Like Filling Out Lottery Tickets: New York State Rolls Out Uncertified Voting Systems for Fall Preview

Despite the steady stream of keep our levers resolutions emanating from county legislatures throughout the state, the State Board of Elections is carrying through with a pilot Op-scan project for the fall 2009 elections. ETC e-voting education consultant Howard Stanislevic sounds the alarm in this post from his blog e-voter.blogspot.com :

ALBANY -- At a May 12th Commissioners' meeting, after collaborating with the US Dept. of Justice, the New York State Board of Elections cavalierly decided to risk the disenfranchisement of nearly a million of the state's voters, by allowing what one commissioner called a "huge pilot" of uncertified software-driven electronic vote-counting systems around the state in 45 of its 62 counties.

Here are the links to the Commissioners' resolution, and other documents containing the details of the plan:

* Authorizing Resolution 05/12/2009 (PDF 50KB)
* Pilot Plan Narrative 05/12/2009 (PDF 65KB)
* Timeline 05/12/2009 (PDF 492KB)
* County Participation Spreadsheet 05/12/2009 (PDF 42KB)

Over 900,000 voters (read: guinea pigs) could be affected by these irresponsible tests, which one county election commissioner, perhaps unwittingly, compared to filling out lottery tickets. Gambling with the votes of a million New Yorkers is hardly a way to instill public confidence.

The plan contains almost no provisions for manual recounts of the paper ballots to check the computer tallies, other than those that might be obtained through the courts. The only exceptions are for contests with a margin of victory of 1% or less. Full recounts of those contests will be conducted, but we bristle at the suggestion that the victory margin reported by the uncertified voting system will be the one used to determine whether or not the hand count to check the system will take place.

Commissioner Douglas Kellner made a motion at the May 12th meeting to allow any candidate to ask for and obtain a full hand recount. His fellow commissioners defeated it by a bipartisan 3 to 1 vote.

Apparently Kellner's colleagues believe that:

* any candidate can convince a judge that a voting machine didn't count her votes -- even without evidence to support such a claim;

* the judge will also believe that the paper ballots have been preserved inviolate and thereby allow them to be hand counted to find out who really won an election (contrary to a number of previous decisions by the highest court in the State -- not to mention the highest court in the land); and

* the court would gladly spend taxpayers' money for such high-minded purposes as convincing losers of elections, and their supporters, that they really lost fair and square -- even given the amount of money already spent on the new voting systems.

But the voters of New York deserve more than just naive speculation about the ease of obtaining hand counts from a potentially partisan and cost-conscious judiciary. They deserve the actual hand counts if and when they are needed.

So what if the margin of victory happens to be slightly more than 1% (say 1% + 1 vote for example), and the courts deny the recount request? In that case the hand count reverts to only a 3% spot check, per Election Law § 9-211 -- part of the Election Reform and Modernization Act of 2005 that brought us this mess in the first place. If there are no discrepancies found in the spot check, the election could be certified -- which is more than can be said for the voting systems that actually produced the election results.

Unfortunately, the math is unequivocal: in many elections, a 3% audit can reveal absolutely NO discrepancies, and the outcome of the elections can still be absolutely wrong. If that happens, no one will be the wiser.

One other potential safeguard remains for the million voters who will be subjected to this foolish experiment: the long-awaited and yet to be promulgated State Board of Elections auditing regulations known as Part 6210.18. For well over a year now, we have been involved in the drafting of these regulations. They offer the only hope for anything better than the ill-considered 3% spot checks in the Election Law.

A year ago, many of New York's good government groups wrote to the Board, asking for these regulations to reflect best practices. But so far, progress has been slow to non-existent in this area, even as the mad rush to run real elections using potentially fake voting systems continues.

All that said, while the value of certification has been greatly exaggerated, we think it might be fair to say that if done properly, certification can prove that a voting system can work -- not that it actually will work. This weak assurance is of course not sufficient, but it's better than no assurance at all. The only way to be sure to prevent the disenfranchisement of New York's voters by untrustworthy computers, is to hand count 100%, at least until the systems are certified.

We'll be following this story and reporting on efforts to fix this latest debacle and avoid the Floridization of New York's elections. We don't think this is what New Yorkers signed up for when the State accepted $50-million in federal funds to replace its lever voting machines under the Help America Vote Act of 2002 (HAVA). The State has not been able to certify a voting system to replace the levers since then, and as always, it's important to read the law first.

In New York, the law has been decidedly anti-recount. So paper ballots or no paper ballots, the software counts will rule -- just as they did in Florida's 2000 election which brought us Bush v. Gore and ultimately, HAVA itself. Ironic, huh?

The Board did agree to present the matter to the State's Citizens' Election Modernization Advisory Committee. While their opinions are as yet unknown, and probably not binding, at least one member of the group has gone on record as favoring 100% hand counts of ALL votes counted by ANY uncertified voting system. This is in direct conflict with 3 out of the 4 State Board of Elections Commissioners who represent our two major political parties, but unfortunately may no longer be faithfully representing the voters of New York.

Editor's note: Election Transparency Coalition does not endorse op-scan counting with less than a 100% hand-count verification conducted at the polling place on election night.

