Greene County Lever Resolution

Greene County Resolution
to Keep Lever Voting Machines

Whereas, Greene County has successfully used highly accurate lever voting machines for many decades with very few problems and wants to continue using them, and

Whereas, Greene County believes that continued use of lever voting machines is in the best interest of the public, that unlike optical scan computers, our time-proved lever machines can be relied upon to accurately count votes as cast and cost far less, and

Whereas, our lever machines now comply with the Help America Vote Act (HAVA) because New York has installed ballot marking devices for voting by disabled persons, and

Whereas, New York State's enactment of the Election Reform and Modernization Act of 2005 (ERMA) predates installation of the ballot marking devices for disabled-person voting and New York now complies with HAVA, and

Whereas, the State's statutorily required elimination of lever machines through ERMA is no longer necessary, is inappropriate, and exorbitantly costly to Greene County tax payers, therefore be it

Resolved, that the Greene 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 continued use of our lever voting machines, and

Be It Further Resolved, that a copy of this resolution be forwarded to Governor David Paterson; New York State Senators James Seward, Malcolm Smith, and Dean Skelos; New York State Assembly Members Peter Lopez and Timothy Gordon; Co-Executive Directors of the New York State Board of Elections Todd Valentine and Stanley Zalen; New York State Board of Elections Commissioners James Walsh, Douglas Kellner, Evelyn Aquila, and Gregory Peterson; and Greene County Elections Commissioners Frank DeBenedictus and Thomas Burke.

Greene County Passes Lever Resolution

Greene County is now the fifth New York County to pass a resolution urging New York State Legislators to save our lever Voting Machines.

Election Transparency Coalition has been working with our coalition partner, New York Citizens for Clean Elections, to forward this resolution in Greene County. Here is their report:

In a surprise move on Wednesday, April 15, Greene County Legislators unanimously passed a resolution urging New York State Legislators to save our lever machines instead of waiting until April 20, the date they had originally scheduled for the vote.

The county legislators are responding to citizens' concerns that a switch to optical-scan computers with a history of hacking and breakdowns common to all computers would not only endanger the safety of our votes, but would also vastly increase Greene County's budget and require huge tax increases.

Op-scan computers cost between $11,000 and $12,000 each, with the total cost varying with each county. According to Mary Jo Jaeger, Deputy Budget Officer for Greene County, the cost for Green County came to $352,500.00 for 30 machines. Of this, she said, the county paid 5%, which came to $17,625.00. The other 95% was paid with federal monies. However, she says, that was only for the initial purchase of the machines. Her office has not yet compiled the figures for future operations of the computers, which will be the county's full responsibility. Over the long term, say citizens who want to save our levers, maintenance, storage, and testing, along with very expensive technical support, training, and paper ballot costs, could easily raise those figures to many millions, while keeping our levers would not significantly add to our tax burden.

Keeping our levers became possible in November 2008, when New York installed ballot-marking devices (BMDs) in every polling place for people with special needs, which made New York's levers fully compliant with the Help America Vote Act (HAVA).

The drawback at this point, says Irene Miller, founder of New York Citizens for Clean Elections, is the Election Reform and Modernization Act (ERMA), "which New York State legislators passed in 2005, mandating computer voting. But ERMA was passed before we got the BMDs that made our levers compliant with HAVA. Rescinding ERMA would pave the way to save many millions of taxpayer dollars and our most fundamental protection of democracy---a trustworthy, secure vote, which is not possible with computers, but is possible with our levers, which have served us very well for many decades."

Miller says some of the problems inherent in optical-scan computers are:

• There is no way to verify that a computer is internally counting voter-verified ballots as cast because computer software is mutable, meaning that the software can be programmed to invisibly "modify itself during an election and then modify itself back to its pre-election state after the election. This can happen even if computers are certified. A National Institute of Standards and Technology study and dozens of other computer-scientist studies clearly show that computers can be programmed to function one way during certification testing and another during an actual election."

• Optical-scan computers would require hand counts because of their ability to mutably change scanned voter-verified ballots. Currently, the state mandates a 3% hand count of op-scan ballots, which ignores a computer's mutable ability to comply with the hand count. If a discrepancy should be identified at 3%, all paper ballots would, presumably, be recounted by hand, which would take a great deal of time, be enormously costly, and add a serious concern about chain of custody, which means continuous observation of all voted ballots by representatives of all parties would be required until the entire count is completed in order to prevent any possibility of vote tampering. Lever machines are not mutable and chain of custody is far less of a problem with them.

For a clear demonstration of how scanned voter-verified ballots can be easily switched inside optical-scan computers without a trace, Miller recommends the HBO documentary "Hacking Democracy".

Close Congressional race in NY District 20 Demonstrates Need to Keep Lever Machines

From the beginning it was suspected that the race to replace Representative Kirsten Gillibrand in New York’s 20th Congressional District would be close, but as the margin between the two candidates tightened, with Democrat Scott Murphy taking a slim lead in the polls going into election day, the Chair of the NYS Republican Party filed a petition in the Supreme Court in Dutchess County to ensure that the normal procedures for ensuring accuracy and transparency of the vote counting process were followed and that the evidence of the count be preserved and available for judicial review if necessary.

