Facts & Myths about Voting in New York State

Well worth a read: A short checklist of facts and myths about voting in New York State -- where we are, how we got here and where we could be headed -- "Let's Clear the Air" by Rady Ananda and Andi Novick at OpEdNews.com .

- Joanne Lukacher

[Introduction and footnote updated 7-28-08]

LET'S CLEAR THE AIR

By Andi Novick and Rady Ananda

--Optical Scanners and DREs Operate on Undetectably Mutable Software, Depriving New York Voters of the Accuracy and Transparency We Have Enjoyed for More than a Century.

--No Court Has Ever Ruled that HAVA Requires Lever Machines Be Replaced.
Now Let's Go to Court and get a Ruling that Lever Voting Machines are HAVA-compliant so We Can Continue to Enjoy the Security and Transparency Offered by Our Lever Voting System.

Fact: New York has a secure, reliable electoral system that has served the State of New York for more than a century – preventing dilution of the franchise from fraud and ensuring that the will of the people is preserved.

Fact: The lever voting system in New York (and the hand-count voting system as it existed since 1896) provide a transparent process by which many eyes are involved in securing the electoral process, particularly the count. Both systems are designed to detect, deter and expose fraud.

Fact: The State of New York decided that rather than fight the federal government, which would like every state voting on new, budget-breaking, shoddy, vulnerable-to-undetectable fraud, software-driven optical scanners or DREs, it would capitulate, passing laws in 2005 to have New York surrender its secure lever voting system for these unreliable computers. The Election Reform and Modernization Act of 2005, Chapter 181, §11. (See NY Election Law)

Fact: The computerized voting systems that the federal government claims satisfy the Help America Vote Act (HAVA) - even in their "crappy," theft-inviting condition - disenfranchise those who are forced to vote on them, depriving citizens of the right to a transparent, open voting system and the ability to know that their votes are being counted as cast. See: LitigationSummary.pdf

Fact: These so called HAVA-compliant electronic voting systems are not transparent, concealing from the people the way in which the software is programmed to count our votes. Indeed optical scanners and DREs are nothing more than secret vote counting machines, anathema to any notion of a democratically run election.

Fact: Unlike New York's lever voting machine or a hand-count voting system -- which require a completed, verified count on election night (because exposing the count to the watchfulness of ongoing public surveillance has been considered the most secure way to count our votes for the history of the State of New York), the new computerized systems will abandon the security provided by ongoing public scrutiny and no longer provide a completed, reliable, secure count on election night. NY Election Laws, McKinney's Chapter 17 at New York State Board of Elections.

Fact: New York's lever voting system is far superior to the computerized voting system planned - in terms of transparency, security, expense, reliability, trustworthiness, theft-deterring ability and the protection it provides to New York Voters' constitutionally protected franchise. (See these July articles posted at Re-Media Election Transparency Coalition: Merits of the Lever Machine: A Scholar Speaks Up, and Eyes Wide Shut.)

Fact: The federal government's position is that lever machines are not HAVA-compliant, but no court has ever ruled on this issue because the State of New York never argued this position in any court.

Fact: In litigation commenced by the Department of Justice (DoJ) in 2006 to force New York to become HAVA-compliant, the DoJ claimed lever voting machines were not HAVA-compliant because: a) they could not be made accessible to disabled voters; and b) they don't produce a piece of paper that can be manually audited. While many in New York believed the DoJ's interpretation of HAVA to be an erroneous interpretation, the State of New York declined to put this in issue before the court, having already decided in 2005, before the DoJ sued, that New York will replace our lever voting machines with software-driven machines.

Fact: In 2004 Co-chair and State Board of Elections (SBOE) Commissioner Douglas Kellner testified that our lever voting system is HAVA-compliant but for one HAVA standard - the accessibility requirement.

Fact: In 2008, the State Board of Elections agreed to install ballot marking devices in every poll site and is in the process of completing that, thus complying with the only federal standard New York's lever machines did not meet. Hence, with ballot marking devices in every poll site, there is no longer an impediment to the lever voting system's compliance with HAVA.

