We’re pleased with U.S. District Court Judge Joseph Bianco’s ruling last week sending Nassau County’s case back to state court where it belongs.
The case, filed in March, seeks to have NY’s Election Reform and Modernization Act (ERMA) declared unconstitutional for many of the same reasons ETC’s upcoming litigation does: chiefly, the disaster that would be caused for our democracy should the electronic vote-counting systems ordered by ERMA be deployed throughout New York. Defendants had the case moved to federal court, claiming that federal issues were involved.
But Judge Bianco disagreed, saying “Plaintiffs’ claims (1) do not assert a federal cause of action, (2) necessarily raise a substantial question of federal law, or (3) come within the “artful pleading doctrine.” As such, there is no federal jurisdiction over this case, and remand is required.”
The State has repeatedly claimed that federal law, the Orwellian-named Help America Vote Act, forbids continued use of lever voting machines. However, in his ruling, Judge Bianco affirmed what Nassau (and ETC) have been saying: that HAVA does not rule out the use of lever voting machines.
Bianco’s ruling also states, “In short, there is no indication Congress sought to transform all state law claims dealing with the administration of elections or voting systems into federal claims. In fact, the opposite appears to be true given that Congress gave the states a significant amount of discretion as to how to implement HAVA.”
Judge Bianco’s ruling thus correlates with what ETC has said all along: that HAVA does not require that NY abandon its lever voting systems. NY came into compliance with HAVA when ballot marking devices were installed at every polling place to provide increased access for voters with special needs. The full ruling can be viewed here.
Wednesday, June 23, 2010
Friday, March 26, 2010
Nassau County Files Suit Against NYS Over ERMA
The Election Transparency Coalition applauds Nassau County for filing suit against the State of New York over its unconstitutional election law, the Election Reform and Modernization Act (ERMA).
ETC has long held that ERMA is unconstitutional because its mandate that counties switch over from the time-tested, trustworthy and transparent lever voting systems to electronic vote-counting systems will end meaningful public oversight of the public’s elections. That mandate must not be allowed to stand.
Since New York State has already complied with the federal requirement of at least one accessible voting device for voters with special needs at each poll site, we urge the Court to act quickly and decisively to halt the implementation of the state’s legislation before more taxpayer dollars are spent on equipment that must not be used to count votes in New York.
ETC has long held that ERMA is unconstitutional because its mandate that counties switch over from the time-tested, trustworthy and transparent lever voting systems to electronic vote-counting systems will end meaningful public oversight of the public’s elections. That mandate must not be allowed to stand.
Since New York State has already complied with the federal requirement of at least one accessible voting device for voters with special needs at each poll site, we urge the Court to act quickly and decisively to halt the implementation of the state’s legislation before more taxpayer dollars are spent on equipment that must not be used to count votes in New York.
Tuesday, March 2, 2010
Columbia County Joins With Nassau to Contest ERMA: Counties Want to Keep Their Lever Voting Machines
From the Columbia County Register Star:
By Francesca Olsen
The Columbia County Board of Elections will join in a lawsuit with Nassau County, and other New York counties, to declare ERMA, the state Election Reform and Modernization Act of 2005, unconstitutional.
BOE Commissioners Virginia Martin (D) and Jason Nastke (R) have updated the Board of Supervisors’ County Government Committee on the impending litigation.
At February’s meeting, Nastke told the committee that the County Attorney’s Office has reviewed the lawsuit paperwork, and is on board with the idea, provided the BOE get “something in writing” from Nassau that there will be no financial or legal implications from joining the suit.
Under ERMA, traditional lever voting machines would be prohibited from use, and municipalities would have to replace them with computerized voting machines, either touch-screen or optical scanners. But ERMA doesn’t fund the replacement, meaning Columbia, and other New York counties, would need to foot the bill for the transition.
“My fundamental issue with this, aside from the reliability issue with the new machines, is essentially, the unfunded mandate costs being carried over to the county,” Nastke told the Register-Star. “Albany wants to talk a great deal about how we should save money, but then sends down mandates that will cost Columbia County alone $100,000 per election. It’s just wrong.”
“What’s not extricable from the cost issue is the complexity issue,” Martin added. “When things become more complex they become more costly to maintain or implement. There’s much more to do.”
For example, if elections do end up moving over completely to paper ballots, storing the ballots, printed for each registered voter, would require “Fort Knox” style security measures, including double locks and environmental controls. Machines would also need increased security.
