Sunday, September 19, 2010

New York Primary Election Day: Op-Scan Round-up

Tuesday was primary election day in New York and the debut of optical scan voting machines in all New York counties. Reports from voters around the state were fairly consistent with my own experience in Poughkeepsie.

Although there were only about 4 people in line it took me about 10 minutes to get my ballot. One minute to fill it out - not as easy to stay inside those ovals as when seated at a desk with a pencil in the 10th grade, but I had only two choices to indicate. The markers were micron felt-tip and already the point was wearing down although I'm sure there had been no more than 15 voters there so far. A report from an ETC friend in Suffolk County indicated that although she was the 39th voter in her district, the pen was almost out of ink.

At my polling place only one of the two machines was working. I saw reams of machine tapes being pulled out and there was also some dispute as to whether each machine was dedicated exclusively to one of the two election districts accommodated by this polling place. When I inserted my ballot into the working op-scan I received an over-vote notice and chose to have the ballot returned rather then continuing since I knew I had not over-voted. I inserted the ballot again only to received a "one or more ambiguous marks" on the ballot notice and indeed there were very faint and very tiny smudges either from the privacy sleeve or the scanner itself. Voters in New York city apparently had the same problem, the result of the use of the felt-tip markers which were reported to be those recommended by the voting machine manufacturers.

In Poughkeepsie I stood in line again for a new ballot and carefully filled in those minute ovals, although now the pen had a felt tail dragging behind. After 2 more attempts this new ballot with no evident "ambiguous" marks was again being rejected on the grounds of those invisible ambiguities. Throughout the state there were reports of machines rejecting ballots. In the time I was at my polling place at least one person had to feed his ballot at least twice before it registered. Finally the attendant at my machine suggested I turned the ballot over with the blank side up and, ta-dah, my vote was "cast" indicating I was the 22nd voter of the day.

I know the scanners have the capability to read two sides but whether that feature was enabled today? Who knows? But then again, who knows anyway?

With the high percentage of rejected ballots, I was concerned that the spoiled ballots were not being as carefully tracked as they should have been. Again, during the 25 minutes I was at my relatively quiet polling place another voter (an experienced poll worker) over-voted and had to stand in line for a new ballot. I later saw her hand in her spoilt ballot only after her second ballot had been cast. At one point in one election district in Syracuse there were 14 ballots spoiled for 20 which had been cast.

Friday, September 3, 2010

Nassau County Argues for Lever Machines in US Court of Appeals

On Wednesday, Nassau County Attorney John Ciampoli asked a three-judge panel at the US Court of Appeals for the Second Circuit to overrule District Court Judge Gary Sharpe's order to replace lever voting machines with computers to run this year's federal elections in New York.

Chief Judge Dennis Jacobs reportedly agreed with the county's assesment, saying that the new computerized ballot scanners were "more prone to fraud on a mass scale than a lever machine."

Adam Klasfeld of Courthouse News Service attended the hearing in lower Manhattan on Sept. 1 and filed this report.

This is the highest court to hear a case on the use of lever voting machines in federal elections since the Help America Vote Act of 2002 (HAVA), which made funds available to the states to replace lever machines and punch cards, was signed into law by President George W. Bush.

Nassau County continues to break new ground, making the arguments that should have been made by New York State attorneys in US v. NYS Board of Elections years ago. HAVA does not require the use of computers to count votes.

Tuesday, July 27, 2010

NY Court Allows Optical Scan Inspection by Nassau's Experts

The state Supreme Court judge hearing Nassau County’s case against the NY State Board of Elections last week authorized Nassau County, as part of the discovery process, to have ES&S electronic vote-counting machines tested by an independent lab in Connecticut.

In delivering this order the judge affirmed many of the constitutional issues which ETC has articulated, finding that, among other things, “the Legislature may not adopt policies which deprive voters of crucial protections under the New York State Constitution,” and “any burden on the State is far outweighed by the public’s interest in the right to cast a meaningful vote and its right to know whether the new machines jeopardize the security and integrity of New York’s electoral process.”