Ramifications of E-Voting: Spiralling Needs & Costs

Lest there be any doubt that op-scans will generate ever-increasing obligations, needs and costs for our election boards, check out this advertisement sent to our county election commissioners from NTS Data Services (emphasis supplied):

Subject: Machine Inventory and Management from NTS

Hi Everyone,

Many interesting bits of information came out of the State Conference sessions last month, particularly in the area related to our new voting machines. What has become more and more recognizable throughout this entire process, (and spelled out by the State Board in the Tuesday afternoon session) is the need to accurately and precisely track vital information about each and every component of your voting equipment and related inventory throughout their lifetime.

Understanding this requirement, NTS is developing our asset tracking and machine management system we call "CUSTODIAN". CUSTODIAN will address a number of the requirements you will have to meet in order to be compliant with State regulations including:

· Tracking of Machine Testing Dates
· Maintenance and Error Logs
· Security Seal Numbers
· Chain of Custody Reports

.......and the list goes on

The information CUSTODIAN will provide will be substantial and believe me it's going to have to be. This type of data is not something that can be hand written down on a piece of paper or easily managed via a spreadsheet or simple database. As you heard from the State Board, this is critical information that you are going to have to maintain and should have access to at a moments' notice.

Our current plans call for a release of a simple and straightforward inventory and asset tracking module prior to the September primary - in time for use in the pilot projects this year. The full management version will be released in the first quarter of 2010, allowing you plenty of time to become familiar with it before implementation of the certified machines in the 2010 elections.

CUSTODIAN will be a work in progress, changing and developing to meet the needs of our New York State counties as they will continue evolve. As we go down this new road together, it is obvious there will be many changes and additional requirements driven by your needs and those of the State. We have never let you down before and are not about to this time around.

In the next few days you will receive by mail additional information on CUSTODIAN. This mailing will summarize some of the many features that will be included in the system - take a look at it, I think you will find it interesting and helpful.

We look forward to both your comments and interest.

Take care


Not the kind of growth industry we can look forward to.

Pro-Lever Citizens Testify Before NY Senate Committee

The New York Senate Standing Committee on Elections is holding a series of hearings across the state to receive public comment on proposed election related legislation. Pro-lever activist from New York City, the Hudson Valley and the Capital area took advantage of a meeting on May 11th in Albany to present their views on retaining our lever voting machines before Senators Joseph Addabbo, Jr., committee chair and Senator Joseph Griffo.

Representatives of New York Citizens for Clean Elections , the Kingston Branch of the American Association of University Women, ARISE, and Election Transparency Coalition joined other citizen activists in speaking out against software based voting systems and in favour of levers. Although the meeting was not specifically convened to address voting system legislation, pro-lever speakers made up half of the speakers presenting public testimony, pointing out the constitutional abuses posed by electronic voting, the unsustainable costs, and urging the Senate to consider rescinding or amending the State Election Reform and Modernizations Act (ERMA) to allow for the continued use of lever voting machines.

Here are links for the testimony of Ruth Wahtera of AAUW Kingston who maintains a blog on lever voting machines and Joanne Lukacher of ETC.

Essex County Rejects State-Mandated Electronic Voting System

Elizabethtown, NY --

Essex County wants to keep using its dependable lever voting machines, according to today's vote by the Board of Supervisors. Citing the "insurmountable" costs of the optical-scan systems mandated by the Election Reform and Modernization Act (ERMA), the Board passed a resolution "supporting the continuation of our lever voting machines together with Ballot Marking Devices (BMD) and rejecting the use of a computerized voting system[.]" The resolution requests that the State Legislature and Board of Elections enact the necessary laws to allow counties to keep their current election systems.

Today's action by Essex County follows similar resolutions passed by Dutchess, Columbia, Ulster, Schuyler, and Greene Counties and the Association of Towns. Other counties are considering similar action.

"I'm really gratified that Essex County showed such leadership and am hoping it will encourage other counties to join, and ultimately to join in litigation with citizens to challenge the constitutionality of ERMA," said Andrea Novick, legal counsel for the Election Transparency Coalition. The Coalition has prepared litigation challenging ERMA on constitutional grounds, as the State Constitution prohibits concealed vote counting. Software-based systems tabulate votes in a way that cannot be observed by election staff, official observers, or anyone else.

New York is the only state in the U.S. that counts all its votes in a manner that is verifiable and avoids the risk of incorrect election results resulting from computer malfunction or manipulation. In response to the Help America Vote Act of 2002 (HAVA) nearly the entire nation adopted software-based voting systems, despite the federal government's failure to provide the funding for this changeover.

New York achieved HAVA compliance by outfitting every polling place in the state with a ballot marking device to assist voters with disabilities. The BMD provides a computer interface that creates a paper ballot; these ballots are counted by hand on election night at the polling place.

It is not HAVA but New York's response to HAVA, the Election Reform and Modernization Act, ERMA, which is the legislative mandate to replace the levers. Unless amended, repealed, or declared unconstitutional, ERMA would require electronic tabulators to be used in all NY counties. Electronic voting systems have proven to be problematic throughout the nation, breaking down, losing votes, and leading the public to question announced election results.

