Officials Were Warned

Brad Friedman of bradblog.com runs down the run-up to and aftermath of the New York State Op-Scan pilot program and the November '09 elections. Reprinted from The Gouverneur Times.

Officials Were Warned

Northern NY News

Written by Brad Friedman

Friday, 11 December 2009 07:09

Following the recent November election, the Operation Director for New York's State Board of Elections, Anna E. Svizerro declared the experiment of testing new, uncertified voting systems on live voters in a real election to be "very successful." The Watertown Daily Times reported Svizerro's comments, nearly verbatim and wholly uncritically, on Nov. 13th, despite serious concerns that had already emerged about the equipment used in the NY-23 Special Election for the U.S. House, and the errors discovered in its reported results. Many of those problems, machine failure, inaccurate results, and the difficulty or impossibility of verifying them as accurate following the election, have been reported on in aggressive detail by The Gouverneur Times over the last several weeks. But concerns about the dangers and pitfalls of New York's pilot program were voiced long before the questionable election of November 3rd. State officials were warned about those dangers via a virtual blizzard of letters sent to them over the past year by state and national election integrity organizations and advocates recommending modifications to the pilot program to ensure voters would not be disenfranchised. Indeed, many of the very same groups who have supported the state's move from mechanical lever systems to computerized secret vote counting were nonetheless extremely critical of the way in which voters were to be used "as guinea pigs" to test uncertified hardware and software in both the primary and general elections this year as part of the pilot program. The concerns of the election advocates now seem to have been quite prescient, even as they appear to have been largely ignored by state and federal officials. As early as April 2009, the League of Women Voters of New York State (LWVNYS) - who describe themselves as "a multi-issue, nonpartisan political organization which... has been a supporter of... the replacement of lever voting machines in New York" - had sent a letter [PDF] to both federal attorneys and state election officials urging them to reconsider their proposed pilot program to test machines in this year's elections. The letter from LWVNYS President Martha Kennedy to Brian F. Heffernan in the U.S. Attorney's office, and CC'd to six different New York State Board of Elections officials, found "merit" in a pilot deployment of the state's new Sequoia/Dominion optical-scan voting systems, but disagreed with the way they were to be prematurely forced upon voters during real elections. "We cannot support pilot projects using uncertified machines throughout the state," Kennedy wrote, "unless it were coupled with a mandated 100% hand count of the paper ballots which would become the official count." No such mandate was instituted and, instead, uncertified results tainted by the failing and flawed secret vote counting computers were used to install Democratic Party candidate Bill Owens to the U.S. House of Representatives shortly thereafter. Kennedy also expressed her concern about the "disenfranchisement of many voters because proper and complete testing of equipment and adequate training of election workers would not be possible within an abbreviated time frame." Two months later, in June, the LWVNYS was joined by the election integrity group New Yorkers for Verified Voting (NYVV) and the public advocacy organization New York Public Interest Research Group (NYPIRG) to issue a press release [PDF] about the groups' joint concerns about the pilot project. The release highlighted a report [PDF] from NYVV's Bo Lipari who represented the League on the state's Citizen Election Modernization Advisory Committee. Lipari, as quoted from his report in the press release, warned the pilot program, as then planned, "gives insufficient regard to the scale of the project, the need for independent verification of results, the potential for problems arising, or a plan for how to learn from and apply the result. In the press release, Aimee Allaud, Election Specialist with the League also slammed the state's proposed pilot for "using real voters as guinea pigs in the upcoming elections." "Elections should be transparent, secure and inspire public confidence," NYPIRG's Neal Rosenstein also chided in the release. "Unfortunately, the Board's plan to have over 900,000 voters use new uncertified voting systems this year without requiring meaningful audits of results undermines the credibility of the election and sets a dangerous precedent for the future." Days later, the three groups were joined by still more election integrity experts and advocacy groups sharing their concerns with the State Board of Elections. On June 10, representatives from LWVNYS, NYVV and NYPIRG, along with representatives from the Catskill Center for Independence, Citizens' Union, E-Voter Education Project and the Task Force on Election Integrity sent an "urgent" plea to state officials to amend the pilot program. In their letter "Re: Urgent steps toward election integrity with the 2009 Pilot Program," [PDF] the groups decried the state's "Failure to modify the current plans for the pilot use of uncertified scanners," and noted - correctly, as it turns out, given the uproar following voting equipment failure on Election Day - that it "could lead to a decrease in the public's confidence in the results. The six organizations - several of which were in opposition to each other on the point of using computerized optical-scanners at all, some preferring the state's continued use of what they regard as more transparent mechanical lever systems - came together