www.wheresthepaper.org/S1809withsuggestions.htm

2/9/05

Voting Machines Modernization Act of 2005

Senate Bill S1809

with comments by Teresa Hommel

www.wheresthepaper.org/ny.html

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/

In 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.

BILL TEXT:

 STATE OF NEW YORK
 ________________________________________________________________________
 
 1809
 
 2005-2006 Regular Sessions
 
 IN SENATE
 
 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 [type]
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
 20 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
 22 [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.
 LBD06723-01-5

S. 1809 2

1 the first letters and initials of each name]. Such display on the

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:

19 § 7-200. Adoption and use of voting [machine] machines. 1. [The board

20 of elections of the city of New York and the local legislative governing

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

22 tees of any village may adopt any kind of voting machine approved by the

23 state board of elections, or the use of which has been specifically

24 authorized by law; and thereupon such voting machine may be used at any

25 or all elections and shall be used at all general or special elections

26 held in such city, town or village and in every contested primary

27 election in the city of New York and in every contested primary election

28 outside the city of New York in which there are one thousand or more

29 enrolled voters qualified to vote except in a town or city in which the

30 voting machines owned by such town or city do not permit the primary of

31 more than one party on a single voting machine for voting, registering

32 and counting votes cast at such elections.

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

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

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

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

37 of voting machines may be used in any city, town or village at a single

38 election. If a voting machine of a type approved by the state board of

39 elections after September first, nineteen hundred eighty-six is used at

40 an election in any election district, no machine of a type approved for

41 use by the state board of elections before September first, nineteen

42 hundred eighty-six may be used in such election district at any subse-

43 quent election. Notwithstanding the other provisions of this subdivi-

44 sion, any county, city or town may borrow or lease for use on an exper-

45 imental basis for a period of not more than one year each, machines of

46 any type approved by the state board of elections after September first,

47 nineteen hundred eighty-six.

48 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

scanners.

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.

45 [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

paper records.

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

each election.

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

government.

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%

accuracy required.

(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

screen.

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,

17 2006.