Fact: The federal government's remaining objection to lever machines, to wit they don't provide a manually auditable piece of paper, is not true. Our lever voting system does create a piece of paper that can be audited. In any event, this is the DoJ's interpretation of HAVA, but since no court has every ruled on this, it's just an interpretation. It is not what the law says and no court has ever interpreted HAVA as requiring New York to replace its lever machines.

Fact: The State Board of Elections has found over a thousand defects in the ballot marking devices that have been bought for New York and has shipped the counties these computerized machines, many in an unusable state. (See Nassau County Letter 1, Letter 2, Letter 3, and NY Loves Its Levers as New Systems Fail.)


Common myth: HAVA requires us to replace our levers. It does not.

Common myth: A court has ruled that levers are not HAVA-compliant. No court has ever made any such ruling.

Common myth: New York's electronic voting system will be transparent. It will be anything but.

Common myth: "Auditing" the unreliable computerized results by counting a small percentage (or any percentage) of ballots after the election is over, after the press has announced the winner, after the ballots have been exposed to heightened opportunities for post-election tampering is good enough for a secure, democratic election. This is not true. In fact, using post-election ballots to verify secure election-night results is considered so insecure that New York has never in 231 years permitted post-election ballots to be used to verify secure election-night results, until now.

Common myth: New York State's more stringent certification testing requirements, if complied with, will make optical scanners or DREs accurate and safe to vote on. This is not true. No matter how much testing is done, because software is by its nature mutable, the pre-election testing cannot tell you how the optical scanner or DRE will count the votes.

Since no court has even been asked to rule on the issue of whether lever voting machines are HAVA compliant, and since the computerized voting system New York has enacted is the antithesis of a secure open electoral system, violating in its enactment existing laws, two centuries of accumulated experience and wisdom, and a myriad of safeguards that have protected New Yorkers' "consent" from corruption by fraud, we would hope that the "People's attorney," the Attorney General, would have fought for the People's right to not be disenfranchised. But because Mr. Cuomo's office has decided to side with the State Legislature against the People, the People have no choice but to pursue their own litigation against the State of New York and the State Board of Elections to stop them from forcing us to vote in this highly unsecure and unconstitutional manner.

Our federal constitution is in tatters, our once independent Department of Justice has become a tool of a corrupt federal government hoping to disenfranchise as many people as it can. But New York's state constitution is alive and well and the State of New York's electoral system is vibrant and constitutionally-compliant. New York Voters need to take action to stop the State from abandoning our lever voting system for the theft-enabling computerized system, while we still have a functioning electoral system.

We are the only state not to have exposed our electoral system to increased and unprotected opportunities to unseen fraud. We are the only state with an existing strong, secure voting system. We must stand up to the Department of Justice and its disregard for our laws and our democratic, transparent, reliable voting system. We must stand up to our State Legislature that have caved to a corrupt Department of Justice and violated the rights of the Voters of New York. We must fight to retain what is constitutionally ours before it is taken away.

With your help we will commence this lawsuit against the State of New York. Please tell your neighbors. Please give them the facts. The facts speak for themselves and loudly beg the question–

Why in the world would we abandon our lever voting system?

FOOTNOTE: All of the above lays out why we believe it is critical to keep the facts accurate in the public's mind. Accordingly, we have withdrawn the original footnote to Let's Clear the Air in order to end the distraction over he said/she said. This diverts us from the facts and harms the efforts of all of us who are trying to secure what each of us believes to be the best voting system for New York. We are all entitled to our beliefs. So, in the spirit of respecting each other's beliefs, here are ours:

Based on 231 years of history in New York State, we know what a secure, transparent electoral system requires because we can look at the case law and statutes and see what has worked for New York. Relying on the law as written over the past two centuries:

We believe a democratic electoral system requires that ordinary people be able to observe that the system accurately counts our votes.

We believe it requires that many eyes be able to check each other as we witness the process that results in the count.

We believe it requires the production of reliable, publicly accessible evidence of both how the votes were counted as well as evidence of tampering, should it occur.

We believe a democratic electoral system must be designed to detect, deter and reveal fraud, without which there is no deterrent to committing fraud.

We believe a democratic electoral system must contain safeguards that prevent every known opportunity for tampering.

According to the law as written by successive legislatures and repeatedly interpreted by the highest court of the State, New York's lever voting system satisfies all of the above criteria and has served us well for a century.