The implications of the filing are either an abundance of caution or a wariness of the ‘Heinz 57’ variety of canvassing among the different county boards of election. Whatever the reason, the Republican Party is exercising its rights under New York Election Law to maximize the constitutional guarantees of publicly demonstrable vote counting. What is not being discussed is that if the lever machines are replaced by software-based electronic voting machines all these rights will become meaningless.

New York's Law still requires that votes be counted transparently either by lever machines or by hand. New York Election Law employs a system that was designed to provide evidence of how votes were counted at the time they were cast. According to New York Election Transparency Coalition legal counsel, Andrea Novick, it is this critical distinction which sets New York apart from the rest of the nation.

If New York replaces its mechanical lever voting machines with computerized voting machines, the evidence which the Republican Party is seeking to examine and secure will disappear. Had this election’s votes been counted by optical scanners, as New York’s Election Reform and Modernization Act (ERMA) will require in future elections, neither the Republican State Chair nor the Democratic State Chair nor the public would be able to obtain evidence of how the ballots were counted at the time they were cast. Unlike our lever machines where evidence of malfunction, malfeasance or mis-transcription of the vote count can be detected and corrected as has been occurring this week during the re-canvass of the machines in the 20th district, there is no evidence of how software does its work because software is undetectably corruptible and vulnerable to manipulation.

Software-based scanners conceal what must be visible and leave no evidence of the count to be examined by the parties, the public or the court. All that is left are the indistinguishable paper ballots, which are not evidence of how the ballots were originally counted. A post-election manual count of some ballots, required by ERMA because the software-generated tally is known to be exploitable, is no solution.

As Novick explained, “For 232 years our Laws have presumed that counted ballots, once removed from continuous observation, are so likely to be tampered with that their use has been prohibited. Unless the condition of inviolability is established, the ballots have no evidentiary value. Worse they provide a false sense of security cloaking what is already concealed by the software.”

Unlike the recent close race in Minnesota that was decided by a manual recount of post-election night paper ballots, not shown to have been the same ballots cast at the election, today’s commencement of New York’s absentee paper ballots will be publicly observed from the moment they are cast, through the counting. Novick says, “New York’s Constitution has always required an observable, open electoral process that produces evidence of the count at the time the votes are cast, ensuring maximum protection against fraud.”

“The Republican Party will have the proof it seeks, at least this year.” “But,” she warns, “If we permit the State to abandon our lever voting system for software-based scanners, it will be the last time any one will have evidence of who won the election.”

Schuyler County & Association of Towns pass Lever Resolutions

In March, the Schuyler County legislature and the Association of Towns of New York each passed resolutions requesting that New York be allowed to keep its lever voting machines.

In enacting its March 9th resolution

URGING THE NEW YORK STATE ASSEMBLY, SENATE AND GOVERNOR
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...

Schuyler joined Dutchess, Columbia and Ulster and became the fourth New York County within 3 months to formally express its desire to continue voting on the lever machines.

In February, at their annual meeting in New York City, The Association of Towns of New York also passed a resolution requesting that the United States Congress, the Governor of New York, the New York State Legislature and the New York State Board of Elections enact laws, rules and regulations and take all other needed actions to specifically authorize the continued use of lever voting machines. The Association and its members represent eight million New York residents, almost half the population of the State.

New York's Voting System Satisfies & Surpasses HAVA

Notwithstanding the plain language of the Help America Vote Act (HAVA) which expressly states that lever machines can be legally used, the U.S. Election Assistance Commission (EAC) interprets HAVA to effectively exclude the lever machines as ever being acceptable. This interpretation contravenes the statutory language which explicitly refers to the lever system, along with the DRE and optical scan systems, as voting systems that may be used in federal elections as long as they comply with the five standards set forth in HAVA. This memo by Andrea T. Novick, Esq. explains why the the EAC’s advisory of HAVA as it pertains to New York’s lever voting system is erroneous and should be revoked.

ES&S Withdraws Op-Scans from Erie County Test Run

Election officials in Erie County (Buffalo, NY area) agree that lever voting machines are more accurate and reliable than the electronic voting technologies. However, in anticipation of the state-mandated change to electronic voting machines, the county Board of Elections arranged with Election Systems and Software (ES&S) to test their new DS200 optical scan voting machines through their use in eight village elections in March 2009.

These optical scanners are currently undergoing certification testing by the State Board of Elections, but last year optical scan machines made by ES&S failed pre-election tests in one Michigan county and produced conflicting vote totals in other areas. Election officials reported that the same ballots run through the same machines yielded different results each time.

The Erie County Board of Elections worked for two months with ES&S and election officials in the eight villages on arrangements to use the machines in the March elections. They were prepared to conduct 100% hand counts if necessary to correct scanner errors. But, a week before the election, ES&S abruptly withdrew their offer to make the op-scan machines available. Instead the elections were conducted on the traditional lever machines.

