Sept. 21, 2009
HAVA – Federal “Help America Vote Act of 2002”
ERMA – New York State “Election Reform and Modernization Act of 2005”
EAC – Federal Agency, “Election Assistance Commission,” issued Advisory 2005-005,
DRE – “Direct Recording Electronic” voting machine, aka touchscreen voting machine
BMD – “Ballot Marking Device,” assists voters with disabilities and limited English proficiency
to mark a paper ballot without direct human assistance.
When New York passed ERMA, legislators believed that HAVA required replacing lever machines in order to provide accessible voting, and that New York could afford to handle computerized voting technology properly (securely) even though no other state had done so.
Now we know:
· HAVA does not require replacing lever systems that include accessible BMDs.
· Our economy makes it impossible now for our counties to handle the new technology properly (securely).
· Paper ballots and optical scanners (vote-counting computers) have fewer problems than touchscreen-style voting machines (called “DREs”), but have a history of significantly more problems than mechanical lever voting systems, and require significantly more expense and work in order to provide elections of equivalent quality.
For example, New York City’s budget for fiscal year 2009-2010 authorizes $97.2 million for first year expenses of replacing our current lever voting machines. This is above our HAVA funds of $21 million for lever replacement, and the $44 million HAVA funds for all other purposes.
Many citizens and public officials want to keep the lever voting machines, and 20 counties have passed resolutions to do so.
Argument 1, Machines versus Systems
Lever machines do not meet HAVA requirements.
HAVA requirements for voting equipment are for systems not machines.
New York's current voting system consists of a combination of lever machines, accessible ballot marking devices (BMDs), and the documents created by poll workers or the lever machines. This system meets all HAVA requirements for voting equipment.
HAVA Section 301(b) defines "voting system."
(b) Voting system defined -- In this section, the term "voting system" means-
(1) the total combination of mechanical, electromechanical, or electronic equipment
(including the software, firmware, and documentation required to program,
control, and support the equipment) that is used-
(A) to define ballots;
(B) to cast and count votes;
(C) to report or display election results; and
(D) to maintain and produce any audit trail information; and
(2) the practices and associated documentation used-
(A) to identify system components and versions of such components;
(B) to test the system during its development and maintenance;
(C) to maintain records of system errors and defects;
(D) to determine specific system changes to be made to a system after the initial
qualification of the system; and
(E) to make available any materials to the voter (such as notices, instructions,
forms, or paper ballots).
Argument 2, Accessibility
HAVA requires replacement of lever machines because they lack accessibility for voters with disabilities.
Lever machines are not fully accessible, but New York's current voting system consists of a combination of lever machines and accessible ballot marking devices (BMDs) for voters with disabilities. This system meets HAVA requirements for accessibility.
Argument 3, Manual Audit Capacity
HAVA requires replacement of lever machines because they lack manual audit capacity.
Policy answer: Lever machines were designed to be fully and easily verifiable (in today’s terms, “auditable”). This is why the rods and gears are larger than necessary for mechanical purposes, so they are fully and easily visible to persons who wish to inspect the lever machines’ ballot programming and confirm the correct set-up.
Legal answer: NY's current voting system consists of lever machines, accessible ballot marking devices (BMDs), the paper Return of Canvass form filled out by poll workers or produced by the lever machines (a permanent paper record with manual audit capacity), and the recanvass procedure conducted after elections (EL Section 9-208). This system complies has manual audit capacity (note that HAVA does not require any audits or recounts, only capacity).
HAVA Section 301(a)(2) defines “audit capacity.”
(2) Audit capacity.--
(A) In general.--The voting system shall produce a record with an audit
capacity for such system.
(B) Manual audit capacity.--
(i) The voting system shall produce a permanent paper record with a
manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to
change the ballot or correct any error before the permanent paper
record is produced.
(iii) The paper record produced under subparagraph (A) shall be
available as an official record for any recount conducted with
respect to any election in which
the system is used.
Lever voting systems meet these requirements. Lever systems' mechanical counters also retain a permanent mechanical record.
Argument 4, Paper Record of Every Vote, “chain of evidence connecting…summary results to original transactions”
We should replace lever machines because they lack a paper record of every vote. EAC Advisory 2005-005 says that ‘...to meet HAVA's Audit Capacity requirement, systems must create a paper record that can serve as an audit trail. In other words, the document must be a "chain of evidence connecting...summary results to original transactions." ‘
HAVA does not require a paper record of every vote, nor has the U.S. Dept. of Justice ever argued that levers must produce such records.
Fourteen states today use touchscreen-style Direct Recording Electronic machines without a voter-verifiable paper trail (known as DREs without VVPT). DREs without VVPT have never been challenged as non-compliant with HAVA, but do not produce a paper record of every vote that can serve as a chain of evidence connecting summary results to original transactions.