to urge the state "to fill these gaping holes in your plan to deploy uncertified ballot scanners," and asked again that they follow the recommendations of Lipari, a retired software engineer and a longtime advocate for the state's new op-scan voting system. "We believe these corrections of inadequacies in the planned program are essential and quite realistic," they wrote. They urged, among other recommendations, that the state ask counties to "limit deployment of the new machines to 10% of registered voters, even if they earlier agreed to do a full county wide implementation." That recommendation would not be heeded, and their letter would go unanswered by officials. In July, after failing to receive a response from either federal or state officials over the previous month, LWVNYS and NYVV tried again, following up their June 3 letter with an "Open Letter to the New York State Board of Elections" [PDF] about the "serious weaknesses of your published 'Pilot Plan' for the deployment of uncertified scanners in the primary and general elections of 2009." In the wake of a resolution adopted by the Board during their June meeting, the organizations excoriated what seemed to be a "direct repudiation" of their earlier request that the state allow counties to reduce their participation in the pilot program to just 10% of registered voters, as Lipari and the others had called for during the previous month. "You thus ignored the fact that experts recommend a 10% limit on the size of deployments of new technical equipment, even when nothing as important as votes are involved," they wrote. While they lauded the Board for taking steps to lay out procedures for the post-election "audits" of results, as they had also recommended, they were highly critical at the Board's failure to revise those protocols "in the direction recommended by experts so that New York would have statistically meaningful risk-limiting audits." The following week Common Cause of New York, Yad HaChazakah - The Jewish Disability Empowerment Center, Inc. and national election integrity watchdog VotersUnite.org would join with several of the other groups to send yet another joint letter to federal officials at the U.S. Attorneys office as well as to state elections officials, trying yet again, ultimately in vain, to see changes made to the ill-fated pilot program - ("ill-fated", at least as many voters undoubtedly saw it, if not officials such as Svizerro who would, implausibly, declare it a success) - even as the primary and general election drew near. In their four page letter [PDF] on July 15, detailing ten recommendations "to correct inadequacies in the planned pilot program and to ensure compliance with New York's Election Laws as well as the [federal] Help America Vote Act," they echoed unanswered concerns originally expressed by the NY State League of Women Voters three months earlier, back in April. "The New York State Board of Elections is now planning a pilot of uncertified optical scan voting systems to be used by up to 1.4 million voters in 46 counties in the upcoming 2009 Primary and General elections," they wrote. "These new systems have not yet been used in real elections anywhere in the country, and still have not completed either New York State or Federal EAC [Election Assistance Commission] certification tests." "Therefore, voters who use these systems cannot be assured that their votes will be counted as cast. We believe the failure to make meaningful changes to the pilot will raise serious questions about the results of these elections," they said, before detailing their recommendations "incorporating the work of Bo Lipari" and averring that "implementation of the... proposals will greatly reduce the possibility of voter disenfranchisement raised by the planned pilot program and by the use of scanners in future elections." Virtually all of those repeated warnings, from all of those often disparate groups, sent across several months, seem to have fallen on deaf ears, before voters were both disenfranchised and have likely come to lose confidence in results in the wake of the various failures in the pilot program voting system, many of which have been reported by this news outlet, and others, in the wake of the election. So why didn't election officials heed the dire, repeated and often "urgent" warnings of both local and national election experts? At this point, we don't know. Calls and emails seeking comment from the New York State Board of Elections co-chairs Douglas Kellner and James Walsh, as well as to Jeffrey Dvorin in the office of the Asst. Attorney General in Albany, NY have so far gone unreturned. Additional research by The Gouverneur Times' Nathan Barker and Howard Stanislevic of the E-Voter Education Project. Brad Friedman is an investigative reporter, blogger, election integrity advocate and expert, and the creator and publisher of The BRAD BLOG. He is a broadcaster and contributor to the UK's Guardian, Huffington Post, Computer World and other periodicals, a Fellow at the Commonwealth Institute, and a frequent guest on radio and television outlets from Air America to Fox News. In addition to offering expert testimony on these matters to a number of federal and state electoral oversight commissions, he recently contributed a chapter on the disaster for voters that was the 2008 Election for the book Censored 2010: The Top 25 Censored Stories of 2008-2009 and co-wrote an investigate report on the illegally certified Sequoia touch-screen voting machines, still in use in Nevada, for Mark Crispin Miller's book, Loser Take All: Election Fraud and The Subversion of Democracy, 2000 - 2008. This year his work on the mysterious death of Republican IT guru Mike Connell was cited with an award for "Excellence in Investigative Journalism" by Sonoma State University's 33-year old "Project Censored" organization

