Sunday, November 9, 2008

Dutchess County: Resolution Introduced to Keep NY's Lever Voting Machines

Will Dutchess lead the way?

Dutchess County Legislator Joel Tyner (D-Rhinebeck/Clinton) has introduced a resolution to allow Dutchess County and the State of New York to continue to use lever voting machines and not be forced to replace them with insecure and unreliable electronic vote counting systems based on software.

"As Andi Novick, Joanne Lukacher, and many others have accurately pointed out, optical scan voting machines can be hacked into just about as easily as touchscreen voting machines," Tyner said. "The Help America Vote Act does not mandate a switch here in New York State from the lever machines we've long used with few problems. It's just simple common sense -- let's keep the levers."

Kudos to Joel for initiating this action, which we believe is the first of its kind in the State of New York -- and hopefully will be the first of many.

The resolution should be on the agenda for the December 8th regular meeting of the legislature, where the Voting Integrity Task Force they appointed will also be presenting a report. (Check back on these pages for a confirmation of this schedule.)

Members of the public are encouraged to speak at the beginning of the meeting which is at 7:00 PM in the legislative chamber at 22 Market Street, Poughkeepsie.

Here is the full text of the resolution:

WHEREAS, many Dutchess County residents have signed on to join the Election Transparency Coalition and Election Defense Alliance effort to save the last transparent voting system in the United States here in New York comprised of our lever machines, as both New York's lever voting system and its previous hand-count system satisfy the constitutional requirement that voters be able to see how votes are counted; the right to vote is the primary right by which all other rights are protected, and

WHEREAS, in October 2002 Congress passed the Help America Vote Act (HAVA) that among other things, created the US Election Assistance Commission (EAC); HAVA required the EAC to produce voluntary federal voting system standards; it took three and a half years for the first set of these standards to be published in the Federal Register in April 2006; New York proceeded to adopt these voluntary guidelines along with its own set of State standards to certify new voting systems to replace our time tested, reliable lever machines with computers, as required by the State's Election Reform and Modernization Act of 2005, but not required by HAVA, and

WHEREAS, section 301 of the Help America Vote Act sets forth five requirements that each voting system has to meet; New York State has met all of them now with ballot marking devices in place for people with disabilities, as noted by New York State Board of Elections Commissioner Douglas Kellner four years ago when he stated publicly that, "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", and

WHEREAS, to date, no voting system tested in New York or any other state has come close to meeting these standards, although the standards themselves are considered too lax by most computer scientists who have studied them; New York's tried and true lever machines continue to function well; almost all of their parts are standard items carried by hardware stores, while the balance of the parts can be produced by machine shops; the outlook for replacing lever machines in 2009 remains doubtful due to continued problems and delays in the certification process; this has been reported on a weekly basis to the US Department of Justice and to the federal judge in their case against the New York State Board of Elections, and

WHEREAS, in November 2006, seven months after the current federal standards were published, computer security experts at the National Institute of Standards and Technology (NIST), who under HAVA, advised the EAC on the writing of the standards, published a paper on the need for voting systems to be "software independent"; the authors clearly stated that "experience in testing software and systems has shown that testing to high degrees of security and reliability is from a practical perspective not possible" (Requiring Software Independence in Voluntary Voting System Guidelines 2007, November 2006), and

WHEREAS, New York's constitution has been interpreted by the highest court in the State as recognizing that essential to the express right to vote and the express right not to be disenfranchised are essential implicit constitutional rights, including the right to a transparent process so that voters can know their votes were accurately counted as cast; the right to an open, transparent electoral process, which enables its citizens to be able to evaluate the performance of their government in safeguarding its elections, is further protected by First Amendment rights, also guaranteed by New York's state constitution, and

WHEREAS, software-dependent voting systems can't be made safe, no matter how much New York State's Board of Elections (NYSBOE) continue to test them in order to certify them as "safe"; many computer scientists agree that a compromised machine can be programmed to appear to be working when the fact is that it has been compromised, and

WHEREAS, notwithstanding the impossibility of certifying software-based systems as safe to vote on, New York has been attempting to do this for three years; in 2006, CIBER, the testing laboratory the NYSBOE allocated public funds to in order to certify that computers were safe for use, lost its federal accreditation; recently SysTest, the new testing laboratory the NYSBOE allocated public funds to in order to certify that computers were safe for use, lost its federal accreditation; the NYSBOE has temporarily told SysTest to stop testing, and

WHEREAS, the existing lever voting system protected our constitutional franchise by providing New York Voters with a secure, verified, accurate count on election night, before exposure to post-election influences could corrupt the count; the new legislative scheme deprives us of the completed count delivered under the watchfulness of public scrutiny, instead permitting the election-night count to be the product of knowingly unreliable mutable software, which is then checked by a partial hand-count only after the election is over, after the winner has been announced and after the protection against tampering provided by the ongoing public surveillance of the poll site is over, after which post-election ballots may also be the product of tampering, and

