Big Week for Election Integrity in The Big Apple

It's been quite a week for election integrity advocates (starting last Thursday) here in the City of New York!

First the stunning but perfectly reasonable declaration by Columbia County Election Commissioner Virginia Martin in a State Assembly hearing in the City last Thursday, where she testified [PDF] that she would not certify an election counted by computers "unless an appropriately designed audit of the paper ballots is conducted."

We continue to work toward that end, assuming any county given the choice would actually replace its tried and true lever voting machines with paper ballots counted by computers. But as we have reported previously, auditing elections in New York to any degree of confidence -- statistical or otherwise -- is going to be an uphill climb.

Here's our testimony [PDF] from last Thursday's hearing including some graphics [PDF]. And here's a full recap complied by Teresa Hommel of WheresThePaper.org.

Martin also said that given today’s fiscal environment, the state budget and current and future deficits, the only prudent thing to do is to amend the New York Election Law to allow counties to continue to use their lever voting machines.

In a related E.I. development, tomorrow in response to calls for fiscal responsibility and election integrity, New York City Councilmember Helen D. Foster will introduce a Resolution to keep the City's 7,300 lever voting machines which, contrary to popular belief, the Help America Vote Act does not require to be replaced.

Councilmember Helen D. Foster

Advocates and fellow public officials will commend Councilmember Foster at a press conference on the steps of City Hall on Wednesday, Oct. 28 at 12:45 PM. The public is invited to attend.

$75,000 PCs TO RUN ELECTIONS IN NY COUNTIES (So much for "stand-alone" voting machines.)

For those who still believe the myth that New York's new voting machines will be "stand-alone, non-networked" devices, just like lever voting machines (put forth by anti-lever zealots), here's a brief summary about how the new systems really work, published in The Daily Star:

Pilot programs for new voting machines to begin locally
By Tom Grace
Cooperstown News Bureau

Published: August 01, 2009 12:00 am

-snip-

The machines cost about $11,500 apiece, and the counties have had to buy special $75,000 Dell computers to program their voting machines.

``We've used up most of our federal money,'' said Ross, who estimated the county had been given about $600,000.

Both counties had to hire more staff, two technicians apiece, to tend to the new machines. Unlike the lever machines that have been used locally for decades, optical scanners cannot be stored in town barns and fire houses, but must be kept in a climate-controlled area and tested periodically. Each time they are needed, they have to hauled to polling places, Ross noted.

The new machines represent more work for staff, and the new way of voting will be more expensive than using lever machines, said Ross.

`` Ballots are 65 cents apiece, and if we need 38,000 of them for elections twice a year for the primary and general election, or three times a year, when there's a special election, that's going to add up.''

But the federal government has ordered changes, the state government has consented to them, and now county boards of election are striving to make sure the transition is as smooth as possible.

``Our biggest problem may be convincing people to fill in the squares completely,'' said Schermerhorn.

A bigger problem in our opinion is that the new ballot scanners are not "stand-alone" devices at all, as many have been led to believe. This means the new voting system will be vulnerable to all the risks inherent in any centrally managed client-server computer network, including wide-scale error, propagation of viruses and malware, denial of service attacks, insider fraud, and so on.

Interestingly, the legislatures of two of the counties mentioned in this report, Delaware and Chenango Counties, have both passed resolutions to keep their lever voting machines. They seem to prefer their inexpensive, low risk, low tech, non-computerized, truly stand-alone vote-counting devices after all. And so should we all.

NY Advocates to State Board of Elections: Audits Won't Find Wrong Winners of Elections

Since 2006 when this paper [PDF] was published by VoteTrustUSA, it's been widely acknowledged by statisticians and election integrity advocates that the outcomes of many US House races, and smaller state and local contests, can not be confirmed with high confidence using small-percentage precinct-level audits of paper ballots originally counted by computerized ballot scanners -- even if the chain of custody of all the paper ballots could be verified.

These peer-reviewed papers estimated the scope of the problem by examining almost 1,400 Federal elections over six years. The authors found that the winners of more than 17% of all Federal contests from 2002 to 2006 could not be confirmed with high confidence using a 3% audit of precincts, known in NY as Election Districts (EDs) -- even if the audits showed no erroneous vote counts.

Think about that for a moment: even if the 3% audit did not find a single miscounted vote, the winners of many elections counted by computerized voting systems could still be wrong -- and no one would ever know.