Responding to the court ruling in a press statement, Nassau County Attorney John Ciampoli said, “It is my firm belief that these new voting machines adversely affect voters… in their ability to cast their votes and have them count. In addition, in my opinion, the new voting equipment is an invitation to high tech and low tech fraud. Finally these voting systems will explode the cost of running elections by a multiple of as much as ten times the cost of running an election on our reliable lever machines.”

Nassau is among a minority of New York counties to have opted for the ES&S optical scan machines, one of two systems certified for use in NY by the State Board of Elections. The ruling only applies to the machines of the petitioning county (Nassau). This currently leaves the Dominion system, which was chosen by the majority of New York counties, exempt from independent testing.

Most of the twenty counties that passed resolutions expressing concerns about the optical scan voting systems and petitioning to retain their lever machines are scheduled to use Dominion Optical Scanners in fall elections. ETC urges these counties to join the Nassau suit so that all the voting machines will be subjected to independent professional scrutiny.

Nassau County Attorney John Ciampoli’s press statement and the full court ruling can be read here: Nassau Discovery Ruling & Statement.

Saturday, July 24, 2010

Brennan Center Sues NYSBOE over Seasoning in Poisonous Brew

Note: This article is re-posted from our sister site and is commentary on a development that occurred while the ETC blog editor was on vacation.

Lawsuit Dishonors Justice Brennan’s Name

The Brennan Center For Justice has filed suit against the NY State and NYC Boards of Elections to prevent election officials from configuring newly purchased optical scan voting machines in a manner that would disfranchise large numbers of voters. The suit, filed on behalf of NAACP, the National Coalition on Black Civic Participation, the Working Families Party and other plaintiffs, seeks to compel election officials to use procedures to prevent votes from being disqualified when a voter selects too many candidates in a particular race, known as “overvoting.”

Of course it is important to require procedures to prevent overvoting, but The Election Transparency Coalition (ETC) has repeatedly insisted that all protective procedures New York has enjoyed for centuries be maintained, including the opportunity for meaningful public oversight of our elections. The Brennan Center’s lawsuit, by focusing on a single protection, fails to address the much more significant problem: the State’s insistence that counties deploy concealed fraud-enabling vote-counting technology in the first place!

ETC maintains that the Brennan Center suit is akin to fretting over the seasoning in a poisonous brew. If the Brennan Center’s case succeeds, overvoting may be less likely to occur, but votes can still be nullified by the concealed vote counting system the Brennan Center supports!

While correctly pointing out that lever voting machines make overvoting impossible, the Brennan Center’s case fails to mention that lever machines also cannot be secretly programmed or “hacked” to switch and miscount votes without detection — which is eminently possible with optical scanners.

As ETC has been saying for years, electronic optical scan vote counting systems are vulnerable to tampering and malfunction that is completely undetectable. The way in which such voting machines were programmed to count, as well as how they in fact counted, is hidden, violating centuries of New York State election law mandating public oversight and accountability. That’s why we have been working so hard to bring our own lawsuit challenging the constitutionality of NY’s Election Reform and Modernization Act (ERMA), which is forcing NY’s counties to replace their existing secure, transparent HAVA-compliant voting systems.

Nassau County has filed a lawsuit in State Supreme Court similar to ETC’s upcoming suit and a federal judge has ruled that federal law does not require replacement of lever voting machines. Yet the Brennan Center’s case continues to promote the widely held misconception that the federal Help America Vote Act (HAVA) mandates replacement of NY’s trusted lever machines. The State of NY had also made this erroneous claim and argued that Nassau’s case must be tried in Federal Court. But last month, Federal Court Judge Joseph Bianco rejected the State’s arguments and remanded Nassau County’s suit back to State Court. As Nassau had argued, New York has been in compliance with HAVA since 2008, when the State augmented the lever voting system with ballot marking devices at every polling place to increase accessibility for voters with special needs.

The late Supreme Court Justice William Brennan understood the imperative for public scrutiny of government processes, repeatedly finding the public’s right to witness and safeguard its interest to be constitutionally protected.

