Marge Acosta

Statement before the New York State Board of Elections

December 20, 2005

“No right is more precious in a free country than that of having a voice in the election of those who make the laws… Other rights, even the most basic, are illusory if the right to vote is undermined” (Wesberry v. Sanders)

Thank you for the opportunity to speak before you today.

The Help America Vote Act was passed in 2002 in order to reform our national elections, but I am deeply concerned that states are rushing to certify relatively unknown technology that is riddled with flaws in order to fulfill HAVA requirements. In the end, after spending millions of dollars (whether HAVA funding, tax payer’s or both) and a great deal of effort, we, in New York, may be left with a system that, instead of ensuring the integrity of our vote, leaves us open to the possibility of vote tampering and price gouging by vendors. Like many others, I would rather have been allowed to keep our trusted lever machines, but since that is not the case, I think it most important to look at the experience of other states and counties as well as thoroughly testing voting machines and evaluating the advantages and disadvantages of all the systems available to us.

According to the Election Data Services, in the 2004 election about 29% of voters used e-voting machines or DRE’s^. While electronic voting machine vendors paint a Pollyanna image of new wave technology with speed, reliability and security, the actual experience of states using these e-voting machines shows a very different picture.

There is an abundance of evidence demonstrating numerous problems that occurred with DRE’s in recent elections, so much so that the Government of Accountability Office released a report listing the many vulnerabilities of DRE’s and citing many instances where failures have already occurred during elections. In a bipartisan Congressional response to the GAO report, even Rep. James Sensenbrenner of Wisconsin, who had been an avid proponent of e-voting machines was alarmed by the report of “widespread voter fraud in Milwaukee in recent elections,” and agrees with the report that closer oversight by Congress of election voting systems is warranted. Among the flaws of computer voting systems that the GAO report lists were

· The ability to modify files, memory cards and audit logs

· Weak or easily guessed passwords and unprotected memory cards

· Weak security practices including the failure to conduct background checks on programmers and voting system developers

· The failure to establish a clear chain of custody procedures for handling software

In order to examine voting systems for these flaws, the State Board must run a rigorous public test with a large number of systems, possibly 50 - 100. The systems tested should be exactly the same as what will be sold in NY in every aspect, and every machine tested must work with no errors or failures. While vendors may assist in running the test, members of the public should act as test voters, poll workers, and observers. The systems must prove to be 100% accurate in every aspect of the test: the voter-verified paper record, the tallies, and the logs. Such testing will allow for repairs before the elections, eliminating many of the problems states have encountered in recent elections, and it will serve to lessen public distrust and cynicism of the machines which lead to lower voter turnouts.

Most importantly, the State Board must commission a professional hacker test before a voting system can be certified. If the system cannot withstand such a test, it should not be certified. Last week, election officials in Leon County, Florida concluded after a test that Diebold machines can be hacked to change vote totals so they are switching to ES&S optical scan voting machines and the AutoMARK ballot marking device.

Since it seems impossible to ensure the security of DREs from tampering, banning communications capabilities would seem to be the best solution.

The GAO report also cited voting system failures that had already occurred in elections in many states and counties.

After failures with DRE systems in North Carolina – in one election district alone, 4000 votes were lost because a DRE continued to accept votes when its memory card was full – the state established new stringent regulations. It also created two new felonies for vendors, requiring them to post a bond or letter of credit to cover the cost of damages due to defects, including the cost of a new election. The North Carolina state bill compared the cost of using optical scanners throughout the entire state, about $46 million, to that of utilizing all DRE’s, about $135 million.

Using new technology, unforeseen problems can arise, as in the case of New Mexico, where an election race was contested in court. The electronic ballot memory of the DRE’s had to be preserved during the lengthy court litigation, and could not be erased in preparation for future use. State officials were concerned that the machines might not be available for the next local election. Since, even with paper trails, there is controversy over whether the legal vote is on the paper trail or in the electronic memories, this situation can still pose problems.

