http://www.wheresthepaper.org/ERMA_45Comments.htm

Teresa Hommel

7/31/05

45 comments are nested into the text of the bill. Several comments merely highlight important provisions. Blank lines between paragraphs and dividing lines between sections have been added for readability.

New York State Assembly

Friday, June 24, 2005

Bill Text - A08969

EXPLANATION--Matter in ALL CAPITAL LETTERS is new;

matter in brackets { } is old law to be omitted.

S T A T E O F N E W Y O R K

________________________________________________________________________

S. 5877 A. 8969

2005-2006 Regular Sessions

S E N A T E - A S S E M B L Y

June 20, 2005

___________

IN SENATE -- Introduced by Sens. FLANAGAN, MORAHAN, MALTESE, MAZIARZ,

SPANO, ALESI, BRUNO, FARLEY, FUSCHILLO, GOLDEN, LIBOUS, LITTLE,

MARCELLINO, PADAVAN, RATH, ROBACH, SALAND, SEWARD, TRUNZO, WRIGHT --

read twice and ordered printed, and when printed to be committed to

the Committee on Rules

IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M. of

A. Wright, Destito, Weinstein, Cahill, Farrell, Thiele) -- read once

and referred to the Committee on Election Law

AN ACT to amend the election law and the state finance law, in relation

to enacting the Election Reform and Modernization Act of 2005, repeal-

ing certain provisions of the election law relating to voting machine

requirements, making an appropriation therefor and providing for the

repeal of certain provisions upon expiration thereof

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-

BLY, DO ENACT AS FOLLOWS:

=1======================================================================

1 Section 1. This act shall be known and may be cited as the "Election

2 Reform and Modernization Act of 2005."

=2======================================================================

3 S 2. Subdivision 18 of section 1-104 of the election law is amended to

4 read as follows:

5 18. The word "ballot" when referring to voting machines OR SYSTEMS

6 means that portion of the cardboard or paper or other material OR ELEC-

7 TRONIC DISPLAY within the ballot frame containing the name of the candi-

8 date and the emblem of the party organization by which he was nominated,

9 of the form of submission of a proposed constitutional amendment, propo-

10 sition referendum or question as provided in this chapter, with the word

11 "yes" for voting for any question or the word "no" for voting against

12 any question except that where the question or proposition is submitted

13 only to the voters of a territory wholly within a county or city, such

14 form shall be determined by the county board of elections. Such state-

LBD13478-01-5

S. 5877 2 A. 8969

1 ment and the title shall be printed AND/OR DISPLAYED in the largest type

2 OR DISPLAY which it is practicable to use in the space provided.

=3======================================================================

3 S 3. Subdivision 1 of section 7-104 of the election law, as amended by

4 chapter 654 of the laws of 1985, is amended to read as follows:

5 1. All ballots shall be printed AND/OR DISPLAYED in {black ink on

6 clear, white material} A FORMAT AND ARRANGEMENT, of such uniform size

7 and style as will fit the ballot frame, and SHALL BE in as plain{,} AND

8 clear A type OR DISPLAY as the space will reasonably permit{, capitaliz-

9 ing only the first letters and initials of each name}. SUCH TYPE OR

10 DISPLAY ON THE BALLOT SHALL SATISFY ALL REQUIREMENTS AND STANDARDS SET

11 FORTH PURSUANT TO THE FEDERAL HELP AMERICA VOTE ACT.

Comment 1

Page 2, Lines 9-11

Litigation (not necessarily in NY state) may be needed to define current and future HAVA requirements and standards for ballot type and display. The EAC estimated on June 24, 2005, that their Voluntary Voting System Standards will be available in about two and a half years. Many HAVA standards are voluntary, but these lines make any voluntary standards for ballot type and display into requirements for NY state. Current purchasers of systems may end up with non-compliant systems once the standards are in place.

=4======================================================================

12 S 4. Section 7-200 of the election law, as amended by chapter 262 of

13 the laws of 1986 and subdivision 2 as amended by chapter 356 of the laws

14 of 1986, is amended to read as follows:

15 S 7-200. Adoption and use of voting machine OR SYSTEM. 1. The board of

16 elections of the city of New York and {the local legislative governing

17 body of each other city and of each town shall, and the board of trus-

18 tees of any village} OTHER COUNTY BOARDS OF ELECTIONS may adopt any kind

19 of voting machine OR SYSTEM approved by the state board of elections, or

20 the use of which has been specifically authorized by law; and thereupon

21 such voting machine OR SYSTEM may be used at any or all elections and

22 shall be used at all general or special elections held BY SUCH BOARDS in

23 such city, town or village and in every contested primary election in

24 the city of New York and in every contested primary election outside the

25 city of New York in which there are one thousand or more enrolled voters

26 qualified to vote {except in a town or city in which the voting machines

27 owned by such town or city do not permit the primary of more than one

28 party on a single voting machine for voting, registering and counting

29 votes cast at such elections.

Comment 2

Two provisions are related:

Page 2, Lines 15-20

19 approved by the state board of elections, or

20 the use of which has been specifically authorized by law;

Page 6, Lines 46-49

46 4. LOCAL BOARDS OF ELECTIONS WHICH OBTAIN VOTING MACHINES PURSUANT TO

47 THIS CHAPTER MAY DETERMINE TO PURCHASE DIRECT RECORDING ELECTRONIC

48 MACHINES OR OPTICAL SCAN MACHINES IN CONFORMANCE WITH THE REQUIREMENTS

49 OF THIS CHAPTER.

These two passages together empower county BOEs to use either DREs or Optical Scanners, because both of them are "specifically authorized by law."

"THIS CHAPTER" is chapter 7 of the election law.

30 2. No city or town may purchase any voting machine of a type approved

31 by the state board of elections after September first, nineteen hundred

32 eighty-six unless such type of voting machine has been approved for use

33 in that county by the county board of elections}. No more than two types

34 of voting machines OR SYSTEMS may be used {in any city, town or village}

35 BY ANY LOCAL BOARD OF ELECTIONS at a single election. {If a voting

Comment 3

Page 2, Lines 33-35

Two types of voting machines or systems may be used by any BOE in a single election. This allows levers and Automark-optical-scan, for example.

36 machine of a type approved by the state board of elections after Septem-

37 ber first, nineteen hundred eighty-six is used at an election in any

38 election district, no machine of a type approved for use by the state

39 board of elections before September first, nineteen hundred eighty-six

40 may be used in such election district at any subsequent election.}

41 Notwithstanding the other provisions of this subdivision, any {county,

42 city or town} LOCAL BOARD OF ELECTIONS may borrow or lease for use on an

43 experimental basis for a period of not more than one year each, VOTING

44 machines OR SYSTEMS of any type approved by the state board of elections

45 {after September first, nineteen hundred eighty-six}.

Comment 4

Page 2, Lines 41-45

A county may borrow or lease equipment and try it out for a year, but only if that type of equipment has been approved by the state BOE.

46 {3.} 2. For five years after any voting machine OR SYSTEM of a type

47 approved by the state board of elections {after September first, nine-

48 teen hundred eighty-six} PURSUANT TO THE ELECTION REFORM AND MODERNIZA-

49 TION ACT OF 2005 is first used in any election district, the {city or

50 town which purchased such machine} LOCAL BOARD OF ELECTIONS WHICH OWNS

51 SUCH MACHINE OR SYSTEM shall provide a model OR DIAGRAM of such voting

52 machine OR SYSTEM for each polling place in which any such election

53 district is located. Such models OR DIAGRAMS shall meet the standards

54 set forth in regulations promulgated by the state board of elections.

55 {4.} 3. Whenever there are more offices to be elected than can be

56 accommodated on the voting machine OR SYSTEM or more candidates have

S. 5877 3 A. 8969

1 been nominated for an office than can be accommodated on the voting

2 machine OR SYSTEM, the LOCAL board of elections may provide for the use

3 of separate paper ballots for such offices, when other offices are voted

4 for on voting machines OR SYSTEMS by voters of the same election

5 district.

Comment 5

Page 3, Lines 55-5

A split ballot is allowed, with part of the ballot on a machine or system and the rest on paper.

=5======================================================================

6 S 5. Section 7-201 of the election law, as amended by chapter 262 of

7 the laws of 1986, the section heading as amended and subdivision 4 as

8 added by chapter 352 of the laws of 1986, subdivision 1 as amended and

9 subdivision 5 as added by chapter 400 of the laws of 1987, is amended to

10 read as follows:

11 S 7-201. Voting {and ballot counting} machines AND SYSTEMS; examina-

12 tion of. 1. Any person or corporation owning or being interested in any

13 voting {or ballot counting} machine OR SYSTEM may apply to have the

14 state board of elections examine such machine OR SYSTEM. Such applicant

15 shall pay to the board before the examination a fee equal to the cost of

16 such examination{, or forty thousand dollars, whichever is less}. The

Comment 6

Page 3, Lines 11-16

What is a "person ... being interested in any voting machine"? Does "person" mean a "corporation" type of person?

