By ANDREA NOVICK
First published: Thursday, April 16, 2009
The chair of the New York State Republican Party commenced litigation before the results were counted in the special election in the 20th Congressional District. Some have attacked his move as a Republican ploy. Others have questioned whether the lever voting machines' dead-even results are even possible.
What is missing in this broad-stroke reporting is that New York is not like the other states in the nation that use computerized voting machines, which conceal vote counting. New York's votes are still counted transparently, employing a centuries-old system that was designed to provide evidence of how votes were counted at the time they were cast. This critical distinction sets New York apart from the rest of the nation.
New York's Republican Party is looking to examine and secure that evidence. That is precisely what New York's electoral system is intended to provide. It is what the public is entitled to, and only in New York is this evidence available. Unfortunately for the democratic process, this may be one of the last times New York candidates, parties and citizens will be able to have proof of its election results. If New York replaces its lever voting system with computerized voting machines, the evidence the Republican Party properly seeks to inspect and preserve will be gone forever.
In a democracy, it is the Legislature's responsibility to create a structure in which voting can occur in the most secure manner, one that produces demonstrably certain election results. Just as in a criminal trial, where the state must prove the defendant's guilt to the satisfaction of a jury, in an election the state must establish its innocence to the satisfaction of the public. In both cases, the state must sustain its burden with unimpeachable evidence.
To wit: In a criminal trial, after a crime has been committed, the state must find the evidence and then preserve that evidence for trial.
In an election, before any crime (any vote tampering) could possibly be committed, the state must create a system that produces evidence of electoral safety and security and then preserve that evidence should the election be questioned or a trial challenging the results become necessary.
New York has the only electoral system left in America that satisfies these fundamental constitutional principles of public elections and due process. Our system mandates that evidence of the original results must be publicly created — both to satisfy the public of the accuracy of the results and to provide the most secure means to detect and deter fraud or irregularity before it could occur.
Unlike states where close races were decided by the invisible processes of a computer or by a manual recount of paper ballots, New York has the evidence the Republican Party seeks to secure. Had this election's votes been counted by optical scanners, as New York's new Election Reform and Modernization Act (ERMA) requires in future elections, neither the Republican state chair nor the Democratic state chair nor the public would be able to obtain this evidence of how the ballots were counted at the time they were cast. That's because the evidence will no longer exist. Software-driven voting machines conceal that which is visible and preserved on the lever machine. Neither election officials, nor observers, nor candidates can observe or know how software counts votes in an election. There is no evidence after an election of how the software did its work, as there is with mechanical immutable lever machines, because software is vulnerable to undetectable manipulation.
Elections belong to the public. And the public must be able to evaluate the performance of those charged with the responsibility of conducting the election. The state is rightfully on trial in any election to prove to the candidates, the public and the political parties that it did its job in ascertaining accurate results. We must all be satisfied of the state's innocence (or not) in conducting this election. The Republican Party has the right to put the state to its proofs.
Andrea Novick is a lawyer in Rhinebeck. She is the founder and legal counsel to New York's Re-Media Election Transparency Coalition, www.re-mediaetc.blogspot.com, and legal coordinator for the Election Defense Alliance, www.electiondefensealliance.org.
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