NY Amendment


Text of the proposed “NY Amendment” to be inserted into HR811, on page 47, after line 19:


(C) DELAY FOR STATES USING LEVER VOTING MACHINES IN 2006-In the case of a state using lever voting machines in the regularly scheduled general election for Federal office held in November 2006, the effective date of paragraphs (2) and (3) of subsection (a) shall be January 1, 2010, provided that each county within such state shall provide at least one location within such county with a voting system that complies with paragraph (3) of subsection (a).


The "NY Amendment" would authorize states still using lever machines to continue using them until 2010 as long as an accessible voting device is available in each county.


This would allow New York to continue using levers until 2010 without losing its $50 million HAVA funds for replacement of the levers.


Federal Court Lawsuit and U.S. Department of Justice


New York is still dealing with the U.S. Department of Justice lawsuit filed against the state in March, 2006, due to non-compliance with HAVA requirements. But New York still does not want to be forced to act in haste and forced to hastily buy uncertified, shoddy machines at great expense, and at the risk of having the same chaos in New York that other states have experienced with new equipment.


In New York’s state certification efforts, not one vendor's machines have complied with the state’s strict standards and passed all its tests. On January 4, 2007, our testing laboratory Ciber was itself revealed to be uncertified and was later revealed to be incapable of performing competent tests. For this reason New York is now in the process of hiring a new laboratory, and no systems have been state certified yet. New York has set a national standard for conducting a proper testing process with careful and proper oversight, and New Yorkers prefer this procedure rather than simply buying shoddy new machines and having chaos in elections.  


At an August, 2007, hearing with the Federal Court, Judge Sharpe gave the New York State Board of Elections till the end of September to come up with a new plan for HAVA compliance (and the U.S. Dept of Justice commented that New York seems to be falling further behind in HAVA compliance). After the State Board comes up with a plan and presents it to the court, the DOJ would have 30 days to respond to the plan.


The effect of the NY Amendment


If the NY Amendment becomes law, there is hope that Judge Sharpe would not order full HAVA compliance or the return of the state’s fifty million dollars. That would allow New York to continue its slow and cautious process to acquire new voting systems – do it once, do it right, and not waste the taxpayers money. There is also hope that Judge Sharpe would not issue any further orders for compliance, and the grounds for the Dept. of Justice’s lawsuit would disappear.


Accessible Equipment in New York State


If HR811 would become law without the NY Amendment, then New York would be required, before the 2008 federal election, to acquire for each poll site at least one accessible voting system that produces or uses a paper trail. This would be bad because no system has yet to comply with New York’s standards or even the federal Voluntary Voting System Guidelines of 2005, which New York requires. No DRE produces a reliable paper trail, and the state might have to hastily acquire tens of thousands of non-DRE Ballot Marking Devices (BMDs) that were provisionally certified for use in 2006 under the 2006 “Plan B.” 


As a result of the 2006 “Plan B” each county in New York acquired at least one Ballot Marking Device (BMD), which was used in the 2006 elections. The BMDs were made available to all voters and were located in county Board of Elections offices on the days of the 2006 primary and general elections. For example, in the City of New York, the five counties that comprise the City altogether own and used 27 BMDs. Equipment in the state includes Avante Ballot Marking Devices (111 in the state), AutoMarks (19 in the state) and Populex systems (14 in the state).


One new problem since the State Board's meeting with the Federal Court in August is that Peter Kozinski, Republican Co-Chair of the State Board, has proposed that uncertified DREs should be purchased and used as accessible Ballot Marking Devices. Citizens of New York who have worked for nearly five years to keep DREs out of our state are outraged by this end-run to get the counties to purchase uncertified DREs in the guise of helping voters with disabilities and complying with HAVA. At this time, no DRE system produces a reliable and accessible paper trail, which New York state law requires of DREs.