State Moving Toward Certification of Concealed Vote-Counting Systems Even As Reports of Failures in November's Election Mount

The State Board of Elections is scheduled to certify several optical-scan electronic voting systems at their meeting in Albany on December 15. Yet as that day approaches, serious problems with the use of these systems in the November 3 election are emerging.

Most glaring so far are irregularities in the NY-23 special congressional election. NY-23 happens to be the home of Richard Hayes Phillips, Ph.D., nationally renowned election fraud investigator. His rapid investigation into the November 3 election reveals election results Phillips says are "impossible," including more votes than voters, negative totals, and the like. His early findings are published in two online articles, "Impossible Numbers in NY-23," and "First the Impossible, Now the Improbable in NY-23."

"Given the mess in CD-23, certification of the scanners at this point would be a travesty," testified Ulster Park's Susan Holland at the Monday hearing before the State Senate Standing Committee on Elections in Albany.

At least one election official, Dem-EC Virginia Martin of Columbia County, has testified that she would refuse to certify an election where she could not verify the count. With optical scan voting systems, vote counting takes place inside a computer where it cannot be seen by observers, candidates, or election officials.

"Voters may never again see a lever voting machine in a NY polling place, but that's not the biggest thing that would be missing from our elections," according to Andrea Novick, attorney and founder of the Election Transparency Coalition. "If the levers disappear, so do our voting rights, because we'll never again know if the votes have been counted accurately." ETC is preparing to file a lawsuit against the state of NY to have the new optical scan voting machines declared unconstitutional because they conceal vote counting from public view. Over 200 years of case law protecting the public's right to transparency in its vote-counting processes would be obliterated by the new voting system. "Even when optical scanners appear to be performing smoothly, there is absolutely no way to know that their secret software has not been corrupted."

The Association of Towns and 20 counties appealed to the State Legislature to repeal the Election Reform and Modernization Act, the law mandating the changeover from NY's current transparent voting system to the optical scan system, yet the State appears determined to certify the new machines apparently regardless of whether or not they are trustworthy.

Oppose Certification of Optical Scanners! Attend State BoE meeting 12/15 in Albany!

Let's fill the room and show the State Board of Elections that the public cares about our elections and insists on constitutional, transparent election systems.

Tuesday, December 15, 2009
Noon
State Board of Election Offices
40 Steuben Street, 4th Floor
Albany, New York
http://www.elections.state.ny.us/

The Plunging Pilot Project: Impossible Vote Totals in NY-23

Re-posted from our "Levers" site

Last night, on the eve of Thanksgiving, election fraud investigator Richard Hayes Phillips, Ph.D. published an article in the Governeur Times revealing Impossible Numbers Certified in NY-23. Phillips is best known for his book, Witness to a Crime: A Citizens’ Audit of an American Election, detailing the investigation he led of the 2004 presidential election in Ohio. But he actually lives in St. Lawrence County, NY. So when questions began being raised about the vote counts in the special Congressional election earlier this month, Phillips was quickly on the case.

His article released last night reveals, “The election results certified by the St. Lawrence County Board of Elections for New York’s 23rd Congressional District contain some numbers that are mathematically impossible.” The article goes on to detail the negative numbers included in certified vote totals. Read it. It reveals important information everyone concerned about democracy should know.

St. Lawrence County was part of the State’s “pilot project,” an early rollout of the optical scan voting technology that will be required to replace lever voting systems by our next election — if not stopped by legal action. The Election Transparency Coalition is preparing to file litigation to have concealed vote counting — such as the counting that takes place inside optical scan voting systems — declared unconstitutional.

St. Lawrence County’s now-certified election results cannot be accurate. The true vote count cannot be known. And while other counties involved in the early rollout of electronic vote-counting systems may have produced possible vote totals, their true vote counts are no more knowable. Only with a system where the public has access to meaningful observation of every step of the vote-counting process do we have a basis for confidence in election results.

This is why Virginia Martin, Democratic Election Commissioner from Columbia County, recently testified that she would refuse to certify an election in which she could not verify the accuracy of the vote count.

Richard Hayes Phillips joins ETC in supporting NY’s time-tested and transparent lever voting system. The reasons for his support are detailed in his article, “In Defense of Lever Voting Machines,” published on his own website, and reiterated in the Gouverneur Times piece.

While the pilot project is clearly in a nosedive, the State is proceeding with its plan to certify the very electronic voting system responsible for the impossible numbers in the NY-23 race. This certification would be meaningless and would lead to elections that are just as meaningless. As Phillips says, “How can we have a democracy if we cannot know if the vote count is accurate? If election officials cannot know, and if the candidates cannot know, and if the voters cannot know that the official results are true and correct, why even have an election?”

Please join us in our work to stop the abandonment of NY’s working, affordable, trustworthy voting system and its replacement with systems that keep the true vote count secret from the voters themselves.

by Emily Levy

Emily Levy is the Election Transparency Coalition project coordinator.

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On this Thanksgiving, we at ETC are thankful for the work of Dr. Phillips, Commissioner Martin and all those who dedicate themselves to the constitutional principles of transparent democracy.