The Brennan Center website quotes Justice Brennan as saying, “. . . the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.”

The Election Transparency Coalition calls upon the Brennan Center to honor its namesake by challenging the dangers posed to our democracy by concealed vote-counting systems. ERMA must be declared unconstitutional so that transparency and citizen oversight can be returned to our elections and we can perform our duties as citizens to ensure that every vote will be counted correctly.

Wednesday, June 23, 2010

Nassau Election Commisssion Lawsuit Sent back to State Court

We’re pleased with U.S. District Court Judge Joseph Bianco’s ruling last week sending Nassau County’s case back to state court where it belongs.

The case, filed in March, seeks to have NY’s Election Reform and Modernization Act (ERMA) declared unconstitutional for many of the same reasons ETC’s upcoming litigation does: chiefly, the disaster that would be caused for our democracy should the electronic vote-counting systems ordered by ERMA be deployed throughout New York. Defendants had the case moved to federal court, claiming that federal issues were involved.

But Judge Bianco disagreed, saying “Plaintiffs’ claims (1) do not assert a federal cause of action, (2) necessarily raise a substantial question of federal law, or (3) come within the “artful pleading doctrine.” As such, there is no federal jurisdiction over this case, and remand is required.”

The State has repeatedly claimed that federal law, the Orwellian-named Help America Vote Act, forbids continued use of lever voting machines. However, in his ruling, Judge Bianco affirmed what Nassau (and ETC) have been saying: that HAVA does not rule out the use of lever voting machines.

Bianco’s ruling also states, “In short, there is no indication Congress sought to transform all state law claims dealing with the administration of elections or voting systems into federal claims. In fact, the opposite appears to be true given that Congress gave the states a significant amount of discretion as to how to implement HAVA.”

Judge Bianco’s ruling thus correlates with what ETC has said all along: that HAVA does not require that NY abandon its lever voting systems. NY came into compliance with HAVA when ballot marking devices were installed at every polling place to provide increased access for voters with special needs. The full ruling can be viewed here.

Friday, March 26, 2010

Nassau County Files Suit Against NYS Over ERMA

The Election Transparency Coalition applauds Nassau County for filing suit against the State of New York over its unconstitutional election law, the Election Reform and Modernization Act (ERMA).

ETC has long held that ERMA is unconstitutional because its mandate that counties switch over from the time-tested, trustworthy and transparent lever voting systems to electronic vote-counting systems will end meaningful public oversight of the public’s elections. That mandate must not be allowed to stand.

Since New York State has already complied with the federal requirement of at least one accessible voting device for voters with special needs at each poll site, we urge the Court to act quickly and decisively to halt the implementation of the state’s legislation before more taxpayer dollars are spent on equipment that must not be used to count votes in New York.

Tuesday, March 2, 2010

Columbia County Joins With Nassau to Contest ERMA: Counties Want to Keep Their Lever Voting Machines

From the Columbia County Register Star:
By Francesca Olsen
Tuesday, March 2, 2010 2:12 AM EST
The Columbia County Board of Elections will join in a lawsuit with Nassau County, and other New York counties, to declare ERMA, the state Election Reform and Modernization Act of 2005, unconstitutional.

BOE Commissioners Virginia Martin (D) and Jason Nastke (R) have updated the Board of Supervisors’ County Government Committee on the impending litigation.

At February’s meeting, Nastke told the committee that the County Attorney’s Office has reviewed the lawsuit paperwork, and is on board with the idea, provided the BOE get “something in writing” from Nassau that there will be no financial or legal implications from joining the suit.

Under ERMA, traditional lever voting machines would be prohibited from use, and municipalities would have to replace them with computerized voting machines, either touch-screen or optical scanners. But ERMA doesn’t fund the replacement, meaning Columbia, and other New York counties, would need to foot the bill for the transition.

“My fundamental issue with this, aside from the reliability issue with the new machines, is essentially, the unfunded mandate costs being carried over to the county,” Nastke told the Register-Star. “Albany wants to talk a great deal about how we should save money, but then sends down mandates that will cost Columbia County alone $100,000 per election. It’s just wrong.”

