NY: Election Official Would Refuse to Certify Electronic Vote Count

Columbia County Election Commissioner Testifies at Public Hearing

New York City, Oct. 23, 2009 --

What might have been a quiet hearing of the State Assembly's Standing Committee on Election Law today became instead a public altercation as speaker after speaker criticized the State's move to electronically counted ballots. The change is slated to take effect next year, as outlined in the Election Reform and Modernization Act (ERMA), which outlaws the state's time-tested and widely trusted lever voting machines.

Speakers took issue with the new voting systems on multiple grounds including cost, accuracy, and dependability. Concerns about votes counted in secret and the ease of manipulation of election results with the new system abounded.

Columbia County Democratic Election Commissioner Virginia Martin testified that "the mandated transition to electronic voting and vote-counting will likely prevent me as commissioner from doing my job, which is to certify to the accuracy of election numbers."

While she praised some of the State's actions to comply with new election law, she said the new computerized voting systems are poorly made and break down often, in contrast to the dependable lever voting systems currently in use. "If Columbia County starts using software to count votes, I will not certify an election unless an appropriately designed audit of the paper ballots is conducted. So far, the State Board [of Elections] has not mandated an audit that audit experts agree will expose inaccurate counts."

Commissioner Virginia Martin Testifying (Photo by Russell Branca)

Exorbitant costs are also of concern to Martin. "Boards [of Elections] across the state have encountered enormous resistance from their counties when they have tried to get the funds these unfunded mandates would have us incur. I know of two cases in which county budgets have tripled."

The panel was surprised to know that Commissioner Martin has an understanding of how the lever machines work. "I believe it’s critically important that commissioners and poll workers across the state understand how the machines work," Martin said. "In the case of lever machines," she added, "it’s simple."

More photos and testimony are available here.

NYC Never Sleeps! Village Independent Dems Opt Out of Op Scan

Keep-the-Levers Resolution passes after informed public debate.

The more you know about lever voting machines, the more you want to stay with them. This experience - that an informed public prefers lever voting over the vagaries of electronic vote scanners - was demonstrated once again on July 9th at a debate at St. Mark’s Church In-the-Bowery in Manhattan. The event was sponsored by the Village Independent Democrats, a 53-year-old organization established to provide a constant and rigorous examination of local and national issues in the light of independent, liberal Democratic principles. True to their goals of promoting measures designed to serve all the people and to further the interest and participation of all citizens in the civic affairs of their community, the VID presented "The Threat to Voting in New York and What to Do About It" featuring Douglas Kellner, Co-Chair of the New York State Board of Elections, New York University Professor Mark Crispin Miller, renowned author of "Fooled Again: The Real Case for Electoral Reform" and attorney Andi Novick, founder of the Election Transparency Coalition.

The pros and cons of computerized vote counting, paper ballots, and lever machines were discussed in a well-structured format that, while strictly controlled by the moderator, eventually allowed everyone to participate. For perhaps the first time in a public forum, the hard questions about computerized vote counting were asked -- and at least partially answered.

Among the public participants during the energetic question and answer period, were Columbia County Democratic Election Commissioner Virginia Martin; Teresa Hommel, Chair of the Community Church of New York's Task Force on Election Integrity; and E-Voter Education Project Founder Howard Stanislevic. The experiences of these professionals added an even broader perspective to the information presented by the invited speakers and elicited by audience questions.

Highlights of the evening have been distilled into the following 15-minute video. With additional commentary explaining the precedents established by the rulings of New York's highest court, this video demonstrates concisely how New York's new election law will violate the inalienable right to self-government. We urge all New Yorkers and voters everywhere to watch it:

IT'S TIME TO TAKE A STAND FOR OUR DEMOCRACY from Andrea Novick on Vimeo.