In a press release dated March 11th, Erie County Election Commissioner Ralph Mohr concluded that, "Unfortunately, the fact that the manufacturer pulled out of the pilot project at the last minute indicates to me a lack of confidence in its own system...The lever style machines will afford voters and candidates the confidence in the integrity and accuracy of the voting process during this election."

Mohr told the Election Transparency Coalition that his county had also experienced problems with the vendor's configuration of the AutoMark accessible ballot marking devices (BMDs) in last year's primaries. He said the order in which the contests were presented on the screen, and via the audio headsets used by voters with visual disabilities, differed from that required by the Election Law and correctly printed on the paper ballots. The county ended up correcting these problems on their own for the general election.

The same voting systems have been selected by New York City, Rockland, Albany and Schenectady counties. The AutoMark has the advantage of being a non-tabulating BMD, which at least would not put vote tallies at risk. It's less than half the price of the riskier tabulating BMD that also counts the votes. But the vendor's refusal to run a pilot election with their ballot counting scanners casts doubt on the State Legislature's decision to replace the lever voting machines with computers in the first place.

ES&S is one of two vendors who have submitted Optical Scan machines for state certification review. The other vendor is Sequoia Voting Systems whose ImageCast BMD was deployed by many New York counties in the November 2008 elections. However, as Election Transparency Coalition and the E-Voter Education Project revealed last August, the optical scan portion of the ImageCast contains at least one serious and obvious flaw -- a hole which enables stuffing of the locked ballot box. (See this link for video and a legal analysis.)

- Joanne Lukacher

The Staten Island Recount is Illegal Under NY Law; So is the Replacement of Our Lever Voting System

--by Andi Novick, Esq.

Given the lack of respect for politicians these days, it may be difficult to appreciate the breadth of legislative wisdom referenced in two centuries of New York’s case law, but the legal requirements for a transparent, theft-deterring electoral system are there for all who bother to read the law.

For 232 years New York’s Election laws have mandated a publicly observable count, concluded on election night. The brilliance of New York’s Get-it-Right-Election-Night voting system has been explicitly driven by the necessity to prevent opportunities for unseen fraud. Justice Louis Brandeis’ observation regarding the benefits of publicity, to wit, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman”, was not lost on successive generations of New York State’s Legislature.

After nearly a century of experience with 19th century electoral fraud, New York’s Legislature perfected our hand count rules by 1896, requiring that there never be an opportunity for unobserved tampering, even by bipartisan election officials (who apparently had been colluding to create fraudulent returns, necessitating one part of the reforms of 1896). Accordingly we have never permitted the post-election recounting of those ballots which were cast and counted at the polling site under maximally safeguarded conditions while public scrutiny is continuous.

Paper ballots in the wrong hands are too vulnerable to manipulation (although not nearly as exploitable as software). Since it is the duty of the legislature to prevent all opportunities for fraud, post-election use of paper has been prohibited for New York’s entire history.

This is still the law in New York: at each poll site, election inspectors must cast and canvass all ballots and “ascertain the total vote [i.e., be certain of the count -- not attempt to verify it after election night] and they shall not adjourn until the canvass be fully completed.” (EL § 9-100)

A properly run paper ballot election must be conducted such that all responsible can be certain of the accuracy of the results. It is designed to enable the detection of error or fraud and any recount or “recanvass must be made immediately in order to correct the error.” (EL § 9-116)

New York also requires a 100% recanvass of precinct tallies, but only to correct transcription errors. (EL § 9-208)

Perhaps it is not surprising that almost no one seems to have noticed that the recount of the recent Staten Island City Council paper ballot election, is prohibited by State law. After all, the 2005 Legislature enacted the Election Reform and Modernization Act (ERMA), forcing New York to replace its reliable, transparent lever voting system with a concealed software-based system. In so doing the current Legislature destroyed our constitutional right to a transparent electoral process, substituting it with a concealed software-based system which is so susceptible to undetectable fraud that ERMA requires a 3% hand count of the ballots after the election is over, in an effort to verify the unreliable software-based results. *

Until ERMA was passed, supposedly to comply with the Help America Vote Act (HAVA), New York law has prohibited the use of post-election ballots as too dangerous for democracy. It was not even good enough for the ballots to be locked up and guarded by bipartisan election officials, unseen by citizen observers -- unless Court of Appeals’ precedence is to be ignored because the current Legislature has decided that the temptation to manipulate election outcomes has been eradicated from the population. Our experience in New York informs us that once the ongoing surveillance of the polling site itself is interrupted, the opportunities for tampering are just too risky for a self-governing people to endure.

Our two-hundred-thirty-two years of knowledge and our New York Constitution have required that we Get-it-Right-on-Election-night for a reason. In the words of Will Rogers, “More people have been elected between sundown and sunup than ever were elected between sunup and sundown.”

* Note: Click here to see why even if we conduct a partial hand count on election night, 3% is NOT even enough to detect fraud in many cases (PDF)