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/

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.



             STATE OF NEW YORK
                               2005-2006 Regular Sessions
                 IN SENATE
                                    February 2, 2005
        Introduced  by  Sens.  FLANAGAN,  MORAHAN, ALESI, BRUNO, FARLEY, GOLDEN,
          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.


        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




    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



        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


        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.