Dutchess County Passes Resolution to Retain Lever Voting Machines

In a surprise move, at a regular monthly meeting otherwise largely devoted to the contentious 2009 budget proposals, the Dutchess County Legislature unanimously passed a resolution requesting that the State Legislature allow the county to retain its lever voting machines. The resolution had been introduced by Legislator David Kelly (R, Pawling, Beekman, East Fishkill) at the December 4th meeting of the Government Affairs and passed by unanimous consent out of committee. A similar resolution had been proposed to the entire legislature last month by Legislators Joel Tyner (D, Rhinbeck, Clinton) and Legislator Jim Doxsey (C, Town of Poughkeepsie) but had not been sent to committee.

In the past month members of the legislatively appointed Voting Integrity Task Force (VITF) of Dutchess County had twice addressed the legislature on the relationship of the anticipated adoption of op-scan voting system to the ballooning Board of Elections budget. The Dutchess County Election Commissioners had also sent a memorandum to the legislature outlining the growth in annual election costs attributable to the switch away from the lever machines to the op-scan technology.

It is customary for a unanimous consent resolution to be voted upon at the next meeting of the full legislature, however on Sunday the VITF was informed that the resolution was being pulled from the December 8th agenda and the vote postponed until the January meeting at which time the VITF was also scheduled to make a formal presentation of their research and recommendations. It therefore came as a surprise to some lawmakers and the public when ninety minutes into the meeting Mr. Kelly asked and was granted leave by unanimous vote to introduce the resolution as an agenda item, citing a bi-partisan desire to inform the state legislature as soon as possible of their request for authorization to keep the lever voting machines and thus keep elections "as straightforward as possible."

Video of the proceedings can be found here. Click on December 8th meeting. The introduction of the resolution starts at the 91.14 minute mark.

Our thanks to Legislators Doxsey, Kelly & Tyner for their role in forwarding this important resolution -- the first such formal expression of support for maintaining the lever machines by a county legislature in New York . Let 's work to spread the word and encourage other county legislatures to follow suit.

Full text of the resolution follows:

WHEREAS, for many decades Dutchess County has successfully used mechanical lever-style voting machines, with very few problems, and is desirous of continuing to do so, and

WHEREAS, New York State enacted the Election Reform and Modernization Act of 2005 (ERMA) and other laws that require all lever machines to be replaced and prohibit the use of any lever machines in any future elections in New York State, and

WHEREAS, Dutchess County believes that the continued used of lever-style voting machines is in the best interest of the public and should be permitted to be used in future elections, and

WHEREAS, the Dutchess County Legislature passed resolution #207026, requesting New York State to allow Dutchess County to continue the use of the lever voting machine, and

WHEREAS, the New York State legislation relating to voting machines far exceeds the federal requirements of HAVA (Help America Vote Act), and

WHEREAS, the State's statutorily required elimination of lever-style voting machines is unnecessary, inappropriate, and costly to Dutchess County taxpayers,
therefore be it

RESOLVED, that the Dutchess County Legislature hereby requests the New York State Legislature and the New York State Board of Elections to enact laws, rules, and regulations that specifically authorize the continued use of lever-style voting machines, and be it further

RESOLVED, that a copy of this resolution be forwarded to Governor David Paterson, New York State Senators Stephen Saland and Vincent Leibell, Members of the Assembly Greg Ball, Thomas Kirwan, Kevin Cahill, Joel Miller, and Marcus Molinaro, Member-elect of the Assembly Frank Skartados, Co-Executive Directors of the New York State Board of Elections Todd Valentine and Stanley Zalen, and New York State Board of Elections Commissioners James Walsh, Douglas Kellner, Evelyn Aquila, and Gregory Peterson.

Dutchess County: Resolution Introduced to Keep NY's Lever Voting Machines

Will Dutchess lead the way?

Dutchess County Legislator Joel Tyner (D-Rhinebeck/Clinton) has introduced a resolution to allow Dutchess County and the State of New York to continue to use lever voting machines and not be forced to replace them with insecure and unreliable electronic vote counting systems based on software.