Martin said that paper ballots used in elections now require the same kind of storage “but they comprise a very small portion of the votes that get cast. If we make the change to an election that’s fully voted on paper ballots, then we’re looking at a much greater storage space needed.”
“You have to print paper ballots for every voter, regardless of whether the voter shows up,” Nastke said. “What if there’s a last minute change on the ballot? Do we have to go out and reprint ballots?”
The Federal Help America Vote Act of 2002, which inspired ERMA and requires municipalities to make voting accessible to everyone regardless of disability, does not require that lever machines be fully replaced, and provides funding to municipalities for the purchase of new machines.
In 2008, Columbia County complied with HAVA by purchasing 52 Sequoia Imagecast optical scan and ballot marking devices for $600,000, 95 percent of which was covered by HAVA funding. The county paid $28,000.
Martin said that while new machines probably wouldn’t need to be purchased, the cost would still be high.
“It’s not a matter of buying more machines. It’s a matter of implementing it all, which is far more complex than a lever machine election,” she said.
There have also been deep concerns across the state as to whether optical scanners are as reliable as lever machines. They are computerized, and doubts about the security and accuracy of programs have been raised repeatedly. Also concerning to many is that the computerized language of ones and zeroes can’t be easily understood at a local level by election custodians who may not be familiar with computer programming.
Resistance to the switch is ongoing. In February of last year, the New York State Association of Towns passed a resolution stating that “the continued use of lever voting machines is in the best interest of the public and should be permitted to be used in future general elections ... the elimination of lever voting machines is costly to taxpayers, will result in another burden upon the local taxpayers, and will be confusing to the voting public without adequate time and education.”
And the Election Transparency Coalition, headed by Attorney Andrea Novick, has been requesting help and resources to litigate against ERMA. ETC’s Web site, www.electiontransparencycoalition.org, declares pointedly that “ERMA is unconstitutional.”
“HAVA said we had to make voting handicapped-accessible to everybody,” Nastke said. “We’ve done that. The state of New York said, we want everyone to use these new machines. There’s nothing wrong with our old machines. They work fine. You know whether or not the votes were counted ... they don’t go into some hidden software chip somewhere.”
Followers of current events may already know that the Nassau County Attorney is John Ciampoli, the same attorney who litigated for the Columbia County Republican Party in a suit over the validity of absentee ballots from last November’s election.
Which means Martin and Ciampoli, who is involved in the litigation to declare ERMA unconstitutional, will be on the same side of the argument this time around.
“It seems that we do agree on this,” she said. “It’s good that Nassau is doing this, or is preparing to do this.”
Other counties in New York, Martin said, are looking into joining the litigation as well.
Ciampoli said that the BOE commissioners in Nassau County are calling other commissioners in other counties to generate interest in joining the lawsuit, and that so far, there have been talks with New York City, Westchester, Suffolk, and “several other counties.”
He added that paperwork has not been officially filed yet, but interviews with people to serve as expert witnesses are being conducted, an expert has already been retained, and reviews are being conducted with the attorney’s office and Board of Elections.
To reach reporter Francesca Olsen call 518-828-1616, ext. 2272, or e-mail folsen@registerstar.com.
BOE Commissioners Virginia Martin (D) and Jason Nastke (R) have updated the Board of Supervisors’ County Government Committee on the impending litigation.
At February’s meeting, Nastke told the committee that the County Attorney’s Office has reviewed the lawsuit paperwork, and is on board with the idea, provided the BOE get “something in writing” from Nassau that there will be no financial or legal implications from joining the suit.
Under ERMA, traditional lever voting machines would be prohibited from use, and municipalities would have to replace them with computerized voting machines, either touch-screen or optical scanners. But ERMA doesn’t fund the replacement, meaning Columbia, and other New York counties, would need to foot the bill for the transition.
“My fundamental issue with this, aside from the reliability issue with the new machines, is essentially, the unfunded mandate costs being carried over to the county,” Nastke told the Register-Star. “Albany wants to talk a great deal about how we should save money, but then sends down mandates that will cost Columbia County alone $100,000 per election. It’s just wrong.”
“What’s not extricable from the cost issue is the complexity issue,” Martin added. “When things become more complex they become more costly to maintain or implement. There’s much more to do.”
For example, if elections do end up moving over completely to paper ballots, storing the ballots, printed for each registered voter, would require “Fort Knox” style security measures, including double locks and environmental controls. Machines would also need increased security.