“What’s not extricable from the cost issue is the complexity issue,” Martin added. “When things become more complex they become more costly to maintain or implement. There’s much more to do.”

For example, if elections do end up moving over completely to paper ballots, storing the ballots, printed for each registered voter, would require “Fort Knox” style security measures, including double locks and environmental controls. Machines would also need increased security.

Martin said that paper ballots used in elections now require the same kind of storage “but they comprise a very small portion of the votes that get cast. If we make the change to an election that’s fully voted on paper ballots, then we’re looking at a much greater storage space needed.”

“You have to print paper ballots for every voter, regardless of whether the voter shows up,” Nastke said. “What if there’s a last minute change on the ballot? Do we have to go out and reprint ballots?”

The Federal Help America Vote Act of 2002, which inspired ERMA and requires municipalities to make voting accessible to everyone regardless of disability, does not require that lever machines be fully replaced, and provides funding to municipalities for the purchase of new machines.

In 2008, Columbia County complied with HAVA by purchasing 52 Sequoia Imagecast optical scan and ballot marking devices for $600,000, 95 percent of which was covered by HAVA funding. The county paid $28,000.

Martin said that while new machines probably wouldn’t need to be purchased, the cost would still be high.

“It’s not a matter of buying more machines. It’s a matter of implementing it all, which is far more complex than a lever machine election,” she said.

There have also been deep concerns across the state as to whether optical scanners are as reliable as lever machines. They are computerized, and doubts about the security and accuracy of programs have been raised repeatedly. Also concerning to many is that the computerized language of ones and zeroes can’t be easily understood at a local level by election custodians who may not be familiar with computer programming.

Resistance to the switch is ongoing. In February of last year, the New York State Association of Towns passed a resolution stating that “the continued use of lever voting machines is in the best interest of the public and should be permitted to be used in future general elections ... the elimination of lever voting machines is costly to taxpayers, will result in another burden upon the local taxpayers, and will be confusing to the voting public without adequate time and education.”

And the Election Transparency Coalition, headed by Attorney Andrea Novick, has been requesting help and resources to litigate against ERMA. ETC’s Web site,, declares pointedly that “ERMA is unconstitutional.”

“HAVA said we had to make voting handicapped-accessible to everybody,” Nastke said. “We’ve done that. The state of New York said, we want everyone to use these new machines. There’s nothing wrong with our old machines. They work fine. You know whether or not the votes were counted ... they don’t go into some hidden software chip somewhere.”

Followers of current events may already know that the Nassau County Attorney is John Ciampoli, the same attorney who litigated for the Columbia County Republican Party in a suit over the validity of absentee ballots from last November’s election.

Which means Martin and Ciampoli, who is involved in the litigation to declare ERMA unconstitutional, will be on the same side of the argument this time around.

“It seems that we do agree on this,” she said. “It’s good that Nassau is doing this, or is preparing to do this.”

Other counties in New York, Martin said, are looking into joining the litigation as well.

Ciampoli said that the BOE commissioners in Nassau County are calling other commissioners in other counties to generate interest in joining the lawsuit, and that so far, there have been talks with New York City, Westchester, Suffolk, and “several other counties.”

He added that paperwork has not been officially filed yet, but interviews with people to serve as expert witnesses are being conducted, an expert has already been retained, and reviews are being conducted with the attorney’s office and Board of Elections.

To reach reporter Francesca Olsen call 518-828-1616, ext. 2272, or e-mail

Monday, February 15, 2010

"Auditing" Regs Confirm Op-Scan Vulnerabilities

I need to reiterate: the crux of ETC's opposition to software-based voting systems, which include the Op-Scans, is that they institutionalize secret vote counting, violating our constitutional right to see that our votes are counted as cast.