"As Andi Novick, Joanne Lukacher, and many others have accurately pointed out, optical scan voting machines can be hacked into just about as easily as touchscreen voting machines," Tyner said. "The Help America Vote Act does not mandate a switch here in New York State from the lever machines we've long used with few problems. It's just simple common sense -- let's keep the levers."

Kudos to Joel for initiating this action, which we believe is the first of its kind in the State of New York -- and hopefully will be the first of many.

The resolution should be on the agenda for the December 8th regular meeting of the legislature, where the Voting Integrity Task Force they appointed will also be presenting a report. (Check back on these pages for a confirmation of this schedule.)

Members of the public are encouraged to speak at the beginning of the meeting which is at 7:00 PM in the legislative chamber at 22 Market Street, Poughkeepsie.

Here is the full text of the resolution:

WHEREAS, many Dutchess County residents have signed on to join the Election Transparency Coalition and Election Defense Alliance effort to save the last transparent voting system in the United States here in New York comprised of our lever machines, as both New York's lever voting system and its previous hand-count system satisfy the constitutional requirement that voters be able to see how votes are counted; the right to vote is the primary right by which all other rights are protected, and

WHEREAS, in October 2002 Congress passed the Help America Vote Act (HAVA) that among other things, created the US Election Assistance Commission (EAC); HAVA required the EAC to produce voluntary federal voting system standards; it took three and a half years for the first set of these standards to be published in the Federal Register in April 2006; New York proceeded to adopt these voluntary guidelines along with its own set of State standards to certify new voting systems to replace our time tested, reliable lever machines with computers, as required by the State's Election Reform and Modernization Act of 2005, but not required by HAVA, and

WHEREAS, section 301 of the Help America Vote Act sets forth five requirements that each voting system has to meet; New York State has met all of them now with ballot marking devices in place for people with disabilities, as noted by New York State Board of Elections Commissioner Douglas Kellner four years ago when he stated publicly that, "our lever machines satisfy all but one of [HAVA's] standards: that there be at least one machine at each poll site that is accessible for individuals with disabilities", and

WHEREAS, to date, no voting system tested in New York or any other state has come close to meeting these standards, although the standards themselves are considered too lax by most computer scientists who have studied them; New York's tried and true lever machines continue to function well; almost all of their parts are standard items carried by hardware stores, while the balance of the parts can be produced by machine shops; the outlook for replacing lever machines in 2009 remains doubtful due to continued problems and delays in the certification process; this has been reported on a weekly basis to the US Department of Justice and to the federal judge in their case against the New York State Board of Elections, and

WHEREAS, in November 2006, seven months after the current federal standards were published, computer security experts at the National Institute of Standards and Technology (NIST), who under HAVA, advised the EAC on the writing of the standards, published a paper on the need for voting systems to be "software independent"; the authors clearly stated that "experience in testing software and systems has shown that testing to high degrees of security and reliability is from a practical perspective not possible" (Requiring Software Independence in Voluntary Voting System Guidelines 2007, November 2006), and

WHEREAS, New York's constitution has been interpreted by the highest court in the State as recognizing that essential to the express right to vote and the express right not to be disenfranchised are essential implicit constitutional rights, including the right to a transparent process so that voters can know their votes were accurately counted as cast; the right to an open, transparent electoral process, which enables its citizens to be able to evaluate the performance of their government in safeguarding its elections, is further protected by First Amendment rights, also guaranteed by New York's state constitution, and

WHEREAS, software-dependent voting systems can't be made safe, no matter how much New York State's Board of Elections (NYSBOE) continue to test them in order to certify them as "safe"; many computer scientists agree that a compromised machine can be programmed to appear to be working when the fact is that it has been compromised, and

WHEREAS, notwithstanding the impossibility of certifying software-based systems as safe to vote on, New York has been attempting to do this for three years; in 2006, CIBER, the testing laboratory the NYSBOE allocated public funds to in order to certify that computers were safe for use, lost its federal accreditation; recently SysTest, the new testing laboratory the NYSBOE allocated public funds to in order to certify that computers were safe for use, lost its federal accreditation; the NYSBOE has temporarily told SysTest to stop testing, and

