NY Assembly District 100: Every Vote Not Counted

"We've been taught in schools that every vote counts - and obviously, in this case, every vote did not." - NY Assembly candidate Frank Skartados

We recommend the account of the race for NY Assembly in district 100 as related in yesterday's Daily News under the headline Dem Frank Skartados doomed by vague election law crafted by his own lawyer. One of the rationales used by op-scan proponents has been that in close or questionable elections the paper ballots could always be recounted by hand. Yet for the second time this year in a close and politically crucial race an election was certified without re-examining the paper ballots counted by op-scan, although in the end a mere 15 votes separated the two candidates. See the story here and below:

Dem Frank Skartados doomed by vague election law crafted by his own lawyer

Celeste Katz

Monday, February 21st 2011, 4:00 AM

Albany Times Union

Frank Skartados was forced to concede the seat for the 100th Assembly District last week when he was a mere 15 votes behind.

Assembly Speaker Sheldon Silver's former adviser wrote the state law that may have cost him his powerful, veto-proof, Democratic supermajority.

Democrat Frank Skartados was forced to concede the seat for the 100th Assembly District last week when he was a mere 15 votes behind.

In his heart of hearts, he believes he won.

But in a double whammy of irony, Skartados was seemingly doomed by a vague election law that was crafted by his own lawyer, Kathleen O'Keefe, while she worked as Silver's chief election counsel. O'Keefe's strict interpretation of her own law walled off one of Skartados' last hopes of fighting for the seat.

"I couldn't do anything with the way the law was written," said Skartados, who conceded to Republican Tom Kirwan after one of the most drawnout contests in state history. "But I feel that justice was not served because the voices of everyone were silenced by the courts."

A Brooklyn appeals court ruled unanimously in favor of Kirwan when it tossed out about 60 contested affidavit ballots. That left Skartados just 15 votes behind. In New York City, Board of Elections rules automatically require a hand inspection of the paper trail from voting machines in any election where the margin is 0.5% or less.

State election law doesn't - and in races as close as the one for this Hudson Valley seat, it could make all the difference. "New York law offers very little guidance as to when a full recount is required," elections law expert Jerry Goldfeder said. "The law needs to be clarified."

It's Monday morning quarterbacking, but what if Team Skartados had chosen to do something it never did: push for the machines to be opened?

Take this example:

Mr. and Mrs. Public vote in a state Senate race. Mr. Public goes to the polls; Mrs. Public mails an absentee ballot. Being of like mind, they both choose Candidate Z. They also make the same error: Both circle Z's name instead of properly filling in the oval on the ballot.

Mr. Public feeds his ballot into the voting machine, which scans the blank oval and counts it as an "undervote," or no vote in that race.

Mrs. Public's absentee ballot is opened, and election officials - who are required to consider the voter's intent - mark down a vote for Z. Mrs. Public's vote is counted. But if the machines stay closed, Mr. Public's vote disappears.

O'Keefe, reached yesterday, headed off any questions. "I have no comment, [and] I'd rather you didn't call me," she said before hanging up. Silver did not return a call.

Even Kirwan's lawyer James Walsh - though thrilled with his client's victory - said he would have interpreted the law differently if he'd been in O'Keefe's place in the 100-day-plus struggle.

"If I were her, I would've [tried to] open up all the machines - especially [in] Dutchess County," with its higher concentration of registered Democrats.

It's certainly true - and Skartados readily agrees - that if the machine paper were hand-counted, he still might have lost.

We'll never know.

"I don't feel any justice in this election," he said. "We've been taught in schools that every vote counts - and obviously, in this case, every vote did not."

ckatz@nydailynews.com

Read more: http://www.nydailynews.com/ny_local/2011/02/21/2011-02-21_oops_when_not_all_votes_really_count.html#ixzz1EidD6Sf7

OpEd News Interview With ETC's Joanne Lukacher

Joanne Lukacher, ETC advisory board director, discussed recent and ongoing developments in New York's experiences with computerized voting with Joan Brunwasser of OpEd News here.

Joanne Lukacher and Howard Stanislevic Interviewed on Activist Radio

"We were...assured...by one of our State Election Commissioners that the paper ballot count would be the certified count -- not the machine count.

"Now...a tightly contested election...has been certified, but the paper ballots were not the deciding factor."

-- Joanne Lukacher -- Election Transparency Coalition

On January 7th, ETC project director Joanne Lukacher and ETC adviser Howard Stanislevic of the E-Voter Education Project were the guests of WVKR radio hosts Fred Nagel and Gary Kenton on their program: Activist Radio. Fred is an active peace and justice advocate and Gary served on the Dutchess County Voting Integrity Task Force which delivered the report leading to the Dutchess County legislature becoming the first county legislature in New York to pass a resolution in favor of retaining their lever voting machines. The conversation covered: Columbia County's 100% hand count; the request for a hand count of the NY Senate District 7 contest denied by the state's highest court; the ongoing Nassau County lawsuit against electronic vote counting; and more. A podcast of the discussion is available here as a free mp3 download.

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.

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.

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.

Brennan Center Sues NYSBOE over Seasoning in Poisonous Brew

Note: This article is re-posted from our sister site http://electiontransparencycoalition.org 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.