast. See: LitigationSummary.pdf

Fact: These so called HAVA-compliant electronic voting systems are not transparent, concealing from the people the way in which the software is programmed to count our votes. Indeed optical scanners and DREs are nothing more than secret vote counting machines, anathema to any notion of a democratically run election.

Fact: Unlike New York's lever voting machine or a hand-count voting system -- which require a completed, verified count on election night (because exposing the count to the watchfulness of ongoing public surveillance has been considered the most secure way to count our votes for the history of the State of New York), the new computerized systems will abandon the security provided by ongoing public scrutiny and no longer provide a completed, reliable, secure count on election night. NY Election Laws, McKinney's Chapter 17 at New York State Board of Elections.

Fact: New York's lever voting system is far superior to the computerized voting system planned - in terms of transparency, security, expense, reliability, trustworthiness, theft-deterring ability and the protection it provides to New York Voters' constitutionally protected franchise. (See these July articles posted at Re-Media Election Transparency Coalition: Merits of the Lever Machine: A Scholar Speaks Up, and Eyes Wide Shut.)

Fact: The federal government's position is that lever machines are not HAVA-compliant, but no court has ever ruled on this issue because the State of New York never argued this position in any court.

Fact: In litigation commenced by the Department of Justice (DoJ) in 2006 to force New York to become HAVA-compliant, the DoJ claimed lever voting machines were not HAVA-compliant because: a) they could not be made accessible to disabled voters; and b) they don't produce a piece of paper that can be manually audited. While many in New York believed the DoJ's interpretation of HAVA to be an erroneous interpretation, the State of New York declined to put this in issue before the court, having already decided in 2005, before the DoJ sued, that New York will replace our lever voting machines with software-driven machines.

Fact: In 2004 Co-chair and State Board of Elections (SBOE) Commissioner Douglas Kellner testified that our lever voting system is HAVA-compliant but for one HAVA standard - the accessibility requirement.

Fact: In 2008, the State Board of Elections agreed to install ballot marking devices in every poll site and is in the process of completing that, thus complying with the only federal standard New York's lever machines did not meet. Hence, with ballot marking devices in every poll site, there is no longer an impediment to the lever voting system's compliance with HAVA.

Fact: The federal government's remaining objection to lever machines, to wit they don't provide a manually auditable piece of paper, is not true. Our lever voting system does create a piece of paper that can be audited. In any event, this is the DoJ's interpretation of HAVA, but since no court has every ruled on this, it's just an interpretation. It is not what the law says and no court has ever interpreted HAVA as requiring New York to replace its lever machines.

Fact: The State Board of Elections has found over a thousand defects in the ballot marking devices that have been bought for New York and has shipped the counties these computerized machines, many in an unusable state. (See Nassau County Letter 1, Letter 2, Letter 3, and NY Loves Its Levers as New Systems Fail.)

Common myth: HAVA requires us to replace our levers. It does not.

Common myth: A court has ruled that levers are not HAVA-compliant. No court has ever made any such ruling.

Common myth: New York's electronic voting system will be transparent. It will be anything but.

Common myth: "Auditing" the unreliable computerized results by counting a small percentage (or any percentage) of ballots after the election is over, after the press has announced the winner, after the ballots have been exposed to heightened opportunities for post-election tampering is good enough for a secure, democratic election. This is not true. In fact, using post-election ballots to verify secure election-night results is considered so insecure that New York has never in 231 years permitted post-election ballots to be used to verify secure election-night results, until now.

Common myth: New York State's more stringent certification testing requirements, if complied with, will make optical scanners or DREs accurate and safe to vote on. This is not true. No matter how much testing is done, because software is by its nature mutable, the pre-election testing cannot tell you how the optical scanner or DRE will count the votes.

Since no court has even been asked to rule on the issue of whether lever voting machines are HAVA compliant, and since the computerized voting system New York has enacted is the antithesis of a secure open electoral system, violating in its enactment existing laws, two centuries of accumulated experience and wisdom, and a myriad of safeguards that have protected New Yorkers' "consent" from corruption by fraud, we would hope that the "People's attorney," the Attorney General, would have fought for the People's right to not be disenfranchised. But because Mr. Cuomo's office has decided to side with the State Legislature against the People, the People have no choice but to pursue their own litigation against the State of New York and the State Board of Elections to stop them from forcing us to vote in this highly unsecure and unconstitutional manner.