Professor Miller discussed the culpability of vendors in the punch card debacle that brought us the 2000 Presidential Election in Florida, paving the way for the Help America Vote Act (HAVA) and the resulting rush to more electronic vote counting. Miller also spoke of the relative lack of media coverage regarding such events, and the questionable results of more recent optical scan elections. He said that such negligence leaves the majority of the public unaware of the extreme hazards of e-vote counting both here and abroad.

Commissioner Kellner agreed with, and in fact was the first to promulgate, the position of Andi Novick and the ETC that lever voting machines are allowed under HAVA and that it is ERMA -- the New York State legislation -- which mandates the replacement of the lever machines with electronics. But the Commissioner then confused the issue by declaring that New York is under federal court order to replace the levers, as if the federal court had determined HAVA required the levers' replacement. But it is New York that entered into a voluntary agreement with the Department of Justice and federal court judge to replace the levers, as mandated in ERMA. The court 'so ordered' that agreement of the parties. The court never made a ruling that the levers had to be replaced. No one asked for such a ruling. The State was agreeing to comply with its own state law. As Andi Novick explained, the state law is unconstitutional, and an agreement based on unconstitutional law is void and unenforceable.

Although Commissioner Kellner stated that elections should never be decided on faith and trust, he was unable to respond when it was made clear by other speakers that New York would not be relying on the paper ballots to determine the outcomes of elections, but would in fact be trusting the computers. Commissioner Kellner is a conscientious administrator and, in all fairness, it should be noted that his equivocation is a reflection of the extreme duress our election officials are under to institute a fatally flawed system.

It was obvious and understandable that the State Board of Elections is ill-prepared to run elections on computerized voting systems. For example, Kellner, who routinely consults with computer experts, seemed unaware of the difference between source code and object code (the latter being the software that actually resides in optical scanners and the Election Management System PC that programs them). He incorrectly claimed that computer scientists, and presumably even election officials, could tell that the code running on the machines was the correct "source code." Notwithstanding his confusing source code with object code, however, the fact remains that no one can verify that correct software is running in a computerized voting system on election day. With such a misunderstanding prevalent, it's no wonder that election officials are willing to trust our votes to computer code and the vendors who write it.

Kellner finally admitted that New York will not be trusting the electronic machines after all, but instead, will be relying on the paper ballots. But this was clearly wishful thinking on his part. While Kellner seemed to imply that recounts could be had more or less at the drop of a hat, he offered no examples other than recounts of relatively few absentee ballots.

Novick insisted that the State's highest court has repeatedly declared post-election-night counting of ballots already counted at the polls to be far too dangerous to be used to determine correct election results. Only absentee, emergency and disputed ballots are counted post-election, she said, leaving the vast majority of paper ballots to be counted only by computers.

Columbia County Election Commissioner Martin asked Kellner about the costs of replacing levers with scanners. Kellner said the Federal government gave New York about $50-million to replace the levers, but he explained that it would cost closer to $200-million to finish the job. This is consistent with independent cost studies that have shown that all the Federal money provided to the State under the Help America Vote Act will be depleted after only one year of lever replacement by scanners.

Howard Stanislevic commented on the State Board of Elections' lack of action to beef up New York's future post-election auditing. The state will only verify 3% of scanner tallies -- barely enough to confirm the winners of landslide elections in gerrymandered districts -- despite many calls for stronger auditing requirements for over a year by good government groups such as NYPIRG, Common Cause/NY and the League of Women Voters.

After the forum on July 9th, the Village Independent Democrats joined over twenty counties, several labor unions, the Association of Towns of the State of New York, individual towns, villages, good government organizations and thousands of New Yorkers in passing resolutions in favor of retaining lever voting machines. When the public is given the facts, they make the right decisions.

Statement of Support from National Election Integrity Experts

It is essential to the maintenance of a democratic society that every critical component of the electoral process be subjected to contemporaneous public scrutiny in order for the people to retain control over those who are our public servants. We, the undersigned, have been working toward this end, many of us full time and at little or no compensation for many years. Together we have a broad and deep range of knowledge and experience.