Martin said that paper ballots used in elections now require the same kind of storage “but they comprise a very small portion of the votes that get cast. If we make the change to an election that’s fully voted on paper ballots, then we’re looking at a much greater storage space needed.”
“You have to print paper ballots for every voter, regardless of whether the voter shows up,” Nastke said. “What if there’s a last minute change on the ballot? Do we have to go out and reprint ballots?”
The Federal Help America Vote Act of 2002, which inspired ERMA and requires municipalities to make voting accessible to everyone regardless of disability, does not require that lever machines be fully replaced, and provides funding to municipalities for the purchase of new machines.
In 2008, Columbia County complied with HAVA by purchasing 52 Sequoia Imagecast optical scan and ballot marking devices for $600,000, 95 percent of which was covered by HAVA funding. The county paid $28,000.
Martin said that while new machines probably wouldn’t need to be purchased, the cost would still be high.
“It’s not a matter of buying more machines. It’s a matter of implementing it all, which is far more complex than a lever machine election,” she said.
There have also been deep concerns across the state as to whether optical scanners are as reliable as lever machines. They are computerized, and doubts about the security and accuracy of programs have been raised repeatedly. Also concerning to many is that the computerized language of ones and zeroes can’t be easily understood at a local level by election custodians who may not be familiar with computer programming.
Resistance to the switch is ongoing. In February of last year, the New York State Association of Towns passed a resolution stating that “the continued use of lever voting machines is in the best interest of the public and should be permitted to be used in future general elections ... the elimination of lever voting machines is costly to taxpayers, will result in another burden upon the local taxpayers, and will be confusing to the voting public without adequate time and education.”
And the Election Transparency Coalition, headed by Attorney Andrea Novick, has been requesting help and resources to litigate against ERMA. ETC’s Web site, www.electiontransparencycoalition.org, declares pointedly that “ERMA is unconstitutional.”
“HAVA said we had to make voting handicapped-accessible to everybody,” Nastke said. “We’ve done that. The state of New York said, we want everyone to use these new machines. There’s nothing wrong with our old machines. They work fine. You know whether or not the votes were counted ... they don’t go into some hidden software chip somewhere.”
Followers of current events may already know that the Nassau County Attorney is John Ciampoli, the same attorney who litigated for the Columbia County Republican Party in a suit over the validity of absentee ballots from last November’s election.
Which means Martin and Ciampoli, who is involved in the litigation to declare ERMA unconstitutional, will be on the same side of the argument this time around.
“It seems that we do agree on this,” she said. “It’s good that Nassau is doing this, or is preparing to do this.”
Other counties in New York, Martin said, are looking into joining the litigation as well.
Ciampoli said that the BOE commissioners in Nassau County are calling other commissioners in other counties to generate interest in joining the lawsuit, and that so far, there have been talks with New York City, Westchester, Suffolk, and “several other counties.”
He added that paperwork has not been officially filed yet, but interviews with people to serve as expert witnesses are being conducted, an expert has already been retained, and reviews are being conducted with the attorney’s office and Board of Elections.
To reach reporter Francesca Olsen call 518-828-1616, ext. 2272, or e-mail folsen@registerstar.com.
Monday, February 15, 2010
"Auditing" Regs Confirm Op-Scan Vulnerabilities
I need to reiterate: the crux of ETC's opposition to software-based voting systems, which include the Op-Scans, is that they institutionalize secret vote counting, violating our constitutional right to see that our votes are counted as cast.
Recognizing the inferiority and vulnerability of the op-scans the NYS Legislature in enacting ERMA included the requirement for an "audit", a post-election night recount of a percentage of supposedly randomly chosen paper ballots which the public was to believe was a check on the accuracy of the optical scanner counting. (Of course post-election night ballot recounts are illegal in New York, a fact that seems to be irrelevant to our officials.) But the so-called "auditing" procedures which have been developed by the state board of elections are themselves an indictment of the very proposition that software-based voting systems are an accurate and secure way to run an election.
The audit procedures are worth reading in full. But I have highlighted here what, if we could all still laugh about this, would be some of the more comical instances of doublespeak and oxymoron:
"Ballot Marks
o Valid votes that have been marked by the voter outside the vote targets or using a marking device that cannot be read by the vote tally system shall not be included in making the determination whether the voting system has met the standard of acceptable performance. "
What does this mean? Did the machine count the vote or not?