The fee will be the exact cost.

Only the state BOE gets to handle these requests for examination, an opportunity for a "behind-closed-doors" process.

Comment 7

Page 3, Lines 11-40

Question, why was "ballot counting" taken out, and "system" put in? Does the legislature intend for "system" to include "ballot counting" OR is "ballot counting" now a separate category which does not require this kind of state certification?

Can optical scanners be used without state certification because they are vote-counting machines or systems, not voting machines or systems.

17 state board of elections shall cause the machine OR SYSTEM to be exam-

18 ined and a report of the examination to be made and filed in the office

19 of the STATE board. Such examination shall include A DETERMINATION AS TO

20 WHETHER THE MACHINE OR SYSTEM MEETS THE REQUIREMENTS OF SECTION 7-202 OF

21 THIS TITLE AND a thorough review and testing of any electronic or

22 computerized features of the machine OR SYSTEM. Such report shall state

23 an opinion as to whether the kind of machine OR SYSTEM so examined can

24 safely and properly be used by voters and LOCAL boards of elections at

25 elections, under the conditions prescribed in this article AND THE

26 REQUIREMENTS OF THE FEDERAL HELP AMERICA VOTE ACT. If the report states

27 that the machine OR SYSTEM can be so used, and the board after its own

28 examination so determines, IN ACCORDANCE WITH SUBDIVISION FOUR OF

29 SECTION 3-100 OF THIS CHAPTER, the machine OR SYSTEM shall be deemed

30 approved, and machines OR SYSTEMS of its kind may be adopted for use at

31 elections as herein provided. The voting {or ballot counting} machine

32 OR SYSTEM shall be examined by examiners or testing laboratories to be

33 selected for such purpose by the STATE board. Each examiner or laborato-

34 ry shall receive compensation and expenses for making an examination and

35 report as to each voting {or ballot counting} machine OR SYSTEM examined

36 by him or it. Neither any member of the state board of elections nor any

37 examiner or owner or employee of any testing laboratory, shall have any

38 pecuniary interest in any voting {or ballot counting} machine OR SYSTEM.

39 Any form of voting {or ballot counting} machine OR SYSTEM not so

40 approved, cannot be used at any election.

Comment 8

Page 3, Lines 16-19

The state BOE causes an evaluation to be made, and files the report. Will the public have to file FOIL requests in order to see the report?

Comment 9

Page 3, Lines 20-26

Evaluation includes:

a. Does the machine comply with S 7-202 (page 4 line 44 through page 6 line 49)

b. Thorough review and testing of any electronic or computerized "features"

c. Opinion whether the machine can safely and properly be used by voters and

local boards of elections under conditions prescribed in this article and

the requirements of HAVA

Problem 1: Testing of features cannot find most security flaws. It cannot find back-doors except those that have been incompetently programmed.

Problem 2: Elections should be about votes, not computers. The only way to determine whether or not an election is honest (and to keep it honest) is to have appropriate observation of votes. This means that voters must observe their votes being recorded and cast. Election observers must observe the storing, handling, and counting of votes. In a computerized voting and vote-tabulating system, no observation of votes is possible. The original idea behind voter-verified paper printouts was that these paper printouts would be the legal ballot of record and restore observability to computerized elections. If no one, neither voter nor election observer, can appropriately observe the votes due to the use of electronic technology, can that technology be "safely and properly" used?

Problem 3: No BOE wants to perform a proper audit of electronic voting systems by counting 100% of the VVPAT and reconciling all discrepancies between the electronic and paper tallies. This would be too expensive, time-consuming, and burdensome. If proper auditing cannot be done for these or any other reasons, it should be obvious that these systems cannot be "safely and properly" used.

Problem 4: If no BOE intends to even find out whether or not their electronic voting systems have in fact been "safely and properly" used, then this entire provision is nothing but fine words that will be used to conceal scam elections.

Problem 5: The electronic voting systems that New York buys will be prototypes. No computer prototype that is being used without full auditing is being used safely or properly.

Four questions:

1. If a machine fails, would this be evidence that the review and testing was

not thorough? Or that the opinion was wrong?

2. Is the VotersUnite.org list of documented failures of voting systems, most of

which are federally certified, sufficient evidence to show that federal

review and testing of features cannot ascertain whether or not a computerized

voting system can "safely and properly" be used? The list is cited in Comment

34.

3. Most problems with electronic voting systems in other states have been blamed

on poorly-trained, elderly, or incompetent voters and poll workers. Some say

that the purpose of blaming people rather than the computer is to avoid

dealing with violations of the FEC standards for voting system reliability.

Regardless of whether humans or computers are to blame for the problems, the

fact that problems arise consistently is evidence that such systems cannot be

"safely and properly" used. (Take note that similar problems rarely occur

with ATMs, or ticket kiosks in train stations, airports, etc.)

4. If the training for voters and pollworkers is limited or inadequate, then

systems that require more or better training for proper use cannot be "safely

and properly" used.

Comment 10

Page 3, Lines 27-28

If the report ...and the board after its own examination so determines, under

subdivision 4, section 3-100. This section is:

"3-100, 4. For the purposes of meetings, three commissioners shall constitute a quorum. The affirmative vote of three commissioners shall be required for any official action of the state board of elections."

Comment 11

Page 3, Lines 31-33

Only the state BOE can select examiners or testing labs, a patronage opportunity.

41 1-A. A CITIZEN`S ELECTION MODERNIZATION ADVISORY COMMITTEE IS HEREBY

42 ESTABLISHED WITHIN THE STATE BOARD OF ELECTIONS. SUCH COMMITTEE SHALL

43 CONSIST OF THE CO-EXECUTIVE DIRECTORS OF THE STATE BOARD OF ELECTIONS,

44 TWO LOCAL BOARD OF ELECTION COMMISSIONERS APPOINTED BY THE STATE BOARD

45 OF ELECTION COMMISSIONERS OF ONE MAJOR PARTY, TWO LOCAL BOARD OF

46 ELECTION COMMISSIONERS APPOINTED BY THE STATE BOARD OF ELECTIONS COMMIS-

47 SIONERS OF THE OTHER MAJOR PARTY, FOUR MEMBERS OF DISABILITY RIGHTS

48 ORGANIZATIONS, WHO SHALL BE APPOINTED BY THE STATE BOARD OF ELECTIONS IN

49 ACCORDANCE WITH SUBDIVISION FOUR OF SECTION 3-100 OF THIS CHAPTER, AT

50 LEAST ONE OF WHOM SHALL BE A REPRESENTATIVE FROM THE COMMISSION ON QUAL-

51 ITY OF CARE AND ADVOCACY FOR PERSONS WITH DISABILITIES AND THE NEW YORK

52 STATE INDEPENDENT LIVING COUNCIL, INC., ONE MEMBER APPOINTED BY THE

53 TEMPORARY PRESIDENT OF THE SENATE AND ONE MEMBER APPOINTED BY THE SPEAK-

54 ER OF THE ASSEMBLY. SUCH APPOINTMENTS SHALL BE MADE WITHIN THIRTY DAYS

55 OF THE EFFECTIVE DATE OF THIS SUBDIVISION AND THE STATE BOARD OF

56 ELECTIONS SHALL IMMEDIATELY CONVENE THE COMMITTEE. THE COMMITTEE SHALL

S. 5877 4 A. 8969

1 HAVE ACCESS TO EACH MACHINE OR SYSTEM SUBMITTED FOR EXAMINATION AND

2 ASSIST THE STATE BOARD OF ELECTIONS IN THE EXAMINATION OF THE VOTING

3 MACHINES OR SYSTEMS PURSUANT TO THIS SECTION BY RECOMMENDING WHICH

4 MACHINES OR SYSTEMS MEET THE REQUIREMENTS OF SECTION 7-202 OF THIS TITLE

5 AND THE FEDERAL HELP AMERICA VOTE ACT. THE STATE BOARD OF ELECTIONS

6 SHALL TAKE SUCH RECOMMENDATION INTO CONSIDERATION WHEN DETERMINING

7 WHETHER A MACHINE OR SYSTEM MEETS THE REQUIREMENTS OF SECTION 7-202 OF

8 THIS TITLE AND THE FEDERAL HELP AMERICA VOTE ACT.

Comment 12

Page 4, Lines 41-8

This committee is solely for evaluation of usability by county commissioners and accessibility. It has no auditors, CPAs, computer professionals, computer scientists, or computer auditors. This is regrettable because it means that the State BOE will completely control who can perform technical evaluation of voting systems, and that the public has been completely shut out. Even a FOIL request, mentioned in Comment 8, does not allow the public to evaluate a voting system, only the report about features testing of the system.

9 2. When any change is made in the operation or material of any feature

10 or component of any machine OR SYSTEM which has been approved pursuant

11 to the provisions of this section, such machine OR SYSTEM must be

12 submitted for such re-examination and reapproval pursuant to the

13 provisions of subdivision one of this section as the state board of

14 elections deems necessary.