We understand that New York's statutory and judicial law has upheld these constitutional requirements, mandating a transparent election process in which authorized observers have the responsibility to witness and verify each step of the canvass before it is completed, resulting in a demonstrably accurate and certain count on election night, arrived at under conditions of uninterrupted public scrutiny.

We consider the New York litigation to be one of the best opportunities the nation has for serious judicial consideration of the constitutional implications of concealed vote counting. We encourage all who are dedicated to the constitutional principles of democracy to offer whatever help they can to achieve this breakthrough ruling.

Bev Harris, WA - investigative reporter, founder and executive director of Black Box Voting, author of Black Box Voting: Ballot Tampering in the 21st Century.

Abbe Waldman DeLozier, TX - co-editor, co-author Hacked! High Tech Election Theft in America-11 Experts Expose the Truth.

Nancy Tobi, NH - founder Democracy for New Hampshire, Chair of the Fair Elections Committee (NH), and Legislative Coordinator of Election Defense Alliance.

Dave Berman, CA - co-founder Voter Confidence Committee of Humboldt County, California.

Sally Castleman, MA
- Co-founder and first National Chair, Election Defense Alliance.

Judith B. Alter Ed.D., CA - Emeritus UCLA Professor, Director, ProtectCalifornia Ballots.

Emily Levy, CA - election integrity advocate who has worked on crucial projects in New Mexico, Ohio, California, and NY, as well as projects of national scope.

Jonathan Simon, MA - co-founder of Election Defense Alliance, former political polling research analyst and author numerous papers addressing statistical anomalies and other evidence of computerized election fraud.

Joan Brunwasser, co-founder of Citizens for Election Reform (CER) and the Election Integrity Editor for OpEdNews. Her own articles also appear at RepublicMedia.TV and Scoop.co.nz.

Mark Crispin Miller, NY - Professor of Culture and Communication at NYU, author of Loser Take All: Election Fraud and the Subversion of Democracy andFooled Again: The Real Case for Electoral Reform.

Dr. Victoria Lovegren, Ohio - Ohio Vigilance, governing board member; Computer Science, Systems Analysis, Data Analysis, Decision Science, Mathematics

Mary Ann Gould, PA - Executive Director of Coalition for Voting Integrity, host of "Voice of the Voters.

Richard Hayes Phillips, NY- professor, researcher, Author of Witness to a Crime: A Citizens' Audit of an American Election.

Bruce O'Dell, MN - E-commerce security consultant; co-founded US Count Votes and founding member of Election Defense Alliance.

Election Commissioners Party With Vendors

More than 18 New York counties have passed resolutions asking to keep their lever voting machines and the governor has issued directives to limit state employee travel expenses; nevertheless 180 county election commissioners and staff spent their evenings partying at events sponsored by voting machine vendors who plied their wares at the four day annual Election Commissioners Association meeting at the Finger Lakes in late June.

Here are some highlights of the Daily News report of the event which is worth reading in full, especially for the photos:

At this conference, vendors seeking business with election boards across the state picked up the tab for food and open bars...

On Wednesday, commissioners and staffers attended work sessions about paper ballets, vendor contracts and other election issues. At one point, Sequoia and ES&S - two companies vying to supply electronic voting machines to election boards across New York - pitched their wares...

As the party ended, some revelers re-created a scene from "Animal House" by jumping up and down, yelling "Shout!" to the Isley Brothers' hit.

[New York Election Commissioners Association president William]Scriber said he didn't know which vendor paid for the private party room and liquor and had "no recollection" of who threw the costume party. A hotel sales rep did not return calls.

Read more: http://www.nydailynews.com/news/2009/06/29/2009-06-29_with_albany_in_chaos_board_of_elections_staff_live_it_up_in_finger_lakes.html?page=1#ixzz0KxdfMqNZ&C

Lever Voting Advocates Go Head-To-Head with State Board of Elections Commissioner in Public Forum on Thursday

As State Pushes Ahead with Rollout of Computerized Voting Systems, Election Watchdogs Threaten Legal Action

What: Public Forum: The Threat to Voting in New York and What to Do About It

When: Thursday, July 9, 2009 at 7:30 p.m.