New York's new law, ERMA, permits software-driven optical scanners or DREs to count our votes. Computer security scholars and professionals corroborate that software can be undetectably altered before, during and after Election Day, despite the most rigorous certification testing anyone might provide. ERMA, therefore, fails to ensure that the election night count is reliable. All we can do to attempt to verify the uncertain computerized count is manually count the paper ballots, but ERMA requires that the "audit" be done after the election is over, after the results from all other precincts are known, after the press has announced the winner, and after ongoing public scrutiny of the ballots has ended.

The entire history of New York's Election Law, until ERMA, recognized that post-election ballot tampering is so probable that it has never permitted post-election verification of the secure, reliable, publicly observed first count. Under ERMA, not only is the first count (on software) undependable and concealed from the pubic, but the post-election "audit" is also unreliable, since the ballots being hand counted to verify the first count no longer enjoy the security of uninterrupted public scrutiny enabled by the many authorized watchers at the poll site. Under ERMA, the integrity of the verification is impugned, leaving the entire count unknowable and unreliable.

Moreover, since we believe that transparency in a public election demands that many eyes be able to observe the process that results in the count, we are opposed to optical scanners and DREs which hide that process.

Since we believe in the democratic requirement that everyday people be able to witness the process that results in the count, we are opposed to optical scanners and DREs which conceal the count.

Since we believe that a democratic electoral system requires the production of reliable, publicly accessible evidence of both how the votes were counted as well as evidence of tampering, we are opposed to optical scanners and DREs which computer scientists have agreed can be programmed to destroy evidence of the count as well as evidence of the tampering. Without reliable evidence of the count or of fraud, there is no way to challenge the results in a court of law, potentially disenfranchising the electorate and depriving them of their legal recourse to vindicate the loss of their constitutional right.

Since we believe a democratic electoral system must be designed to detect, deter and reveal fraud, we are opposed to optical scanners, DREs, and election management systems which have been shown to be hackable without detection on a massive, outcome-determinative scale, by a single person who doesn't even have to be physically present.

Since we believe a democratic electoral system must contain safeguards that prevent every known opportunity for tampering, and indeed this is what New York's case law has consistently required of the legislature, we are opposed to optical scanners and DREs which subject the count to known opportunities for tampering and expose the count to new and greater risks made possible by software. The highest court in New York has repeatedly found that dilution of the count by tampering amounts to unconstitutional disenfranchisement.

We therefore reject software driven voting systems and demand that New York hand count the ballots marked by accessible ballot markers for voters with special needs, and retain its secure, transparent, and reliable lever voting system, with all the attendant laws enacted to secure the lever count.

Sign this petition if you agree with us.

New York VOTERS v. NY State and the State Board of Elections

Below is a synopsis of the litigation being prepared by New York VOTERS (Voters for Open, Transparent, Electoral Reliability and Security) challenging the constitutionality of provisions of New York's Election Reform and Modernization Act of 2005 (ERMA) :

- Joanne Lukacher

Synopsis

This litigation challenges the constitutionality of changes to New York’s Election Law, enacted by the Election Reform and Modernization Act of 2005 (ERMA), by which the State proposes to replace the lever voting system with computerized voting systems (DREs or Optical Scanners). Because software-generated results are unknowable, the State has proposed compensating for the loss of a reliable count on election night by providing for a post-election verification of the election night tally.

The electoral scheme that has existed in New York for more than two centuries has required an open, conclusive count of the ballots on election night, when the watchfulness of what is now election officials, authorized watchers, party representatives and the press could best deter fraud. To further preserve the integrity of the election, since 1896, the Election Law has required contemporaneously created, reliable physical evidence of the count or of fraud. A verified, completed count, publicly recorded and announced at each poll site on election night, before the aggregate of the total votes is known, continues to be mandated. For 231 years New York’s electoral system has protected the safeguarded election night-count from corruption by forbidding post-election recounts, it being historically understood that once the ongoing public scrutiny of the poll site ended and the results of the election night count were known, the count was at greater risk of subsequent tampering.

