Wisconsin Election Fiasco Proves New York Was Right (But Sadly, New York has become Wisconsin)

The recent Wisconsin Supreme Court election and recount have shown once again that in order to be trustworthy, vote counts must be established on election night before the evidence is removed from public view. This is exactly how New York votes were counted until the Election Reform and Modernization Act of 2005 was implemented. Now, our election system, like Wisconsin’s, cannot be trusted to produce election results that accurately reflect the will of the voters.

The public has been told time and time again that we can trust the new optical scan voting machines because if there is any reason to trust the count, paper ballots can be counted to verify the original election results. But when that became necessary in Wisconsin, the secure chain of custody of the paper ballots had been hopelessly compromised, with unsealed and improperly sealed bags being presented for recount in county after county. And the government’s numbers don’t add up. The election has been certified by the Government Accountability board (G.A.B.) despite their not having reviewed some of the most damning official evidence from the recount. And the public has not been informed of the real story.

Please read the coverage of the Wisconsin Supreme Court election fiasco at The BRAD BLOG.

During the course of the “recount,” some 2,700 votes from the original tally were found to have been counted inaccurately, according to the results posted each day throughout the “recount” by the G.A.B. That number comes as the results of hand counts of paper ballots in just 31 of the state’s 72 counties. The rest of the ballots cast were re-tallied by the same oft-failed, easily-manipulated computer systems made by companies like Diebold, ES&S, and Sequoia, which tallied them originally, either accurately or inaccurately, on Election Day.

The G.A.B.’s certified results declare Prosser the winner by 7,004 votes, or 0.46%. That margin includes the results from thousands of ballots found to be irregular for various reasons during the count, objected to by the Kloppenburg campaign in each instance, and then included in the results nonetheless, without review by the state agency.

If just over 3,500 “irregular” votes for Prosser, out of the 1.5 million cast overall, might have been cast originally for Kloppenburg instead, that would be enough to change the outcome of the election…

How does New York’s election system compare to Wisconsin’s?

A few key points:

• Both use non-transparent, riggable, hackable electronic optical scanners to ‘count’ most votes.

• While Wisconsin law has very clear laws about when to conduct recounts, New York does not. NY courts have refused to order recounts, including in races with margins as small as 15 votes in 2010.
• In neither state are votes counted transparently at the polling place on election night. Until the passage of the Election Reform and Modernization Act of 2005 (ERMA) in NY, New York law required that official vote counts be obtained on election night before the evidence of the count was removed from public view.
• In both states, electronic machines are in use that do not even meet the respective state’s (insufficient) legal requirements. While, as far as we know, use of illegal machines is limited to one town in Wisconsin, throughout New York State optical scan systems are used that can be connected to the internet, in direct violation of the law.

What’s the solution?

New York must return to transparent, publicly observable elections. The Election Reform and Modernization Act must be overturned in court. Support ETC’s work to achieve the first U.S. ruling declaring secret vote counting inside computers to be unconstitutional.

Follow all of Election Transparency Coalition news and opinion by joining our email list.

Lever Voting Machines To Be Used In Village Elections This Month!

Governor Andrew Cuomo has signed legislation allowing lever voting machines to be used in NY village elections, including those held later this month. The Election Transparency Coalition supported this legislation, which was sponsored by Senator Jack Martins and Assemblywoman Michelle Schimel.

Unfortunately, as the situation now stands, both villages and school districts (which were already operating under a temporary exemption) will be required to use optical scanners to count votes after 2012, and some local jurisdictions — such as fire districts and libraries — are still required to use optical scanners.

ETC shares the concerns expressed by local officials about the unnecessary costs of the optical scan systems. We remain even more concerned, however, about the lack of transparency and security inherent in systems where vote counts are produced secretly inside computers.

We call upon administrators of all local elections to make sure that all voters, regardless of special needs, have the ability to exercise their right to vote, and that the electorate’s right to observe all stages of elections be honored as well.

The Election Transparency Coalition Supports Litigation to Allow Lever Use in Local Elections

ETC has expressed its support of the New York State Legislature’s efforts to remove the requirement that electronic vote-counting systems be used in upcoming local elections. Not only does this technology create serious problems wherever it is used, the mandate also represents an undue burden on local jurisdictions. We stand with local governments in support of new legislation that would allow the use of lever voting systems or hand-counted paper ballots for upcoming village elections as well as elections in special districts, libraries and fire districts. School districts are already exempt for the time being from the requirement to use electronic vote-counting systems.