"Scanners will easily recognize votes that are marked with a density that is within the calibrated thresholds. In an audit, the human eye may perceive these marks differently that the scanner, however the audit team members and observers alike should understand that the scanners, in accordance with Section 7-201.1e provide each voter with a notification of any mark the system perceives as questionable and provides each voter with the opportunity to remark their ballot or cast it 'as-is'. "
In an audit the eye may perceive the mark differently? How did the voter who made the mark perceive it? Did the machine override voter intent? Silly voter.
"The problems in Cuyahoga County, Ohio in 2004, where audit supervisors rigged the ballot selection so that no discrepancies would be found, exemplify the danger of auditors hoping to find perfect matches and to avoid the difficult questions and additional work that might result if the records do not match."
i.e. Beware of fraud. Two Cuyahoga County election workers were convicted for the illegal manipulation of ballots during the 2004 recount.
"To counter the understandable temptation to make the paper and electronic records match..."
Understandable, especially if you are trying to cover-up machine rigging or because underfunded, understaffed elections boards will often cut corners . Who could have imagined....And what is the counter to that? More expensive, finicky, non-transparent, easily compromised machines?
Manual counts may sometimes reveal different voter intent than machine counts of ballots. Overvotes, marginal marks, hesitation marks, and other stray markings on manually marked ballots could cause optical scan voting machines to misinterpret voter intent that a human reviewer would be able to discern."
... and if we make enough exceptions to cover discrepancies between hand and machine counts, then almost any machine, even rigged ones, will pass "audit."
Recognizing the inferiority and vulnerability of the op-scans the NYS Legislature in enacting ERMA included the requirement for an "audit", a post-election night recount of a percentage of supposedly randomly chosen paper ballots which the public was to believe was a check on the accuracy of the optical scanner counting. (Of course post-election night ballot recounts are illegal in New York, a fact that seems to be irrelevant to our officials.) But the so-called "auditing" procedures which have been developed by the state board of elections are themselves an indictment of the very proposition that software-based voting systems are an accurate and secure way to run an election.
The audit procedures are worth reading in full. But I have highlighted here what, if we could all still laugh about this, would be some of the more comical instances of doublespeak and oxymoron:
"Ballot Marks
o Valid votes that have been marked by the voter outside the vote targets or using a marking device that cannot be read by the vote tally system shall not be included in making the determination whether the voting system has met the standard of acceptable performance. "
What does this mean? Did the machine count the vote or not?
"Scanners will easily recognize votes that are marked with a density that is within the calibrated thresholds. In an audit, the human eye may perceive these marks differently that the scanner, however the audit team members and observers alike should understand that the scanners, in accordance with Section 7-201.1e provide each voter with a notification of any mark the system perceives as questionable and provides each voter with the opportunity to remark their ballot or cast it 'as-is'. "
In an audit the eye may perceive the mark differently? How did the voter who made the mark perceive it? Did the machine override voter intent? Silly voter.
"The problems in Cuyahoga County, Ohio in 2004, where audit supervisors rigged the ballot selection so that no discrepancies would be found, exemplify the danger of auditors hoping to find perfect matches and to avoid the difficult questions and additional work that might result if the records do not match."
i.e. Beware of fraud. Two Cuyahoga County election workers were convicted for the illegal manipulation of ballots during the 2004 recount.
"To counter the understandable temptation to make the paper and electronic records match..."
Understandable, especially if you are trying to cover-up machine rigging or because underfunded, understaffed elections boards will often cut corners . Who could have imagined....And what is the counter to that? More expensive, finicky, non-transparent, easily compromised machines?
Manual counts may sometimes reveal different voter intent than machine counts of ballots. Overvotes, marginal marks, hesitation marks, and other stray markings on manually marked ballots could cause optical scan voting machines to misinterpret voter intent that a human reviewer would be able to discern."
... and if we make enough exceptions to cover discrepancies between hand and machine counts, then almost any machine, even rigged ones, will pass "audit."
- JL
Sunday, February 14, 2010
Happy Valentines Day Lever Machines
Mechanical Lever Voting Machines were first used in Lockport, New York in 1892. Four years later Rochester became the first large city to adopt the machines and the entire state soon followed.
On February 14th, 1899 voting machines were approved by Congress for use in federal elections.
Anniversary information courtesy of Sowing Culture the Blog of the Institute of Museum and Library Services (IMLS.) Photograph Courtesy of Connecticut History Online.
On February 14th, 1899 voting machines were approved by Congress for use in federal elections.