WHEREAS, the existing lever voting system protected our constitutional franchise by providing New York Voters with a secure, verified, accurate count on election night, before exposure to post-election influences could corrupt the count; the new legislative scheme deprives us of the completed count delivered under the watchfulness of public scrutiny, instead permitting the election-night count to be the product of knowingly unreliable mutable software, which is then checked by a partial hand-count only after the election is over, after the winner has been announced and after the protection against tampering provided by the ongoing public surveillance of the poll site is over, after which post-election ballots may also be the product of tampering, and

WHEREAS, the problem with only seeing computer-generated results reports or "poll tapes" is that they are merely the recordation of what the software was secretly programmed to do; without public scrutiny of the process of vote counting, poll tapes only create the appearance that the election results are accurate, concealing what citizens have been unconstitutionally barred from observing, and

WHEREAS, in such a process the Dutchess County Board of Elections is prevented from being able to accurately count our votes once forced onto computers, because the process is concealed from them as well as all of us; it is then impossible for the Dutchess County Board of Elections to secure the reliability of that which they have no control over, and

WHEREAS, over three thousand ballots mysteriously disappeared on optical scan voting systems this year in Palm Beach County Florida alone; optical scan voting systems in Washington DC inflated vote totals this year by over 100 percent, making up thousands of write-in votes and adding thousands of votes to the totals of candidates on the ballot, and Pierce County Washington, Pottawattamie County, Iowa, Cumberland County, Pennsylvania and Oakland County, Michigan have also had problems with optical scan voting systems, and

WHEREAS, as the HBO documentary "Hacking Democracy" proved, it is relatively easy to hack into optical scan voting systems; "Wired" magazine also reported 12/21/05 that computer scientists from the Florida Institute of Technology and Finland "were able to change votes on the Diebold machine without leaving a trace", and "conducted the same test for the California secretary of state's office," and

WHEREAS, software-driven voting systems are "insufficient to guarantee a trustworthy election", according to the Ohio Secretary of State's Project EVEREST report last year, and New York State Election Commissioner Gregory Peterson also stated the following at the Oct. 3, 2008 Board meeting in Albany: "What do we do-- go back to lever machines which probably work better than anything else we've ever had; I'm not saying I advocate that; however, if you have something that works and something that doesn't work, I vote for the thing that works," and

WHEREAS, New York State residents should not be forced into a non-transparent, concealed method of vote-counting, with votes counted in a manner so insecure and unreliable that the only way to try to verify the count is by violating New Yorkers' right to a secure, accurate transparent count on election-night, waiting until after the election is over before first manually checking some ballots, surrendering the right to know that votes are accurately and fairly counted as cast, foregoing the right to reliable evidence of the count or of fraud necessary in a court of law, thereby effectively surrendering the right to prove or disprove that the election results reflected the will and consent of voters, and therefore be it

RESOLVED, that the Dutchess County Legislature requests that the U.S. Department of Justice and New York State Board of Elections allow Dutchess County and New York State residents to continue to use dependable, accurate, and transparent lever machines instead of being forced to replace them with electronic voting systems already deemed as unreliable and insecure by a consensus of scientific experts, and be it further

RESOLVED, that a copy of this resolution be sent to the U.S. Department of Justice, New York State Board of Elections, Dutchess County Board of Elections and the New York State Legislature.

NY State Board of Elections Halts E-Vote "Certification" Tests

ALBANY, NY, Oct. 31

After informing the US Dept. of Justice, who reportedly have been "speechless" regarding the inability of New York to certify even one electronic vote-counting system to replace our reliable lever voting machines in time for the 2009 elections, the State Board of Elections informed Judge Gary L. Sharpe that they have issued a stop-work order to SysTest Labs, in effect halting the testing effort, until "a further investigation of the issues surrounding the likely suspension [of SysTest by the EAC] could be had."

The news was delivered to the court in the form of the State Board's Oct. 31st HAVA compliance report (PDF), which the court ordered the State to transmit on a weekly basis early this year. The full series of reports can be found here at Election Law @ Moritz. The reports reveal a plethora of problems with the certification process, which had already placed the lever replacement time line known as "Plan A" in jeopardy.

