ERMA relies on post-election-night ballots that have been held outside of public view, to verify the election results. As explained on the ERMA is unconstitutional page of this site, the inability of candidates and watchers to observe the voted ballots once they are removed from the poll site, renders voting a “useless formality” because they are unable to determine whether a mistake or fraud occurred. Until 1896, election inspectors prepared the election returns (or certificate) after election night; with the watchers no longer able to observe. The Election Law of 1896 corrected this very deficiency and has remained our law until now:
[T]he general election law of 1896 … was passed for the purpose of making more effective the safeguards against the abuse of the elective franchise, and rendering more certain the proper and accurate canvass of the votes. … It can hardly be thought possible that it was the intention of the legislature to give to inspectors of election the power by a simple certificate to determine the election, regardless of the votes actually cast, and provide no remedy for a mistake or false statement by the inspectors of the votes as actually polled, whether such mistake was intentional or unintentional. (In re Stewart, 48 N.Y.S. 957, 960, aff’d 155 NY 545. Court of Appeals, 1898. Emphasis added.)
ERMA’s method of voting is far worse than the discredited pre-1896 method. Election officials, who remain responsible for every step of the election including the programming of the lever machines, are precluded under ERMA from observing the programming of the software and have no way of knowing whether the software-generated results are accurate. If an error or fraud occurred, honest election officials would, in most cases, be unable to tell the results were wrong. ERMA’s verification procedure, itself a “useless formality,” provides the illusion of verification.
Much can happen between the time the ballots are removed from the poll site and then taken out a week or two later for a 3% recount:
[B]allots are fragile things. Unlike [lever] voting machines, they may be lost, misplaced, or voided by marks or mutilation.”….. There is a “difference in stability and reliability between paper ballots which, without any attribution of wrong, may be misplaced or lost, and a [lever] voting machine counter. (Rice v Power, 19 N.Y.2d 474. Ct Appeals, 1967.)
This is precisely why for 233 years New York’s Election Law has forbidden the use of voted ballots after election night, mandating the votes be counted conclusively on election night, under conditions of uninterrupted public scrutiny. After election night only transcription or mathematical errors can be corrected, but the count as determined by either a hand count of paper ballots or by the lever machine, has never been alterable after our public witnesses retire for the night. (Absentee voting is legally acknowledged to be a less secure means of voting and its provisions, including post-election night recounts, are considered an exception and limited to lever-counted elections.)
Even if the 3% recount were conducted on election night, this would still be insufficient to verify the computer’s results. A 3% sampling is inadequate to detect material discrepancies in many races when the electoral outcome is in fact incorrect. Please see the paper, “NY Election Audits: Is Three Percent Enough?” by Howard Stanislevic (download .pdf, four pages).
ERMA useless post-election-night verification therefore requires that we accept the software results that have been exposed to unseen manipulation or error. In other words ERMA mandates what the legislature, upheld by the Court of Appeals, rejected 113 years ago: a method of voting which permits the election to be determined without regard to “the votes actually cast, and provide[s] no remedy for a mistake or false” conduct.