Where: Main Sanctuary at St. Marks Church in the Bowery, 10th Street and 2nd Ave in Manhattan

Who: Douglas Kellner, Commissioner of NYS Board of Elections
Mark Crispin Miller, renowned author of "Fooled Again, The Real Case for Electoral Reform"
Andi Novick, attorney and driving force behind efforts to preserve New York's constitutionally-compliant lever voting system, founder of the Election Transparency Coalition

Sponsored by the Village Independent Democrats

Why: New York State is the only state in the U.S. that conducts elections in a transparent and verifiable manner. All other states have moved to electronic vote-counting systems that make it impossible for election officials, official observers, candidates, or the public to determine whether the announced vote totals accurately represent the votes cast. These concealed vote-counting systems violate the principles of a constitutional democracy as represented in two centuries of statutory law and judicial precedence interpreting New York’s Constitution, and as recently held by Germany’s Constitutional Court.

Yet electronic voting systems are slated to be fully operational in New York by 2010. And 1.4 million of New York's registered voters will be forced to vote on them this year, without even the weak assurance of State or Federal "certification" or a 100% election-night hand count to confirm that the systems' count was accurate.

At this free public event, Andi Novick will outline the reasons New York's Election Reform and Modernization Act (ERMA) is unconstitutional, Mark Crispin Miller will discuss the dangers of electronic vote counting systems, and Douglas Kellner will explain the state's insistence on an expensive change in election technology beyond what is required by the federal government.

Links: Andi Novick/Election Transparency Coalition: http://nylevers.wordpress.com/
Mark Crispin Miller: http://markcrispinmiller.com/
Douglas Kellner: http://www.elections.state.ny.us/
Village Independent Democrats: http://villagedemocrats.org/

# # #

Voting Rights Groups Respond to Holt Bill

Reposted from our friend Mark Crispin Miller , the response of some voting rights groups to the recent New York Times endorsement of the Holt Bill.

From Bev Harris:

CHERRY-PICKING ELECTION REFORM ADVOCATES, STACKING THE EXPERTS DECK

(You may discuss this at http://www.bbvforums.org/forums/messages/8/80460.html)

As far as I can tell, the editorial–which did not even provide the correct name for the bill
–did not contact or seek any input from the many voting rights and election reform groups
that oppose this legislation. Among those omitted were Black Box Voting, VotersUnite.org,
Open Voting Consortium, and Democracy for New Hampshire, whose Nancy Tobi has been examining Holt’s various renditions of his bill for years; nor did the Times note the opposition
of Brad Friedman of Bradblog, interview voting rights scholar and attorney Paul Lehto, or
confer with the Election Defense Alliance.

Read more.

Columbia County Election Commissioner Rejects "Pilot Project."

Columbia County Election Commissioner Virginia Martin writes on why her county will continue to use lever voting machines in the fall elections:

Uncertified Machines Do Not Serve Voters

A sentence in the June 17 editorial, "Iranians' fight for democracy," sent a chill down my spine.

"...Iran's supreme leader ... has called for a limited recount."

Hold that thought. Something else -- that I literally shudder to connect to the above -- has been nagging at me for some weeks. It is this:

How many candidates running for office this fall know that the votes that will decide their fate will be counted by an uncertified computer program?

And how many of those candidates know that only a small fraction of those votes will be hand counted after the fact to see if that uncertified computer program (which also has not yet proved to be accurate, reliable or tamper-proof) worked as it was intended to and was not hacked into?

"A limited recount."

Across New York, 47 counties with 1.4 million registered voters will participate in a "pilot project" in which uncertified optical-scan voting machines, manufactured and programmed by Sequoia Voting Systems or Election Systems & Software, will count the votes. Some of these counties signed on for full participation, so that all the votes in every election district will be cast and counted using uncertified machines. Other counties signed on for participation of a more modest scope, in which just a few districts, perhaps, will be involved.

