NYS Certifies Non-Compliant Voting Machines
Commentary
Written by Howard Stanislevic
Tuesday, 15 December 2009 11:36
Editor's Note: The NYS Board Of Elections certified both
the Dominion ImageCast and the ES&S Electronic voting systems at 1:10 p.m.
today (Dec. 15th, 2009) .. noting in the process that the machines were still
"non-compliant." The state
passed an additional resolution requiring the operations department to work
with the two vendors to bring the machines into full compliance.
NY State Board of Elections Says Ballot Scanners Switched
Votes in 2009 General Election
--Written by Howard Stanislevic
The Help America Vote Act does not require computerized vote
counting. But earlier this year in U. S. District Court, the New York State
Board of Elections (SBoE) and the U. S. Department of Justice agreed that the
Board would certify a new optical scan computerized voting system by December
15, 2009. As that date approaches, the Board is displaying a dismissive
attitude toward the risks and problems encountered with the systems they say
they will certify.
At a November 12th State Senate Elections Committee hearing
in New York City, SBoE Co-Chair Douglas Kellner testified about what he called
"glitches" in the programming in one of the new systems that went
undetected by Erie County election officials in the 2009 general election. Only
after officials noticed some anomalous election results, did they realize their
system's configuration files had been compromised.
If future election results are not so anomalous, there is a
strong chance such errors will not be detected at all.
Testimony
At the hearing, Commissioner Kellner confirmed our worst
fears about e-vote counting (see his testimony below). Kellner stated that in
Erie County, during the process of entering ballot programming data, vote
switching between candidates had been programmed into the computer (Election
Management System or EMS) that, in turn, programed the county's optical
scanners. The scanners then proceeded to switch the votes at the polls as the
ballots were cast on election day. This real-time vote switching was
undetectable by voters, poll workers or other election officials.
Kellner said in this case the vote switching was detected
later because the election results appeared to be implausible. The scanners
supposedly failed their pre-election Logic and Accuracy test due to the vote-switching
problem. That's good, but county election officials ignored the results of
their own tests and held the election using the vote-switching configuration
anyway
Commissioner Kellner also stated that this county, which
uses ES&S systems, was among the best in the 2009 "pilot"
elections (held with real voters and candidates). We don't doubt his word that
the errors were eventually corrected. But if Erie was one of the best counties,
we'd hate to see one of the worst counties that participated in this
experiment.
Different Vendors, Same Design
Different vendors employ the same architecture of
centralized EMS programming and configuration. Both of New York's new voting
systems (including accessible ballot marking devices) are programmed this way
for each election. There are no "stand-alone" voting devices in New
York, except the lever voting machines. It is disingenuous to claim otherwise.
Even if the Logic and Accuracy testing had been done
properly and had not been ignored, there is no guarantee that vote switching
would have been detected. Computer
scientists have proved that such tests can be rigged to perform correctly
at any time, while the machines can be rigged to switch votes during the
election without detection. Under such conditions, subtle manipulations of vote
counts, whether intentional or not, would not be detected.
Computers Are Not Voting Machines
Today's e-voting computers are not voting machines; they are
Von Neumann machines (stored-program computers). Such general purpose machines
can be programmed to do anything the programmers wish. For example, a computer
playing an Internet video mimics some functions of a television set. In New
York, such computers are supposed to be programmed to mimic the logical
functions of the lever voting machines that have served us well for over 100
years. But there is no way to guarantee that a computer is faithfully emulating
a real voting machine, just as there is no way to tell simply by observation
that a personal computer is not a TV set.
Commissioner Kellner and his colleagues at the SBoE have
been quite cavalier about this threat to our democracy, which we find very
troubling. For example, in his testimony, Kellner compared the readily
observable and limited problem of a lever machine's misaligned ballot face
(which the election law requires poll workers to recheck and realign after
every voter leaves the booth), to the invisible and unlimited problems of
computer programming errors (and possible malfeasance). He implied that these
two problems are equivalent when clearly, they are not.
Citizens Barred From Citizens' Meetings
Last week, there was a meeting of the Citizens Election
Modernization Advisory Committee (CEMAC) that was closed to nearly all the
citizens of New York State. To what extent will the potential for undetectable
vote switching be used as a criterion for or against certification of the new
systems? Since the meeting was closed to the public, we may never know.
However, there is nothing in the certification standards that we know of that
prohibits (or that can prohibit) such vote-switching capabilities in computers.