15 3. If at any time after any machine OR SYSTEM has been approved pursu-

16 ant to the provisions of subdivision one or two of this section, the

17 state board of elections has any reason to believe that such machine OR

18 SYSTEM does not meet all the requirements for voting machines OR SYSTEMS

19 set forth in this article, it shall forthwith cause such machine OR

20 SYSTEM to be examined again in the manner prescribed by subdivision one

21 of this section. If the opinions in the report of such examinations do

22 not state that such machine OR SYSTEM can safely and properly be used by

23 voters at elections under the conditions prescribed by this article, the

24 state board of elections shall forthwith rescind its approval of such

25 machine OR SYSTEM. After the date on which the approval of any machine

26 OR SYSTEM is rescinded, no machines OR SYSTEMS of such type may be

27 purchased for use in this state. The state board of elections shall

28 examine all machines OR SYSTEMS of such type which were previously

29 purchased, to determine if they may continue to be used in elections in

30 this state.

Comment 13

Page 4, Lines 9-30

Because "any change" (line 9) triggers a new certification requirement, errors and design flaws in software, firmware, hardware, etc., are unlikely to be corrected. This has been a problem nationwide, because the same errors have occurred over and over.

The standard of "any reason to believe" (line 17) is subjective and can mean anything. After an election in which some 40% of systems failed, one election official proclaimed that nothing could make him lose faith in the computerized voting systems. A voter or poll worker might have reason to believe upon the first system failure, upon seeing a vote switched by the computer to a different candidate on the screen, upon finding that not all races are displayed, etc. A worker counting the votes on the VVPAT might have reason to believe when the electronic count does not match the VVPAT count.

After approval is rescinded, no further purchase is allowed and the State BOE must examine all such machines that were previously purchased (lines 25-30). ALL? Ten thousand, for example? What is the likelihood of any machine approval being rescinded by the State BOE if the State BOE then has to turn around and examine thousands of machines? Who pays for the examination? Is it another patronage opportunity?

31 4. {a.} The state board of elections may authorize, for use on an

32 experimental basis, one or more types of voting MACHINE, SYSTEM OR

33 equipment not previously approved by such board pursuant to the

34 provisions of this section and may authorize a {county} LOCAL board of

35 elections {or a city, town or village} to rent or borrow a limited

36 number of one such type of MACHINE, SYSTEM OR equipment for use in a

37 primary, special, general or village election. Authorization for such

38 use of such a machine, SYSTEM OR EQUIPMENT may be given for all or part

39 of any city, town or village for any such election.

Comment 14

Page 4, Lines 31-39

Any machine, system or equipment that has not been "approved" (Page 3, lines 16-40) by the State BOE can nevertheless be "authorized" for use on an experimental basis.

40 5. The board shall deposit all fees collected pursuant to the

41 provisions of subdivision one of this section to the credit of the

42 voting {and ballot counting} machine AND SYSTEM examination fund estab-

43 lished pursuant to section ninety-two-p of the state finance law.

=6======================================================================

44 S 6. Section 7-202 of the election law is REPEALED and a new section

45 7-202 is added to read as follows:

46 S 7-202. VOTING MACHINE OR SYSTEM; REQUIREMENTS OF. 1. A VOTING

47 MACHINE OR SYSTEM TO BE APPROVED BY THE STATE BOARD OF ELECTIONS SHALL:

48 A. BE CONSTRUCTED SO AS TO ALLOW FOR VOTING FOR ALL CANDIDATES WHO MAY

49 BE NOMINATED AND ON ALL BALLOT PROPOSALS WHICH MAY BE SUBMITTED AND,

50 EXCEPT FOR ELECTIONS AT WHICH THE NUMBER OF PARTIES AND INDEPENDENT

51 BODIES ON THE BALLOT EXCEEDS THE NUMBER OF ROWS OR COLUMNS AVAILABLE, SO

52 THAT THE AMOUNT OF SPACE BETWEEN THE NAMES OF ANY TWO CANDIDATES OF ANY

53 PARTY OR INDEPENDENT BODY IN ANY ROW OR COLUMN OF SUCH MACHINE OR SYSTEM

54 AT ANY ELECTION IS NO GREATER THAN THE AMOUNT OF SPACE BETWEEN THE NAMES

55 OF ANY OTHER CANDIDATES OF SUCH PARTY OR INDEPENDENT BODY AT SUCH

56 ELECTION;

S. 5877 5 A. 8969

1 B. PERMIT A VOTER TO VOTE FOR ANY PERSON FOR ANY OFFICE, WHETHER OR

2 NOT NOMINATED AS A CANDIDATE BY ANY PARTY OR INDEPENDENT BODY WITHOUT

3 THE BALLOT, OR ANY PART THEREOF, BEING REMOVED FROM THE MACHINE AT ANY

4 TIME;

Comment 15

Page 5, Lines 1-4

Voting systems must allow write-in candidates.

5 C. BE CONSTRUCTED SO THAT A VOTER CANNOT VOTE FOR A CANDIDATE OR ON A

6 BALLOT PROPOSAL FOR WHOM OR ON WHICH HE OR SHE IS NOT LAWFULLY ENTITLED

7 TO VOTE;

8 D. IF THE VOTER SELECTS VOTES FOR MORE THAN ONE CANDIDATE FOR A SINGLE

9 OFFICE, EXCEPT WHERE A VOTER IS LAWFULLY ENTITLED TO VOTE FOR MORE THAN

10 ONE PERSON FOR THAT OFFICE, NOTIFY THE VOTER THAT THE VOTER HAS SELECTED

11 MORE THAN ONE CANDIDATE FOR A SINGLE OFFICE ON THE BALLOT, NOTIFY THE

12 VOTER BEFORE THE BALLOT IS CAST AND COUNTED OF THE EFFECT OF CASTING

13 MULTIPLE VOTES FOR THE OFFICE, AND PROVIDE THE VOTER WITH THE OPPORTU-

14 NITY TO CORRECT THE BALLOT BEFORE THE BALLOT IS CAST AND COUNTED;

15 E. PROVIDE THE VOTER AN OPPORTUNITY TO PRIVATELY AND INDEPENDENTLY

16 VERIFY VOTES SELECTED AND THE ABILITY TO PRIVATELY AND INDEPENDENTLY

17 CHANGE SUCH VOTES OR CORRECT ANY ERROR BEFORE THE BALLOT IS CAST AND

18 COUNTED;

Comment 16

Page 5, Lines 15-18

Privately and independently verify and change/correct:

The Automark allows for assistant(s) to carry a paper ballot in the privacy sleeve to the optical scanner, but the voter has complete privacy in voting, verifying, changing, and correcting their ballot.

On the other hand, no voter can verify his or her electronic ballot. The only thing voters can verify is a representation of the ballot displayed on the computer screen or a representation of voting choices printed on the VVPAT, and both of those can be different from the legal, electronic ballot inside the computer.

19 F. BE PROVIDED WITH A "PROTECTIVE COUNTER" WHICH RECORDS THE NUMBER OF

20 TIMES THE MACHINE OR SYSTEM HAS BEEN OPERATED SINCE IT WAS BUILT AND A

21 "PUBLIC COUNTER" WHICH RECORDS THE NUMBER OF PERSONS WHO HAVE VOTED ON

22 THE MACHINE AT EACH SEPARATE ELECTION;

Comment 17

Page 5, Lines 19-22

These counters would have to be mechanical. In a computer, electronic counters can be wrong due to programming errors or malicious tampering.

23 G. BE PROVIDED WITH A LOCK OR LOCKS, OR OTHER DEVICE OR DEVICES, THE

24 USE OF WHICH, IMMEDIATELY AFTER THE POLLS ARE CLOSED OR THE OPERATION OF

25 THE MACHINE OR SYSTEM FOR SUCH ELECTION IS COMPLETED, WILL ABSOLUTELY

26 SECURE THE VOTING OR REGISTERING MECHANISM AND PREVENT THE RECORDING OF

27 ADDITIONAL VOTES;

Comment 18

Page 5, Lines 23-27

Only Automark can be locked in a way that no more votes can be recorded on paper ballots.

DREs and optical scanners, being computers, cannot be locked in a way that prevents the recording of additional votes. This is because any end-of-election-day action, such as printing the precinct tally report or shutting down the system, can trigger malicious programming. There is enough time between when a pollworker presses a button to print the precinct tally report or shut down the system, and when the report starts to be printed or the system is actually off, for malicious programming to delete all authentic votes and record all new ones, and then for this programming to delete itself or replace itself with correct programming.

If these computer systems have communications capability, locks useable by pollworkers cannot "secure the voting or registering mechanism" and tampering can occur by a wider variety of techniques. For example, an insider or outside hacker in a remote location can simply set up a dialer to connect to all machines or systems at the end of the election day, and run an automated script that requires less than a second per computer.

The language in this provision allows a dangerous loophole if "immediately after ... the operation of the machine or system for such election is completed" is interpreted to mean "after the computer is turned off." That would make this provision meaningless because there is plenty of time, between when the polls are closed and the computer is turned off, to tamper as described above.

