Karen Rubin

Long Island Populist Examiner


Nassau County challenges feds, state to beat back electronic voting


August 31st, 2010 1:12 pm ET.


The Women's Suffrage movement turned 90 this month. You would think it would be a time to stand back to really appreciate what women for 70 years fought for before being able to stand up as citizens, with the right to vote, to sit on juries, to run for elected office, to own property.


What has always amazed me is what is claimed as the low rate that Americans vote, even in major presidential elections - 56% of voting-age population in the highly contested 2008 election, in the mid-30s for midterm elections (though the percentage of registered voters who vote is higher, at around 70%).


But after the 2000 Bush-Gore controversy when we first learned of over-votes and under-votes as a result of butterfly ballots and hanging and pregnant chads, I began to wonder how many people vote and have their ballots disqualified without their knowledge.


This is a particularly troubling issue because of the mandate to replace our beloved lever voting machines with electronic voting machines that are manufactured and essentially operated by a private company, as soon as the Sept. 14 primary.


We have all heard about massive hacking of computers stealing identities of millions of people, hackers who have penetrated the most secure systems in the world, like the Pentagon (just consider the recent Wikileaks scandal), and now we find that our vote is in the chips of devices that any high school kid could hack with equipment from Radio Shack.


And there are outstanding questions about whether the 2004 election in Ohio, where Diebold machine CEO Walden O'Dell pledged that George W. Bush would be reelected, was in fact manipulated so that the Diebold machines would swing votes from Kerry. Ohio won the election for Bush.


Nassau County is the lone challenger to New York State's Board of Elections mandating the new electronic voting machines throughout the state, after signing a consent decree with the U.S Department of Justice. County Attorney John Ciampoli is going to Federal court this week on behalf of both Republican and Democratic Elections Commissioners to challenge state and federal orders to replace lever voting machines with electronic ones.


In federal court, Ciampoli is arguing that the lever machines in fact comply with Help America Vote Act. The law was ostensibly passed to insure that every citizen, including people with disabilities, has the ability to cast a vote, but is being used nationwide to force boards of elections to implement electronic voting.


He will next go to State Supreme Court, Sept. 8, where he will challenge that the electronic machines violate New York State's constitution, based on the ease with which people actually lose their vote, and New York State law which specifically bans any voting machine that has access to the Internet.


"The most vulnerable in society are the ones who are most likely to lose their vote," Ciampoli commented in an extensive telephone interview. These include people who are not familiar with using a computer.


But more significantly he will argue the ease with which the machines are vulnerable to hacking and manipulation - something the good ol' lever machines are not.


"The fact is that the machines don't meet the requirements of the law," Ciampoli says: "Sooner or later, people will lose their right to vote."


Unless Ciampoli is successful in his suit, the machines will be in place as soon as the Sept. 14 primary, Nassau County will be voting on optical scanning devices manufactured by ES&S (which if its acquisition of Diebold goes through, would control 80 percent of the votes cast in the nation). The company has refused to allow any access at all to its software in order to test how easily the vote can be hacked, based on its need to protect proprietary information.


"You have a private, for-profit company, with no responsibility, not elected, controlling the machines, the software," says William Biamonte, Democratic Elections Commissioner for Nassau County's Board of Elections. "It will undermine people's confidence in the integrity of their vote, the validity of their elected officials."


The electronic voting machines will have a paper ballot to verify a contested vote, but Biamonte pointed to how ridiculous an actual recount could be: There were 270,000 votes cast in the highly contested Suozzi-Mangano election, which was determined by just 386 votes. "We had 8000 pieces (affidavit, emergency, federal, military ballots) to hand-count. That took 12 teams at tables going through the ballots over five weeks. if this would have been with optical scans... we would have had to go through 270,000."


Instead of requiring an automatic recount as was done with the lever machines, the new mandate is to audit just 3% of the ballots.


"Three percent tells you nothing," Biamonte says. "If someone wanted to tamper with lever machine, would be clearly evident, and could be determined fairly easily who did it, because we have bipartisan oversight. But with the computer - anyone could hack it, and then there would be no proof a hacking took place."


He says that six highly respected studies have demonstrated how easy it is to hack electronic voting machines. In 2006, the California Secretary of State had computer scientists demonstrate how they could hack into the machines from a remote location - even a parking lot - monitor the voting, manipulate the count, then disappear without a trace.


HAVA was adopted after the embarrassment of the 2000 Bush-Gore election. But HAVA was an overreaction. "Congress is forcing states like New York to correct problems that didn't exist, in a way that will undermine people's confidence in the integrity of their vote, the validity of their elected officials, so it is bad all the way around," Biamonte says.


What is more, the new electronic voting systems will cost Nassau County millions of dollars that are not paid for by the federal government - including the paper ballots and the time it will take to count paper ballots, the ongoing support from ES&S, and the need to replace the machines every few years (they are computers, after all).


Ciampoli cites the example of Putnam County and estimates the cost at four to five times what election boards are spending now. This means special districts, including the school districts, will also see their cost for running elections skyrocket.


To reverse course and keep lever machines in Nassau County, Ciampoli is taking on the State Board of Elections, the New York State Attorney General (yes, Andrew Cuomo), and the US Department of Justice.


The county finds itself battling against the state because New York State signed a consent decree with the Department of Justice, and now has been doing everything possible to run out the clock before the 2010 primary and general elections.