This white paper [PDF], published in 2007, covered six years of New York's Federal elections, and extended the study to the 2006 New York Senate and Assembly elections. The author found that in NY, the winners of 14 out of 87 US House races, 7 out of 62 State Senate Races, and 32 out of 150 State Assembly races could not be confirmed with high confidence using a 3% audit of Election Districts.

All of the above papers were sent to the State Board of Elections, New York's election integrity community, and various academics upon publication.

It's worth noting that some statisticians have criticized this work primarily because, they say, it's not sufficiently rigorous. They favor larger and more conservative audits [PDF] that assume even more votes could have been miscounted within the precincts. So the above papers may serve as a floor rather than a ceiling on the number of electoral outcomes that would not be confirmed with 3% precinct-level audits.

While paper ballots are easy for voters to mark, and easy to count by hand, the first paper cited above also showed how today's optical scanners, when used to their full capacity to count thousands of ballots each, are particularly unsuitable as audit units in elections. The reason is simple: for a given percentage of audited machines (such as 3%), larger machines result in fewer machines actually checked for vote-count discrepancies. This results in much lower confidence that the winners of elections are correct, than an audit of 3% of the smaller-sized Election Districts or precincts (or fractions of EDs counted by particular machines).

The calculations in all the papers cited above are therefore optimistic as far as New York is concerned, because New York will not audit its elections by precinct -- but rather by scanner. This means there will be uncertain outcomes of even more contests than previously estimated.

Consider that a problem in a single ballot scanner could miscount the votes cast on up to 4,000 ballots. Unless that scanner were picked to be audited, the problem could go undetected. With a 3% random audit, the smaller the total number of scanners, the greater the chance that a particular scanner (such as one with a 4,000-vote error) will NOT be audited. The same problem exists even if we assume, for example, that "only" 20% of the votes on a scanner could be miscounted.

By contrast, each of New York's 20,000 lever voting machines counts fewer than 1,000 ballots. Lever machines do not count votes with unobservable software, and unlike computers, lever machines can be reliably tested. Levers can't switch votes during an election either, the way scanner software can [PDF]. And of course, levers don't allow voters to cast overvotes, as scanners did in high numbers in Florida last year [PDF].

On July 25, 2009, after years of trying to influence the State Board of Elections to write effective auditing rules, advocates from around the state submitted their public comments on the 3% audits prescribed in the current draft regulations. One such comment [PDF] by New Yorkers for Verified Voting (NYVV) stated that:

"in many state Senate and Assembly races an audit of this size could easily overlook miscounts large enough to alter the outcome of a competitive contest."

While NYVV did not specifically mention Federal elections, it's clear from the above peer-reviewed literature that they too are at risk.

Below, following years of much more detailed comments, discussions and suggestions, are our public comments on New York's proposed auditing regulations [PDF].

Among other problems, as of this writing, it is not clear to us whether our State Board of Elections has even been able to agree on the definition of a "complete audit" in the Election Law. A request for an interpretation sent to their legal counsel remains unanswered. However, it should be obvious from NYVV's comments, and the Law itself that "complete" means all the ballots on which a contest appeared. The Law states:

"If a complete audit shall be conducted, the results of such audit shall be used by the canvassing board in making the statement of canvass and determinations of persons elected and propositions rejected or approved. The results of a partial voter verifiable record audit shall not be used in lieu of voting machine or system tallies." (EL § 9-211 4)

However, the SBoE and our county boards of elections may see things differently. They may have decided that the only way a candidate will be able to get a recount is through the courts.

Our Comments on New York's Proposed
Election Auditing Regulations

Executive Summary:

Regardless of mathematical considerations, if the SBoE does not interpret a "complete audit" in EL § 9-211 as a hand count of all the ballots in a contest, then candidates will have no right to a full recount under NYS Election Law and the audit will not limit the risk of incorrect outcomes of elections.

The mandatory 100% "recanvass of vote" in EL § 9-208 does not include a hand count of all paper ballots. A candidate would have to go to court to obtain a recount, probably with little or no evidence of miscounted votes from the audit, unless the audit can be improved to find such evidence. Therefore it is essential that the intent of ERMA's audit requirement, EL § 9-211 (3) and (4), be clarified and that the regulations comply with it.

Part 6210.18 Should be Amended to Include the Following:

1. Full compliance with EL § 9-211, which requires a uniform statewide standard for expanding the audit to a "complete audit" in the event discrepancies are found. The definition of "complete audit" should include all the ballots on which a particular contest appeared, and be used to determine the winner of the contest or the propositions rejected or approved (EL § -211 (4)). A complete audit should not be limited to a particular county, counties, or machine type, but should include all counties and machine types in which a contest appeared on the ballot.

