Barbara Murphy

Clifton Park, New York


Statement to the Assembly Committee on Election Law

Public Hearing of 12/13/05

in New York City



I am a Saratoga County resident and voter, and a member of the League of Women Voters and New Yorkers for Verified Voting.


I am pleased that the Assembly Committee on Election Law is holding a hearing to obtain citizens' input on the impact of allocation of federal Help America Vote Act funds for changes to the voting process in New York State, especially the purchase of new voting machines by county Boards of Elections. This expenditure of $160 million will affect our most precious right, the right to vote and to have our votes accurately recorded.


I call upon the New York State Legislature to conduct oversight hearings on the State Board of Elections' current actions to implement state and federal mandates. If new voting systems are hastily certified by the State Board after superficial "examination" and purchased by County Boards, our voting rights may be at risk and it will cost the taxpayers of our state a great amount of money to correct the situation.


There are two specific problems with the way New York State is now going about choosing new voting equipment. Similar problems in several states have resulted in law suits. If New York purchases voting equipment with HAVA funds now, and these systems need to be replaced due to law suits later, the subsequent equipment will have to be purchased with additional New York State taxpayer dollars (of course, HAVA funds are also taxpayer dollars).


The two issues for potential litigation are:


(1) A challenge to the constitutionality and/or legality of elections being run with undisclosed computer programming code under the ownership of private corporations.


New York state law, and the recent draft regulations for certification of voting systems published by our State Board of Elections allows the use of voting systems with proprietary secret software. In contrast, in Nevada, the Nevada Gaming Control Board has access to all gambling software, the software is constantly spot-checked, standards are continuously updated , manufacturers are intensively scrutinized before they are licensed, the one State-operated lab which certifies gambling equipment has an arms-length relationship with the manufacturers it polices, and clients have a right to an immediate investigation in a dispute. All this is done for the right to securely gamble in Nevada; not quite as important as the right to securely vote in New York State, I would hope.


DREs (Direct Recording Electronic voting systems) are currently used in the part of Saratoga County where I live. Last November I asked the County Board for the official records of the 2004 county election results. After waiting about a month at the County Board's request so that they could officially compile the information, I collected the records. When I reviewed the presidential election results, it showed that there were 7500 more votes than voters. When I questioned the County Board about this, I was told to come back to pick up revised final results and was given a second package of information, then a third set of numbers. In each package of information, the number of voters became much closer to the number of votes, but when I asked why, no explanation was given to me.


Is it possible that the computerized voting systems in Saratoga County did what they have done in other jurisdictions around our country - created "phantom votes" due to programming errors?


I would argue that one of the major downsides of computerized voting, even if accompanied by a paper 'trail' is that there is no way to uncover what is going on inside the computer with any degree of certainty. I challenge the legality of not having direct voter intent to review via a hand-marked paper ballot. [bold-face added by]


Computers are more easily compromised than mechanical lever machines. A lever machine would need hours of access to modify it. With computers, you can dial in from a remote location over communication lines to check mid-election results and modify the programming or votes or tallies. Computers can "lose calibration" because the truck hits a bump in the road on the way to deliver the voting machine to the poll site. Computers can have unexplainable programming errors in the voting software itself. Computer technicians can switch votes, tallies, and software when called in to fix election-day breakdowns.


Our law does not deal with the fact that computers are volatile in this way, rather our law treats computers as if they were fixed and invulnerable. But they are not.


(2) There may be cause for challenges (a) to the State and County Boards of Election under NYS Article 78 and (b) to the few voting machine corporations vying for business in NYS for a breach against federal anti-trust laws in restraint of trade.


Both the State Board and some County Boards of Election have seriously breached their responsibility to follow the legislative mandate to present a choice of DREs and paper ballot/optical scan systems for use in the state. The State BOE has refused to make any attempt to secure optical scan voting systems for certification. The Citizen's Advisory Committee has not had a chance to examine and compare systems. Some County Election Commissioners have  misrepresented or hidden vital facts in their comparison of our two alternative technologies. Many County Election Commissioners have put up obstacles to public awareness of optical scan systems, and made false and misleading public statements about the two systems. Currently, the State Board is proceeding with premature certification procedures for the Liberty DRE although it lacks the paper printout and all accessibility features. The State Board is proceeding with these procedures prior to following steps required for public and advisory board input.


The corporations that make both DREs and optical scan voting systems have diligently put forth their DRE systems and downplayed or even hidden their optical scan machines, including one federally certified and well regarded accompaniment for the disability community, the AutoMark. Vendors have had undue influence upon NY State elected and appointed election officials both financially at government functions and through years of paid lobbyists' efforts. At least one company representative has made misleading statements to the media.  The corporations may be the source of the misleading statements of government officials.


The recent Government Accountability Office (GAO) report has echoed what activists such as myself have said for years: we need to improve election oversight. The report cited gaping flaws in controls for security, access and physical hardware, ineffective federal standards and inadequate testing of systems by independent testing authorities with a lack of transparency in the testing process.


We have a conflict. HAVA deadlines are coming soon. But rushing our voting system selection can make New York vulnerable to litigation if voting systems are put in place and later found to be not secure.


I suggest the following.


(1) The NYS Legislature should seek from the federal government an extension to the HAVA deadline based on the findings of the GAO report.


(2) The NYS Legislature should provide close oversight of the State Board of Elections to ensure that:


    (a) the best set of regulations for certification of systems be written and finalized, taking into account suggestions of not only the advisory committee but also the comments submitted by the many interested groups and individuals long involved with voting rights issues, and


    (b) the State Board aggressively solicit for certification both paper ballot/optical scan voting system and those DRE voting systems that meet our legal requirements.


(3) The NYS Legislature and our State and County Boards of Election should consider a  temporary "least-change" system to satisfy HAVA accessibility requirements for 2006. This could mean the temporary retention of lever machines for use by most voters along with the use of a paper ballot system with an accessible ballot marking device in each polling place. This subset of votes could be hand-counted. The most efficient available ballot marking system, such as the VotePad or the AutoMark, should be examined for certification to aid in the marking of the paper ballots by voters with disabilities or minority languages.


If no solution to the conflict we face can be found, the Legislature must consider that protecting voting rights for the long term is more important than gaining federal funds for inappropriate voting systems.