The newly enacted legislative scheme represents an unprecedented and unconstitutional reversal of existing and long-standing presumptions and requirements, permitting vote counting for the first time to be performed by concealed, undetectably mutable software, only to be verified after election night in a historically recognized unreliable way. Repeated scientific studies have shown software-driven voting machines to be vulnerable to unseen tampering and incapable of providing trustworthy election results. New York’s Legislature recognizes that the software-generated election-night count is not reliable and proposes to first attempt to verify and complete the count after the election with a partial hand count. Not only does the State unconstitutionally bifurcate the canvass, but its choice of software-driven systems further undermines constitutional safeguards by eliminating contemporaneously created evidence (or any evidence) of the count or of fraud. Indeed, because software cannot be secured, both the ballots and the evidence of how they were counted can be manipulated - leaving no trace of the count or the crime.

Pursuant to ERMA, the State will no longer strive to count every vote: in fact none of the votes will be securely counted. Instead, it will use computers to produce an uncertain count of all the ballots and once the election is over and the results announced, will then check the questionable tally by performing a manual count of a small portion of ballots that may or may not have been tampered, without determining whether those ballots represent the actual ballots cast on election night. The offenses to New York’s Constitution’s express right to vote and the right not to be disenfranchised (Article I, § 1, Article II, § 1) have been further exacerbated by the State’s failure to even consider constitutional due process procedures to determine chain of custody of the post-election ballots. This is particularly abhorrent in light of New York’s historic presumption that the risk of breach to the chain of custody is so high that post-election ballots have never been permitted to be used as a means to verify the secured election-night count.

The State has, until now, understood its responsibility to provide open, secure procedures in order to both safeguard the election and to demonstrate to the public that every vote is being counted as cast; to prove to the people that the election results are worthy of public confidence. Anything less has been recognized and condemned in the case law as unconstitutional disenfranchisement. First Amendment principles, also guaranteed by New York’s Constitution Article I, § 8, protect the public’s right to an open electoral process, essential for people to be able to evaluate the performance of their government in conducting public elections. There is no way for the electorate to know their votes have been reliably counted by software that has been shown to be vulnerable to exploitation outside the public’s view.

The proposed electoral system renders election officials’ historic oversight duties impossible to perform, creating a system in which undetected errors or willful frauds are not adequately restrained and the evidence of fraud is either exceedingly difficult to obtain or non-existent. There is precedence finding the constitutional inadequacy of such a system. At the turn of the last century, similar concerns in a less vulnerable electoral system - wherein a limited number of people had unobserved control over the count, had the ability to destroy evidence of fraud, and were not required to preserve evidence of the count - required the enactment of numerous safeguards to correct the deficiencies that had rendered “[V]oting … a useless formality as it depends upon the will of the inspectors of election…and not upon the vote of the people.” The safeguards instituted in 1896, still protecting the franchise to date, were designed to prevent the dangers wrought by precisely the type of electoral system ERMA invites, wherein the will of the people can be thwarted by the unobservable control held by a few private vendors and government insiders. These safeguards are fatally destroyed and effectively nullified by EMRA.

The public's right to the creation and preservation of responsible information to prove the election results as well as all of the fraud-deterring safeguards that have accumulated over the past two centuries will be sacrificed to secret, proprietary processes controlled by private vendors insisting that the public be prohibited from observing the very information required of an open, democratic society. Legislatively mandated procedures, which have demonstrated the reliability of the mechanical lever and hand-count voting systems, are abrogated by software-driven systems. Public scrutiny, fundamental to oversight and accountability, are eradicated by the new statutory scheme, depriving citizens of their constitutional right to an open, observable, reliable, completed count on election night.

The proposed computerized electoral system has been demonstrated to be far less secure and far more vulnerable to fraud than New York’s existing lever voting system or hand-count voting system, and further exposes the count to massive unprotectable risks exclusively made possible by the use of software. The case law has consistently found the removal of those safeguards which have protected the count from dilution by fraud to be unconstitutional. The legislature has the affirmative duty to protect the right of suffrage from any and all opportunities for fraud. The 2005 Legislature abdicated its responsibility in enacting legislation permitting the use of un-securable theft-enabling software driven voting systems.

The complaint also seeks a ruling that in light of the State’s providing Ballot Marking Devices in every poll site, the lever voting system is HAVA-compliant.

- Andi Novick