Prior to ordering these reports, Judge Sharpe had stated that he got his information about e-voting from reading the newspapers. We commend His Honor for trying to become better informed on these issues, as they can be rather complex and esoteric at times.

Less esoteric is the need for an accurate and reliable vote-counting system for the State of New York. Fortunately though, we already have one. It's comprised of about 20,000 lever voting machines (all of which are HAVA-compliant now that NY has met HAVA's Accessibility requirements); paper-ballot marking devices for voters with special needs; hand counting of those ballots at the polling place on election night; and the HAVA-required permanent paper records produced on election night -- not by machines -- but by thousands of bi-partisan election inspectors contemporaneously throughout the State.

The one ingredient that is conspicuously absent from New York's vote-counting system, except for a small percentage of absentee ballots (and that is NOT a HAVA requirement) is: SOFTWARE! And we all know how reliable that is -- especially the voting system kind.

The State Board's letter to the court states that they are "hopeful that a plan for resolution of these issues will be developed in the near future." And so are we. It's called Plan L.

NY's Testing Lab's Accreditation Pulled - Again

For the second time in two years the National Institute of Standards and Technology (NIST) and the US Election Assistance Commission (EAC) have announced their intention to suspend the accreditation of New York's electronic voting system testing lab, SysTest, Inc. for "failing to comply with program standards."

In a statement released yesterday the New York State Board of Elections announced that SysTest's loss of accreditation would force it to consider the suspension of the software based voting sytems certification testing in New York since the Board requires that all certification testing be performed by an accredited lab.

Although it is likely that this development will delay the certification of the new voting systems past 2009, this is no guarantee that the DOJ will not order the implementation of uncertified voting machines. We must continue to be vigilant.

If you have not done so sign the petition to save out levers and pass it along to your friends.

Write to the State Board of Elections and ask them to stop the "certification" program.

It's now been reported from several sources that when told of the certification problems with these systems, DOJ officials are "speechless."

- Joanne Lukacher

Mission: Possible -- Fight NOW to Retain New York's Lever Voting System!

Under pressure from the U.S. Department of Justice to enforce the ambiguous directives of the Help America Vote Act, and compelled by the state's legislative response, The Election Reform and Modernization Act of 2005, New York has been harried to replace its reliable lever voting machines with uncertified -- and uncertifiable -- software-driven electronic vote counting systems. This needless yet stubborn campaign to dismantle our secure lever voting system has amounted to a veritable crusade waged by some, in the face of wary election commissioners and despite ever increasing alarm about the vulnerabilities of the electronic systems. In order to inform our members, so they may better express their concerns to their election officials and legislative representatives, Election Transparency Coalition offers the following brief history of events:

Help Save New York's Lever Voting System!

In October 2002 Congress passed the Help America Vote Act (HAVA) that among other things, created the US Election Assistance Commission (EAC). HAVA required the EAC to produce voluntary federal voting system standards. It took three and a half years for the first set of these standards to be published in the Federal Register in April 2006. New York proceeded to adopt these voluntary guidelines along with its own set of State standards to certify new voting systems to replace our time tested, reliable lever machines with computers, as required by the State's Election Reform and Modernization Act of 2005 (ERMA) -- but NOT required by HAVA.

To date, no voting system the State of NY (or any other state) has tested has even come close to meeting these standards, although the standards themselves are considered to be far too lax by most computer scientists who have studied them. Our tried and true lever machines continue to function well, and we are about to use them in the 2008 Presidential election. Almost all of their parts are standard items carried by hardware stores, while the balance of the parts can be produced by machine shops. The outlook for replacing the levers in 2009 remains doubtful due to continued problems and delays in the certification process. This has been reported on a weekly basis to the US Dept. of Justice (the DoJ -- who are suing the State Board of Elections) and to the federal judge in their case.

And it's no wonder. In November 2006, just seven months after the current federal standards were published, computer security experts at the National Institute of Standards and Technology (NIST), who under HAVA, advised the EAC on the writing of the standards, published a paper on the need for voting systems to be "software independent." The authors clearly stated that "experience in testing software and systems has shown that testing to high degrees of security and reliability is from a practical perspective not possible." [emphasis added]

But the NY State Board of Elections, its vendors, its testing labs, its not-for-profit watchdog -- the New York State Technology Enterprise Corporation (NYSTEC), and even the DoJ itself, have nevertheless been attempting the impossible. We appreciate their efforts and we feel their pain, but we also believe it's time they faced reality. And they are.

