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