Read our memorandum of support here.

Experts Shouldn’t Be Needed To Call Outcome of Election

Op-Ed by Howard Stanislevic:

Published in the Albany Times-Union 1/1/11:

The Court of Appeals’ decision in the state Senate District 7 case was flawed. Important testimony from experts — including mine — was never heard in its entirety. But the notion that our vote-counting problems would be solved if only we had full hand recounts of all very close elections is also flawed, and would not protect the interests of New York’s candidates and voters.

The unheard expert testimony called for a 90 percent initial hand count of that contest because it was so close, among other reasons.

But since machine errors had already been found in a 3 percent hand count, the experts upped their percentage to 100 percent to be certain of the winner. The trial court judge, however, refused to hear that testimony, and no higher court ordered him to consider it.

Full hand counts of close elections are needed because a narrow victory margin, and possibly a winning candidate, reported by a computerized voting system may be incorrect.

Read the full article at this link.

Breaking: SD7 Vote Count Will Not Affect Election Outcome in NY!

December 27, 2010

The Situation:

The auditing of the optical scanners in Nassau County continues despite last week’s unfortunate ruling by the NY Court of Appeals refusing to order a full hand count of the ballots. Republican candidate Jack Martins is now the certified winner of the race for the 7th District State Senate seat.

This presents the troubling possibility that the audit, which could eventually be expanded to a 100% hand count, will reveal that the declared (and by then likely seated) winner got fewer votes than his opponent, incumbent State Senator Craig Johnson, a Democrat.

According to the Court decision, even if it is revealed that the wrong winner was declared, the machine count of the votes will stand!

The Details:

In the Nassau County race where approximately 85,000 votes were cast, the machine count showed Republican candidate Jack Martins leading Democratic incumbent Craig Johnson by 451 votes, a margin of only 0.5%. A spot-check (erroneously called an ‘audit’) was performed, with hand-counting of the paper ballots cast on 3% of the voting machines.
Johnson went to court seeking a full hand count. The Supreme Court denied the request, and last week the Court of Appeals affirmed the lower court’s decision, stating, “There is no substantial likelihood that the result of the election would be altered by the conduct of a full manual audit.”

In making the original decision, the Supreme Court apparently failed to understand the math involved. They simply multiplied the error rate found in the 3% sampling by 33.3 and concluded that a 100% hand count of the ballots would not wipe out Martin’s 451-vote lead in the race. Had they allowed the expert testimony by statistics professor Philip Stark, the Court would have understood that the situation called for more than a simple multiplication problem: the calculation should have included the margin of “victory” and the unlikelihood that the error rate in a 3% sample is truly representative of the whole. (With only 3% of the machines audited, there is a 97% chance that the machine with the most errors was not audited at all.) According to Stark’s analysis, “To have 90% statistical confidence that Mr. Martins won requires auditing a minimum of 90% of the machines selected randomly: an additional 218 machines.” And the 90% sample would have to be error-free.

Even Bo Lipari of New Yorkers for Verified Voting, which has long pushed for the replacement of lever voting machines with optical scan voting systems even without effective state audit/recount laws in the state of New York– much to the frustration of the Election Transparency Coalition — is appalled by the Court’s failure to understand the way spot-checking machine vote counts is supposed to work. His explanation is worth reading even though Lipari fails to acknowledge that the current situation is a predictable result — based on similar problems throughout the nation in recent years — of using the e-voting technology his group has pushed.

The Outlook

Will the State Senate race in NY’s 7th District follow in the footsteps of the 2000 presidential election, where courts declared Bush the winner of Florida’s electoral votes and thus the presidency, but later counting of the votes revealed that Gore had actually won Florida?

This week’s NY Court of Appeals ruling clearly illustrates one of the reasons the Election Transparency Coalition has fought the computerization of NY’s vote counting. Arguments that optical scan systems such as NY’s new voting system are safe because the computer count can be verified by hand counting of the ballots fall far short of protecting our sacred elections. All around the country, in election after election, the paper ballots are not hand-counted when they should be. Here in NY, a count is taking place, but not until AFTER a winner has been declared!