New Yorkers and Local Governments Acting Now To Save Our Lever Voting System

Essex County will become the 6th county joining the Association of Towns in passing resolutions to retain our lever voting machines. More counties are expected to follow.

● The very close race in NY’s 20th CD proved lever machines succeed where software machines fail: New York’s lever voting machines provide reliable, observable evidence of the count at the election. Software voting machines do not.

● Officials and observers inspect each lever machine to see that machines are programmed to count properly. Software machines are secretly programmed. Lever machines cannot switch, flip or add votes; software machines can. Software machines can produce false election results.

● The Help America Vote Act does not require the replacement of lever machines. New York’s State’s Election Reform and Modernization Act (ERMA) does. ERMA is unconstitutional.

● The Election Transparency Coalition NY has prepared litigation seeking to declare computerized vote counting machines unconstitutional.

● Germany's Constitutional Court banned computerized vote counting machines last month, declaring them unconstitutional.

● In March, a CIA cybersecurity expert reported that computerized elections are vulnerable to rigging. He believes Venezuelan President Hugo Chavez's election was rigged and that the post-election audit confirmed the false results. The CIA investigated Venezuela’s elections because Smartmatic, a Venezuelan-owned voting vendor, owns the Intellectual Property rights to Sequoia. Sequoia will program the software for most counties in New York if ERMA is not stopped.

● A Pennsylvania legislator introduced legislation last month to allow counties in PA to return to the use of lever voting machines.

● Lever machines are affordable, reliable and with proper maintenance can last another century. Software machines are expensive, unreliable and will have to be replaced in short order due to technological obsolescence or limited useful lives.

If you have something that works and something that doesn't work, I vote for the thing that works. -- State Board of Elections Commissioner Gregory Peterson, regarding lever voting machines.

A PDF version of this post is available here.

Re-Media Election Transparency Coalition is a non partisan, not for profit organization dedicated to transparent elections in New York through the use of non-computerized electoral systems. http://remediaetc.blogspot.com

ETC is a project of International Humanities Center, a 501(c)(3) organization.

Clear evidence: Lever voting works

The following Op Ed by ETC Founder Andi Novick was published in the Albany Times Union on April 16, 2009:

Clear evidence: Lever voting works

The chair of the New York State Republican Party commenced litigation before the results were counted in the special election in the 20th Congressional District. Some have attacked his move as a Republican ploy. Others have questioned whether the lever voting machines' dead-even results are even possible.

What is missing in this broad-stroke reporting is that New York is not like the other states in the nation that use computerized voting machines, which conceal vote counting. New York's votes are still counted transparently, employing a centuries-old system that was designed to provide evidence of how votes were counted at the time they were cast. This critical distinction sets New York apart from the rest of the nation.

New York's Republican Party is looking to examine and secure that evidence. That is precisely what New York's electoral system is intended to provide. It is what the public is entitled to, and only in New York is this evidence available. Unfortunately for the democratic process, this may be one of the last times New York candidates, parties and citizens will be able to have proof of its election results. If New York replaces its lever voting system with computerized voting machines, the evidence the Republican Party properly seeks to inspect and preserve will be gone forever.

In a democracy, it is the Legislature's responsibility to create a structure in which voting can occur in the most secure manner, one that produces demonstrably certain election results. Just as in a criminal trial, where the state must prove the defendant's guilt to the satisfaction of a jury, in an election the state must establish its innocence to the satisfaction of the public. In both cases, the state must sustain its burden with unimpeachable evidence.

To wit: In a criminal trial, after a crime has been committed, the state must find the evidence and then preserve that evidence for trial.

In an election, before any crime (any vote tampering) could possibly be committed, the state must create a system that produces evidence of electoral safety and security and then preserve that evidence should the election be questioned or a trial challenging the results become necessary.

New York has the only electoral system left in America that satisfies these fundamental constitutional principles of public elections and due process. Our system mandates that evidence of the original results must be publicly created — both to satisfy the public of the accuracy of the results and to provide the most secure means to detect and deter fraud or irregularity before it could occur.

Unlike states where close races were decided by the invisible processes of a computer or by a manual recount of paper ballots, New York has the evidence the Republican Party seeks to secure. Had this election's votes been counted by optical scanners, as New York's new Election Reform and Modernization Act (ERMA) requires in future elections, neither the Republican state chair nor the Democratic state chair nor the public would be able to obtain this evidence of how the ballots were counted at the time they were cast. That's because the evidence will no longer exist. Software-driven voting machines conceal that which is visible and preserved on the lever machine. Neither election officials, nor observers, nor candidates can observe or know how software counts votes in an election. There is no evidence after an election of how the software did its work, as there is with mechanical immutable lever machines, because software is vulnerable to undetectable manipulation.

Elections belong to the public. And the public must be able to evaluate the performance of those charged with the responsibility of conducting the election. The state is rightfully on trial in any election to prove to the candidates, the public and the political parties that it did its job in ascertaining accurate results. We must all be satisfied of the state's innocence (or not) in conducting this election. The Republican Party has the right to put the state to its proofs.