So in all likelihood, the new vote-switching machines will be certified.
New York State’s Committee on Open Government
(COG) provides oversight and advice regarding the state's Open Meetings Law. In
the opinion of COG Executive Director Bob Freeman, CEMAC's restricting of
public access via a protracted "executive session" was unlawful. As
its reason for doing so, CEMAC had cited a discussion of “proprietary software
information” rather than any of the eight allowable grounds found in the Open
Meetings Law.
We have learned that the "citizens" committee,
comprised mostly of election officials and other insiders, voted 10 to one to
advise the SBoE to certify the new machines.
The End of Innocence
New York will soon join the long list of states burdened by
electronic vote-counting systems that are so unreliable and untrustworthy that
paper ballots must be used as a backup. Every state in the country besides New
York uses at least some vote-switching
computers [PDF] to run their elections.
These states expect their election officials to do the
impossible: to somehow transform a concealed system of voting into a
transparent one. It is terribly unfair to ask election officials to do so.
The Citizens' Burden
The burden New Yorkers will face as a result of the
unnecessary change to our voting system is going to be huge and unending.
Eternal vigilance would be easy compared to what will be required of us.
County election officials will have to redirect their modest
resources toward an electronic voting process that is exponentially more
resource-intensive than the system it replaces.
The SBoE seems to believe that counties can and will, at
every single election, successfully accomplish every one of the new and myriad
processes necessary to ensure safe and accurate elections. Even if they do so,
new laws will have to be written to regulate technology that is nearly
impossible to regulate. It is doubtful that such laws will be enforced.
Most importantly, enough paper ballots will have to be
counted by hand to find out who won and who lost each and every election
contest -- sometimes a small fraction of such ballots; sometimes more;
sometimes all of them. There is no magic number of votes to count by hand,
despite the fact that legislators and election lawyers continue to ask for one.
The cost of making these changes will of course be borne by
the taxpayers. Other essential services will have to be cut. The alternative is
to give up on free and fair elections and trust the computers to decide the
outcomes. That's what 49 other states have done, whether they acknowledge it or
not.
The Path of Least Resistance
One might reasonably ask why the State Board of Elections
would even consider certifying a voting system that can so easily be
programmed, intentionally or accidentally, to add together votes intended for
two different candidates, and then allocate the total of those votes to just
one candidate. We can only speculate that the Board is simply taking the path
of least resistance in Federal Court, rather than fighting to protect the
constitutional rights of New York's voters, candidates and their fellow
election officials.
Those officials are being asked to certify county-level
election results without any knowledge of their correctness. This would be a
felony under New York's election law if our election officials were made aware
of it. As we said, it's terribly unfair.
Commissioner Kellner's testimony, and the full transcript
from the 11/12 hearing are available here
[PDF].
Here is the relevant vote-switching excerpt:
Kellner from Pgs. 13-14 (Erie County ES&S vote-switching
testimony)
[T]here is one
other scanning issue
that had come up
with the 9th Legislative District in
the Town of
Cheektowaga in Erie County where the
machine had not
been set up properly.
So that the
ballot -- the election management system was
improperly
programmed so that the scanning results did
not accurately
report the results on the ballot.
Because it had set up the election management system,
that even
though there were two different candidates' names,
the persons
who had programmed the machine had marked
those
candidates as the same candidate so that the votes
were counted
as if you were voting twice for the same candidate.
Howard Stanislevic has been a computer network engineer for
over 25 years in NYC working in various industries including telecomms,
airlines and advertising. He has worked on such diverse projects as domestic
satellite digital audio transmission systems and the Washington-Moscow
"Hotline." In his spare time, he has worked with the Internet
Engineering Task Force and has contributed to several Requests for Comments
(RFCs -- formalized peer-reviewed memoranda addressing and defining Internet
standards). He has been studying the e-vote-counting problem since 2004, and has
become a full-time advocate for verified elections (not just
"verifiable" ones). Stanislevic believes there are some viable
solutions to the election verification problem, but that in general, there is
not enough of a commitment to implementing them. He co-authored the first
risk-based statistical audit law in the nation, NJ C.19:61-9 (PL 2007 Ch. 349)
and papers on election auditing, voting system reliability and standards
published by The American Statistical Association, Verified Voting and
VoteTrustUSA. He has contributed to NY State's Voting System Standards and two
drafts of NY's Election Auditing and Recanvass regulations.
Last Updated on Tuesday, 15 December 2009 13:22