Of course, New Mexico had a much greater problem, showing a pattern of stunning errors and severe irregularities in the 2004 election data. It led the nation with the highest rate of presidential undervotes. Although only 41% of the state's voters cast their ballots on push-button electronic voting machines, these machines accounted for 77% of the presidential undervotes, raising doubts about their accuracy. New Mexico’s certified results also show hundreds of precincts reporting phantom votes, more than 10,000 in the canvass report which is an inexplicable anomaly.

In Miami-Dade County the loss of hundreds of votes in six recent elections led the Supervisor of Elections to resign and the newly appointed Supervisor, Lester Sola, to recommend discarding $24.5 million of touch screen voting systems in favor of paper ballots with optical scanners. The cost of purchasing, operating and maintaining optical scanners and ballots is so much less than DRE’s, that Sola estimated the county would still save more than $13 million over five years with the implementation of an optical scan system.

On the other hand, almost all states that have been using optical scanners with paper ballots, --46% of counties and 35% of voters in the 2004 election – are planning to keep them or expand their usage. Michigan, Arizona, Okalahoma, South Dakota, North Dakota, Rhode Island, and West Virginia among others are going 100% optical scan in 2006.

This is not surprising, since optical scanners have many important advantages. The paper ballots used with optical scanners have a familiar format and are easily understood. The system elicits voter confidence since it is totally self-administered: self-marked, self-verified, and self-inserted into the scanner. The scanner allows for corrections, and protects the voter against under and overvotes. It also has a write-in option. The same ballot is used for absentees and for handicap accessible machines such as AutoMark, therefore the optical scanner can process all ballots, and they are then preserved for audits and recounts. This system eliminates conflicts between electronic ballots and paper ballots, and voters can continue to vote in the event of equipment failure. Another significant benefit is that, according to states using optical scanners, poll workers, many of whom are elderly, are easily trained.

Since optical scanners are a relatively simple technology, they are less prone to tampering, more easily tested and don’t require vendor technicians to run our elections.

In addition to all of these advantages, as many states have demonstrated, the cost of purchasing, operating and maintaining optical scanners is much less expensive than DREs.

Handicap accessible machines, like the highly praised AutoMark, work in conjunction with the optical scanner to fulfill HAVA’s requirements for the disabled.

Certainly, the PBOS system seems like the best choice to replace our lever machines.

However, I am more concerned about the time constraints placed on us to implement Hava regulations. ERMA, the Election Reform and Modernization Act of 2005, states that New York must have all lever machines replaced by the 2007 elections, and HAVA says that, if we are to keep the funds given for election reform, we must have the new machines in place by 2006. While four years may seem like a long time to implement these regulations, and New York may have dragged its feet in initiating the process, this is too important a matter to rush into certifying voting systems that won’t preserve the integrity of our vote.

Presently, the Board of Elections has announced it will begin testing a Liberty DRE machine that doesn’t even have a paper trail. Testing a partial system is meaningless. We must not be pressured into ignoring our own testing guidelines in order to meet an arbitrary date. Nothing is more precious in a democracy than the integrity of our vote. Without it we have lost our freedom. Many states that have rushed to embrace new voting technology without proper testing and evaluation are paying the price financially and, more importantly, with the disenfranchisement and distrust of their voters.

In light of the findings of the Government Accountability Office and the fact that the Election Assistance Commission will not even finalize its recommendations until 2007, it seems unreasonable to demand that more states rush to accept voting systems that themselves are not fully compliant and deserving of our trust.

Representatives from several states, Virginia, Pennsylvania, Wisconsin and Texas have introduced legislation, HR 3163, to extend the HAVA deadline four years. I respectfully request that you, the NY Board of Elections, as well as the State Legislature, ask our federal representatives to either cosponsor this legislation or introduce similar legislation to extend the deadline. Maintaining the integrity of our vote has always been the right and responsibility of states. Certainly we should use all the means in our power to preserve this right, the backbone of our democracy.

Thank you.