The concept of locks comes from the world of paper ballots, ballot boxes, and mechanical lever machines, and doesn’t provide the same kind of security in the world of computers.

28 H. BE PROVIDED WITH SUFFICIENT SPACE TO DISPLAY THE INFORMATION

29 REQUIRED HEREIN, PROVIDED, HOWEVER, IN THE ALTERNATIVE, SUCH INFORMATION

30 MAY BE DISPLAYED WITHIN THE OFFICIAL BALLOT;

31 I. BE PROVIDED WITH A DEVICE FOR PRINTING OR PHOTOGRAPHING ALL COUNT-

32 ERS OR NUMBERS RECORDED BY THE MACHINE OR SYSTEM BEFORE THE POLLS OPEN

33 AND AFTER THE POLLS CLOSE WHICH SHALL BE A PERMANENT RECORD WITH A MANU-

34 AL AUDIT CAPACITY AVAILABLE FOR CANVASSING THE VOTES RECORDED BY THE

35 MACHINE OR SYSTEM; SUCH PAPER RECORD SHALL BE PRESERVED IN ACCORDANCE

36 WITH THE PROVISIONS OF SECTION 3-222 OF THIS CHAPTER;

Comment 19

Page 5, Lines 31-36

There is a conflict between the phrases "printing or photographing" which suggests that a digital photograph may be acceptable, and "such paper record" which suggests that something has to be printed on paper. Digital recordings are not a "permanent record" because they can be altered electronically.

The counters themselves, if electronic, are meaningless because they can be tampered with via malicious programming (whether that programming is local within the same computer or remote via a communications capability).

Pressing a button to request printing of these counters after the polls close can be the trigger to activate malicious programming (whether that programming is local within the same computer or remote via a communications capability).

The concept of this kind of counters comes from the world of paper ballots and mechanical lever machines, and doesn’t provide the same kind of security in the world of computers if the counters are electronic.

37 J. RETAIN ALL PAPER BALLOTS CAST OR PRODUCE AND RETAIN A VOTER VERI-

38 FIED PERMANENT PAPER RECORD WHICH SHALL BE PRESENTED TO THE VOTER FROM

39 BEHIND A WINDOW OR OTHER DEVICE BEFORE THE BALLOT IS CAST, IN A MANNER

40 INTENDED AND DESIGNED TO PROTECT THE PRIVACY OF THE VOTER; SUCH BALLOTS

41 OR RECORD SHALL ALLOW A MANUAL AUDIT AND SHALL BE PRESERVED IN ACCORD-

42 ANCE WITH THE PROVISIONS OF SECTION 3-222 OF THIS CHAPTER;

Comment 20

Page 5, Lines 37-42

VVPAT requirement. Note the terminology of "voter verified permanent paper record" which does not designate this paper record as the legal ballot.

Litigation may be required to determine (1) whether heat-sensitive paper complies with the requirement for a "permanent" paper record; and (2) whether "designed to protect the privacy of the voter" prohibits both reel-to-real VVPAT (because observers of the sequence of voters on a machine could later determine the identity of the voter of each ballot in that machine’s reel) and early voting (because the identity of the voter is associated with the ballot).

43 K. PROVIDE SUFFICIENT ILLUMINATION TO ENABLE THE VOTER TO SEE THE

44 BALLOT;

Comment 21

Page 5, Lines 43-44

No voter can see the electronic ballot and illumination won’t help.

45 L. BE SUITABLE FOR THE USE OF ELECTION OFFICERS IN EXAMINING THE COUN-

46 TERS SUCH THAT THE PROTECTIVE COUNTERS AND PUBLIC COUNTERS ON ALL SUCH

47 MACHINES OR SYSTEMS MUST BE LOCATED SO THAT THEY WILL BE VISIBLE TO THE

48 INSPECTORS AND WATCHERS AT ALL TIMES WHILE THE POLLS ARE OPEN;

Comment 22

Page 5, Lines 45-48

Do any DREs have protective and public counters that would be visible to inspectors and watchers?

49 M. BE PROVIDED WITH A SCREEN AND HOOD OR CURTAIN OR PRIVACY FEATURES

50 WITH EQUIVALENT FUNCTION WHICH SHALL BE SO MADE AND ADJUSTED AS TO

51 CONCEAL THE VOTER AND HIS OR HER ACTION WHILE VOTING;

52 N. CONTAIN A DEVICE WHICH ENABLES ALL THE ELECTION INSPECTORS AND POLL

53 WATCHERS AT SUCH ELECTION DISTRICT TO DETERMINE WHEN THE VOTING MACHINE

54 OR SYSTEM HAS BEEN ACTIVATED FOR VOTING AND WHEN THE VOTER HAS COMPLETED

55 CASTING HIS OR HER VOTE;

Comment 23

Page 5, Lines 52-55

Mechanical lever machines have a light above the curtain that goes on when the voter starts voting, and goes off when the voter casts the ballot. Do any DREs have such a device?

S. 5877 6 A. 8969

1 O. PERMIT THE PRIMARIES OF AT LEAST FIVE PARTIES TO BE HELD ON SUCH

2 MACHINE OR SYSTEM AT A SINGLE ELECTION, AND ACCOMMODATE SUCH NUMBER OF

3 MULTIPLE BALLOTS AT A SINGLE ELECTION AS MAY BE REQUIRED BY THE STATE

4 BOARD OF ELECTIONS BUT IN NO CASE LESS THAN FIVE;

Comment 24

Page 6, Lines 1-4

Can the Sequoia Advantage display 5 ballots?

5 P. BE CONSTRUCTED TO ALLOW A VOTER IN A WHEELCHAIR TO CAST HIS OR HER

6 VOTE;

7 Q. PERMIT INSPECTORS OF ELECTIONS TO EASILY AND SAFELY PLACE THE

8 VOTING MACHINE OR SYSTEM IN A WHEELCHAIR ACCESSIBLE POSITION;

Comment 25

Page 6, Lines 5-8

Is the Sequoia Advantage wheelchair accessible?

9 R. ENSURE THE INTEGRITY AND SECURITY OF THE VOTING MACHINE OR SYSTEM

10 BY:

11 (I) BEING CAPABLE OF CONDUCTING BOTH PRE-ELECTION AND POST-ELECTION

12 TESTING OF THE LOGIC AND ACCURACY OF THE MACHINE OR SYSTEM THAT DEMON-

13 STRATES AN ACCURATE TALLY WHEN A KNOWN QUANTITY OF VOTES IS ENTERED INTO

14 EACH MACHINE; AND

Comment 26

Page 6, Lines 11-14

Pre-election and post-election testing can reveal that a system just plain doesn’t work, as with the recent Pennsylvania experience with Unilect voting machines that failed to work and then froze during their test (after having done the same during elections).

Pre-election and post-election testing is valid on mechanical lever machines because they cannot change their own programming. Computers can change their own programming, however. Therefore no one can ensure that testing before and after an election is actually relevant to election-day programming and performance.

Systems with communications capability are vulnerable to tampering by a wider range of techniques that can never be detected by testing the machine by itself either before or after an election. In other words, the machine by itself may work perfectly, but during an election the machine can be in communication with wrongdoers in remote locations who simply dial in and alter programming, votes and ballots at their leisure.

A separate question is whether electronic voting machines can perform post-election testing without losing their election-day programming or data.

This provision should require that election-day programming be used during tests. Allegations have been made that Sequoia uses separate programming for its testing, so that the tests have no relevance whatsoever to election-day programming and performance.

15 (II) PROVIDING A MEANS BY WHICH A MALFUNCTIONING VOTING MACHINE OR

16 SYSTEM SHALL SECURE ANY VOTES ALREADY CAST ON SUCH MACHINE OR SYSTEM;

Comment 27

Page 6, Lines 15-16

No electronic voting machine or system can comply with this requirement because the legal votes are the electronic ones, and they cannot be secured regardless of whether machine appears to function or malfunction.

Moreover, unless the malfunction causes visible symptoms (the system locks up, voters see their votes transferred to other candidates on the screen, some races are not displayed, etc), no one will know whether or not the machine is malfunctioning.

In contrast, the VVPAT is secure, since it is on paper, but the VVPAT is not the legal ballot.

17 S. PERMIT ALTERNATIVE LANGUAGE ACCESSIBILITY PURSUANT TO THE REQUIRE-

18 MENTS OF SECTION 203 OF THE VOTING RIGHTS ACT OF 1965 (42 U.S.C.

19 1973AA-1A) SUCH THAT IT MUST HAVE THE CAPACITY TO DISPLAY THE FULL

20 BALLOT IN THE ALTERNATIVE LANGUAGES REQUIRED BY THE FEDERAL VOTING

21 RIGHTS ACT IF SUCH VOTING MACHINE OR SYSTEM IS TO BE USED WHERE SUCH

22 ALTERNATIVE LANGUAGES ARE REQUIRED OR WHERE THE LOCAL BOARD DEEMS SUCH

23 FEATURE NECESSARY; AND

Comment 28

Page 6, Lines 17-23

Can the Sequoia Advantage do this?