Our federal constitution is in tatters, our once independent Department of Justice has become a tool of a corrupt federal government hoping to disenfranchise as many people as it can. But New York's state constitution is alive and well and the State of New York's electoral system is vibrant and constitutionally-compliant. New York Voters need to take action to stop the State from abandoning our lever voting system for the theft-enabling computerized system, while we still have a functioning electoral system.

We are the only state not to have exposed our electoral system to increased and unprotected opportunities to unseen fraud. We are the only state with an existing strong, secure voting system. We must stand up to the Department of Justice and its disregard for our laws and our democratic, transparent, reliable voting system. We must stand up to our State Legislature that have caved to a corrupt Department of Justice and violated the rights of the Voters of New York. We must fight to retain what is constitutionally ours before it is taken away.

With your help we will commence this lawsuit against the State of New York. Please tell your neighbors. Please give them the facts. The facts speak for themselves and loudly beg the question–

Why in the world would we abandon our lever voting system?

FOOTNOTE: All of the above lays out why we believe it is critical to keep the facts accurate in the public's mind. Accordingly, we have withdrawn the original footnote to Let's Clear the Air in order to end the distraction over he said/she said. This diverts us from the facts and harms the efforts of all of us who are trying to secure what each of us believes to be the best voting system for New York. We are all entitled to our beliefs. So, in the spirit of respecting each other's beliefs, here are ours:

Based on 231 years of history in New York State, we know what a secure, transparent electoral system requires because we can look at the case law and statutes and see what has worked for New York. Relying on the law as written over the past two centuries:

We believe a democratic electoral system requires that ordinary people be able to observe that the system accurately counts our votes.

We believe it requires that many eyes be able to check each other as we witness the process that results in the count.

We believe it requires the production of reliable, publicly accessible evidence of both how the votes were counted as well as evidence of tampering, should it occur.

We believe a democratic electoral system must be designed to detect, deter and reveal fraud, without which there is no deterrent to committing fraud.

We believe a democratic electoral system must contain safeguards that prevent every known opportunity for tampering.

According to the law as written by successive legislatures and repeatedly interpreted by the highest court of the State, New York's lever voting system satisfies all of the above criteria and has served us well for a century.

New York's new law, ERMA, permits software-driven optical scanners or DREs to count our votes. Computer security scholars and professionals corroborate that software can be undetectably altered before, during and after Election Day, despite the most rigorous certification testing anyone might provide. ERMA, therefore, fails to ensure that the election night count is reliable. All we can do to attempt to verify the uncertain computerized count is manually count the paper ballots, but ERMA requires that the "audit" be done after the election is over, after the results from all other precincts are known, after the press has announced the winner, and after ongoing public scrutiny of the ballots has ended.

The entire history of New York's Election Law, until ERMA, recognized that post-election ballot tampering is so probable that it has never permitted post-election verification of the secure, reliable, publicly observed first count. Under ERMA, not only is the first count (on software) undependable and concealed from the pubic, but the post-election "audit" is also unreliable, since the ballots being hand counted to verify the first count no longer enjoy the security of uninterrupted public scrutiny enabled by the many authorized watchers at the poll site. Under ERMA, the integrity of the verification is impugned, leaving the entire count unknowable and unreliable.

Moreover, since we believe that transparency in a public election demands that many eyes be able to observe the process that results in the count, we are opposed to optical scanners and DREs which hide that process.

Since we believe in the democratic requirement that everyday people be able to witness the process that results in the count, we are opposed to optical scanners and DREs which conceal the count.

Since we believe that a democratic electoral system requires the production of reliable, publicly accessible evidence of both how the votes were counted as well as evidence of tampering, we are opposed to optical scanners and DREs which computer scientists have agreed can be programmed to destroy evidence of the count as well as evidence of the tampering. Without reliable evidence of the count or of fraud, there is no way to challenge the results in a court of law, potentially disenfranchising the electorate and depriving them of their legal recourse to vindicate the loss of their constitutional right.

Since we believe a democratic electoral system must be designed to detect, deter and reveal fraud, we are opposed to optical scanners, DREs, and election management systems which have been shown to be hackable without detection on a massive, outcome-determinative scale, by a single person who doesn't even have to be physically present.