Recognizing the inferiority and vulnerability of the op-scans the NYS Legislature in enacting ERMA included the requirement for an "audit", a post-election night recount of a percentage of supposedly randomly chosen paper ballots which the public was to believe was a check on the accuracy of the optical scanner counting. (Of course post-election night ballot recounts are illegal in New York, a fact that seems to be irrelevant to our officials.) But the so-called "auditing" procedures which have been developed by the state board of elections are themselves an indictment of the very proposition that software-based voting systems are an accurate and secure way to run an election.

The audit procedures are worth reading in full. But I have highlighted here what, if we could all still laugh about this, would be some of the more comical instances of doublespeak and oxymoron:

"Ballot Marks
o Valid votes that have been marked by the voter outside the vote targets or using a marking device that cannot be read by the vote tally system shall not be included in making the determination whether the voting system has met the standard of acceptable performance. "

What does this mean? Did the machine count the vote or not?

"Scanners will easily recognize votes that are marked with a density that is within the calibrated thresholds. In an audit, the human eye may perceive these marks differently that the scanner, however the audit team members and observers alike should understand that the scanners, in accordance with Section 7-201.1e provide each voter with a notification of any mark the system perceives as questionable and provides each voter with the opportunity to remark their ballot or cast it 'as-is'. "

In an audit the eye may perceive the mark differently? How did the voter who made the mark perceive it? Did the machine override voter intent? Silly voter.

"The problems in Cuyahoga County, Ohio in 2004, where audit supervisors rigged the ballot selection so that no discrepancies would be found, exemplify the danger of auditors hoping to find perfect matches and to avoid the difficult questions and additional work that might result if the records do not match."

i.e. Beware of fraud. Two Cuyahoga County election workers were convicted for the illegal manipulation of ballots during the 2004 recount.

"To counter the understandable temptation to make the paper and electronic records match..."

Understandable, especially if you are trying to cover-up machine rigging or because underfunded, understaffed elections boards will often cut corners . Who could have imagined....And what is the counter to that? More expensive, finicky, non-transparent, easily compromised machines?

Manual counts may sometimes reveal different voter intent than machine counts of ballots. Overvotes, marginal marks, hesitation marks, and other stray markings on manually marked ballots could cause optical scan voting machines to misinterpret voter intent that a human reviewer would be able to discern."

... and if we make enough exceptions to cover discrepancies between hand and machine counts, then almost any machine, even rigged ones, will pass "audit."

- JL

Sunday, February 14, 2010

Happy Valentines Day Lever Machines

Mechanical Lever Voting Machines were first used in Lockport, New York in 1892. Four years later Rochester became the first large city to adopt the machines and the entire state soon followed.

On February 14th, 1899 voting machines were approved by Congress for use in federal elections.

Anniversary information courtesy of Sowing Culture the Blog of the Institute of Museum and Library Services (IMLS.) Photograph Courtesy of Connecticut History Online.

Voting machine, Hartford (CT, 1912)

Wednesday, February 10, 2010

All Things Considered: Electronic Voting Costs Dollars and Democracy

So far the New York Board of Elections has not shown it can learn from the experiences of others that software-based voting not only creates unpredictable short and long term costs but endangers Democracy. The following report is from NPR Affiliate KXJZ in Sacrament0 and was aired on All Things Considered on February 8th and the following day on Morning Edition.

Thanks to for the link.

(Sacramento, CA)

California elections officials say their computerized voting booths are in need of upgrades, but they can’t afford to make big improvements.
Capital Public Radio's Steve Shadley reports...
Two statewide elections are coming up later this year but local elections officials say they’re working with outdated electronic voting booths.

Private companies that sell the equipment say the state and counties would be better off buying new systems rather than trying to modernize the old equipment.

That would require millions of dollars that governments don’t have right now.

At a public hearing on the issue in Sacramento, some citizens urged the officials to get rid of electronic voting, period.

Tom Courbat is with the Riverside County group “Save Our Vote”...
Courbat: “We’re not convinced there is enough security in these voting systems to justify continuing to purchase them. We have seen demonstrations over and over again of machines being hacked...”
Courbat says it would be more secure if voters cast paper ballots that would be counted by hand.