24 T. NOT INCLUDE ANY DEVICE OR FUNCTIONALITY POTENTIALLY CAPABLE OF

25 EXTERNALLY TRANSMITTING OR RECEIVING DATA VIA THE INTERNET OR VIA RADIO

26 WAVES OR VIA OTHER WIRELESS MEANS.

Comment 29

Page 6, Lines 24-26

Unless expert, independent inspection of each machine is allowed or required prior to each election, this is unenforceable, and every electronic voting system is comparable to a ballot box that is open to the world.

Powerline communications technology at this time uses ordinary electrical cords plugged into a wall electrical socket as a high-speed internet connection.

This provision should prohibit all current and future communication technology, including modem or telephone-line communications; require inspection; and impose penalties.

27 2. THE STATE BOARD OF ELECTIONS SHALL APPROVE, FOR USE AT EACH POLLING

28 PLACE AT LEAST ONE VOTING MACHINE OR SYSTEM AT SUCH POLLING PLACE WHICH,

29 IN ADDITION TO MEETING THE REQUIREMENTS IN SUBDIVISION ONE OF THIS

30 SECTION, SHALL:

Comment 30

Page 6, Lines 27-30

Subdivision One is page 4 line 46 through page 6 line 26, and requires wheelchair accessibility, alternate languages, etc.

31 A. BE EQUIPPED WITH A VOTING DEVICE WITH TACTILE DISCERNIBLE CONTROLS

32 DESIGNED TO MEET THE NEEDS OF VOTERS WITH LIMITED REACH AND LIMITED HAND

33 DEXTERITY;

34 B. BE EQUIPPED WITH AN AUDIO VOTING FEATURE THAT COMMUNICATES THE

35 COMPLETE CONTENT OF THE BALLOT IN A VOICE WHICH PERMITS A VOTER WHO IS

36 BLIND OR VISUALLY IMPAIRED TO CAST A SECRET BALLOT USING VOICE-ONLY OR

37 TACTILE DISCERNIBLE CONTROLS; AND

38 C. BE CAPABLE OF BEING EQUIPPED WITH A PNEUMATIC SWITCH VOTING ATTACH-

39 MENT WHICH CAN BE OPERATED ORALLY BY GENTLE PRESSURE OR THE CREATION OF

40 A VACUUM THROUGH THE INHALATION OR EXHALATION OF AIR BY THE VOTER

41 INCLUDING, BUT NOT LIMITED TO, A SIP-AND-PUFF SWITCH VOTING ATTACHMENT.

42 3. THE STATE BOARD OF ELECTIONS MAY, IN ACCORDANCE WITH SUBDIVISION

43 FOUR OF SECTION 3-100 OF THIS CHAPTER, ESTABLISH BY REGULATION ADDI-

44 TIONAL STANDARDS FOR VOTING MACHINES OR SYSTEMS NOT INCONSISTENT WITH

45 THIS CHAPTER.

Comment 31

Page 6, Lines 42-45

Additional standards may be established.

Section 3-100 requires a vote by 3 commissioners of the state BOE.

46 4. LOCAL BOARDS OF ELECTIONS WHICH OBTAIN VOTING MACHINES PURSUANT TO

47 THIS CHAPTER MAY DETERMINE TO PURCHASE DIRECT RECORDING ELECTRONIC

48 MACHINES OR OPTICAL SCAN MACHINES IN CONFORMANCE WITH THE REQUIREMENTS

49 OF THIS CHAPTER.

Comment 32

Page 6, Lines 46-49

Explicit permission to purchase DRE or Optical Scan.

=7======================================================================

50 S 7. Section 7-204 of the election law, as added by chapter 262 of the

51 laws of 1986, is amended to read as follows:

52 S 7-204. Contracts for purchase of voting machines OR SYSTEMS. 1. All

53 contracts for purchase of voting machines OR SYSTEMS of types approved

54 by the state board of elections {after September first, nineteen hundred

55 eighty-six} shall include, but not be limited to, requirements that the

56 vendors provide assistance in training board of elections personnel in

S. 5877 7 A. 8969

1 the operation of such machines OR SYSTEMS and any ancillary equipment,

2 assistance in the conduct of all elections conducted during the first

3 year in which each such machine OR SYSTEM is used and at least five

4 years of service for all such machines OR SYSTEMS and ancillary equip-

5 ment.

Comment 33

Page 7, Lines 52-5

Good: Training in the operation of such machines or systems is good.

Bad: Assistance and service provisions:

1. In the absence of a requirement for open source software, these provisions will tie county boards to their vendors and create opportunities for price gouging. The law should require open source software for two reasons. First, it enables bipartisan BOE staff to become knowledgeable about their own equipment and achieve independence in using it, and second, it enables competitive companies to learn the equipment and bid on service contracts.

2. These provisions allow BOEs to abdicate their responsibility to ensure bipartisan handling and control of voting and vote-tabulating equipment. It allows BOEs to delegate the entire management and servicing of the equipment to vendor technicians who would have no effective or meaningful BOE supervision or oversight.

The first-year vendor assistance provision means that vendor training can be inadequate, and that BOE staff need not become independent and competent in the operation of their own equipment or in the conduct of elections with it.

The lack of a requirement that vendors provide training in the servicing of their equipment, in combination with the five-year service provision, means that BOE staff will not become independent and competent in the servicing of their own equipment. Privatized service of equipment would not be under effective or meaningful bipartisan oversight, and outside technicians would have effectively unsupervised access to and control of voting systems.

6 2. All such contracts shall also require the vendor to guarantee in

7 writing to keep such machines AND SYSTEMS in good working order for at

8 least five years without additional cost and to perform satisfactorily

9 its training and service obligations under the contract and to give a

10 sufficient bond conditioned to that effect.

Comment 34

Page 7, Lines 6-10

It looks reasonable for vendors to warrantee "good working order" of their equipment for 5 years, but this is our voting equipment, not a new TV. Outside technicians should not have access to voting and vote-tabulating systems unless they are meaningfully, closely supervised by bipartisan BOE staff and/or multipartisan observers.

1. Training in the servicing of the equipment should be required.

The only measure of training effectiveness is that the trained personnel can perform their tasks competently independently. But if the vendor performs the tasks, then BOE personnel will (a) forget what they learned since they won't be using it and (b) won't have an opportunity to test their learning by trying to perform the tasks they were trained for.

2. Litigation will be required to clarify the meaning of "good working order" and "perform satisfactorily its ... service obligations". If a voting machine fails during an election, is this evidence that it was not in good working order and that its service was not performed satisfactorily? If it fails during two elections? Three?

We must view the requirement for good working order and satisfactory service in the light of what has already happened in other states with electronic voting systems. www.votersunite.org/info/messupsbyvendor.asp is a list of documented failures that is more than 100 pages long. Many BOEs have responded to failures of their electronic equipment by (a) trying to conceal them, (b) blaming voters and pollworkers, (c) defending or excusing vendors and equipment. Voters and candidates have been forced to accept election outcomes in spite of grave irregularities resulting from malfunction of computers.

Our law should recognize that voters as well as candidates have an interest in the good working order of voting and vote-tabulating equipment. Voters and candidates should have the explicit right in law to bring suit for enforcement and remedies under this provision if the BOE does not do so within a reasonable but very short time after an election in which equipment has malfunctioned, so that the election can be held again. The vendor’s bond should be used to pay for the expense of a new election, candidates’ reasonable expenses in repeating their election-day campaign effort, and voters’ reasonable expenses or lost income for traveling to the polls, hiring babysitters, taking time off from hourly-wage work, etc.

11 3. The state board of elections, IN CONSULTATION WITH THE OFFICE OF

12 GENERAL SERVICES, shall issue regulations specifying the manner in which

13 contracts must be drawn in order to comply with the provisions of this

14 section.

15 4. Purchase contracts for purchase of voting machines OR SYSTEMS of

16 types approved by the state board of elections {after September first,

17 nineteen hundred eighty-six} may not become effective until a date at

18 least ten days after copies of such contracts are received by the state

19 board of elections unless, within such ten day period, such board of

20 elections notifies {the political subdivision} THE LOCAL BOARD OF

21 ELECTIONS which submitted such contract that such contract does not meet

22 requirements of this chapter or the regulations of the state board of

23 elections.

