Thursday, April 9, 2009

Close Congressional race in NY District 20 Demonstrates Need to Keep Lever Machines

From the beginning it was suspected that the race to replace Representative Kirsten Gillibrand in New York’s 20th Congressional District would be close, but as the margin between the two candidates tightened, with Democrat Scott Murphy taking a slim lead in the polls going into election day, the Chair of the NYS Republican Party filed a petition in the Supreme Court in Dutchess County to ensure that the normal procedures for ensuring accuracy and transparency of the vote counting process were followed and that the evidence of the count be preserved and available for judicial review if necessary.

The implications of the filing are either an abundance of caution or a wariness of the ‘Heinz 57’ variety of canvassing among the different county boards of election. Whatever the reason, the Republican Party is exercising its rights under New York Election Law to maximize the constitutional guarantees of publicly demonstrable vote counting. What is not being discussed is that if the lever machines are replaced by software-based electronic voting machines all these rights will become meaningless.

New York's Law still requires that votes be counted transparently either by lever machines or by hand. New York Election Law employs a system that was designed to provide evidence of how votes were counted at the time they were cast. According to New York Election Transparency Coalition legal counsel, Andrea Novick, it is this critical distinction which sets New York apart from the rest of the nation.

If New York replaces its mechanical lever voting machines with computerized voting machines, the evidence which the Republican Party is seeking to examine and secure will disappear. Had this election’s votes been counted by optical scanners, as New York’s Election Reform and Modernization Act (ERMA) will require in future elections, neither the Republican State Chair nor the Democratic State Chair nor the public would be able to obtain evidence of how the ballots were counted at the time they were cast. Unlike our lever machines where evidence of malfunction, malfeasance or mis-transcription of the vote count can be detected and corrected as has been occurring this week during the re-canvass of the machines in the 20th district, there is no evidence of how software does its work because software is undetectably corruptible and vulnerable to manipulation.

Software-based scanners conceal what must be visible and leave no evidence of the count to be examined by the parties, the public or the court. All that is left are the indistinguishable paper ballots, which are not evidence of how the ballots were originally counted. A post-election manual count of some ballots, required by ERMA because the software-generated tally is known to be exploitable, is no solution.

As Novick explained, “For 232 years our Laws have presumed that counted ballots, once removed from continuous observation, are so likely to be tampered with that their use has been prohibited. Unless the condition of inviolability is established, the ballots have no evidentiary value. Worse they provide a false sense of security cloaking what is already concealed by the software.”

Unlike the recent close race in Minnesota that was decided by a manual recount of post-election night paper ballots, not shown to have been the same ballots cast at the election, today’s commencement of New York’s absentee paper ballots will be publicly observed from the moment they are cast, through the counting. Novick says, “New York’s Constitution has always required an observable, open electoral process that produces evidence of the count at the time the votes are cast, ensuring maximum protection against fraud.”

“The Republican Party will have the proof it seeks, at least this year.” “But,” she warns, “If we permit the State to abandon our lever voting system for software-based scanners, it will be the last time any one will have evidence of who won the election.”