Tuesday, August 12, 2008

Why New York's Legislature's Plan to Computerize Our Electoral System Is Unconstitutional

Overview: Why New York's Legislature's Plan to Computerize Our Electoral System Is Unconstitutional
And Why New Yorkers Need a Lawsuit to Stop It

- Andi Novick

Originally posted at OpEdNews.


For 231 years the success of New York's democratic electoral system has depended on the ability to see how our votes are counted. That transparency is essential to prevent opportunities for fraud, as well as to provide citizens with a rational basis to trust election results and be able to evaluate their government's performance in conducting their elections. We can see how our votes are counted in a lever-counted or hand-counted voting system. We cannot see how optical scanners or DREs are programmed to count our votes, thus concealing the very fraud we must be able to detect and deter.

Attempting to first verify the unreliable software-generated count by hand counting a small portion of the ballots after the election is over, after the press has declared the winner, and after the ballots are exposed to heightened opportunities for post-election ballot tampering has historically been understood to be the least secure way to conduct an election. In fact, post-election ballot tampering has always been seen as so difficult to protect against that since the founding of the State, New York has mandated the election results be reliable, verified, and completed on election night.

It is the exposure of our franchise to these unprotectable opportunities for fraud before, during and after the election, that renders the new electoral system created by New York's 2005 Legislature unconstitutional.

The People Have the Constitutionally Protected Right to Know How Their Votes Are Counted and to See that Fraud Is Prevented

New York's Constitution expressly provides a protected right not to be disenfranchised (Article I, Section 1) as well as an explicit right to vote (Article II, Section 1). These two constitutional rights have been repeatedly interpreted and defined by the Court of Appeals, the highest court in New York State, as including implicit constitutional rights that enforce the explicit constitutional rights. These so called correlative constitutional rights include the right to a maximally safeguarded electoral system that provides the greatest protection against even the opportunity for tampering and the right to know that one's vote was fairly counted as cast. In 1909 the Court of Appeals in Deister v Wintermute, 194 NY 99, 108, proclaimed:

The right of an elector to vote is conferred by the Constitution.... [the elector] is entitled to see that his vote has been given full force and effect.... any method of holding an election which would deprive the electors.... of the right of casting their ballots and having effect given to the votes so cast would plainly be unconstitutional. (emphasis supplied)

The right to the protection of the integrity of the election from dilution by fraud and the right to transparency have been the bulwark of our electoral system for New York's proud history– that is until 2005 when New York's legislature enacted laws requiring the replacement of our secure lever voting system with unreliable, secretly programmed software-driven optical scanners or DREs. This new computerized electoral system, now scheduled to go into effect for the 2009 election, violates our laws, ignores our precedence, and unconstitutionally disenfranchises all New York voters.

New York's Constitutional Right to Vote and Constitutional Right Not to Be Disenfranchised Has Always Required that the Electoral System Provide Procedures to Prevent Even the Opportunity for Fraud

In 1888, the United States Supreme wrote in Ex parte Coy, 127 U.S. 731:

The manifest purpose of.... legislation [was] to remove the ballot-box as well as the certificates of the return of votes cast from all possible opportunity of falsification, forgery, or destruction. (emphasis supplied)

For more than two centuries New York's electoral system has required an open, transparent process, which became more open and transparent over the course of the 19th century with the express object of more effectively preventing the perpetration of fraud. To protect this most valued constitutional right, the Court of Appeals explained in Stapleton et al. v Bell, 119 N.Y. 175, 178-179 (1890):

About it have been erected many safeguards, with the object of securing to each qualified elector the fullest and freest exercise of his constitutional privilege, and also of obtaining the greatest protection against the perpetration of frauds at the polls which shall be consistent with a certainty that every person entitled to vote shall have his ballot received, deposited, and counted. (emphasis supplied)

In 1900, the Court of Appeals reiterated in Coffey v Democratic General Committee of Kings County, 164 NY 335, 338:

The settled conviction that safeguarding of our institutions requires the untrammeled exercise of the franchise by the citizens and that the result be protected from fraud, has led to no inconsiderable amount of legislation during the present generation--legislation aimed largely, although not entirely, at the frauds of majorities who, at times, have manifested a disposition to retain their power, let the cost be what it might. (emphasis supplied)

By 1896, New York had enacted a myriad of safeguards that remain with us to this day, aimed at protecting the franchise from dilution by fraud. The Court of Appeals has considered these safeguards necessary to protect our constitutionally guaranteed right to vote and right not to be disenfranchised. But the 2005 Legislature ignored two centuries of case law, disregarded these safeguards in permitting concealed vote counting on software-driven computers, and exposed our elections to existing and new risks of fraud.