The accuracy of machine counts is only one of many problems with optical scan voting systems. With the new optical scan voting system, NY voters no longer have the overvote protection afforded by the lever machines. And when paper ballots are introduced and are not counted at the polling place in full public view on election night, the chain of custody of those ballots becomes as crucial as is chain of custody of evidence in criminal trials. Yet rigorous chain of custody procedures are rarely followed.

Voters have been left with a system that is neither accurate nor secure, a system that also lacks the transparency constitutionally guaranteed to NY voters. This is why the Election Transparency Coalition continues to work to bring back the state’s time-tested, accurate and transparent lever voting systems.

The Election Official Who Wouldn’t

ETC applauds Columbia County’s Democratic Election Commissioner, Virginia Martin, who led her county to become the only one in NY to hand-count 100% of the paper ballots produced in November’s election. In an interview with ETC published in our newsletter [free subscription at link] Martin said:

I’m responsible, along with my counterpart, for the accuracy of the vote count, and when I certify an election, I’m attesting that the results are accurate. It would be the height of irresponsibility for me to certify results if I couldn’t understand, examine, or feel confident in the vote-counting mechanism employed. And I have no reason to be confident about a software-based tabulation of secret ballots. The software might contain an inadvertent error or it might have been hacked—yet in neither case would I necessarily be aware that there was a problem.

Commissioner Martin has recently written two Op-Ed columns for The Columbia Paper regarding the hand count:

Your vote counts: Why county is hand-counting all its ballots

and

Your vote counts: This county knows who won

The work of Commissioner Martin and everyone whose efforts combined to achieve the hand count should be not only applauded, but applied in future elections in counties throughout the state and beyond.

NY Court Allows Optical Scanner Inspection by Nassau County’s Experts

The state Supreme Court judge hearing Nassau County’s case against the NY State Board of Elections last week authorized Nassau County, as part of the discovery process, to have ES&S electronic vote-counting machines tested by an independent lab in Connecticut.

In delivering this order the judge affirmed many of the constitutional issues which ETC has articulated, finding that, among other things, “the Legislature may not adopt policies which deprive voters of crucial protections under the New York State Constitution,” and “any burden on the State is far outweighed by the public’s interest in the right to cast a meaningful vote and its right to know whether the new machines jeopardize the security and integrity of New York’s electoral process.”

Responding to the court ruling in a press statement, Nassau County Attorney John Ciampoli said, “It is my firm belief that these new voting machines adversely affect voters… in their ability to cast their votes and have them count. In addition, in my opinion, the new voting equipment is an invitation to high tech and low tech fraud. Finally these voting systems will explode the cost of running elections by a multiple of as much as ten times the cost of running an election on our reliable lever machines.”

Nassau is among a minority of New York counties to have opted for the ES&S optical scan machines, one of two systems certified for use in NY by the State Board of Elections. The ruling only applies to the machines of the petitioning county (Nassau). This currently leaves the Dominion system, which was chosen by the majority of New York counties, exempt from independent testing.

Most of the twenty counties (see sidebar for list) that passed resolutions expressing concerns about the optical scan voting systems and petitioning to retain their lever machines are scheduled to use Dominion Optical Scanners in fall elections. ETC urges these counties to join the Nassau suit so that all the voting machines will be subjected to independent professional scrutiny.

Nassau County Attorney John Ciampoli’s press statement and the full court ruling can be read here: Nassau Discovery Ruling & Statement.

Brennan Center Sues NY Over Seasoning in Poisonous Brew

Lawsuit Dishonors Justice Brennan’s Name

The Brennan Center For Justice has filed suit against the NY State and NYC Boards of Elections to prevent election officials from configuring newly purchased optical scan voting machines in a manner that would disfranchise large numbers of voters. The suit, filed on behalf of NAACP, the National Coalition on Black Civic Participation, the Working Families Party and other plaintiffs, seeks to compel election officials to use procedures to prevent votes from being disqualified when a voter selects too many candidates in a particular race, known as “overvoting.”

Of course it is important to require procedures to prevent overvoting, but The Election Transparency Coalition (ETC) has repeatedly insisted that all protective procedures New York has enjoyed for centuries be maintained, including the opportunity for meaningful public oversight of our elections. The Brennan Center’s lawsuit, by focusing on a single protection, fails to address the much more significant problem: the State’s insistence that counties deploy concealed fraud-enabling vote-counting technology in the first place!

ETC maintains that the Brennan Center suit is akin to fretting over the seasoning in a poisonous brew. If the Brennan Center’s case succeeds, overvoting may be less likely to occur, but votes can still be nullified by the concealed vote counting system the Brennan Center supports!

