Voting Machines Modernization Act of 2005
Senate Bill S1809
with comments by Teresa Hommel
The bill text below has not been modified; page and line numbers are the same as on the Senate web site, http://www.senate.state.ny.us/
the bill, text underlined
and bold is
new. Text [
in square brackets, bold, with strike-out]is old law to be omitted. For ease
of reading, two blank lines are inserted at the beginning of each of the 9
sections of the bill.
11 comments have been inserted in the bill text, indented, in italic bold.
This bill has four great weaknesses. It allows the use of electronic voting systems without protecting election integrity via professional-quality audits and open-source software. It would result in privatization of elections because it does not fund or require the state or county Boards of Election to acquire appropriate computer expertise before evaluating, contracting for, or using evote systems. It does not explicitly allow the choice of keeping our mechanical lever machines augmented by accessible ballot-marking devices for voters with disabilities and language minorities, nor the choice to use of paper ballots marked by hand or ballot-marking devices. It does not ban communications devices in electronic voting and vote tabulating systems.
The comments here on these topics are brief. More information is at www.nyvv.org and www.wheresthepaper.org/ny.html.
1. Professional-quality audits of elections conducted with electronic voting systems should be mandated. In the professional world of information technology, all transaction-capturing and transaction-processing computer systems are 100% audited and discrepancies are 100% investigated and corrected to produce 100% accuracy. Unless this kind of audit and reconciliation is required in law, accuracy of computer results cannot be assumed. Indeed inaccuracy can be assumed, and fraud and errors will be routinely undetected. Open-source software and correction of errors found by technologists who read it results in more secure systems and hence fewer discrepancies.
2. Privatization of elections is the unavoidable result of the use of electronic voting systems by county Boards of Elections in which personnel are not required to understand and manage their own systems. Vendor service contracts to handle electronic voting systems should be banned, and the staff of county boards of elections should be required to gain expertise in the software, data, and hardware of their electronic voting systems prior to their use, as well as thorough knowledge of computer security and auditing. The law that allows the use of electronic voting systems should require and
fund the training needed for such staff to gain professional competence. Vendors must be required to provide all information, documentation, and training necessary for elections staff to gain such competence.
3. Respect for election professionals and voters alike requires that the choice of vote-recording and vote-counting technology remain in local hands. Lever machine and paper ballot options should be decided at the local level.
STATE OF NEW YORK
2005-2006 Regular Sessions
February 2, 2005
Introduced by Sens. FLANAGAN, MORAHAN, ALESI, BRUNO, FARLEY, GOLDEN,
LIBOUS, LITTLE, MALTESE, MARCELLINO, MAZIARZ, McGEE, PADAVAN, RATH,
SALAND, SEWARD, TRUNZO, WINNER -- read twice and ordered printed, and
when printed to be committed to the Committee on Elections
AN ACT to amend the election law, in relation to enacting the "voting
machines modernization act of 2005"; 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 Section 1. Short title. This act shall be known and may be cited as
2 the "voting machines modernization act of 2005".
3 § 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 means that
6 portion of the cardboard or paper or other material or electronic
7 display within the ballot frame containing the name of the candidate and
8 the emblem of the party organization by which he was nominated, of the
9 form of submission of a proposed constitutional amendment, proposition
10 referendum or question as provided in this chapter, with the word "yes"
11 for voting for any question or the word "no" for voting against any
12 question except that where the question or proposition is submitted only
13 to the voters of a territory wholly within a county or city, such form
14 shall be determined by the county board of elections. Such statement and
15 the title shall be printed and/or displayed in the largest [
16 display which it is practicable to use in the space provided.
17 § 3. Subdivision 1 of section 7-104 of the election law, as amended by
18 chapter 654 of the laws of 1985, is amended to read as follows:
19 1. All ballots shall be printed and/or displayed in [
black ink on
clear, white material] a format and arrangement, of such uniform size
21 and style as will fit the ballot frame, and shall be in as plain, clear
type] display as the space will reasonably permit[ , capitalizing only
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
] is old law to be omitted.
S. 1809 2
the first letters and initials of each name]. Such display
2 ballot shall satisfy all requirements and standards set forth pursuant
3 to the federal Help America Vote Act of 2002.
4 § 4. Section 7-121 of the election law, as added by chapter 352 of the
5 laws of 1986, is amended to read as follows:
6 § 7-121. Ballots which are counted by machine. A board of elections
7 may provide, by resolution adopted at least two months before an
8 election at which voting machines are used, that all ballots cast for
9 such election, other than on the voting machines, shall be counted by a
10 machine of a type approved by the state board of elections and that all
11 ballots printed for use at such election may be printed and arranged in
12 a manner which would permit them to be counted by such machine;
13 provided, however that no punch card ballots or punch card ballot count-
14 ing machines shall be permitted by any board of elections after November
15 first, two thousand six.