Software driven Optical Scanners and DREs Count Our Votes in Secret – Exposing the Election to Unprotectable Opportunities for Fraud

As 231 years of New York's case law reveals, concealed vote counting is a known and open invitation to fraud. Dozens of scientific studies, most of which have come out since 2005 when New York's legislature changed our laws to permit computerized vote counting, corroborate that software is vulnerable to undetectable tampering.
Perhaps in 2005 the Legislature didn't appreciate how insecure these voting computers were, but the evidence is clear and continues to mount. If New York's Legislature will not revisit its decision to abandon our levers for these computers, as of 2009 our elections will be determined by an unconstitutional system that permits our votes to be counted in an unprotected manner, exposing the results to unprotectable opportunities for tampering.

New York's Legislature does acknowledge however, that the "official" software-generated count is too unsecured and uncertain to depend on. That is why the new laws require a partial hand count of the ballots in an attempt to see if there was any basis for accepting the official software-produced results. But checking the vulnerable-to-tampering software count with a post-election hand count, itself known to be dangerously vulnerable-to-post-election-tampering, is the least secure way to run an election. Both the first count and the post-election verification expose our election results to unprotectable opportunities for tampering, historically considered by New York's courts to amount to unconstitutional disenfranchisement of the voters.

Generations of New York legislatures and the Court of Appeals have upheld our right to the most secure electoral process: one which eliminates these unsecurable opportunities for fraud by insisting on a transparent, safeguarded count on election night. For the first time in our history, the legislature has abandoned our constitutionally protected right to the most secure means of protecting the count, instead permitting the official count to be unreliable, unsecured, unknowable and incomplete on election night. When the election is over and the winner publicly announced on election night, it will be impossible for anyone to know with any reasonable certainty whether the 'official' computerized count is accurate, whether it is free from dilution by fraud, or whether the will of the people has been undermined and the election stolen.

For Two Centuries New York's Laws Have Required an Accurate Completed Reliable Count on Election Night: The Days Following the Election Invite Heightened Opportunities for Ballot Tampering Thus Requiring Any Verification/Recount to Be Completed on Election Night

Since New York's founding, our laws have required that the vote counting be conducted in an observable secure manner, subjecting the count to public scrutiny in order to prevent opportunities for tampering. For this reason New York's Election Law requires that the official election results must be accurate and completed on election night and the results publicly "...declared without any bias arising from a knowledge of its effect upon the aggregate result, or from exposure to subsequent influences." McLaughlin v Ammenwerth, 197 NY 340 (Court of Appeals 1910).

A transparent process is required by New York's laws both to provide the greatest deterrence against opportunities for tampering and to prove to the public that their public elections have a rational basis for confidence. A free people must be able to evaluate the performance of their government, particularly the manner in which the legislature conducts the people's elections. The new laws not only permit secret vote counting, but leave us no alternative, hiding from the people the very information they must have in order to retain control over their elected representatives and therefore, ultimately, over their sovereignty.

For more than two hundred years our courts and legislators understood that once the transparency enabled by the poll site conditions ended, opportunities for ballot tampering increased. In fact, the risk of post-election fraud was considered so likely and so difficult to prevent that New York has never permitted the election night count to be subjected to the potential for corruption from post-election tampering. The problem in securing the sealed ballot boxes after election night was explained by the Court of Appeals in Brink v. Way 71 N.E. 756 (1904):

[T]he custody of the boxes is in the officer specified by the law, but he cannot always be personally present to guard them.... Thieves will break through and steal, and no legislative enactment can prevent them. The same is true with reference to guarding the ballots from substitution by interested and evil disposed persons. The result of an important election, state and national, may be changed by the disclosures made upon the opening of one of these boxes. (emphasis supplied)

Recognizing that the heightened risk of post-election fraud could not be sufficiently protected against, New York has always banned post-election recounts: both when we hand counted and now with our lever voting system. Forbidding recounts is an important safeguard in a transparent, secure electoral system that requires we get it right on election night. It protects the securely and publicly counted first count from subsequent corruption. New York built verification into the overall electoral system which included a reliable, accurate first count.