2. Auditing of more, but smaller units, to provide a greater chance of finding problems that could affect outcomes of contests. Whenever possible (such as for percentage-based expansion of the audit, and for any contests not included in the initial 3% audit), audits should be based on EDs, or the portions of EDs (to be defined as "audit units") counted on a particular scanner, rather than whole scanners. The SBoE has already adopted this in their draft procedures for auditing central-count scanners, but only to avoid 100% hand counts of absentee ballots. The use of EDs, or the portions of EDs counted on particular scanners, should apply to all audits, to increase the chances of finding miscounted votes.

3. Escalation sections should apply to entire contests -- not just individual counties or machine types. Therefore, expansion of the audit should be:

• contest-specific;
• contest-wide; and
• based on EDs on each scanner (which should be defined as "audit units") instead of whole scanners.

Error thresholds that require expansion of the audit if exceeded should also be contest-wide.

4. Larger audits for close elections: A simple formula or table in which the initial number of selection attempts or "picks" is inversely proportional to the victory margin, has been proposed and could be used to allocate auditing resources efficiently for close races in which votes miscounted, regardless of the reason, are most likely to result in an incorrect winner. Such audits should be conducted using the smaller audit units instead of whole scanners to increase their effectiveness and reduce the overall workload for a given confidence level.

5. Close-margin full-recount triggers: The 1% automatic trigger for a full hand count that will be used in the 2009 pilot, should be included in the regulations. A smaller margin (for example 0.35%) could be used for statewide races. All such margins should be based on the contest-wide results and not the results in individual counties.

6. The regulations should require the use of overhead projectors during hand-counts so that all observers can see the ballot being counted. The SBoE should consider inclusion of a requirement for web-casts of hand-counts with close-ups of the ballots being counted.

7. The regulations should require continuous observation of all voted ballots and other election-day materials that are critical to an audit. Election inspectors must be required, and observers allowed, to accompany the ballots and other materials to a central site where meaningful, continuous observation is permitted until completion of all audits. For example, in some counties a cell in the county jail may be considered for use for secure storage of ballots and materials, with observers provided with folding chairs in the aisle outside the cell.

8. To reduce the risk of an incorrect outcome, the first of the two escalation triggers needs to be lowered from the current 0.1% change in any candidate's vote share to a 0.05% reduction in the apparent margin of victory. This could result in fewer ballots to be hand-counted. As an alternative, the error rate requirement of HAVA Section 301 (a)(5) could be used, but only errors that reduce the apparent margin of victory should be considered in the decision of whether to expand the audit. This is important especially if initial samples are not large enough to confirm the outcome of the contest, as is the case with the current draft of the regulations.

9. The regulations should allow each candidate to choose a small number of EDs to be audited in each county in which he/she appears on the ballot, as a check for implausible results.

Submitted by:

Howard Stanislevic
Founder, E-Voter Education Project
http://e-voter.blogspot.com

and

Teresa Hommel
www.wheresthepaper.org/ny.html#KeepLevers
Chair, Task Force on Election Integrity,
Community Church of New York Unitarian Universalist

Most New York Voters Lose Undervote Notification

The NY State Board of Elections met today and unanimously adopted an emergency regulation to turn off undervote notification on all tabulating ballot scanners. The undervote notification on accessible Ballot Marking Devices will not be affected.

The emergency regulation will be in effect for 90 days. At the end of that time, a permanent regulation will be promulgated.

Under the new regulation, the only voting machines or systems in New York that will warn voters that they have undervoted will be the accessible Ballot Marking Devices.

For decades, New York's lever voting machines have not permitted overvoting. Ballot scanners do permit overvoting, but in an effort to catch up with mechanical lever technology, the scanners must warn the voter about the effect of casting an overvoted ballot, per statute. This recent report from Florida, where excessive overvotes were partially responsible for the close results of the 2000 Presidential Election, reveals how the overvote warning system has been working with some of the same scanners that New Yorkers will be using.

Undervote as well as overvote notification, were both thought to be advantageous to voters when the original New York regulation was drafted. But concerns about confusing voters who wish to undervote intentionally in some contests, the need to keep the lines moving on Election Day, and the need for secrecy of voters' ballot choices prompted today's change.

LWV to NYS Board of Elections:Pilot Off Course!

According to a report by Bo Lipari, representing the League of Women Voters of New York, the State Board of Elections' and US Department of Justice's so-called "pilot" of uncertified computerized optical scan vote-counting systems is way off course.