Why? "They sold out," Ciampoli says. "It's easier to capitulate to the DoJ than it is to fight them." What's at stake is the millions of dollars to purchase the new electronic voting machines in order to comply with HAVA. The State is using similar tactics to prevent other counties, which otherwise have expressed opposition to the new machines, from joining Nassau County in its suit.


"Quite frankly, they have been beaten up and threatened by the state board of elections," Ciampoli says. "They have been told ''You have to buy these machines. If you oppose us, and if you're wrong, we're going to make you buy them and withhold the money from the state and federal government to help."


The state has played hardball to create an advantage in the courtroom. "They have repealed sections of the law applying to recanvassing and counting votes cast by the lever machines, altogether."


States have run to adopt the electronic voting machines because they can be used by disabled voters, but Ciampoli says Nassau County has complied with the law by making ballot marking devices (BMD) available in addition to the lever machines to anyone who requests to use it. "The crux of the argument is that the Federal statute that is in question clearly states that the lever system can be used to comply with HAVA, and in fact, an interim order that Judge Sharpe issued (and in our opinion, would have been just fine if he made permanent) required us to use the lever machine together with BMD."


That's the argument Ciampoli planned to make in the 2nd Circuit Federal Court on Wednesday, Sept. 1.


But that's small potatoes compared to how he will take on the State Board of Elections before State Supreme Court Judge Woodard on Sept. 8: he will challenge that the law that sets up the new electronic machines and the machines themselves is unconstitutional under the New York State Constitution.


"These machines ultimately will become the instrumentality of disenfranchising voters, and it will be either because people will just lose their votes because they are not familiar with the technology and able to use effectively, or someone will go and cheat.


"Call it what it is: New York State has well-worn tradition of voter fraud," Ciampoli says. "We are not second to Chicago, don't let anyone fool you. There's a system and someone will try to beat the system It's not a question of if, but when.


"Now, if these machines protect anyone, they protect the person who would perpetrate fraud. They are incredibly hackable, and because you go to paper, you open the door to 19th century voter fraud that was done when they used nothing but paper ballots"


"There are assorted horror stories across the nation of elections - some where they were robbed and others where no one could be sure who was elected. One of the problems with electronic voting machines, including the ones purchased in Nassau, is that someone could introduce a Trojan horse into the system that fixes the election results, then destroys itself so there is no trace."


This is not theory. Ciampoli points to the way the machines operate: they use 2 USB flash drives and have an ethernet connection that plugs into the Internet. Someone could simply swap out the flash drive as it is transported from the polling site to the Board of Elections, or put in an infected USB drive that corrupts all the results as they are compiled at the Board.


Ciampoli cites New York State election law Section 702 Sub 1T (adopted July 2005) that says that the voting machines cannot include any device or functionality potentially capable of externally transmitting or receiving data via the internet or via radio waves or via other wireless means.


Judge Woodard has granted the county's request to have experts evaluate the hackability of the computers. But ES&S has made motion to intervene in the case. "Basically they have said they want to protect their intellectual property. Our position is that they want to put a gag on our commissioners and prevent them from testing the machine to see if work properly."


Isn't the potential to hack elections a matter of national security that should be of concern to the federal court? Ciampoli notes that at one point, a manufacturer of electronic voting machines was owned by the "buddies of Hugo Chavez."


Ciampoli counters arguments that the lever machines are also hackable, going into a lengthy explanation of how they are constructed to prevent that from happening. He also counters the claim that the machines are so old (and the manufacturer no longer is in business) that there are parts are no longer available to repair them (there are).


And why is this coming down to an 11th hour showdown, just before the Primary? He accuses the State and Attorney General of doing "everything they could to run the clock out. hoping they can fluff this, and if there is a primary election held with this machine and there aren't problems, they will point to it and say 'See, it works.' But that just means it worked in primary."


Ciampoli points to the fact that both of Nassau County's Elections Commissioners, William Biamonte, the Democratic Commissioner and John DeGrace, Republican Commissioner, are supporting the lawsuit, proof of bipartisan support.


But he is disappointed that others have not come forward - like the League of Women Voters, which early on was adamant to expose the danger of "black box voting." But faced with what seemed to be a singular choice between two electronic voting machines - the Direct Recording Electronic machine and the optical scanner - the League put all their energies into making sure that Nassau adopted the optical scanner, which has a paper trail, whereas the DRE does not.


Having won on the optical scanners, the Nassau County league has kept out of the scuffle over challenging the machines.


"We don't jump on headlines. We make our stands on our positions that we've studied," commented Debbie Schichtman, the former co-president of the League of Women Voters of Nassau County.


"We are in favor of the optical scan machine - which is being used by Connecticut, Massachusetts and for the past 25 years across the country. And the problems that have arisen have not been with the optical scan machines, but the Direct Recording Electronic (DRE) machines.


"We can't turn on a dime... We would have to take a study on it."


Others are on the sidelines as well, such as Duchess and Columbia Counties, where officials have come out against the electronic machines, but have not joined the lawsuit.


It comes down to how important, how valuable, you consider the ballot.


As Alva Vanderbilt Belmont, who was one of the singular women behind winning the right to vote 90 years ago, "The ballot means power."

Should that power be in the hands of whoever owns or controls the machines?


And if Ciampoli loses in the federal court or state Supreme Court? "We won't take this laying down, if it goes against us. We would prefer to win here and get it done." the case may well make its way before the U.S. Supreme Court. And what happens will not only affect the County, but the country.


Karen Rubin, Long Island Populist Examiner


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