Originally published: December 20, 2010 6:28 PM
By BO LIPARI
Bo Lipari is the founder of New Yorkers for Verified Voting, a nonpartisan voter education organization.
In New York's first test case on using our new paper ballots, the state judiciary is setting an egregious precedent: nullifying audits and recounts in the interests of a quick decision.
In Nassau County's 7th Senate District race, state courts have essentially ruled that even if New York's audit laws require further manual counting of paper ballots, accepting machine results and declaring a winner outweigh the public's right to know who really won the election.
The dispute demonstrates the typical dynamic in close political contests. Regardless of party affiliation, the candidate in the lead wants to stop further ballot counting, the candidate behind wants to continue, and the courts almost always get involved. In the 7th Senate District, Sen. Craig Johnson (D-Port Washington) - who trailed by 451 votes - asked the court to order a full manual recount. Several scanners failed a state-mandated audit, whereby 3 percent of county systems are examined by a process of hand-counting ballots and comparing them to the results reported by the machines.
The legal team of his Republican challenger, Mineola Mayor Jack Martins, on the other hand, argued that, "At the end of the day, we must balance accuracy with finality." The meaning here was hardly disguised - stop counting ballots, we're more interested in winning than getting an accurate result.
Three out of seven machines in the 7th District didn't report the same number of votes cast as were hand-counted during the audit. When the manual count shows a different number of votes than a scanner, that machine should be considered to have a failed the audit. Yet the initial State Supreme Court decision ruled that the scanners had in fact passed - defying common sense.
An Appellate Division hearing in the case did nothing to change this, and in fact made it worse, saying that the courts have the right to stop an audit, even if state laws require a further expansion. Yesterday, the Court of Appeals - the state's highest court - unanimously rejected Johnson's request for a manual hand recount of the 84,000 ballots cast.
The big benefit of the state's new voting system isn't the machines - it's the paper ballots. But the courts appear not to understand that. Perhaps this comes from a flawed mindset after nearly a century of lever voting - the sense that it's OK to trust the machine. Lever machines left no way to verify the vote, so what choice did we have, anyway? But this outdated mindset isn't OK, and it really never was.
New York State now has one of the necessary conditions for verifiable election outcomes - paper ballots. Political parties will contest outcomes in court (nowadays that's just the way we do elections in the United States). So New York's judiciary needs to embrace the value of counting the paper, and state law needs to be changed to clarify when the paper should be counted.
The law should stipulate when recounts are mandated to make them less subject to judicial fiat when races are close. Three changes would get us a lot closer to this standard:
Adopt statistical auditing methods that require checking more machines than current law when vote margins are close.
State law currently requires that both election commissioners agree to escalate an audit. But this will never happen, because one commissioner is appointed by Democrats and the other by Republicans, and these appointees are expected to represent their party's position in election disputes - particularly in important races. New York law must change to allow either commissioner to escalate the audit.
Adopt new standards that require hand counts of all votes in elections where the difference between candidate vote totals is 1/2 percent or less.
With changes like this, we'll be a lot closer to realizing the full potential of our paper ballots than we are today. The new legislative session starts in January; there's a lot of work to be done.
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