WHEREAS, the problem with only seeing computer-generated results reports or "poll tapes" is that they are merely the recordation of what the software was secretly programmed to do; without public scrutiny of the process of vote counting, poll tapes only create the appearance that the election results are accurate, concealing what citizens have been unconstitutionally barred from observing, and

WHEREAS, in such a process the Dutchess County Board of Elections is prevented from being able to accurately count our votes once forced onto computers, because the process is concealed from them as well as all of us; it is then impossible for the Dutchess County Board of Elections to secure the reliability of that which they have no control over, and

WHEREAS, over three thousand ballots mysteriously disappeared on optical scan voting systems this year in Palm Beach County Florida alone; optical scan voting systems in Washington DC inflated vote totals this year by over 100 percent, making up thousands of write-in votes and adding thousands of votes to the totals of candidates on the ballot, and Pierce County Washington, Pottawattamie County, Iowa, Cumberland County, Pennsylvania and Oakland County, Michigan have also had problems with optical scan voting systems, and

WHEREAS, as the HBO documentary "Hacking Democracy" proved, it is relatively easy to hack into optical scan voting systems; "Wired" magazine also reported 12/21/05 that computer scientists from the Florida Institute of Technology and Finland "were able to change votes on the Diebold machine without leaving a trace", and "conducted the same test for the California secretary of state's office," and

WHEREAS, software-driven voting systems are "insufficient to guarantee a trustworthy election", according to the Ohio Secretary of State's Project EVEREST report last year, and New York State Election Commissioner Gregory Peterson also stated the following at the Oct. 3, 2008 Board meeting in Albany: "What do we do-- go back to lever machines which probably work better than anything else we've ever had; I'm not saying I advocate that; however, if you have something that works and something that doesn't work, I vote for the thing that works," and

WHEREAS, New York State residents should not be forced into a non-transparent, concealed method of vote-counting, with votes counted in a manner so insecure and unreliable that the only way to try to verify the count is by violating New Yorkers' right to a secure, accurate transparent count on election-night, waiting until after the election is over before first manually checking some ballots, surrendering the right to know that votes are accurately and fairly counted as cast, foregoing the right to reliable evidence of the count or of fraud necessary in a court of law, thereby effectively surrendering the right to prove or disprove that the election results reflected the will and consent of voters, and therefore be it

RESOLVED, that the Dutchess County Legislature requests that the U.S. Department of Justice and New York State Board of Elections allow Dutchess County and New York State residents to continue to use dependable, accurate, and transparent lever machines instead of being forced to replace them with electronic voting systems already deemed as unreliable and insecure by a consensus of scientific experts, and be it further

RESOLVED, that a copy of this resolution be sent to the U.S. Department of Justice, New York State Board of Elections, Dutchess County Board of Elections and the New York State Legislature.

Saturday, November 1, 2008

NY State Board of Elections Halts E-Vote "Certification" Tests

ALBANY, NY, Oct. 31

After informing the US Dept. of Justice, who reportedly have been "speechless" regarding the inability of New York to certify even one electronic vote-counting system to replace our reliable lever voting machines in time for the 2009 elections, the State Board of Elections informed Judge Gary L. Sharpe that they have issued a stop-work order to SysTest Labs, in effect halting the testing effort, until "a further investigation of the issues surrounding the likely suspension [of SysTest by the EAC] could be had."

The news was delivered to the court in the form of the State Board's Oct. 31st HAVA compliance report (PDF), which the court ordered the State to transmit on a weekly basis early this year. The full series of reports can be found here at Election Law @ Moritz. The reports reveal a plethora of problems with the certification process, which had already placed the lever replacement time line known as "Plan A" in jeopardy.

Prior to ordering these reports, Judge Sharpe had stated that he got his information about e-voting from reading the newspapers. We commend His Honor for trying to become better informed on these issues, as they can be rather complex and esoteric at times.

Less esoteric is the need for an accurate and reliable vote-counting system for the State of New York. Fortunately though, we already have one. It's comprised of about 20,000 lever voting machines (all of which are HAVA-compliant now that NY has met HAVA's Accessibility requirements); paper-ballot marking devices for voters with special needs; hand counting of those ballots at the polling place on election night; and the HAVA-required permanent paper records produced on election night -- not by machines -- but by thousands of bi-partisan election inspectors contemporaneously throughout the State.

The one ingredient that is conspicuously absent from New York's vote-counting system, except for a small percentage of absentee ballots (and that is NOT a HAVA requirement) is: SOFTWARE! And we all know how reliable that is -- especially the voting system kind.

The State Board's letter to the court states that they are "hopeful that a plan for resolution of these issues will be developed in the near future." And so are we. It's called Plan L.