Since we believe a democratic electoral system must contain safeguards that prevent every known opportunity for tampering, and indeed this is what New York's case law has consistently required of the legislature, we are opposed to optical scanners and DREs which subject the count to known opportunities for tampering and expose the count to new and greater risks made possible by software. The highest court in New York has repeatedly found that dilution of the count by tampering amounts to unconstitutional disenfranchisement.

We therefore reject software driven voting systems and demand that New York hand count the ballots marked by accessible ballot markers for voters with special needs, and retain its secure, transparent, and reliable lever voting system, with all the attendant laws enacted to secure the lever count.

Sign this petition if you agree with us.

Saturday, July 5, 2008

Eyes Wide Shut

An Imperative SOS
New Yorkers Struggle for the Soul of Democracy

New York State, the State Board of Elections and New York’s Attorney General are Preparing to Violate Our Constitutional Right to be Protected From Disenfranchisement -- Even as They Know Computerized Voting Systems Cannot Secure our Votes.

At a recent (June 19th 2008) meeting of the four commissioners of the State Board of Elections (SBOE) the discussion focused on the myriad problems New York State is having with the voting vendors who continue to sell the only product they offer – “crap.” As SBOE Co-Chair Douglas Kellner (D) stated:

“[T]he voting industry sells crap. And that's the problem.”

Of course we know that because it’s been well documented. And if we know it, certainly our legislators and commissioners and Attorney General must be familiar with the dozens of independent studies in which computer scientists have repeatedly found that no amount of certification testing is going to make software-driven systems secure enough. Even the National Institute of Standards and Technology, acknowledged:

"[E]xperience in testing software and systems has shown that testing to high degrees of security and reliability is from a practical perspective not possible."

Across the nation the vendors have been selling crap that breaks down, is defective, can be easily rigged, and time and again independent computer scientists reveal how easily the scanner or the DRE can be penetrated and corrupted by unaccountable unseen programmers. See for ongoing reporting of the nation’s woes as every state suffers from the crap sold by the voting industry. Yet New York,the only state with the benefit of learning from the nightmare that has befallen the other 49 states who bought the snake oil, is proceeding, eyes wide shut.

“BARGAIN WITH THE DEVIL” -The Crappy Ballot Marking Devices Have Thousands of Defects but at Least They Aren’t Counting Our Votes

New York has now bought software-driven ballot marking devices (BMDs) because the Help America Vote Act (HAVA) said that we have to provide a means for the disabled to vote without assistance -- a worthy goal -- but the most able-bodied person in the world couldn’t vote unassisted on these pieces of crap. Still, we have bought what the vendors are selling for BMDs and we are experiencing precisely what everyone else who is forced to buy crap gets -- no surprise there. At this same 6/19th meeting the commissioners were having a lot of trouble with the BMDs because the both the pricey new combo BMD/optical scanner purchased by most of the counties and the less expensive single unit BMD without optical scanner, showed up with thousands of defects in testing by the SBOE. At this point the SBOE is only performing testing for the BMD functioning and not for the optical scanner counting function in order to get the BMDs in every poll site for the 2008 elections.

Last week Nassau County wrote to the federal judge, who’d accepted the State’s shameful surrender of our constitutionally protected right to vote, justifiably complaining that “85% of the 156 BMDs received [so far] ... have substantial operational flaws that render them unusable or that require major repairs”. (see Nassau County's Letter to Judge Sharpe 6/27/08) Nassau blames the SBOE for certifying these machines and forcing them upon the counties. While there’s plenty of blame to go around, the bottom line is the machines are crap; the vendors have a captive consumer and they sell machines that don’t work because the forced consumer feels compelled to have the crap in place for the next election.

And so the state commissioners agreed (at the 6/19 mtg) to relax the rules regarding the BMDs- even as they found literally thousands of defects, because while they may be defective and not work, at least we’re not talking about how vulnerable they are to tampering since these BMDs aren’t being certified to count the votes (yet). But warned Commissioner Kellner, he’s not going to “get caught in this bargain with the devil” when it comes time to certify the scanners to count votes. So what is he going to do when it comes time to certify the counting function on the BMD?