=8======================================================================

24 S 8. The election law is amended by adding a new section 7-208 to read

25 as follows:

26 S 7-208. ESCROW REQUIREMENTS. PRIOR TO THE USE OF ANY VOTING MACHINE

27 OR SYSTEM IN ANY ELECTION IN THE STATE, ON OR AFTER SEPTEMBER FIRST, TWO

28 THOUSAND SIX, THE STATE BOARD OF ELECTIONS AND THE LOCAL BOARD OF

29 ELECTIONS USING SUCH VOTING MACHINE OR SYSTEM SHALL:

30 1. REQUIRE THAT THE MANUFACTURER AND/OR VENDOR OF SUCH VOTING MACHINE,

31 SYSTEM OR EQUIPMENT SHALL PLACE INTO ESCROW WITH THE STATE BOARD OF

32 ELECTIONS A COMPLETE COPY OF ALL PROGRAMMING, SOURCE CODING AND SOFTWARE

33 EMPLOYED BY THE VOTING MACHINE, SYSTEM OR EQUIPMENT WHICH SHALL BE USED

34 EXCLUSIVELY FOR PURPOSES AUTHORIZED BY THIS CHAPTER AND SHALL BE OTHER-

35 WISE CONFIDENTIAL.

36 2. REQUIRE THAT THE MANUFACTURER AND/OR VENDOR OF SUCH VOTING MACHINE,

37 SYSTEM OR EQUIPMENT FILE WITH THE STATE BOARD OF ELECTIONS AND THE

38 APPROPRIATE LOCAL BOARDS OF ELECTIONS A WAIVER, PREPARED BY THE STATE

39 BOARD OF ELECTIONS, WHICH SHALL WAIVE ALL RIGHTS OF THE VENDOR OR

40 MANUFACTURER TO ASSERT INTELLECTUAL PROPERTY OR TRADE SECRET RIGHTS IN

41 ANY COURT OF COMPETENT JURISDICTION HEARING A CHALLENGE TO THE RESULTS

42 OF ANY ELECTION AND REQUESTING THAT PROGRAMMING SOURCE CODING, FIRMWARE,

43 AND SOFTWARE AS WELL AS VOTING MACHINES OR SYSTEMS BE TESTED BY INDE-

44 PENDENT EXPERTS UNDER COURT SUPERVISION AND AT THE CONCLUSION OF SUCH

45 PROCEEDING SHALL BE SEALED.

46 3. REQUIRE THAT THE MANUFACTURER AND/OR VENDOR OF SUCH EQUIPMENT FILE

47 WITH THE STATE BOARD OF ELECTIONS AND THE APPROPRIATE LOCAL BOARDS OF

48 ELECTIONS A CONSENT TO HAVING AND COOPERATING IN THE TESTING OF ANY

49 PROGRAMMING, SOURCE CODING, FIRMWARE, OR SOFTWARE, PURSUANT TO AN ORDER

50 OF ANY BOARD OF ELECTIONS OR COURT OF COMPETENT JURISDICTION. ANY SUCH

51 BOARD OR AGENT THEREOF SHALL BE REQUIRED TO MAINTAIN THE CONFIDENTIALITY

52 OF ANY PROPRIETARY MATERIAL.

Comment 35

Page 7, Lines 26-52

These escrow requirements are nearly useless because:

1. In order to evaluate the software you need an entire disk image consisting of all files of data, documentation, and programming, and all folders or directory trees. When vendors select what they will put on the escrow copy, there is no way to determine whether additional or alternate pieces of software have been omitted from the escrow copy. Also, all related data files are needed in order to evaluate software.

2. Since communications capability is allowed in voting systems, there is no way to control what software is in the computers during an election.

3. Since vendor technicians will be assisting for 5 years without effective supervision, there is no way to control what software is in the computers during an election.

4. Vendor "cooperation" in case of a lawsuit would compromise the complainants' case.

=9======================================================================

53 S 9. The election law is amended by adding a new section 7-209 to read

54 as follows:

55 S 7-209. ELIMINATION OF PUNCH CARD BALLOTS. NOTWITHSTANDING ANY OTHER

56 PROVISION OF LAW, ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND SIX, NO

S. 5877 8 A. 8969

1 PUNCH CARD BALLOT OR PUNCH CARD VOTING SYSTEM SHALL BE USED IN ANY

2 MANNER IN THE CONDUCT OF ANY ELECTION.

=10=====================================================================

3 S 10. Formula for allocating Help America Vote Act money to local

4 boards of elections. 1. The federal funds provided to New York state

5 for purchasing voting machines, poll worker training and voter education

6 shall be allocated to local boards of elections in proportion to the

7 percentage of the state`s registered voters residing in each local

8 board`s jurisdiction on December 31, 2004.

9 2. The state board of elections, shall in accordance with subdivision

10 4 of section 3-100 of the election law, provide the comptroller and

11 local boards of elections with a list of the percentage of registered

12 voters in each jurisdiction as compared to the total number of voters in

13 New York state and, based on such percentage, the amount of Help America

14 Vote Act money that will be available to each local board of elections

15 for voting machines, poll worker training and voter education.

Comment 36

Page 8, Lines 9-15

Section 3-100 requires a vote by 3 commissioners of the state BOE.

County Enrollment Totals as of Nov. 1, 2004, are at

http://www.elections.state.ny.us/enrollment/county/county_nov04.htm

=11=====================================================================

16 S 11. Help America Vote Act voting machine and system implementation.

17 Effective the first federal election in 2006, each polling place shall

18 be equipped with at least one voting machine or voting system which is

19 equipped for individuals with disabilities and provides individuals with

20 disabilities with the same opportunity for access and participation as

21 other voters and which meets the requirements of section 7-202 of the

22 election law and the federal Help America Vote Act.

Comment 37

Page 8, Lines 16-22

Accessibility by the first federal election in 2006

23 Effective September 1, 2007, all lever machines in New York state

24 shall be replaced by voting machines or voting systems which meet the

25 requirements of section 7-202 of the election law, provided, however,

26 that with respect to any board of elections which determines to retain

27 lever machines on or after the effective date of this act and prior to

28 September 1, 2007, the provisions of this act which impose new standards

29 for voting machines which were not required prior to the effective date

30 of this act, including the amendments to section 7-202 of the election

31 law made by section six of this act, shall not be applicable with

32 respect to such lever machines during any period of time during which

33 such lever machines are lawfully utilized.

Comment 38

Page 8, Lines 23-33

Prohibits lever machines after 9/1/07, but until then levers can be used and don't need to meet the requirements of section 7-202 (VVPAT, 5 languages, some accessibility, etc).

34 Each board of elections shall attempt to the greatest degree practica-

35 ble to select and utilize voting machines or systems which, from the

36 perspective of a voter or poll worker, are functionally equivalent,

37 provided, however, that nothing shall preclude a board of elections from

38 selecting more than one type of voting system where such multiple

39 systems are determined by such board to be necessary in order to meet

40 the requirements of this act for such voting machine systems to be

41 accessible to disabled voters or where such multiple voting machine

42 systems are determined by such board to be necessary for other reasons.

Comment 39

Page 8, Lines 34-42

Non-required advice. Allows multiple systems where necessary for accessibility or other reasons.

=12=====================================================================

43 S 12. Help America Vote Act voting machine and system implementation

44 procurement process. 1. To meet the requirements of the federal Help

45 America Vote Act and the election law, local boards of election shall

46 select voting machines or systems from the list of those certified by

47 the state board of elections and determine the number of voting machines

48 or systems needed. Such information shall be provided to the state board

49 of elections on a voting machine or system selection form created by the

50 state board of elections which indicates the specific voting machines or

51 systems it has selected and any special features or functions that a

52 voting machine or system must include to meet legal obligations under

53 state or federal law.

54 2. The state board of elections shall review the voting machine or

55 system selection form submitted by local boards of elections. If the

56 board determines, in accordance with subdivision 4 of section 3-100 of

S. 5877 9 A. 8969

1 the election law, that the provisions of such voting machine or system

2 selection form do not meet the requirements of section 7-202 of the

3 election law, the state board shall issue a written determination to the

4 local board and the local board shall modify such voting machine or

5 system selection form and resubmit it to the state board of elections

6 for further review.

7 3. The state board of elections, in consultation with the office of

8 general services and in compliance with section 163 of the state finance

9 law and section 7-204 of the election law, shall, where applicable,

10 combine the orders for voting machines or systems made by the local

11 boards of election and, acting as a purchasing agent for the local

12 boards of election, negotiate a contract for the purchase of such voting

13 machines or systems.

14 4. The state board of elections, in accordance with subdivision 4 of

15 section 3-100 of the election law, shall enter into procurement

16 contracts with the vendor of each certified voting machine or system

17 selected by local boards of election pursuant to section 163 of the

18 state finance law and section 7-204 of the election law.

19 5. The local boards of elections shall select certified voting

20 machines or systems pursuant to one or more of the procurement contracts

21 entered into pursuant to this section. The state board of elections

22 shall notify the comptroller to release the appropriate funds to the

23 vendor of such machines or systems upon audit and certification unless

24 the voting machine or system selection form has been rejected by the

25 state board of elections pursuant to subdivision 2 of this section. The

26 comptroller shall only release funds in the amount authorized for each

27 local board of election in section ten of this act.

28 6. Nothing in this section shall be construed to require the state

29 board of elections to provide a board of elections with funding for all

30 voting machines or systems it shall require.