Anniversary information courtesy of Sowing Culture the Blog of the Institute of Museum and Library Services (IMLS.) Photograph Courtesy of Connecticut History Online.
Voting machine, Hartford (CT, 1912)
Wednesday, February 10, 2010
All Things Considered: Electronic Voting Costs Dollars and Democracy
So far the New York Board of Elections has not shown it can learn from the experiences of others that software-based voting not only creates unpredictable short and long term costs but endangers Democracy. The following report is from NPR Affiliate KXJZ in Sacrament0 and was aired on All Things Considered on February 8th and the following day on Morning Edition.
Thanks to votingnews.blogspot.com for the link.
(Sacramento, CA)
California elections officials say their computerized voting booths are in need of upgrades, but they can’t afford to make big improvements.
Capital Public Radio's Steve Shadley reports...
*******************************************************************************
Two statewide elections are coming up later this year but local elections officials say they’re working with outdated electronic voting booths.
Private companies that sell the equipment say the state and counties would be better off buying new systems rather than trying to modernize the old equipment.
That would require millions of dollars that governments don’t have right now.
Private companies that sell the equipment say the state and counties would be better off buying new systems rather than trying to modernize the old equipment.
That would require millions of dollars that governments don’t have right now.
At a public hearing on the issue in Sacramento, some citizens urged the officials to get rid of electronic voting, period.
Tom Courbat is with the Riverside County group “Save Our Vote”...
Courbat: “We’re not convinced there is enough security in these voting systems to justify continuing to purchase them. We have seen demonstrations over and over again of machines being hacked...”
Courbat says it would be more secure if voters cast paper ballots that would be counted by hand.
But advocates for the disabled say not everyone can fill out a paper ballot.
Note: Ballot Marking Devices (BMDs) are one means by which special needs voters can create a ballot independently . BMDs are provided at every polling place in New York State. These BMDs are separate from the Optical Scan Voting Machines and the ballots created can be counted by hand. The issues should not be confused as they often are, including in the above report.
But advocates for the disabled say not everyone can fill out a paper ballot.
Note: Ballot Marking Devices (BMDs) are one means by which special needs voters can create a ballot independently . BMDs are provided at every polling place in New York State. These BMDs are separate from the Optical Scan Voting Machines and the ballots created can be counted by hand. The issues should not be confused as they often are, including in the above report.
Monday, February 1, 2010
County Government Committee of Columbia County Supports Joining Litigation
After a January 26th report on the state's required switch to optical scanners, presented by Columbia County Election Commissioners Virginia Martin and Jason Nastke, Supervisors on the Columbia County Government Committee agreed that the county should support litigation to have ERMA declared unconstitutional.
As reported by Francesca Olsen of the Register-Star:
As reported by Francesca Olsen of the Register-Star:
- Democratic Commissioner of Elections Virginia Martin and Republican Commissioner Jason Nastke presented documentation on the State’s required impending switch to optical scanners and ballot marking devices at the January County Government Committee meeting Jan. 26.
Martin said that several counties, including Nassau County in Long Island, are interested in joining proposed litigation to declare the state Election Reform and Modernization Act of 2005 (ERMA) unconstitutional. Supervisors on the committee were in general agreement that Columbia County’s involvement in the litigation was the right move.
All counties in New York are expected to use optical scanners for the 2010 primary and general elections. Nastke told the committee that just to print the paper ballots from BMDs — ballot marking devices — and optical scanners, it would cost the county $100,000 per year. “The county could put that towards a bridge!” he said. “There’s nothing for us to lose by joining in this lawsuit.”
“Election administration gets a lot more complicated, and there are a lot more opportunities for errors,” Martin told the committee about the switch from lever machines to BMDs and optical scanners. For example, the paper ballots the new machines use (and the machines themselves) can take up a lot of space, and must be stored securely year-round with “fort-knox style security, bipartisan locks, environmental controls,” according to materials handed out by Martin at the committee meeting.
It was suggested that if the lawsuit just delays the implementation of ERMA, it would save taxpayers the cost of new machine implementation for a little longer. “I’m not too thrilled with these scanning systems,” Nastke said, “but I’m required by law to implement them.”
Optical scanners were certified by the State Board of Elections in December, and ERMA would require the discontinuing of lever machines. “There’s a difference with what the federal government asked, and what the state wants us to do,” said Supervisor Leo Pulcher, R-Stockport.
The Help America Vote Act of 2002 does not require states to replace their lever voting machines.
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