Commissioner Kellner’s efforts are truly heroic, even as he’s wrongly trying to certify equipment that will never be able to safely and accurately count votes. He’s really trying to do the best he can with an impossible situation- the use of computerized voting systems to reliably count our votes. We know he can’t succeed because the evidence overwhelmingly shows that no software-driven voting machine can accurately and safely count votes. It’s not just that the voting vendors sell crap- even if they sold quality computers, software is vulnerable to undetectable tampering. If we had millions of tax payers’ hard earned dollars to burn, someone could conceivably devise more secure software-driven voting machines than these vendors peddle, like Las Vegas does, but it still wouldn’t be secure enough for a democratic election: the software can always be altered without anyone knowing because that’s the nature of the beast (close friend of the devil the SBOE is in the midst of negotiating with).


New York State’s Lever Voting System Is Secure, Supported by Most People in the State, and it Works

What is to be the fate of the great state of New York? That at this moment is in the hands of the electorate because our state government has turned against us. Unlike every other state in the nation, we are the only ones who have not yet computerized our electoral process. We are also the only ones with a functioning, secure, reliable and affordable electoral system. Why are we abandoning our levers when they have been described by one scholar studying the issue as “[O]ne of the most astonishing achievements of American technological genius.” Why are we casting off a century of wisdom that has shown how the mechanical processes of the lever machine can be relied on for precisely the reason computerized processes cannot be– lever voting machines are designed to prevent and reveal tampering.

Why are we buying crappy, theft-inviting computerized machines?

We have to buy BMDs because HAVA ordered this and because we should try to make these computers work to create ballots for those who can’t pull the lever themselves. But because software is so vulnerable to concealed tampering it has no place counting votes in an open, public electoral system.

New York’s lever voting system deters theft. The federal government’s computerized voting systems invite theft. We can outsmart the criminal Department of Justice that succeeded in pressuring our State Legislature and our Attorney General to agree to surrender our right to vote on secure voting machines. We can have BMDs for creating ballots, but stop there and not pretend these computers can be “certified” to secure the counting of our votes.

New Yorkers have to say NO to the federal government that would have us voting on unsecurable software which can be deployed to steal our precious franchise. NO to our state government that couldn’t find the courage to resist orders from the deceitful administration in Washington. NO to our Attorney General who has the courage to fight deception against crap, but only when it’s being dumped in the Oswego River, not when it’s being dumped on the people of New York. Thanks Mr. Cuomo for saving the river, but what about Saving our State!

SOS: Will anyone stand up for our secure lever voting system that has protected our democracy for a century?

Who supports New York’s lever voting system?

Just about all the county election commissioners in New York, in their personal capacity.
Just about all the state board of election commissioners in New York, in their personal capacity.
And I’d venture to say, most of the citizens of New York.

1) The County Boards of Elections

If you ask the county election commissioners, they will tell you that much as they would love to keep the levers and much as they know the nightmares of computerized voting and the excessive costs to taxpayers, “this ship has sailed.” They are beleaguered. New York State’s Legislature did not stand up and fight for the levers when they had the chance. The State caved- first passing state laws to replace the levers and then capitulating to the pressure of the feds in the litigation commenced by the corrupt Department of Justice agreeing to surrender your rights and the lever voting machine by 2009.

Nassau County Election Commissioner John A. De Grace (R) tried getting the State to stand up for the rights of citizens in his testimony before the SBOE in 2005:

“I can only speak for myself, although I am certain that all other Commissioners in the State of New York feel as impassioned as I do. My main responsibility is to the voters, to ensure that my Board does all it can to implement the law as well as to guarantee fair, just, accurate elections. Up until now I have felt secure and confident that I have been able to do this. Through the use of the Automatic Lever Voting Machines, though aged, I am able to certify election results and I am certain of the accuracy by which we conduct our elections.”

But the State insisted on going forward with its plan to buy crappy, unreliable, undemocratic computers and the SBOE is the State’s executioner. The county election commissioners are following orders from the SBOE. Rather than fighting to Save our System of lever-counted voting (and our democracy) everyone is busy preparing to go down with the ship.

2) The State Board of Elections

If you ask the SBOE commissioners responsible for certifying that these machines can accurately and securely count our votes, they will tell you:

Commissioner Evelyn Aquila (D) at the 6/19th SBOE meeting:
“I support the lever machines”

Newly appointed Commissioner Gregory Peterson (R) at the 6/19th SBOE meeting:

“If it doesn't work the way you said it was going to work [referring to software-driven systems], we're better with a lever-just pushing down levers. And if the judge doesn't understand that [referring to the DoJ’s lawsuit] then he's going to have to be made to understand that.”

