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