16 § 5. Section 7-200 of the election law, as amended by chapter 262 of
17 the laws of 1986, subdivision 2 as amended by chapter 356 of the laws of
18 1986, is amended to read as follows:
§ 7-200. Adoption and use of voting [
machine] machines. 1. [ The board
of elections of the city of New York and the local legislative
body of each other city and of each town shall, and
the board of trus-
tees of any village may adopt any kind of voting machine approved
state board of elections, or the use of which has
authorized by law; and
thereupon such voting machine may be used at any
or all elections and shall be used at all general or special
held in such
city, town or
village and in every contested
election in the city of New York and in every contested primary
outside the city of New York in which there are one
thousand or more
enrolled voters qualified
to vote except in a town or city in which the
voting machines owned by such town or city do not permit the
more than one party on a single voting machine for
and counting votes cast at such elections.
2. No city or town may purchase any voting machine of a type approved
by the state board of
elections after September first, nineteen hundred
eighty-six unless such type of voting machine has been approved
in that county by the
county board of elections. No more than two types
of voting machines may be used in any city, town or village at
election. If a voting machine of a type approved by the
state board of
elections after September first, nineteen hundred eighty-six is
an election in any
election district, no machine of a type approved for
use by the state board of elections before September first,
hundred eighty-six may be used in such election district at any
quent election. Notwithstanding the other provisions of
sion, any county, city or
town may borrow or lease for use on an exper-
imental basis for a period of not more than one year each, machines
any type approved by the state board of elections after September
nineteen hundred eighty-six.
3.] The state
board of elections shall adopt
minimum standards for
49 voting machines, which meet the requirements and specifications of this
50 chapter and other specifications of such board to be used at all gener-
51 al, special and primary elections conducted pursuant to this chapter.
52 The state board of elections must certify that a voting machine meets
53 such minimum standards before it can be used by any county, city, town
54 or village after November first, two thousand six. All voting machines
55 certified by the state board of elections shall be contracted for
56 through a competitive bidding process. Nothing in this subdivision
S. 1809 3
1 shall be deemed to prevent the state board of elections from certifying
2 more than one voting machine in the manner provided by this section.
Comment 1, on the first two sentences in the provision above.
The State Board of Elections gets broad powers here. The law
should give greater guidance for minimum standards for the
secure use of electronic voting systems.
3 2. a. There is hereby established, within the state board of
4 elections, a citizen's election modernization advisory committee. The
5 citizen's election modernization advisory committee shall recommend
6 voting machine selection criteria and specifications.
7 b. Such committee shall be composed of eleven members as follows:
8 (1) four representatives of boards of elections appointed by the
9 governor, upon advice and consent of the senate;
10 (2) the director of the office for technology;
11 (3) two members appointed by the temporary president of the senate;
12 (4) two members appointed by the speaker of the assembly;
13 (5) the state advocate for persons with disabilities; and
14 (6) one individual with disabilities appointed by the governor, upon
15 advice and consent of the senate.
Comment 2, on the provision 2. above.
The citizen's committee should be required to include
independent computer experts as well as financial auditors,
CPAs, or computer auditors. Otherwise this committee
will be unable to look behind the accessible face of
the machines to evaluate their susceptibility to fraud.
The committee should also be required to have multipartisan
blance, with the same number of appointees from each of
the major parties.
Comment 3, on paragraph c. below.
The citizen’s committee should also be mandated or
allowed to consider old voting technologies.
It is not clear what is envisioned by the word “how” in
The phrase “how to employ new voting technologies.”
16 c. Such committee will make a preliminary report of its recommenda-
17 tions to the state board of elections on or before June fifteenth, two
18 thousand five to advise the state board of elections how to employ new
19 voting technologies which meet the requirements of the federal Help
20 America Vote Act of 2002 and which best serve the needs of the citizens
21 of this state, and shall make a final report thereon to the state board
22 of elections on or before July thirty-first, two thousand five.
23 3. The state board of elections shall, pursuant to section one hundred
24 sixty-three of the state finance law, enter into contracts or procure-
25 ment arrangements for the purchase of voting machines and shall provide
26 such voting machines to any county, city or town. Any county, city or
27 town which takes possession of voting machines from the state board of
28 elections shall thereafter own such voting machines. Nothing in this
29 section shall be construed to require the state board of elections to
30 provide a county, city or town with all voting machines it shall
31 require. The local board of elections shall select a single voting
32 machine from the list of voting machines certified by the state board of
33 elections for use throughout their respective county.