But the SBOE does what the State Legislature tells them to do - certify software, abandon the levers. The SBOE doesn’t have to follow orders. Certainly since the Nuremberg Trials this excuse has been explicitly rejected.

Our lever voting system is secure and reliable, protecting the will of the people by preventing dilution of the franchise from fraud. It is a crime to knowingly rob the people of their sovereignty by forcing them to pretend to vote using secretly programmed software that counts votes under the cover of concealment: the perfect breeding ground for fraud. It is, in fact, un-American and unconstitutional.

We are still voting on our lever machines, at least through the 2008 election. THIS SHIP HAS NOT SAILED. Will Commissioner Kellner do what he said he’d do at the 6/19 SBOE meeting?

“I'm prepared to go back to Judge Sharp and to say: Judge, it would be unconstitutional to enforce the Help America Vote Act by requiring us to replace the lever voting machines with scanning equipment or DRE equipment or any equipment that does not comply with the current guidelines.”

Or will he and his colleagues continue to spend our money seeking to certify the reliability of machines that will never be reliable enough for an open, secure, democratic election.

3) The Good Citizens of New York

Ask most New Yorkers and they’ll tell you they are happy with their levers. That means for the most part they trust the results or they would not be happy with this system. They have good reason to trust the lever voting system and no reason to trust the computerized voting system the State plans on using to disenfranchise us.

But there are some who do not support the levers -- many of them are election activists who believe having a paper ballot is better regardless of how it’s counted: even if it’s counted on undetectably mutable software. Their argument: we know the optical scanners can be rigged without ever being detected, but we can hand-count some of the ballots to check against the computer results. It’s true -- we can do that, but we’re not. And even if we were -- why would we settle for an electoral system that is so insecure it requires us to vote on hackable software to deliver an unreliable result on election night, only to check that unknowable tally after the election, after the press has announced the winner, after the ongoing surveillance of the poll site has ended, when the opportunity for tampering with those paper ballots is at its highest.

In other words the new electoral system the State has designed forces us to vote on software that may very well have been tampered with and then checks by counting only a small fraction of the paper ballots that might have been corrupted!

Is that better than a lever voting system? Well, those opposed to levers and in favor of optical scan software will say if the lever machine fails or is tampered with there’s no trace of how the voter voted. That’s true too, but it’s not like optical scanners solve that problem. It’s not like we’re checking the unseen tabulations of the optical scanner by doing an immediate hand-count of the paper ballots on election night, before they leave the poll site to be exposed to the potential for tampering – before those ballots are changed leaving no trace of how the voter actually voted.

Levers vs Optical Scanners

The lever voting machine:

• Is difficult to tamper with (as opposed to the ease of tampering with software);

• Can function well without the large numbers of failures we see with software (and for hundreds of years if properly maintained- won’t need to be continually upgraded like the way software is designed); and

• Is mechanically transparent (unlike software which is not knowable by regular people and even the few experts who get to see some of the source code aren’t allowed to tell us what they find because the State has agreed to surrender the public’s right to know to the vendor’s desire to hide the way in which the software is programmed).

• If tampered with (although it’s time-consuming to break into a lever), the limited number of votes on a single lever machine are compromised, containing the scale of the fraud. (as compared to software where a single person with access to a single computer can infect every voting machine in the county); and

• Reveals error or fraud, visible upon opening the back of the machine. Regular citizens can be readily taught to see the problem (unlike computerized voting systems which conceal errors or fraud amid the hundreds of thousands of lines of software code, or by allowing malicious code to disappear, and which error or fraud can never be seen by regular people);

• Was designed and in fact functions to deter theft (unlike computerized voting machines that enable theft on levels never before possible in American democracy).

At the end of the day, given that for the history of our elections insider fraud has played such a prominent role, the lever voting machine along with the safeguards New York has in place, have succeeded where no other voting machine has-- deterring fraud and best preserving the will of the people.

New York’s Legislature, Supported by the Attorney General, Sold Our Souls (SOS): Levers Are HAVA-compliant Now That We Are Installing Ballot Marking Devices in Every Poll Site

Testifying before the NYC Voter Assistance Commission in 2004, before the State agreed to install BMDs in every poll site, Commissioner Kellner attested to the lever voting machines’ compliance with HAVA.

