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)