Some DREs without VVPT can produce paper records after the end of the election day, but such records do not constitute “evidence” because they are not verifiable as authentic, neither by voters during the act of voting, nor traceable to any specific voter interaction with the machine. This means such paper records could be entirely incorrect and neither voters nor election administrators would have any way of knowing it. Use of such machines spawned the Election Integrity movement, as well as creation of “Fraudo the Fraudulent Voting Machine” at http://www.wheresthepaper.org .
Paper records are an ERMA requirement to allow “software-independent” verification of software-produced vote counts. Lever machines do not use software.
Argument 5, HAVA Accuracy Requirements
We should replace lever machines because they don’t meet HAVA accuracy requirements. The EAC Advisory 2005-005 says “...in order to comply with HAVA Section 301(a), a voting system must have a tested error rate that falls below the one per 500,000 standard. The EAC is unaware of any lever voting system that has a documented, tested error rate.”
Accuracy requirements in HAVA Section 301(a)(5) refer only to electronic voting systems -- not to non-electronic systems such as lever voting systems or hand-counted paper ballots.
No machines, computerized or mechanical, have ever been tested to determine if they meet HAVA’s accuracy requirements for computers, but the many election irregularities caused by touchscreen and optical scanner voting systems suggests that they do not.
HAVA’s error rate provision is as follows.
(5) Error rates.--The error rate of the voting system in counting ballots
(determined by taking into account only those errors which are attributable to
the voting system and not attributable to an act of the voter) shall comply with
the error rate standards established under section 3.2.1 of the voting systems
standards issued by the Federal Election Commission which are in effect on
the date of the enactment of this Act. [[the date was Oct. 29, 2002]]
The error rate standards, called "Accuracy Requirements," are in Voting Systems Standards Volume I Performance Standards posted by the federal Election Assistance Commission (EAC) at http://www.eac.gov/voting%20systems/voluntary-voting-guidelines/docs/voting-systems-standards-volume-i-performance.pdf/attachment_download/file
All volumes are posted at http://www.eac.gov/voting%20systems/voluntary-voting-guidelines/2002-voting-system-standards
The standards do not apply to lever machines:
"The Standards did not cover paper ballot and mechanical lever systems because paper ballots are sufficiently self-explanatory not to require technical standards and mechanical lever systems are no longer manufactured or sold in the United States." [page 1-8]
Argument 6, Parts and Maintenance
We should replace lever machines because they can no longer be maintained.
Two companies have stated that they can maintain all the lever voting machines in New York indefinitely. In addition, some counties rely on local machine shops for parts and service.
Voting Machine Service Center, Inc. (AVM machines used in most counties)
International Election Solutions (Shoup machines used in NYC and Albany county)
Argument 7, Lost Votes
We should replace lever machines because they lose votes.
In 2004, New York state's undervote rate at the top of the ticket was comparable to that of other states using computerized vote-counting systems (DREs and optical scanners).
Unlike paper ballot voting systems, lever machines do not allow overvotes. Only 100% hand counts would be capable of correcting undervotes recorded by optical scanners.
Argument 8, New York accepted HAVA Funds for Lever Replacement
We should replace lever machines because we accepted the HAVA money to replace them.
New York State accepted approximately $220 million in HAVA funds, approximately $50 million of which was intended to replace the levers. HAVA states if we don't replace the levers, we must give the $50 million back. We can keep the $170 million and the levers.
HAVA Section 102(d) provides for the return of these funds:
(d) Repayment of Funds for Failure To Meet Deadlines.--
(1) In general.--If a State receiving funds under the program under this
section fails to meet the deadline applicable to the State under
subsection (a)(3), the State shall pay to the Administrator an amount
equal to the noncompliant precinct percentage of the amount of the
funds provided to the State under the program.
Rather than returning this money, after New York missed HAVA deadlines, New York’s congressional delegation extended the deadline twice by amending HAVA. If ERMA were changed, the State could return the money and keep the levers.
Argument 9, Alternative Languages
We should replace lever machines because they can’t display the ballot in alternative (non-English) languages.
New York’s voting system consists of lever machines and accessible Ballot Marking Devices.
New York City’s lever machines display the ballot in English and Spanish, and in certain districts in English, Spanish, Chinese and Korean, as required by the Voting Rights Act.
The accessible Ballot Marking Devices have the capacity to display the ballot in many additional languages.
Argument 10, Election Assistance Commission’s Advisory 2005-005
We should replace lever machines because the EAC’s Advisory 2005-005 says that lever machines do not meet HAVA requirements.
EAC Advisory 2005-005’s general approach as well as specific arguments regarding audit capacity, error rate, and alternative languages are refuted by Andrea T. Novick, Esq. in her paper at http://www.wheresthepaper.org/EACAdvisoryShouldBeRevokedAndiNovickFeb24_09.pdf
Argument 11, Federal Court Agreement
We should replace lever machines because New York State agreed in Federal Court to do so.
ERMA is the New York State law passed in 2005 that requires counties to replace their lever machines with software-based voting or vote-counting systems.
The State's position is that nothing can be done to stop ERMA because of the federal court order requiring that levers be replaced. That is misleading. The federal court never made a ruling that HAVA requires the levers to be replaced.