=13=====================================================================

31 S 13. Subdivision 3 of section 8-300 of the election law is amended to

32 read as follows:

33 3. No voter shall remain within a voting machine longer than {three

34 minutes or a voting booth longer than five minutes} A REASONABLE AMOUNT

35 OF TIME and if he OR SHE shall refuse to leave after the lapse of such

36 time, he OR SHE shall be removed by the inspectors.

=14=====================================================================

37 S 14. The election law is amended by adding a new section 9-211 to

38 read as follows:

39 S 9-211. AUDIT OF VOTER VERIFIABLE AUDIT RECORDS. 1. WITHIN FIFTEEN

40 DAYS AFTER EACH GENERAL OR SPECIAL ELECTION, AND WITHIN SEVEN DAYS AFTER

41 EVERY PRIMARY OR VILLAGE ELECTION CONDUCTED BY THE BOARD OF ELECTIONS,

42 THE BOARD OF ELECTIONS OR A BIPARTISAN COMMITTEE APPOINTED BY SUCH BOARD

43 SHALL MANUALLY AUDIT THE VOTER VERIFIABLE AUDIT RECORDS FROM THREE

44 PERCENT OF VOTING MACHINES OR SYSTEMS WITHIN THE JURISDICTION OF SUCH

45 BOARD. VOTING MACHINES OR SYSTEMS SHALL BE SELECTED FOR AUDIT THROUGH A

46 RANDOM, MANUAL PROCESS. AT LEAST FIVE DAYS PRIOR TO THE TIME FIXED FOR

47 SUCH SELECTION PROCESS, THE BOARD OF ELECTIONS SHALL SEND NOTICE BY

48 FIRST CLASS MAIL TO EACH CANDIDATE, POLITICAL PARTY AND INDEPENDENT BODY

49 ENTITLED TO HAVE HAD WATCHERS PRESENT AT THE POLLS IN ANY ELECTION

50 DISTRICT IN SUCH BOARD`S JURISDICTION. SUCH NOTICE SHALL STATE THE TIME

51 AND PLACE FIXED FOR SUCH RANDOM SELECTION PROCESS. THE AUDIT SHALL BE

52 CONDUCTED IN THE SAME MANNER, TO THE EXTENT APPLICABLE, AS A CANVASS OF

53 PAPER BALLOTS. EACH CANDIDATE, POLITICAL PARTY OR INDEPENDENT BODY ENTI-

54 TLED TO APPOINT WATCHERS TO ATTEND AT A POLLING PLACE SHALL BE ENTITLED

55 TO APPOINT SUCH NUMBER OF WATCHERS TO OBSERVE THE AUDIT.

Comment 40

Page 9, Lines 39-55

1. If the audit is completed within 15 or 7 days, will the losing candidate have enough time before certification of the winner to go through a court procedure to get an audit of more than 3% of the machines or systems in the jurisdiction?

2. It is good that the "random manual process" to select of 3% of voting machines or systems will be done publicly. However, the notice of time and place for the selection process should be required to be publicly posted in the BOE, and members of the public should be explicitly allowed to observe.

The 3% applies to machines or systems. If a jurisdiction has 100 electronic voting machines, they will audit 3 of them. The other 97 will be presumed to be correct, resulting in a 97% secret invisible vote count with invisible electronic votes that were never verified by the voter.

3. The law should clearly require that the audit be done by hand by people without computers so that observers can witness the handling of the VVPAT and the counting of votes.

The meaning and intent of "manually audit," "in the same manner" and "to the extent applicable" are unclear in these lines:

line 43: "shall manually audit the voter verifiable audit records"

lines 51-53: "The audit shall be conducted in the same manner, to the extent applicable, as a canvass of paper ballots."

Many counties use an optical scanner to canvass their paper ballots. At this time the use of an optical scanner would not be possible with the "voter verified permanent paper record" produced by most electronic voting machines because this VVPAT is not printed like a regular paper ballot. Rather, it is printed in summary form (for each race or contest, the VVPAT contains only the names of the office and the selected candidate, such as "President, John Doe") in tiny letters on a narrow paper strip (similar to a continuous cash register receipt tape).

If vendors develop computerized machines to count the votes on the VVPAT paper strip, use of such machines may or may not be held to be a "manual audit," "the same manner" or "applicable" but use of such machines would not serve the purposes of an audit, which are election integrity and public confidence. This is because if voting, vote-tabulating, and auditing are all conducted inside computers, then people cannot observe any part of the process in a meaningful way.

S. 5877 10 A. 8969

1 2. THE MANUAL AUDIT TALLIES FOR EACH VOTING MACHINE OR SYSTEM SHALL BE

2 COMPARED TO THE TALLIES RECORDED BY SUCH VOTING MACHINE OR SYSTEM, AND A

3 REPORT SHALL BE MADE OF SUCH COMPARISON WHICH SHALL BE FILED IN THE

4 OFFICE OF THE STATE BOARD OF ELECTIONS.

Comment 41

Page 10, Lines 1-4

The manual audit tallies should be required to be publicly posted immediately as soon as they are known. Observers who are present would have the information, but should not bear the responsibility of informing the public.

The report should be required to be publicly posted in the local BOE immediately as soon as it is prepared. The State BOE should be required to post such reports on its web site immediately upon receipt from the local BOEs.

5 3. THE STATE BOARD OF ELECTIONS SHALL, IN ACCORDANCE WITH SUBDIVISION

6 FOUR OF SECTION 3-100 OF THIS CHAPTER, PROMULGATE REGULATIONS ESTABLISH-

7 ING A UNIFORM STATEWIDE STANDARD TO BE USED BY BOARDS OF ELECTIONS TO

8 DETERMINE WHEN A DISCREPANCY BETWEEN THE MANUAL AUDIT TALLIES AND THE

9 VOTING MACHINE OR SYSTEM TALLIES SHALL REQUIRE A FURTHER VOTER VERIFI-

10 ABLE RECORD AUDIT OF ADDITIONAL VOTING MACHINES OR SYSTEMS OR A COMPLETE

11 MANUAL AUDIT OF ALL MACHINES OR SYSTEMS WITHIN THE JURISDICTION OF A

12 BOARD OF ELECTIONS. ANY BOARD OF ELECTIONS SHALL BE EMPOWERED TO ORDER

13 THAT ANY SUCH AUDIT SHALL BE CONDUCTED WHENEVER ANY SUCH DISCREPANCY

14 EXISTS.

Comment 42

Page 10, Lines 5-14

Section 3-100 requires a vote by 3 commissioners of the state BOE.

The state BOE will establish a uniform statewide standard to determine when a discrepancy requires further audits.

This provision does not require the audit and machine tallies to be the same, but does not prohibit counties from performing further audits when the discrepancy is less than the statewide standard.

The study "Small Vote Manipulations Can Swing Elections” [Communications of the ACM, October, 2004, Vol. 47, No. 10] showed that by switching only a single vote per machine, the outcome of many elections could be changed. Both the NY State Assembly and Senate were aware of this study. If a county uses 100 machines, and one vote is switched per machine, the recipient would gain a 200-vote advantage. Computers, especially those with communications capability, make such switching easy and undetectable. This is why computers used in elections must be held to the same standard of 100% accuracy that is used in the financial and banking industries -- which means all computerized voting machines or systems must be audited and all discrepancies investigated and reconciled.

The electronic voting equipment envisioned to be used in New York State should never have discrepancies between the audit and machine counts unless the machine has malfunctioned. The VVPAT is a continuous paper strip, and individual ballots cannot get lost. If discrepancies are allowed, malfunctions and tampering will occur repeatedly and elections will be a sham. Moreover, any discrepancies should invoke the requirements for "good working order" on page 7, line 7, and for safe and proper use on page 3, line 24.

15 4. IF A COMPLETE AUDIT SHALL BE CONDUCTED, THE RESULTS OF SUCH AUDIT

16 SHALL BE USED BY THE CANVASSING BOARD IN MAKING THE STATEMENT OF CANVASS

17 AND DETERMINATIONS OF PERSONS ELECTED AND PROPOSITIONS REJECTED OR

18 APPROVED. THE RESULTS OF A PARTIAL VOTER VERIFIABLE RECORD AUDIT SHALL

19 NOT BE USED IN LIEU OF VOTING MACHINE OR SYSTEM TALLIES.

Comment 43

Page 10, Lines 15-19

The election results will be determined by the electronic tally, unless a complete audit of the paper has occurred.

Machine by machine, when the paper and electronic tallies differ, which is more likely to be correct – the manual tally of votes on paper which have been inspected by voters, or the electronic tally of invisible votes that have been invisibly recorded, cast, stored, handled, and counted with the undetectable possibility of intervention and tampering by persons in remote locations via communications devices?

Shoddy standards allow the use of shoddy equipment, which will result in shoddy elections.