As State Election Commissioner Gregory Peterson said at the Oct. 3, 2008 Board meeting in Albany:

What do we do? Go back to lever machines which probably work better than anything else we've ever had. I'm not saying I advocate that. However, if you have something that works and something that doesn't work, I vote for the thing that works.

Well, we the People of the Empire State, who are perhaps able to speak more freely, are in fact advocating for what works.

While the State will have to return about $50-million in HAVA funds to Uncle Sam, we believe it's a small price to pay for our Constitutional right to vote, to know how our votes will be counted, and to see that our votes will be given full force and effect by way of the lever voting machines. Such things will never be possible with software, which by its very nature is not observable. And this is unconstitutional in our great State.

We are therefore asking the State of New York to:

• end this impossible "certification" mission;
• return the $50-million Title I HAVA funds to the United States;
• continue to deploy ballot marking devices for voters with special needs to comply with HAVA using the remaining $170-million of Title II funds available for this and other purposes; and
• allow the voters of New York to continue to vote in free, fair, transparent and secure elections by retaining our lever voting system.

Your State and County Election Commissioners, who have sworn an oath to protect the voters of New York, have the necessary influence to end this madness. The Legislature will heed their advice, just as they did in 2007 when the commissioners asked for ERMA to be amended to remove any date certain for the replacement of lever machines. And the US Dept. of Justice would not have a case for the replacement of lever voting machines if we simply give back a small fraction of our $220-million of HAVA money. This is indeed a small price to pay to preserve our rights and to avoid the kind of electoral chaos we have been seeing in other states and recently, even in the nation's capitol.

Sincerely,

Andi Novick, Esq.
Founder, Election Transparency Coalition of NY
http://www.re-mediaetc.org

Thomas L. Tedeschi, Esq.
Election Attorney
Queens, NY

Susan Greenhalgh
Communications and Strategy Consultant
Election Transparency Coalition of NY
http://www.re-mediaetc.org

Teresa Hommel
WheresThePaper.org
http://wheresthepaper.org

Howard Stanislevic
E-Voter Education Project
http://e-voter.blogspot.com

Joanne Lukacher
Executive Director
Election Transparency Coalition of NY
http://www.re-mediaetc.org

Re-media Election Transparency Coalition on Election Defense Radio

Andi Novick and Rady Ananda interviewed on September 17th Election Defense Radio on the case for retaining the lever machines in New York. Link at:

ElectionDefenseRadio_2008.09.17.mp3

Fatally Flawed Systems Await Voters

'Fatally Flawed' Systems Await Voters: 'Drastic Change Needed'

By Rady Ananda

Original version posted at OpEdNews.

A new paper, and video, has been issued by the Computer Security Group at the University of California, Santa Barbara. This group contributed to voting system reviews conducted by Ohio and California last year. The 11-page paper was presented in July at the Proceedings of the International Symposium on Software Testing and Analysis held in Seattle. Much of it is comprehensible to most voters. The Group also prepared a 17-minute video, presented in two parts that illustrates several attacks, and shows how security seals are ineffective.

The paper clarifies that security is lacking in both Sequoia and ES&S voting systems: "the electronic voting systems that we have reviewed are neither secure nor well-designed." It spends time discussing the certification process which does not and cannot adequately secure a software driven voting system:

"While most critical systems are continuously scrutinized and evaluated for safety and correctness, electronic voting systems are not subject to the same level of scrutiny. A number of recent studies have shown that most (if not all) of the electronic voting systems being used today are fatally flawed and that their quality does not match the importance of the task that they are supposed to carry out." (emphasis added)

This conclusion corroborates many prior statements made by security experts. Twelve such quotes are reproduced here. The UCSB paper states:

"All voting systems recently analyzed by independent security testers have been found to contain fatal security flaws that could compromise the confidentiality, integrity, and availability of the voting process."
...