The U.S. Department of Justice sued New York State in 2006 because we had not complied with HAVA’s requirement for one accessible device per poll site. However, in 2008 every county fielded accessible BMDs in every poll site. Thus, we satisfied all HAVA requirements for voting equipment.
In the federal litigation, however, the State never argued in support of lever machines supplemented with accessible BMDs -- because the State had already enacted ERMA. The federal court was never asked to make a ruling regarding the levers. Instead the State entered into an agreement with the U.S. Dept. of Justice agreeing to do that which ERMA mandates, in accordance with certain deadlines. That agreement was 'so ordered' by the court, which is not the same as a court order ruling that the levers must be replaced as a matter of law. The court did not determine that our levers were not compliant with HAVA. This was only a settlement agreement which the State voluntarily entered into, committing to ERMA's mandates.
ERMA was amended in August, 2007 to remove any date-certain by which lever replacement has to occur. The State agreed to timelines that were not required by ERMA.
Answer 2 of 2, ERMA is unconstitutional and therefore the agreement to implement it is void.
If ERMA is unconstitutional, then the agreement New York entered into in federal court, agreeing to comply with ERMA mandates by a deadline, is null and void or unenforceable because agreements based on unconstitutional laws are unenforceable. See Saratoga v Pataki.
ERMA is unconstitutional on several grounds. http://sites.google.com/site/remediaetc/home/documents/LitigationSummaryfinal109.pdf
Two centuries of precedence from NY's Court of Appeals supports our election law requirements that the vote counting process be controlled by bipartisan election officials under the scrutiny of authorized observers. If any step of the vote counting process is outside of public view, the method of voting is unconstitutional.
In the past, when our elections were conducted using only paper ballots, vote counting had to be concluded on election night while the ballots were under continuous observation by watchers at the poll site. In 1896, an important loop-hole was closed. Prior to 1896 the election returns were prepared by bipartisan election inspectors after the count was concluded and watchers had left. The court recognized that leaving a single step in the exclusive control of even our bipartisan public officials, was unconstitutional under the state constitution because it reduced
"voting [to] a useless formality, as it depends upon the will of the inspectors of election as to who shall hold the offices, and not upon the vote of the people." In re Stewart
ERMA requires use of unobservable, software-based voting counting. There is no dispute within the scientific community that software itself is vulnerable to undetectable manipulation. State Board of Elections Commissioner Kellner has acknowledged that:
"Becoming aware of fraud on an e-voting machine would be much more difficult [than on a lever machine], because so much of their inner-workings are invisible to all but the software programmers. ... To uncover whether fraud has occurred, or by whom and how, requires an army of programmers, a number of years, and millions of dollars. Even then, there is no guarantee that their examination will produce results."
Thus, ERMA reduces voting to an unconstitutional 'useless formality' because the vote count is concealed, the software that counts votes is itself not meaningfully examinable, and the accuracy of both the software and vote count depends upon the unobservable skill and honesty of software programmers, as well as unobservable potential acts by malicious insiders or outside hackers.
Commissioner Kellner has also stated that “[New York’s new voting technology] is not to rely on the machines, but to rely on the paper."
That paper will not be reliable, however. Paper ballots marked by voters lose their authenticity when they are removed from the poll site and from watchers’ observation. As the Court of Appeals noted in Rice v Power:
"Ballots are fragile things. Unlike [lever] voting machines, they may be lost, misplaced, or voided by marks or mutilation."
Just as the court considered voting a 'useless formality' when bipartisan election officials had unobserved access to the final election returns, ERMA gives our officials unobserved access to the voted ballots after they are removed from the polling site. This is not disparagement of election officials. Our system of citizen oversight and checks and balances is the basis for all governmental honesty. Government behind closed doors is easily corrupted, and mandating procedures that prevent citizen oversight unfairly creates unnecessary temptation and suspicion.
ERMA creates several problems.
· Ballots can remain out of watchers’ view for up to 15 days before they are used for hand-count audits of scanners.
· The flat 3% audit is insufficient to prove that the correct winners were identified in many races, and leaves 97% of scanners unverified. Votes on the ballots handled by 97% of scanners would be counted only by invisible software-controlled processes that are vulnerable to unobservable errors and tampering.
· Due to the insufficient audits, candidates will not have the necessary evidence to challenge results in court and obtain broader recounts.
An election conducted pursuant to ERMA leaves no reliable evidence to prove or disprove the outcomes. As Commissioner Kellner explained in a 2005 interview:
"Machines similar to today's lever machines were at the center of a voter-fraud scandal in the 1940s. ... Unlike e-voting machines, which have all of its inner-workings hidden away as code, the working parts of lever machines are exposed to the world. The fraud of the 1940s was uncovered because volunteers from the polling stations noticed that the numbers on their machines at the counting location were not the same as when they left the polling station. Similarly, any tampering with a lever machine today would be plainly visible to the volunteer preparing it for poll opening. Becoming aware of fraud on an e-voting machine would be much more difficult, because so much of their inner-workings are invisible to all but the software programmers."