20 5. NOTWITHSTANDING SUBDIVISION FOUR OF THIS SECTION, IF A VOTING

21 MACHINE OR SYSTEM IS FOUND TO HAVE FAILED TO RECORD VOTES IN A MANNER

22 INDICATING AN OPERATIONAL FAILURE, THE BOARD OF CANVASSERS SHALL USE THE

23 VOTER VERIFIABLE AUDIT RECORDS TO DETERMINE THE VOTES CAST ON SUCH

24 MACHINE OR SYSTEM, PROVIDED SUCH RECORDS WERE NOT ALSO IMPAIRED BY THE

25 OPERATIONAL FAILURE OF THE VOTING MACHINE OR SYSTEM.

Comment 44

Page 10, Lines 20-25

Examples of symptoms of failure should be provided. Otherwise endless litigation will be required to clarify the many ways in which "operational failure" can occur. The list of documented failures cited in Comment 34 should provide a starting point for creation of such a list.

=15=====================================================================

26 S 15. The election law is amended by adding a new section 16-113 to

27 read as follows:

28 S 16-113. AUDIT OF VOTER VERIFIABLE RECORDS. THE SUPREME COURT, BY A

29 JUSTICE WITHIN THE JUDICIAL DISTRICT, OR THE COUNTY COURT, BY A COUNTY

30 JUDGE WITHIN HIS OR HER COUNTY, BY ANY CANDIDATE OR HIS OR HER AGENT,

31 MAY DIRECT A MANUAL AUDIT OF THE VOTER VERIFIABLE AUDIT RECORDS APPLICA-

32 BLE TO ANY CANDIDATE RUNNING FOR OFFICE WITHIN SUCH JUDICIAL DISTRICT OR

33 COUNTY WHERE (1) THE UNIFORM STATEWIDE STANDARD PROMULGATED BY REGU-

34 LATION BY THE STATE BOARD OF ELECTIONS PURSUANT TO SUBDIVISION THREE OF

35 SECTION 9-211 OF THIS CHAPTER WITH RESPECT TO DISCREPANCIES BETWEEN

36 MANUAL AUDIT TALLIES AND VOTING MACHINES OR SYSTEMS TALLIES REQUIRES A

37 FURTHER VOTER VERIFIABLE RECORD AUDIT OF ADDITIONAL VOTING MACHINES OR

38 SYSTEMS OR ALL VOTING MACHINES OR SYSTEMS APPLICABLE TO SUCH ELECTION,

39 OR (2) WHERE EVIDENCE PRESENTED TO THE COURT OTHERWISE INDICATES THAT

40 THERE IS A LIKELIHOOD OF A MATERIAL DISCREPANCY BETWEEN SUCH MANUAL

41 AUDIT TALLY AND SUCH VOTING MACHINE OR SYSTEM TALLY WHICH CREATES A

42 SUBSTANTIAL POSSIBILITY THAT THE WINNER OF THE ELECTION AS REFLECTED IN

43 THE VOTING MACHINE OR SYSTEM TALLY COULD CHANGE IF A VOTER VERIFIABLE

44 RECORD AUDIT OF ADDITIONAL VOTING MACHINES OR SYSTEMS OR OF ALL VOTING

45 MACHINES OR SYSTEMS APPLICABLE TO SUCH ELECTION WERE CONDUCTED.

Comment 45

Page 10, Lines 26-45

There is a typo on line 30 where part of a phrase is missing.

The Supreme Court or a County Court may direct a manual audit of VVPAT for a particular candidate if

(1) the state BOE standard of discrepancies was exceeded

(2) evidence indicates "likelihood of a material discrepancy" which creates a "substantial possibility" of a different election outcome.

The law should recognize that if the outcome of an election is different from polls conducted immediately before the election, or exit polls, and electronic voting and vote-tabulating systems were used, there is a substantial possibility of a different outcome.

Litigation will be required to clarify this provision.

=16=====================================================================

46 S 16. The state board of elections shall establish guidelines for a

47 public campaign for use by local boards of election to educate the

48 voters of New York on the pending transition to new voting machines or

49 systems and other changes in the electoral process as required by the

50 federal Help America Vote Act and the laws of 2005.

51 Each local board of elections, in consultation with the state board of

52 elections, shall conduct a public campaign pursuant to the guidelines

53 established by the state board of elections to educate the voters of New

54 York on the pending transition to new voting machines and other changes

55 in the electoral process as required by the federal Help America Vote

56 Act and the laws of 2005. Such campaign shall include information about

S. 5877 11 A. 8969

1 the voting machine or system in use in that jurisdiction and shall begin

2 at least 60 days before the primary election.

=17=====================================================================

3 S 17. Section 3-412 of the election law is amended by adding a new

4 subdivision 1-a to read as follows:

5 1-A. THE STATE BOARD OF ELECTIONS SHALL ESTABLISH A MANDATORY CORE

6 CURRICULUM FOR POLL WORKER TRAINING WHICH INCLUDES THE REQUIREMENTS IN

7 SUBDIVISION TWO OF THIS SECTION, AS AMENDED BY A CHAPTER OF THE LAWS OF

8 2005, AND THE RIGHTS OF VOTERS AT THE POLLS AND OBLIGATION OF ELECTION

9 WORKERS TO PROTECT THOSE RIGHTS WHILE MAINTAINING THE INTEGRITY OF THE

10 FRANCHISE, INCLUDING ASSISTING VOTERS WITH DISABILITIES OR WITH LIMITED

11 OR NO PROFICIENCY IN THE ENGLISH LANGUAGE, HANDLING, PROCESSING AND

12 ENTITLEMENT TO BALLOTS, INCLUDING AFFIDAVIT AND EMERGENCY BALLOTS, PROP-

13 ER IDENTIFICATION REQUIREMENTS, PROCEDURES TO BE FOLLOWED WITH RESPECT

14 TO VOTERS WHOSE NAMES ARE NOT ON THE LIST OF REGISTERED VOTERS OR WHOSE

15 IDENTITIES HAVE NOT BEEN VERIFIED, ELECTIONEERING AND OTHER VIOLATIONS

16 OF THE ELECTIVE FRANCHISE AS DEFINED IN THIS CHAPTER, SOLICITATION BY

17 INDIVIDUALS AND GROUPS AT THE POLLING PLACE AND PROCEDURES TO BE

18 FOLLOWED AFTER THE POLLS CLOSE. EACH BOARD OF ELECTIONS SHALL AUGMENT

19 THE CORE CURRICULUM WITH LOCAL PROCEDURES NOT INCONSISTENT WITH THE CORE

20 CURRICULUM ADOPTED BY THE STATE BOARD OF ELECTIONS AND WHICH INCLUDES

21 PROCEDURES RELATING TO PROPER OPERATION OF, AND REMEDYING PROBLEMS WITH,

22 THE VOTING MACHINE OR SYSTEM IN USE IN THAT JURISDICTION.

=18=====================================================================

23 S 18. Section 92-p of the state finance law, as added by chapter 400

24 of the laws of 1987, is amended to read as follows:

25 S 92-p. Voting {and ballot counting} machine AND SYSTEM examination

26 fund. 1. There is hereby established in the joint custody of the state

27 comptroller and the commissioner of taxation and finance, a special fund

28 to be known as the "voting {and ballot counting} machine AND SYSTEM

29 examination fund".

30 2. Such fund shall consist of moneys collected by the state board of

31 elections pursuant to the provisions of subdivision one of section 7-201

32 of the election law.

33 3. Moneys of the fund shall be available to the state board of

34 elections for purposes of carrying out the provisions of section 7-201

35 of the election law.

36 4. The moneys shall be paid out of the fund on the audit and warrant

37 of the comptroller on vouchers certified or approved by the chairperson

38 of the board or his or her duly designated officer.

=19=====================================================================

39 S 19. The local boards of election shall, within thirty days of the

40 effective date of this act, mail a letter to all absentee voters

41 requesting information regarding any special needs of the voter at the

42 polls to allow such board to consider such special needs when selecting

43 voting machines or systems pursuant to this act.

=20=====================================================================

44 S 20. The sum of one hundred ninety million dollars ($190,000,000) is

45 hereby appropriated from federal moneys received for the purpose of

46 implementing the Help America Vote Act of 2002, for services and

47 expenses related to the purchase of new voting machines and voting

48 systems for use by local boards of elections pursuant to the Help Ameri-

49 ca Vote Act of 2002. Notwithstanding any other provision of law, such

50 funds may only be expended in accordance with the provisions of this act

51 related to the allocation of such funds and the procurement and purchase

52 of voting systems and voting machines, including section ten of this act

53 entitled "Formula for allocating Help America Vote Act money to local

54 boards of election" and section twelve of this act entitled "Help Ameri-

55 ca Vote Act voting machine and system implementation procurement proc-

56 ess". Such moneys shall be payable on the audit and warrant of the state

S. 5877 12 A. 8969

1 comptroller on vouchers certified or approved in the manner provided by

2 law.

=21=====================================================================

3 S 21. This act shall take effect immediately; provided, however, that

4 subdivision 1-a of section 7-201 of the election, as added by section

5 five of this act, shall expire and be deemed repealed January 31, 2006

6 and section sixteen of this act shall expire and be deemed repealed

7 December 31, 2008.

.SO DOC C 5877/8969 *END* BTXT 2005