Photos from The Sydney Morning Herald

The State and County Boards of Elections participating in the aggressive and reckless roll-out of the uncertified ballot scanners this year may not be so fortunate as to have the services of Captain Chesley B. Sullenberger, III (pictured above), but they may very well need them before Election Day is over this year.

Lipari, a member of the Citizens Election Modernization Advisory Committee, writes that the systems to be used in the 2009 elections still have open defects which will not be fixed in the deployed systems. Moreover, significant changes have been made to software source code which has not yet undergone any wide scale testing, and will be used for the first time in real New York State elections.

Lipari's report goes on to list five areas that need improvement in the proposed plan:

• Inadequate Auditing Provisions.
• Participation should be limited to no more than 10% of registered voters per county.
• No contingency plan in the event of problems.
• Inadequate specifications for system and ballot security and chain of custody.
• No plan for post pilot evaluation.

He concludes, "While well intentioned, the Proposed Plan has serious weaknesses that should be addressed before the plan is implemented."

That's putting it mildly. We believe that without a 100% hand count of the paper ballots, conducted in accordance with the procedures spelled out in New York's Election Law (PDF), this "pilot" is nothing less than a violation of our Constitutional rights.

The League, The New York Public Interest Research Group and New Yorkers for Verified Voting issued a press release in which LWV's election specialist Aimee Allaud said the State is using the voters of New York as "guinea pigs."

All we can say at this point is: MAYDAY!

Open Letter to the New York State Board of Elections -- Election Audits Must Be Simple But Effective

A fellow election integrity advocate suggested I post the following as an open letter. It was sent to the NY State Board of Elections (SBoE) on April 20, 2009, a week before they were to meet with the county boards at a conference in Albany. I was told that auditing of elections was going to be on the agenda. Having been involved in the drafting of the relevant regulations, I was prompted to write this note. However, I have heard reports from conference attendees that election auditing was not actually discussed.

Note that the phrase "firm Constitutional ground" in this letter means that Equal Protection derives from an equal chance of detecting incorrect electoral outcomes of contests for the same elected offices in different parts of the State. I did not mean to imply that the use of concealed vote counting would necessarily be constitutional in the first place.

Election Audits Must Be Simple But Effective

Dear Co-Executive Dirs., Co-Chair Kellner and Commissioner Peterson

Thank you for correctly stating in your Apr. 8th letter to the counties that "under some circumstances ... safeguards will possibly escalate what will be required to include a full hand count."

The problem is, without an initial risk-limiting audit sample, there is no way to know whether such an escalation, or any escalation, should or should not occur. The solution can be relatively simple, but NOT as simple as the 3% "spot check" of machines or systems required by EL § 9-211.

In fact, a one-size-fits-all, percentage-based audit would violate Equal Protection by resulting in unequal chances of discovering material discrepancies that could change the outcomes of contests for the same office (e.g., State Senator) in different legislative districts throughout the State. Since the math underlying this is unequivocal, fixed-percentage audits should not be allowed to stand for this reason alone, except as an arbitrary minimum or "floor."

I believe you will be on firm Constitutional ground by implementing a risk-limiting approach, now endorsed by national groups such as LWV and NY good government groups such as NYPIRG.

The only remaining problem is: how to make it simple.

I've spent a great deal of time on this problem, pro bono, with the help of Dr. Mark Lindeman at Bard College and Dr. Ron Rivest and his colleagues at MIT and Northeastern U. The process of simplification has taken years, but I believe we are at a point now where we can offer NY a very simple but effective method, based on the maximum size of EDs, which I hope will remain at 1,150 active registered voters (but could be adjusted if necessary).

Frankly, I was hoping that by now, we would have received some feedback and possibly an endorsement of this approach from the SBoE. Time may be running out for NY and there is no reason for additional delays in light of the new method I have proposed to Commissioner Kellner, Bob Brehm and Kim Galvin, to simplify the risk-limiting audits.

Please advise when you are ready to discuss this further. You have to present something tenable to the counties in only a few days, and I'd hate to see such an opportunity squandered.

Best regards and thanks for doing your best to protect the franchise,

Howard Stanislevic
Founder, E-Voter Education Project
NY, NY
http://e-voter.blogspot.com

New York Rolls Out Uncertified Voting Systems for 2009 Elections

ALBANY -- At a May 12th Commissioners' meeting, after collaborating with the US Dept. of Justice, the New York State Board of Elections cavalierly decided to risk the disenfranchisement of nearly a million of the state's voters, by allowing what one commissioner called a "huge pilot" of uncertified software-driven electronic vote-counting systems around the state in 45 of its 62 counties.