But advocates for the disabled say not everyone can fill out a paper ballot.

Note: Ballot Marking Devices (BMDs) are one means by which special needs voters can create a ballot independently . BMDs are provided at every polling place in New York State. These BMDs are separate from the Optical Scan Voting Machines and the ballots created can be counted by hand. The issues should not be confused as they often are, including in the above report.

Monday, February 1, 2010

County Government Committee of Columbia County Supports Joining Litigation

After a January 26th report on the state's required switch to optical scanners, presented by Columbia County Election Commissioners Virginia Martin and Jason Nastke, Supervisors on the Columbia County Government Committee agreed that the county should support litigation to have ERMA declared unconstitutional.

As reported by Francesca Olsen of the Register-Star:

  • Democratic Commissioner of Elections Virginia Martin and Republican Commissioner Jason Nastke presented documentation on the State’s required impending switch to optical scanners and ballot marking devices at the January County Government Committee meeting Jan. 26.

    Martin said that several counties, including Nassau County in Long Island, are interested in joining proposed litigation to declare the state Election Reform and Modernization Act of 2005 (ERMA) unconstitutional. Supervisors on the committee were in general agreement that Columbia County’s involvement in the litigation was the right move.

    All counties in New York are expected to use optical scanners for the 2010 primary and general elections. Nastke told the committee that just to print the paper ballots from BMDs — ballot marking devices — and optical scanners, it would cost the county $100,000 per year. “The county could put that towards a bridge!” he said. “There’s nothing for us to lose by joining in this lawsuit.”

    “Election administration gets a lot more complicated, and there are a lot more opportunities for errors,” Martin told the committee about the switch from lever machines to BMDs and optical scanners. For example, the paper ballots the new machines use (and the machines themselves) can take up a lot of space, and must be stored securely year-round with “fort-knox style security, bipartisan locks, environmental controls,” according to materials handed out by Martin at the committee meeting.

    It was suggested that if the lawsuit just delays the implementation of ERMA, it would save taxpayers the cost of new machine implementation for a little longer. “I’m not too thrilled with these scanning systems,” Nastke said, “but I’m required by law to implement them.”

    Optical scanners were certified by the State Board of Elections in December, and ERMA would require the discontinuing of lever machines. “There’s a difference with what the federal government asked, and what the state wants us to do,” said Supervisor Leo Pulcher, R-Stockport.

    The Help America Vote Act of 2002 does not require states to replace their lever voting machines.

Thursday, January 28, 2010

Levers Can Be Used in March Village Elections

[Additional material was added to this post on 1 February]

The NY State Board of Elections (SBoE)has decided that villages may continue to use the lever voting machines in the March 2010 elections. According to a report in the Post Star "state Board of Elections spokesman John Conklin said officials concluded that counties that haven't participated in a pilot program for the new machines can have an extended grace period."

What is unclear is whether villages in counties that participated in a limited way in the November pilot, like Dutchess, which deployed an op-scan in one voting district in the city of Poughkeepsie, will be required to use the scanners in March.

The SBoE decision was in response to concerns like those in a January 4th memo filed by election officials in Washington County, which did not participate in the pilot, that "The training that we need for ourselves, the inspectors and the technicians is not going to be completed in time for your use." But the other anxiety expressed by the Washington county election commissioners is one which has been systematically ignored by the SBoE despite having been raised consistently by county officials across the state. The Washington Commissioners wrote, "Also a concern is the cost of programming the new machines, transporting them and the printing of the ballots that may be prohibitive to small villages."


Although electronic voting machines were used in the November 2009 elections, the village of Saranac Lake has asked permission to use lever machines in the March village elections. Village clerk Kareen Tyler said, "I just don't think the expense or availability of the (new) machines is something the village is going to be able to handle." If permission to use the levers is not granted Tyler said the village will go to paper ballots which will be counted by hand. "It would not be difficult to do at all," she said. "There would be rules and guidelines and safeguards so they couldn't be stuffed or anything like that."

The story is reported in the Adirondack Daily Enterprise.