“Our lever machines satisfy all but one of [HAVA’s] standards, that there be at least one machine at each poll site that is 'accessible for individuals with disabilities, including non-visual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.”

We have met the one standard lever machines could not satisfy. We bought the BMDs. We are paying plenty for our dance with the devil. The bleeding to our wallets and to our democracy must end with the Ballot Markers. We still have our levers. THIS SHIP HAS NOT SAILED.

As Nassau Election Commissioner William Biamonte (D) recently summed it up:

"All that's at stake is the credibility of representative democracy in New York State." See
So Who Exactly are We Buying these Crappy Theft-Inviting Machines For?

More to follow soon alerting you to the actions needed to protect us before the State succeeds in disenfranchising each and every one of us.

-- Andi Novick

Wednesday, July 2, 2008

New York VOTERS v. NY State and the State Board of Elections

Below is a synopsis of the litigation being prepared by New York VOTERS (Voters for Open, Transparent, Electoral Reliability and Security) challenging the constitutionality of provisions of New York's Election Reform and Modernization Act of 2005 (ERMA) :

- Joanne Lukacher


This litigation challenges the constitutionality of changes to New York’s Election Law, enacted by the Election Reform and Modernization Act of 2005 (ERMA), by which the State proposes to replace the lever voting system with computerized voting systems (DREs or Optical Scanners). Because software-generated results are unknowable, the State has proposed compensating for the loss of a reliable count on election night by providing for a post-election verification of the election night tally.

The electoral scheme that has existed in New York for more than two centuries has required an open, conclusive count of the ballots on election night, when the watchfulness of what is now election officials, authorized watchers, party representatives and the press could best deter fraud. To further preserve the integrity of the election, since 1896, the Election Law has required contemporaneously created, reliable physical evidence of the count or of fraud. A verified, completed count, publicly recorded and announced at each poll site on election night, before the aggregate of the total votes is known, continues to be mandated. For 231 years New York’s electoral system has protected the safeguarded election night-count from corruption by forbidding post-election recounts, it being historically understood that once the ongoing public scrutiny of the poll site ended and the results of the election night count were known, the count was at greater risk of subsequent tampering.

The newly enacted legislative scheme represents an unprecedented and unconstitutional reversal of existing and long-standing presumptions and requirements, permitting vote counting for the first time to be performed by concealed, undetectably mutable software, only to be verified after election night in a historically recognized unreliable way. Repeated scientific studies have shown software-driven voting machines to be vulnerable to unseen tampering and incapable of providing trustworthy election results. New York’s Legislature recognizes that the software-generated election-night count is not reliable and proposes to first attempt to verify and complete the count after the election with a partial hand count. Not only does the State unconstitutionally bifurcate the canvass, but its choice of software-driven systems further undermines constitutional safeguards by eliminating contemporaneously created evidence (or any evidence) of the count or of fraud. Indeed, because software cannot be secured, both the ballots and the evidence of how they were counted can be manipulated - leaving no trace of the count or the crime.

Pursuant to ERMA, the State will no longer strive to count every vote: in fact none of the votes will be securely counted. Instead, it will use computers to produce an uncertain count of all the ballots and once the election is over and the results announced, will then check the questionable tally by performing a manual count of a small portion of ballots that may or may not have been tampered, without determining whether those ballots represent the actual ballots cast on election night. The offenses to New York’s Constitution’s express right to vote and the right not to be disenfranchised (Article I, § 1, Article II, § 1) have been further exacerbated by the State’s failure to even consider constitutional due process procedures to determine chain of custody of the post-election ballots. This is particularly abhorrent in light of New York’s historic presumption that the risk of breach to the chain of custody is so high that post-election ballots have never been permitted to be used as a means to verify the secured election-night count.

The State has, until now, understood its responsibility to provide open, secure procedures in order to both safeguard the election and to demonstrate to the public that every vote is being counted as cast; to prove to the people that the election results are worthy of public confidence. Anything less has been recognized and condemned in the case law as unconstitutional disenfranchisement. First Amendment principles, also guaranteed by New York’s Constitution Article I, § 8, protect the public’s right to an open electoral process, essential for people to be able to evaluate the performance of their government in conducting public elections. There is no way for the electorate to know their votes have been reliably counted by software that has been shown to be vulnerable to exploitation outside the public’s view.