The new laws of 2005, requiring post-election verification of the ballots and potentially a full recount, is a serious breach of our existing observable and theft-deterring system. If we must routinely verify the results after the election is over, the electoral system has failed. Indeed the new system scheduled to go into effect in 2009 is a failed system because it permits the first count to be concealed from the public and vulnerable to fraud. It allows the first count to be unknowable, unreliable and incomplete. It proposes to complete the "official" count with post-election ballots that are likely to have been altered, leaving the true results of the election uncertain and unreliable.

Having Unconstitutionally Permitted the Computerized Election-night Results to Be Exposed to Undetectable Error and Fraud, New York's New Electoral Plan then Seeks to Check these Unknowable 'Official' Results by an Equally Vulnerable Post-election Manual Verification of a Small Portion of the Ballots

Not only has the 2005 Legislature violated our constitutional safeguards and our laws requiring a transparent reliable count on election night, but the means it has proposed to attempt to determine if there was any basis for the legitimacy of the official election night results represents yet another breach of our constitutional safeguards: verification using post-election ballots. New York has never allowed post-election verification because we recognized that the risk of ballot tampering after the election is over is too great to produce trustworthy results.

We in New York have long known that once the election inspectors, poll workers, citizen watchers, party representatives and the press have left the poll sites and the ballots have been sealed and taken away, it is too difficult to guarantee the chain of custody of paper ballots. As early as 1879, the Court of Appeals in Dailey v. Livingston, 79 N.Y. 279, 290 wrote that the risk of post-election ballot tampering is a "far greater evil" than the risk of tampering at the public poll site, held "in the presence of the friends of both parties." The Livingston court recognized that unless the chain of custody of the post-election ballots could be proven to have been preserved beyond "a mere probability of security ... they are not only the weakest but the most dangerous evidence" because how would we know whether "actual tampering or fraud had been committed."

New York's new electoral plan not only unconstitutionally permits our "official" election night results to be knowingly unreliable, but then seeks to verify this undependable computerized tally with post-election ballots that become "the most dangerous evidence" since they will be exposed to increased opportunities for tampering, leaving our "official" results uncertain with no secure means to verify them.

The Heart and Success of New York's Democratic Electoral System Has Been Ensuring the Ability to See How Our Votes Are Counted and Providing Check Points to Deter, Detect and Reveal Tampering

The security of our electoral system is ensured both by making the commission of fraud difficult, but also by providing the means to detect fraud should it occur. The ability for the public and their election officials to be able to detect and observe tampering is essential to protecting our constitutional rights. As described by State Board of Elections Co-Chair Commissioner Douglas Kellner, explaining how our electoral system successfully prevailed to detect and expose tampering to lever voting machines in a scandal in the 1940s:

The fraud of the 1940s was uncovered because volunteers from the polling stations noticed that the numbers on their machines at the counting location were not the same as when they left the polling station. Similarly, any tampering with a lever machine today would be plainly visible to the volunteer preparing it for poll opening. Becoming aware of fraud on an e-voting machine would be much more difficult, because so much of their inner-workings are invisible to all but the software programmers.

Fighting fraud carried out by code is also particularly expensive. Some e-voting systems run on 150,000 lines of code and to uncover whether fraud has occurred, or by whom and how, requires an army of programmers, a number of years, and millions of dollars. Even then, there is no guarantee that their examination will produce results. (emphasis supplied)

The ability for regular people to observe tampering and the built-in safeguards designed to enable this detection is the crux of the success of New York's electoral system and is precisely why the planned computerized system is unconstitutional: it is impossible to observe the programming to or tampering of concealed software. Vote counting on software-driven optical scanners and DREs is invisible. Even if the public wasn't literally barred from observing the source code of the software, we still could not see the fraud because software can be programmed to steal our vote and erase itself. It is not possible to sufficiently safeguard such an undetectably mutable system from fraud. Indeed software-driven systems conceal fraud while at the same time exposing our ballots to known and new opportunities for tampering!