Comment 4, on the sentence above.
The local board of elections should also be explicitly
allowed to select a voting technology that does not
require voting machines, such as paper ballots and optical
34 4. Notwithstanding any other provision of law, any voting machine
35 approved for use as of the first of January two thousand five, may
36 continue to be used at elections held pursuant to this chapter until
37 August thirty-first, two thousand six.
38 5. For five years after any voting machine of a type approved by the
39 state board of elections after September first, nineteen hundred eight-
40 y-six is first used in any election district, the county, city or town
41 which purchased such machine shall provide a model of such voting
42 machine for each polling place in which any such election district is
43 located. Such models shall meet the standards set forth in regulations
44 promulgated by the state board of elections.
4.] 6. Whenever
there are more offices to be elected than can be
46 accommodated on the voting machine or more candidates have been nomi-
47 nated for an office than can be accommodated on the voting machine, the
48 board of elections may provide for the use of separate paper ballots for
49 such offices, when other offices are voted for on voting machines by
50 voters of the same election district.
51 7. The state board of elections shall promulgate rules and regulations
52 as may be necessary to implement the provisions of this section.
53 § 6. Section 7-202 of the election law is amended by adding a new
54 subdivision 6 to read as follows:
55 6. All voting machines shall produce and retain a voter verified
56 permanent paper record with a manual audit capacity which shall record
S. 1809 4
1 each vote to be cast and which shall be displayed to the voter from
2 behind a window or other device before the ballot is cast.
Comment 5, on the paragraph above.
The requirement for a voter verified permanent
paper record should be specifically for electronic
voting systems. If mechanical lever machines are
determined to retained, they should not be
required to produce voter verified permanent
Comment 6, on the section below.
This section on escrow will give a false sense of
security to people who are not computer-savvy.
Imagine that you cannot read numbers or count.
You have money in your hand. Someone offers to keep
it for you. He offers to count it for you, and later
before he returns the money to you he will count
it again and assure you that the amount is the same.
You have no way of confirming what he tells you.
Do you feel secure? That arrangement is more secure
than the escrow requirements in this bill.
This bill’s escrow design requires privatization—it
Delegates the entire procedure to manufacturers or
vendors. The bill should instead require training of
election personnel to make a complete disk image copy,
to know the purpose of each file, and to examine
each file to confirm its correct size and content.
This bill should require a complete disk image copy
to be made, including all files. This should be done
for two reasons. First, data files can contain
malicious programming which can be executed
automatically when the file is used, such as
font files. Second, a complete disk image copy
is needed in order to determine whether additional
programming is (or was) present in the system.
The bill should specify that the escrow copy
must be made after the setup and checkout of the
system for each election, just prior to securing the
computer in preparation for the election.
The bill should require that the making of the
complete disk image copy and its evaluation prior
to escrow storage should be done before observers from
all parties with candidates in the election, after
proper notification. Copies of the complete disk
image copy should be available to such parties.
The bill should require routine evaluation of the
voting system immediately after the election,
and routine comparison to the escrow copy of the
system. Board of Election personnel should know how
to perform these technical tasks, and should perform
them before observers from all parties with candidates
in the election.
As written, the bill mandates secret systems and
places the burden on candidates and parties to sue in
court for the right to verify the integrity of the
equipment (hardware, software, and data) used in
The bill also mandates the retention of insufficient
information to verify equipment integrity.
3 § 7. The election law is amended by adding a new section 7-208 to read
4 as follows:
5 § 7-208. Escrow requirements. Prior to the use of any electronic
6 voting machine or ballot counting equipment in any election in the
7 state, on or after August thirty-first, two thousand six, the state
8 board of elections and the local board of elections using such electron-
9 ic machine or ballot counting equipment shall:
10 1. require that the manufacturer and/or vendor of such equipment shall
11 place into escrow with the state board of elections a complete copy of
12 all programming, source coding and software employed by the electronic
13 voting machine or ballot counting equipment.
14 2. require that the manufacturer and/or vendor of such equipment file
15 with the state board of elections and the appropriate local boards of
16 elections a waiver, prepared by the state board of elections, which
17 shall waive all rights of the vendor or manufacturer to assert intellec-
18 tual property or trade secret rights in any court of competent jurisdic-
19 tion hearing a challenge to the results of any election.
20 3. require that the manufacturer and/or vendor of such equipment file
21 with the state board of elections and the appropriate local boards of
22 elections a consent to having and cooperating in the testing of any
23 programming, source coding, firmware, or software, pursuant to an order
24 of any board of elections or court of competent jurisdiction.