The proposed electoral system renders election officials’ historic oversight duties impossible to perform, creating a system in which undetected errors or willful frauds are not adequately restrained and the evidence of fraud is either exceedingly difficult to obtain or non-existent. There is precedence finding the constitutional inadequacy of such a system. At the turn of the last century, similar concerns in a less vulnerable electoral system - wherein a limited number of people had unobserved control over the count, had the ability to destroy evidence of fraud, and were not required to preserve evidence of the count - required the enactment of numerous safeguards to correct the deficiencies that had rendered “[V]oting … a useless formality as it depends upon the will of the inspectors of election…and not upon the vote of the people.” The safeguards instituted in 1896, still protecting the franchise to date, were designed to prevent the dangers wrought by precisely the type of electoral system ERMA invites, wherein the will of the people can be thwarted by the unobservable control held by a few private vendors and government insiders. These safeguards are fatally destroyed and effectively nullified by EMRA.

The public's right to the creation and preservation of responsible information to prove the election results as well as all of the fraud-deterring safeguards that have accumulated over the past two centuries will be sacrificed to secret, proprietary processes controlled by private vendors insisting that the public be prohibited from observing the very information required of an open, democratic society. Legislatively mandated procedures, which have demonstrated the reliability of the mechanical lever and hand-count voting systems, are abrogated by software-driven systems. Public scrutiny, fundamental to oversight and accountability, are eradicated by the new statutory scheme, depriving citizens of their constitutional right to an open, observable, reliable, completed count on election night.

The proposed computerized electoral system has been demonstrated to be far less secure and far more vulnerable to fraud than New York’s existing lever voting system or hand-count voting system, and further exposes the count to massive unprotectable risks exclusively made possible by the use of software. The case law has consistently found the removal of those safeguards which have protected the count from dilution by fraud to be unconstitutional. The legislature has the affirmative duty to protect the right of suffrage from any and all opportunities for fraud. The 2005 Legislature abdicated its responsibility in enacting legislation permitting the use of un-securable theft-enabling software driven voting systems.

The complaint also seeks a ruling that in light of the State’s providing Ballot Marking Devices in every poll site, the lever voting system is HAVA-compliant.

- Andi Novick

Nassau County Receives Defective BMDs

The Nassau County Attorney's Office has written to federal Judge Gary Sharpe of the Northern District Court to inform him that compliance with the court's order in United States of America v. New York State Board of Elections et al is seriously threatened by the failure of their newly purchased disabled accessible ballot marking devices. "Fully 85% of the 156 BMDs received by Nassau through June 26th, 2008 -- after the SBOE acceptance tested them in Albany -- have substantial operational flaws that render them unusable or that require major repairs." [Note: clicking on the letter page images should enlarge them]

Joanne Lukacher

The Merits of the Lever Machine: A Scholar Speaks Up

As an alternative to the fatally flawed electronic voting machines (DREs and Paper Ballot Scanners) New York already has in place a tried and true old workhorse -- the mechanical lever machine. Andi Novick will be blogging on this in a future post but first I would like to share an email from anthropologist and lever machine expert Professor Bryan Pfaffenberger of the Department of Science, Technology and Society at the The University of Virginia.

Dear Andi,

I've received a Scholar's Award from the National Science Foundation to study the history of lever voting machines, a subject that has never been studied by a scholar with professional training in the history of technology (or in any other discipline, for that matter). I am currently writing a book tentatively titled Machining the Vote, which covers the history of lever machines from their invention in 1888 to the bankruptcy of the leading manufacturer, Automatic Voting Corporation, in 1983. Highlights of my findings:

1. In my analysis, the lever machine deserves recognition as one of the most astonishing achievements of American technological genius, a fact that is reflected in their continued competitiveness against recent voting technologies in every accepted performance measure. With as many as 28,000 parts, their mechanisms reflect an agonizingly difficult period of development, spanning more than twenty years (1888-1919) in which interlocking mechanisms had to be developed that were capable of dealing with the enormous complexity and variety of American elections. The result was a machine that captures in its immutable mechanical operations the voting rules that the American people, in their wisdom, developed in order to capture the will of the people.

The mind balks, perhaps, at the suggestion that a century-old technology might be the equal of today's best technologies -- or even superior! -- but the fact is that the lever machine is not alone. U.S. freight railroads continue to use electromechanical signaling systems that were, coincidentally, developed during almost exactly the same frame (1890s-1920). There is no sense of urgency to replace them. Their reliability has been proven in a century of service. They are perfectly adapted to the conditions of American railroading. They are easily understood and maintained by technicians with modest educational backgrounds.