By Exposing Our Ballots and the Evidence of How We Voted on Election Night to Post-election Verification, the 2005 Legislature Destroyed Additional Constitutional Safeguards New Yorkers Have Enjoyed: The Preservation of the Evidence of How the People Voted on Election Night

The creation and preservation of evidence establishing how the results were arrived at on election day serves as yet another deterrent against the commission of fraud. We don't allow our ballots to be exposed to post-election tampering because, as the Court of Appeals explained in Brink v. Way, 71 N.E. 756 (1904):

The object of the preservation of the ballots [was to] furnish a further check upon the perpetration of fraud by local boards of canvassers. It accomplishes this, necessarily, because the canvassers know that for six months after the canvass the evidence of how the people voted is to be preserved ... it may be used against the canvassers in criminal proceedings. That, of course, must necessarily operate as a check upon those who might otherwise be persuaded into wrongdoing. (emphasis supplied)

Rather than preserving the ballots, New York's new system, by its routine use in post-election verification, exposes them to the risk of alteration and destruction, removing the deterrent effect the preservation of the ballots was intended to provide.

Moreover, by failing to protect and preserve the people's evidence, the legislature has invited the loss of our only evidence. Without proof of how the votes were actually counted on election night or proof of fraud, the people's right to prevent their disenfranchisement in a court of law is effectively annulled. Although we are constitutionally entitled to seek relief in the courts in order to prevent the loss of our constitutional right to vote, without adequate evidence we are left unable to prove how we voted or to prove fraud.

The computerized evidence produced by software is insufficient to demonstrate how we voted or to prove fraud because it can be undetectably altered. If the paper ballots are also altered in the days and weeks following the election, there is then no evidence of what really happened on election day. An election can be stolen and the people, bereft of sufficient or responsible evidence, will be powerless to challenge the theft in court. This represents the ultimate destruction of checks and balances secured by our constitution, exposing us to the loss of our constitutional rights without legal recourse.

Concealing How Our Votes Are Counted Invites and Enables Unseen Tampering. It Is the Ultimate Constitutional Offense.

What is crystal clear from our case law and legislative history in New York is that concealing any aspect of the canvassing process – before during or after the election – enables prime conditions for fraud and leaves the electorate uncertain as to whether fraud has occurred. The failure to "...guard against the danger and the opportunity for tampering with the election returns" disenfranchises the electorate (Ex parte Coy, 127 U.S. 731, 8 S.Ct. 1263, 1270 U.S. (1888)). Depriving the electorate of the information it needs to determine whether the legislature has satisfied its responsibility to "conduct the election in such a manner in point of form, that the true number of legal votes can be ascertained with certainty" further disenfranchises the electorate. People v Cook, 8 NY 67, 86 (emphasis supplied) (Court of Appeals, 1853)

While the issue of concealed vote counting has never been directly put to our courts in New York – because who would have thought such a thing could even be conceived in America – we nonetheless have direct precedence from the Court of Appeals regarding the worthlessness of any returns (the election night results) produced in a concealed manner. In 1874 during the vote counting, the lights went out. The Court of Appeals wrote in Judson v Thacher, 55 NY 525, 535:

There was a short interval of entire darkness.... The opportunity to commit the fraud existed.... The return was no longer entitled to be regarded. It was rendered wholly uncertain to what extent the fraudulent substitution had been carried, and it was not material whether the inspectors were privy to the fraud by which the uncertainty was occasioned .... [The return was rendered] so uncertain and unreliable that it could not be used for any purpose. (emphasis supplied)

The election return produced from software code, which is not a human language, and which can be altered without detection, is as unreliable and uncertain as the return created in darkness.

Those who cannot remember the lessons of history are doomed to repeat it. How many before us have died to protect the right which protects all other rights? We cannot afford to forget our history. For the sake of the nation suffering under the yoke of unconstitutionally unreliable elections, and for the sake of New York, the last state to have held out against the tide of such disenfranchisement, we have a responsibility to stop computerized vote counting now, while we still can.

Re-media Election Transparency Coalition is fighting to save our constitutionally-compliant electoral system before it is taken from us. Join us -- this fight requires all of us.