While correctly pointing out that lever voting machines make overvoting impossible, the Brennan Center’s case fails to mention that lever machines also cannot be secretly programmed or “hacked” to switch and miscount votes without detection — which is eminently possible with optical scanners.

As ETC has been saying for years, electronic optical scan vote counting systems are vulnerable to tampering and malfunction that is completely undetectable. The way in which such voting machines were programmed to count, as well as how they in fact counted, is hidden, violating centuries of New York State election law mandating public oversight and accountability. That’s why we have been working so hard to bring our own lawsuit challenging the constitutionality of NY’s Election Reform and Modernization Act (ERMA), which is forcing NY’s counties to replace their existing secure, transparent HAVA-compliant voting systems.

Nassau County has filed a lawsuit in State Supreme Court similar to ETC’s upcoming suit  and a federal judge has ruled that federal law does not require replacement of lever voting machines. Yet the Brennan Center’s case continues to promote the widely held misconception that the federal Help America Vote Act (HAVA) mandates replacement of NY’s trusted lever machines. The State of NY had also made this erroneous claim and argued that Nassau’s case must be tried in Federal Court. But last month, Federal Court Judge Joseph Bianco rejected the State’s arguments and remanded Nassau County’s suit back to State Court. As Nassau had argued, New York has been in compliance with HAVA since 2008, when the State augmented the lever voting system with ballot marking devices at every polling place to increase accessibility for voters with special needs.

The late Supreme Court Justice William Brennan understood the imperative for public scrutiny of government processes, repeatedly finding the public’s right to witness and safeguard its interest to be constitutionally protected.

The Brennan Center website quotes Justice Brennan as saying, “. . . the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.”

The Election Transparency Coalition calls upon the Brennan Center to honor its namesake by challenging the dangers posed to our democracy by concealed vote-counting systems. ERMA must be declared unconstitutional so that transparency and citizen oversight can be returned to our elections and we can perform our duties as citizens to ensure that every vote will be counted correctly.

Nassau Election System Lawsuit Sent Back To State Court!

We’re pleased with U.S. District Court Judge Joseph Bianco’s ruling last week sending Nassau County’s case back to state court where it belongs.

The case, filed in March, seeks to have NY’s Election Reform and Modernization Act (ERMA) declared unconstitutional for many of the same reasons ETC’s upcoming litigation does: chiefly, the disaster that would be caused for our democracy should the electronic vote-counting systems ordered by ERMA be deployed throughout New York. Defendants had the case moved to federal court, claiming that federal issues were involved.

But Judge Bianco disagreed, saying “Plaintiffs’ claims (1) do not assert a federal cause of action, (2) necessarily raise a substantial question of federal law, or (3) come within the “artful pleading doctrine.” As such, there is no federal jurisdiction over this case, and remand is required.”

The State has repeatedly claimed that federal law, the Orwellian-named Help America Vote Act, forbids continued use of lever voting machines. However, in his ruling, Judge Bianco affirmed what Nassau (and ETC) have been saying: that HAVA does not rule out the use of lever voting machines.

Bianco’s ruling also states, “In short, there is no indication Congress sought to transform all state law claims dealing with the administration of elections or voting systems into federal claims. In fact, the opposite appears to be true given that Congress gave the states a significant amount of discretion as to how to implement HAVA.”

Judge Bianco’s ruling thus correlates with what ETC has said all along: that HAVA does not require that NY abandon its lever voting systems. NY came into compliance with HAVA when ballot marking devices were installed at every polling place to provide increased access for voters with special needs. The full ruling can be viewed here.

Announcement!

(Note: This item was moved here from the home page on June 21, 2010.)

March 26, 2010 The Election Transparency Coalition applauds Nassau County for filing suit against the State of NY over its unconstitutional election law, the Election Reform and Modernization Act (ERMA). ETC has long held that ERMA is unconstitutional because its mandate that counties switch over from the time-tested, trustworthy and transparent lever voting systems to electronic vote-counting systems will end meaningful public oversight of the public’s elections. That mandate must not be allowed to stand. Since New York State has already complied with the federal requirement of at least one accessible voting device for voters with special needs at each poll site, we urge the Court to act quickly and decisively to halt the implementation of the state’s legislation before more taxpayer dollars are spent on equipment that must not be used to count votes in New York.