2. Time and again, as I mentioned earlier, lever machines won the confidence of election officials and the public, even when doubts were expressed. I'd enjoy sharing the New York story with the commissioners. By 1925, most of upstate New York was voting on lever machines quite happily, but New York City - led by Tammany Hall Democrats -- resisted. New York's first activist Attorney General, Albert Ottinger, vowed to impose lever machines on the city whether Tammany liked it or not -- and by 1926, they were used throughout much of the city. The 1926 election proved to Republicans that, contrary to their suspicions, the New York City Board of Elections had been running fairly clean elections -- the much anticipated, 50,000 vote payoff did not materialize. At the same time, Democrats realized that the machines did not amount to a Republican plot, since Democrats won squeaker elections in districts that normally lean Republican. Suddenly, the voting machine controversy in New York City ended abruptly. Election officials elsewhere had been watching this drama and, when it reached what all agreed was a happy conclusion, voting machine adoption took off throughout the country. Throughout all the years of the Depression, even, the voting machine business was profitable and AVC paid dividends to shareholders. By 1960, about 60 percent of the voters in the U.S. cast their ballots on the machines. In that year, of course, Kennedy narrowly defeated Nixon, leaving Republicans convinced that corrupt Democratic election officials in Chicago and Texas were to blame. In Chicago, the controversy was almost entirely focused on the precincts where paper ballots were still in use. In contrast, where lever machines were used, there were few irregularities. Had lever machines been in use throughout Chicago, it is possible that our nation would have survived the 1960 without generating a politics of payback that continues to this day.

3. Although lever machines do not produce an independent audit trail, this is -- as software engineers say -- a feature, not a bug. In the 1880s and 1890s, paper ballots emerged as the locus par excellence of election fraud; lever machines were expressly designed to take the human element out of every aspect of the vote recording and counting process in order to eliminate fraud that was gravely undermining Americans' confidence in their democracy. It is quite astonishing to realize that, while the lever machine was under development, inventors came up with just about every voting machine concept that has since been realized, including precinct-scan punchcard technologies, ballot printing machines, and even electromechanical systems that can be seen as predecessors of computerized technologies. All of these technologies produced paper records, however, and all were flatly rejected, both by voters and election officials, as letting the possibility of fraud in through the back door. Today, there are widespread calls to bring paper back into the picture, but the reason is that people do not trust the machines.

Having studied the history, I strongly believe that there would be no such call for paper if the ugly history of fraudulent practices enabled by paper ballots were known -- unfortunately, the American people have forgotten the lessons they learned a century ago, and I greatly fear that we will have to repeat them in order to learn them again. The truth of the matter is that our American election system, in contrast, to the election administration systems of most advanced democracies, is inordinately decentralized, less than professionally administered in many instances, and politicized. In New York, the people, in their wisdom, created a system of election administration AND a technology that solved the characteristic problems of American elections; to abandon lever machines for new technologies that will not gain voter confidence and, at the same time, re-introduce paper audit trails or paper ballots which have long proven to be prone to election fraud, amounts in my opinion to a potentially disastrous mistake.

Bryan Pfaffenberger
Department of Science, Technology, & Society
University of Virginia

Professor Pfaffenberger bio:

An anthropologist by training (Ph.D.: University of California, Berkeley, 1977), Bryan Pfaffenberger has been committed to science and technology studies for more than two decades and has received international recognition for his scholarly work in STS. He is the winner of the Albert Payson Usher prize (1989) for this essay, "The Harsh Facts of Hydraulics: Technology and Society in Sri Lanka's Colonization Schemes" (Technology and Culture) and the American Society for Information Science's Book of the Year award for Democratizing Information (G..K. Hall, 1989). In addition, he continues to work in the anthropology of technology, recently described by a leading anthropologist as the first successful new subfield of anthropology to have been created in a quarter of a century. His work, including a key 1994 essay titled "The Social Anthropology of Technology" (Annual Review of Anthropology), helped both to create the new subfield and provide it with rich theoretical tools. Pfaffenberger's current interests focus on the social analysis of computing, including electronic voting and the impact of a rapidly expanding U.S. intellectual property regime on engineering, science, and technology.

posted by Joanne Lukacher