"Our experience suggests that there is a need for a drastic change in the way in which electronic systems are designed, developed, and tested.
...

"Unless electronic voting systems are held up to standards that are commensurate with the criticality of the tasks they have to perform, the very core of our democracy is in danger."
(emphasis added)

While detailing many of the vulnerabilities in touchscreen (DRE) voting systems, which more than half the states have outlawed1, the paper specifically discusses optical scan systems:

"Evaluations of the various optical scanners offered by both vendors followed much the same pattern of the previous voting system components. A patent disregard for cryptographic authentication and integrity checks allows attackers to overwrite a system's firmware with malicious versions and modify or construct election data to be processed by an EMS.

"Physical security measures were also lacking. In particular, the ES&S scanner lock was easily picked with a paper clip during our tests, while the "unpickable" lock on the Sequoia scanner was bypassed by removing a few screws and pulling out the lock cylinder from the scanner's chassis by hand. In both cases, this allows an attacker to access machine internals to potentially execute arbitrary code."

The Computer Security Group at UCSB issued a statement introducing this information, reposted with permission:

Evaluating the Security of Electronic Voting Systems: Are your votes really counted?

Electronic voting systems have been introduced to improve the voting process. Since their inception, they have been controversial, because both the technologists and the general public realized that they were losing direct control over an important part of the voting process: counting the votes.

A quote attributed to Stalin says: "Those who cast the votes decide nothing. Those who count the votes decide everything." It is clear that voting systems represent a critical component of a democracy.

Although the consequences of a malfunctioning electronic voting system are not as readily apparent as those for air traffic control or nuclear power plant control systems, they are just as important, because the well-being of a society depends on them. While most critical systems are continuously scrutinized and evaluated for safety and correctness, electronic voting systems are not subject to the same level of scrutiny.

A number of recent studies have shown that most (if not all) of the electronic voting systems being used today are fatally flawed, and that their quality does not match the importance of the task that they are supposed to carry out.

In the Summer of 2007, the Security Group of UCSB participated in the Top-To-Bottom Review (TTBR) of the electronic voting systems used in California.

The Report

Our team focused on the security analysis of the Sequoia voting system. Our public report can be found here . We found a number of major flaws that can be exploited to compromise the integrity, confidentiality, and availability of the voting process. In particular, we developed a virus-like software that can spread across the voting system, modifying the firmware of the voting machines. The modified firmware is able to steal votes even in the presence of a Voter-Verified Paper Audit Trail (VVPAT).

The Paper

We wrote a paper that describes our methodology and our findings: Are Your Votes Really Counted? Testing the Security of Real-world Electronic Voting Systems, D. Balzarotti, G. Banks, M. Cova, V. Felmetsger, R. Kemmerer, W. Robertson, F. Valeur, and G. Vigna, in Proceedings of the International Symposium on Software Testing and Analysis, Seattle, WA July 2008.

The Movie

We also prepared a movie that shows how the virus-like attack would be carried out, and exemplifies the different scenarios that our malicious firmware would exploit. The video shows how one can use a simple USB key to infect the laptop used to prepare the cards that initialize the various voting devices. As a result, the cards are loaded with a malicious software component.

When a card is inserted in a voting terminal, the malicious software exploits a vulnerability in the terminal loading procedure and installs a modified firmware, effectively "brainwashing" the terminal. Later, when the terminal is used by the voters to cast their votes, the firmware uses a number of different techniques to modify the contents of the ballots being cast.

The movie also shows that the physical security measures being used to limit access to essential parts of the voting systems are ineffective.

In the end, voters will decide whether to continue voting on systems that over 50 scientific studies, comments and testimony have warned are not securable. That decision will be made by whether they participate in a system that leaves no rational basis for confidence. Or, elections will be decided by computer hackers.

Much thanks to John Gideon of VotersUnite.org for his Daily Voting News feed.

1 Election Data Services President Kimball Brace said touch screens would be used statewide this fall in Maryland, Delaware, New Jersey, Nevada, Utah, Louisiana, Georgia and South Carolina, and in significant parts of or pockets of a dozen other states, according to an August 15, 2008 McClatchy article.