Here are the links to the Commissioners' resolution, and other documents containing the details of the plan:

• Authorizing Resolution 05/12/2009 (PDF 50KB)
  
• Pilot Plan Narrative 05/12/2009 (PDF 65KB)
  
• Timeline 05/12/2009 (PDF 492KB)
  
• County Participation Spreadsheet 05/12/2009 (PDF 42KB)

Over 900,000 voters (read: guinea pigs) could be affected by these irresponsible tests, which one county election commissioner, perhaps unwittingly, compared to filling out lottery tickets. Gambling with the votes of a million New Yorkers is hardly a way to instill public confidence.

The plan contains almost no provisions for manual recounts of the paper ballots to check the computer tallies, other than those that might be obtained through the courts. The only exceptions are for contests with a margin of victory of 1% or less. Full recounts of those contests will be conducted, but we bristle at the suggestion that the victory margin reported by the uncertified voting system will be the one used to determine whether or not the hand count to check the system will take place.

Commissioner Douglas Kellner made a motion at the May 12th meeting to allow any candidate to ask for and obtain a full hand recount. His fellow commissioners defeated it by a bipartisan 3 to 1 vote.

Apparently Kellner's colleagues believe that:

• any candidate can convince a judge that a voting machine didn't count her votes -- even without evidence to support such a claim;
  
  
• the judge will also believe that the paper ballots have been preserved inviolate and thereby allow them to be hand counted to find out who really won an election (contrary to a number of previous decisions by the highest court in the State -- not to mention the highest court in the land); and
  
  
• the court would gladly spend taxpayers' money for such high-minded purposes as convincing losers of elections, and their supporters, that they really lost fair and square -- even given the amount of money already spent on the new voting systems.
  

But the voters of New York deserve more than just naive speculation about the ease of obtaining hand counts from a potentially partisan and cost-conscious judiciary. They deserve the actual hand counts if and when they are needed.

So what if the margin of victory happens to be slightly more than 1% (say 1% + 1 vote for example), and the courts deny the recount request? In that case the hand count reverts to only a 3% spot check, per Election Law § 9-211 -- part of the Election Reform and Modernization Act of 2005 that brought us this mess in the first place. If there are no discrepancies found in the spot check, the election could be certified -- which is more than can be said for the voting systems that actually produced the election results.

Unfortunately, the math is unequivocal: in many elections, a 3% audit can reveal absolutely NO discrepancies, and the outcome of the elections can still be absolutely wrong. If that happens, no one will be the wiser.

One other potential safeguard remains for the million voters who will be subjected to this foolish experiment: the long-awaited and yet to be promulgated State Board of Elections auditing regulations known as Part 6210.18. For well over a year now, we have been involved in the drafting of these regulations. They offer the only hope for anything better than the ill-considered 3% spot checks in the Election Law.

A year ago, many of New York's good government groups wrote to the Board, asking for these regulations to reflect best practices. But so far, progress has been slow to non-existent in this area, even as the mad rush to run real elections using potentially fake voting systems continues.

All that said, while the value of certification has been greatly exaggerated, we think it might be fair to say that if done properly, certification can prove that a voting system can work -- not that it actually will work. This weak assurance is of course not sufficient, but it's better than no assurance at all. The only way to be sure to prevent the disenfranchisement of New York's voters by untrustworthy computers, is to hand count 100%, at least until the systems are certified.

We'll be following this story and reporting on efforts to fix this latest debacle and avoid the Floridization of New York's elections. We don't think this is what New Yorkers signed up for when the State accepted $50-million in federal funds to replace its lever voting machines under the Help America Vote Act of 2002 (HAVA). The State has not been able to certify a voting system to replace the levers since then, and as always, it's important to read the law first.

In New York, the law has been decidedly anti-recount. So paper ballots or no paper ballots, the software counts will rule -- just as they did in Florida's 2000 election which brought us Bush v. Gore and ultimately, HAVA itself. Ironic, huh?

The Board did agree to present the matter to the State's Citizens' Election Modernization Advisory Committee. While their opinions are as yet unknown, and probably not binding, at least one member of the group has gone on record as favoring 100% hand counts of ALL votes counted by ANY uncertified voting system. This is in direct conflict with 3 out of the 4 State Board of Elections Commissioners who represent our two major political parties, but unfortunately may no longer be faithfully representing the voters of New York.