And the recounts of these votes?

They'll be limited.

Right now, and the regulations are now being considered, it appears that three percent of all machines will be subjected to a hand recount. Additionally recounted, and fortunately at 100 percent, will be any race in which there is a margin of one percent or less between candidates. (Think about that one. If Candidate A receives 51 percent and Candidate B receives 49 percent, there will be no full recount.) Fortunately, it does seem that each race will be subject to at least a partial recount.

It's been suggested that any candidate will have the option of going to court to request a full recount. Yet that unfairly puts the onus on the candidate, who risks charges of sour grapes or of running up expenses to add to the taxpayers' tab. Remember that this year, an "off year," is the election for modest candidacies -- for town board members, tax collectors, highway superintendents. These are not races in which high-powered attorneys backed by deep-pocketed interests stand ready to spring to action, to demand the recounts their clients deserve.

But Columbia County candidates and voters will be far better served. None of our races will require "limited recounts" because none will be counted by an optical scanner. Voters will select candidates using their choice of a lever machine or ballot-marking device.

That's because Commissioner Don Kline and I opted out of the optical-scan pilot project. We, along with the overwhelming majority of our custodians, inspectors, voters and county legislators, hope to continue using this voting system of lever machine with ballot-marking device, which meets all the requirements of the federal Help America Vote Act, well into the future.

Virginia Martin is the Democratic commissioner of the Columbia County Board of Elections.

(First published in print in the Albany Times Union June 25th 2009.)
















































"...Iran's supreme leader ... has called for a limited recount."

Hold that thought. Something else -- that I literally shudder to connect to the above -- has been nagging at me for some weeks. It is this:

How many candidates running for office this fall know that the votes that will decide their fate will be counted by an uncertified computer program?

And how many of those candidates know that only a small fraction of those votes will be hand counted after the fact to see if that uncertified computer program (which also has not yet proved to be accurate, reliable or tamper-proof) worked as it was intended to and was not hacked into?

"A limited recount."

Across New York, 47 counties with 1.4 million registered voters will participate in a "pilot project" in which uncertified optical-scan voting machines, manufactured and programmed by Sequoia Voting Systems or Election Systems & Software, will count the votes. Some of these counties signed on for full participation, so that all the votes in every election district will be cast and counted using uncertified machines. Other counties signed on for participation of a more modest scope, in which just a few districts, perhaps, will be involved.

And the recounts of these votes?

They'll be limited.

Right now, and the regulations are now being considered, it appears that three percent of all machines will be subjected to a hand recount. Additionally recounted, and fortunately at 100 percent, will be any race in which there is a margin of one percent or less between candidates. (Think about that one. If Candidate A receives 51 percent and Candidate B receives 49 percent, there will be no full recount.) Fortunately, it does seem that each race will be subject to at least a partial recount.

It's been suggested that any candidate will have the option of going to court to request a full recount. Yet that unfairly puts the onus on the candidate, who risks charges of sour grapes or of running up expenses to add to the taxpayers' tab. Remember that this year, an "off year," is the election for modest candidacies -- for town board members, tax collectors, highway superintendents. These are not races in which high-powered attorneys backed by deep-pocketed interests stand ready to spring to action, to demand the recounts their clients deserve.

But Columbia County candidates and voters will be far better served. None of our races will require "limited recounts" because none will be counted by an optical scanner. Voters will select candidates using their choice of a lever machine or ballot-marking device.

That's because Commissioner Don Kline and I opted out of the optical-scan pilot project. We, along with the overwhelming majority of our custodians, inspectors, voters and county legislators, hope to continue using this voting system of lever machine with ballot-marking device, which meets all the requirements of the federal Help America Vote Act, well into the future.

Virginia Martin is the Democratic commissioner of the Columbia County Board of Elections.