25 4. promulgate rules and regulations prohibiting the use in any
26 election in the state of any software, firmware, or source coding which
27 has not been certified or for which required filings are not made.
28 § 8. The election law is amended by adding a new section 9-211 to read
29 as follows:
30 § 9-211. Audit of voter verifiable audit records. 1. Within fifteen
31 days after each general, special or primary election, and within seven
32 days after every village election conducted by the board of elections,
33 the board of elections or a bipartisan committee appointed by such board
34 shall manually audit the voter verifiable audit records from three
35 percent of voting machines within the jurisdiction of such board. Voting
36 machines shall be selected for audit through a random, manual process.
37 At least five days prior to the time fixed for such selection process,
38 the board of elections shall send notice by first class mail to each
39 candidate, political party and independent body entitled to have had
40 watchers present at the polls in any election district in such board's
41 jurisdiction. Such notice shall state the time and place fixed for such
42 random selection process. The audit shall be conducted in the same
43 manner, to the extent applicable, as a canvass of paper ballots. Each
44 candidate, political party or independent body entitled to appoint
45 watchers to attend at a polling place shall be entitled to appoint such
46 number of watchers to observe the audit.
Comment 7, on the paragraph above.
Notice of the selection process should also
be posted in public in the office of the
county Board of Elections.
Comment 8, on the paragraph above.
The audit should be explicitly allowed to
determine the obvious intent of the voter and
to count all votes.
No audit should be limited to being conducted
in any specific manner, because to determine the
cause and source of discrepancies or fraud may
require various means.
47 2. The manual audit tallies for each voting machine shall be compared
48 to the tallies recorded by such voting machine, and a report shall be
49 made of such comparison which shall be filed in the office of the state
50 board of elections.
Comment 9, on the paragraph above.
All reports of manual audit tallies and their
comparison to machine tallies should be required
to be posted immediately in public in the office of
the county Board of Elections, and should be provided
without charge to the candidates, parties or
independent bodies entitled to appoint watchers.
The law should not force the public to file
FOIL requests to view this information.
These reports must be made, distributed, and posted
in a timely manner before certification of election
results, so that candidates, parties, and independent
bodies have sufficient time to sue for further or
complete audits. No election should be certified
if audits are required but not completed.
51 3. The state board of elections shall promulgate, by regulation, a
52 uniform statewide standard to be used by boards of elections to deter-
53 mine when a discrepancy between the manual audit tallies and the voting
54 machine tallies shall require a further voter verifiable record audit of
55 additional voting machines or a complete manual audit of all machines
56 within the jurisdiction of a board of elections.
Comment 10, on the paragraph above.
The problem of discrepancies in vote counts
is difficult to solve but crucial to election
integrity and the legitimacy of representative
Because of the ease of falsification of computer
results, the law should require complete 100%
audits of all computerized voting systems, with
100% reconciliation of discrepancies, and 100%
(Because of the ease of falsifying all computers
of the same type within the state, if there are
errors in the vote counts in one county, similar
errors may be found in all counties.)
S. 1809 5
1 4. If a complete audit shall be conducted, the results of such audit
2 shall be used by the canvassing board in making the statement of canvass
3 and determinations of persons elected and propositions rejected or
4 approved. The results of a partial voter verifiable record audit shall
5 not be used in lieu of voting machine tallies.
6 5. Notwithstanding subdivision three of this section, if a voting
7 machine is found to have failed to record votes in a manner indicating
8 electronic operational failure, the board of canvassers shall use the
9 voter verifiable audit records to determine the votes cast on such
10 machine, provided such records were not also impaired by the electronic
11 operational failure of the voting machine.
Comment 11, on the paragraph above.
The law should give guidance as to what
operational failure might consist of, in the form
of a non-exclusive list. Suggestions are:
a. A voter sees his or her vote switched to a different
candidate on the electronic screen.
b. A voter touches a touchscreen "button" for a
candidate, but the screen does not register the vote.
c. The screen when it first appears contains votes
already registered that the voter did not enter.
d. One or more candidates or questions are missing
from the ballot displayed.
e. The wrong ballot is displayed on the screen.
f. The final summary display does not accurately
contain the voting choices made by the voter.
g. The voter cannot change a vote displayed on the
h. The voter-verifiable printout does not contain the
same choices that the voter entered on the screen.
12 § 9. This act shall take effect immediately, provided, however, that:
13 (a) sections six and eight of this act shall take effect August 31,
14 2006; and
15 (b) subdivision 2 of section 7-200 of the election law, as added by
16 section five of this act, shall expire and be deemed repealed August 1,