ERMA Is Unconstitutional

New York’s Election Reform and Modernization Act of 2005 (ERMA) is the state law that mandated we replace our lever machines with software-based voting machines. The federal Help America Vote Act (HAVA) did not outlaw levers.

Two centuries of precedence from NY’s Court of Appeals support election law requiring that every step of the vote counting process be controlled by bipartisan election officials under the watchful eye of authorized observers. If any critical step of the vote counting process is outside public view, the method of voting is unconstitutional.

When our elections were conducted using only paper ballots, the vote counting had to be concluded on election night while the ballots were under the continuous surveillance at the poll site. In 1896, the Legislature closed an important loophole. Prior to 1896 the election returns were prepared by bipartisan election inspectors after the count was concluded. In other words, this last step was not observable by public watchers. The court recognized that leaving a single step in the exclusive control of even our bipartisan public officials reduced “voting [to] a useless formality, as it depends upon the will of the inspectors of election as to who shall hold the offices, and not upon the vote of the people.” In re Stewart

ERMA relies on software-based vote-counting computers, which are secretly programmed by private vendors. There is no dispute within the scientific community that software is vulnerable to undetectable manipulation. State Board of Elections Commissioner Doug Kellner has acknowledged that:

Becoming aware of fraud on an e-voting machine would be much more difficult, because so much of their inner workings are invisible to all but the software programmers. … To uncover whether fraud has occurred, or by whom and how, requires an army of programmers, a number of years, and millions of dollars. Even then, there is no guarantee that their examination will produce results.

Commissioner Kellner has also admitted before ERMA was fully implemented that since he anticipated the state would be using these fraud-concealing computers, “The system in New York is not to rely on the machines, but to rely on the paper.”

The paper he’s referring to is the ballots. Under ERMA those ballots will be used after election night to audit the software results by hand counting 3% of them. Just as voting was considered a ‘useless formality’ when bipartisan election officials had unobserved access to the final election returns, under ERMA they will have unobserved access to the voted ballots after they’re removed from the polling site. This is not to disparage any election official. This is our system of checks and balances and keeping each other honest.  It has worked well in New York for more than a century.

ERMA undermines that system, enacting a method of voting which depends on two essential steps which are outside of public view. ERMA’s method returns New York’s electoral system to that ‘useless formality’ recognized as unconstitutional over a century ago.

Because the State refused to repeal ERMA despite urging from local governments around the state, litigation seeking to declare ERMA unconstitutional is the only option to overturning ERMA.

For further details on the unconstitutionality of ERMA, read our litigation summary at this link (.pdf).

For additional information including how you can support this litigation, please go to our litigation page.

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One Response to ERMA Is Unconstitutional

  1. […] 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 […]

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