Wednesday, March 25, 2009

New York's Voting System Satisfies & Surpasses HAVA

Notwithstanding the plain language of the Help America Vote Act (HAVA) which expressly states that lever machines can be legally used, the U.S. Election Assistance Commission (EAC) interprets HAVA to effectively exclude the lever machines as ever being acceptable. This interpretation contravenes the statutory language which explicitly refers to the lever system, along with the DRE and optical scan systems, as voting systems that may be used in federal elections as long as they comply with the five standards set forth in HAVA. This memo by Andrea T. Novick, Esq. explains why the the EAC’s advisory of HAVA as it pertains to New York’s lever voting system is erroneous and should be revoked.

Tuesday, March 24, 2009

ES&S Withdraws Op-Scans from Erie County Test Run

Election officials in Erie County (Buffalo, NY area) agree that lever voting machines are more accurate and reliable than the electronic voting technologies. However, in anticipation of the state-mandated change to electronic voting machines, the county Board of Elections arranged with Election Systems and Software (ES&S) to test their new DS200 optical scan voting machines through their use in eight village elections in March 2009.

These optical scanners are currently undergoing certification testing by the State Board of Elections, but last year optical scan machines made by ES&S failed pre-election tests in one Michigan county and produced conflicting vote totals in other areas. Election officials reported that the same ballots run through the same machines yielded different results each time.

The Erie County Board of Elections worked for two months with ES&S and election officials in the eight villages on arrangements to use the machines in the March elections. They were prepared to conduct 100% hand counts if necessary to correct scanner errors. But, a week before the election, ES&S abruptly withdrew their offer to make the op-scan machines available. Instead the elections were conducted on the traditional lever machines.

In a press release dated March 11th, Erie County Election Commissioner Ralph Mohr concluded that, "Unfortunately, the fact that the manufacturer pulled out of the pilot project at the last minute indicates to me a lack of confidence in its own system...The lever style machines will afford voters and candidates the confidence in the integrity and accuracy of the voting process during this election."

Mohr told the Election Transparency Coalition that his county had also experienced problems with the vendor's configuration of the AutoMark accessible ballot marking devices (BMDs) in last year's primaries. He said the order in which the contests were presented on the screen, and via the audio headsets used by voters with visual disabilities, differed from that required by the Election Law and correctly printed on the paper ballots. The county ended up correcting these problems on their own for the general election.

The same voting systems have been selected by New York City, Rockland, Albany and Schenectady counties. The AutoMark has the advantage of being a non-tabulating BMD, which at least would not put vote tallies at risk. It's less than half the price of the riskier tabulating BMD that also counts the votes. But the vendor's refusal to run a pilot election with their ballot counting scanners casts doubt on the State Legislature's decision to replace the lever voting machines with computers in the first place.

ES&S is one of two vendors who have submitted Optical Scan machines for state certification review. The other vendor is Sequoia Voting Systems whose ImageCast BMD was deployed by many New York counties in the November 2008 elections. However, as Election Transparency Coalition and the E-Voter Education Project revealed last August, the optical scan portion of the ImageCast contains at least one serious and obvious flaw -- a hole which enables stuffing of the locked ballot box. (See this link for video and a legal analysis.)

- Joanne Lukacher

Friday, March 13, 2009

The Staten Island Recount is Illegal Under NY Law; So is the Replacement of Our Lever Voting System

--by Andi Novick, Esq.

Given the lack of respect for politicians these days, it may be difficult to appreciate the breadth of legislative wisdom referenced in two centuries of New York’s case law, but the legal requirements for a transparent, theft-deterring electoral system are there for all who bother to read the law.

For 232 years New York’s Election laws have mandated a publicly observable count, concluded on election night. The brilliance of New York’s Get-it-Right-Election-Night voting system has been explicitly driven by the necessity to prevent opportunities for unseen fraud. Justice Louis Brandeis’ observation regarding the benefits of publicity, to wit, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman”, was not lost on successive generations of New York State’s Legislature.

After nearly a century of experience with 19th century electoral fraud, New York’s Legislature perfected our hand count rules by 1896, requiring that there never be an opportunity for unobserved tampering, even by bipartisan election officials (who apparently had been colluding to create fraudulent returns, necessitating one part of the reforms of 1896). Accordingly we have never permitted the post-election recounting of those ballots which were cast and counted at the polling site under maximally safeguarded conditions while public scrutiny is continuous.

Paper ballots in the wrong hands are too vulnerable to manipulation (although not nearly as exploitable as software). Since it is the duty of the legislature to prevent all opportunities for fraud, post-election use of paper has been prohibited for New York’s entire history.

This is still the law in New York: at each poll site, election inspectors must cast and canvass all ballots and “ascertain the total vote [i.e., be certain of the count -- not attempt to verify it after election night] and they shall not adjourn until the canvass be fully completed.” (EL § 9-100)
A properly run paper ballot election must be conducted such that all responsible can be certain of the accuracy of the results. It is designed to enable the detection of error or fraud and any recount or “recanvass must be made immediately in order to correct the error.” (EL § 9-116)

New York also requires a 100% recanvass of precinct tallies, but only to correct transcription errors. (EL § 9-208)

Perhaps it is not surprising that almost no one seems to have noticed that the recount of the recent Staten Island City Council paper ballot election, is prohibited by State law. After all, the 2005 Legislature enacted the Election Reform and Modernization Act (ERMA), forcing New York to replace its reliable, transparent lever voting system with a concealed software-based system. In so doing the current Legislature destroyed our constitutional right to a transparent electoral process, substituting it with a concealed software-based system which is so susceptible to undetectable fraud that ERMA requires a 3% hand count of the ballots after the election is over, in an effort to verify the unreliable software-based results. *

Until ERMA was passed, supposedly to comply with the Help America Vote Act (HAVA), New York law has prohibited the use of post-election ballots as too dangerous for democracy. It was not even good enough for the ballots to be locked up and guarded by bipartisan election officials, unseen by citizen observers -- unless Court of Appeals’ precedence is to be ignored because the current Legislature has decided that the temptation to manipulate election outcomes has been eradicated from the population. Our experience in New York informs us that once the ongoing surveillance of the polling site itself is interrupted, the opportunities for tampering are just too risky for a self-governing people to endure.

Our two-hundred-thirty-two years of knowledge and our New York Constitution have required that we Get-it-Right-on-Election-night for a reason. In the words of Will Rogers, “More people have been elected between sundown and sunup than ever were elected between sunup and sundown.”

* Note: Click here to see why even if we conduct a partial hand count on election night, 3% is NOT even enough to detect fraud in many cases (PDF)

Monday, March 2, 2009

Highly Recommended: Lever-Voting-Machines Blog

Ruth Wahtera, writer and voting activist, who has been our correspondent from the American Association of University Women, Kingston branch edits a new blog on lever voting machines which we highly recommend. Thank you Ruth.