Tuesday, January 11, 2011

Apparent NY SD 7 Winner Says Other Elections Should Have Been Questioned

Senator Jack Martins -- the apparent court-appointed winner of the contested race for State Senator in New York's 7th District -- wrote in a Jan. 10th Albany Times Union Op Ed that other election results in the state should have been questioned -- not just the results of his contest. On this point, we could not agree more.

Commenting on a recent Times Union editorial, Martins wrote: "It is disappointing and telling that the editorial focuses solely on the 7th Senate District and irresponsibly questions the results of this race and not the others, some of which took weeks to certify, including a Hudson Valley Assembly race that still hasn't been decided."

Martins, a Republican, also cited the 37th Senate District race, apparently won by an incumbent Democrat, in which Martins alleges that 54 ballot scanners broke down on Election Day and thousands of ballots were left uncounted in the machines for days. If he's correct, this would not only be a huge scanner failure rate, but also a violation of our election laws.

The media focused their attention on Martins' race because it was the last contest in the state that could have determined which party controls the Senate -- but it certainly wasn't the only one.

Martins points out that candidates in other close races "graciously conceded." Well, that's their problem!

No candidate should concede a race without strong evidence that he or she actually lost. Yet for many New York elections, neither our current voting system, nor our outdated legal system, provides such assurance.

It's true that outcomes of other races nearly as close as Martins' were not verified in any meaningful way -- yet neither was Senator Martins' contest. Democrats and Republicans alike gave away their constitutional rights by not litigating more effectively for verification of software-based vote tallies and by not legislating such requirements when they had the chance.

Some voting advocates too are to blame, since they insisted on replacing the lever voting system before laws needed to verify computerized election outcomes -- if indeed this is even possible -- were on the books. We are still waiting for such laws.

Martins' own county of Nassau has it right. Its pending bipartisan lawsuit challenges the constitutionality of computerized vote counting.

Columbia County also got it right when both election commissioners there agreed to do full hand counts of all contests before the 2010 elections.

Senator Patty Ritchie of the 48th District may also have it right. Her campaign filed suit, even when she was ahead in the count, claiming that “Upon information and belief, the machines employed in this election are computer operated optical scan machines which are prone to ‘hacking’ and other fraudulent attacks which can compromise the results of an election." To say nothing of the inadvertent programming errors or calibration glitches that have the same potential.

Let's get real. Apparent winners of elections will always claim the system was fair; apparent losers will claim otherwise, or just "graciously concede." But appearances can be deceiving. What seems “apparent” isn’t necessarily what the evidence would have revealed, had it been examined.

Thursday, December 30, 2010

Watching and Waiting For a Return to Innocence

It has not escaped our attention, or that of our readers, that our last post was over a year ago, when it first became evident that New Yorkers would lose their voting system and have it replaced by a software-based system that our legal system is incapable of regulating. We called that post "The End of Innocence" and it covered quite a lot of ground.

There hasn't been a need to post anything more since then; we would just be repeating ourselves. We've met with the powers that be in both houses of the State Legislature responsible for making election law, and they have taken our suggestions under advisement. No laws have been passed to verify election results. But we've seen lots of interest in the National Popular Vote (NPV), Instant Runoff Voting (IRV) and other practically unverifiable voting methods. Even Internet voting!

Perhaps in light of the state's highest court's Dec. 20th denial of a hand count in the NY State Senate District 7 race in which computers -- rather than voters -- determined which party will control the Senate, it's time for a quick review of how we got here.

New York has become the Florida of the Northeast when it comes to elections, or perhaps worse since we don't even attempt to count thousands of undervotes reported by the ballot scanners. Our new machines don't even warn voters of the effect of casting overvotes, which Florida has corrected after their unfortunate 2008 experience.

There is plenty of blame to go around so we've tried to summarize it for your convenience as we keep watching and waiting for a Return to Innocence. Those who are responsible for our current situation know who they are, although they may be in denial about it.

Here's what happened:

1. New York has a history of paper ballot fraud (Tammany Hall) which lever machines were effectively designed to prevent. We don't trust PEOPLE or PAPER unless they can be watched. We do trust machines that can be locked against tampering, observed when opened, and that work on simple observable mechanical principles such as gravity, and that can't switch votes during elections the way software can. They are part of a voting system and a legal system designed to prevent fraud. Reinventing that system to deal with computers is a lot harder than most people think. In fact, it's never been done!

2. Over the last several years, our public officials have heard very little from New York's precinct-count optical scanner (PCOS) advocates and "good-government" groups about the need for software-independent elections (software-independent voting systems are only the beginning!). The opinions of National Institute of Standards and Technology experts and other computer scientists about the need not to trust software, the ineffectiveness of the "certification" of software, BUGS in New York's actual voting system software, etc. have never been widely disseminated except in testimony to a few legislative committee members by people such as us and a few election officials, and on Internet mailing lists and blogs not read by the general public. We're sorry to say there are very few of us making the case against allowing computers to "decide" election results. We are unfunded and practically alone. Compared to the push for Instant Runoff Voting, National Popular Vote, and even PCOS itself, we are voices in the proverbial wilderness. And that's a shame.

3. The same lack of informed consent applies to the so-called manual auditing of elections counted by computers, which is the only way to restore some trust and the NYS-constitutionally required bipartisan administration of elections (that explicitly includes vote-counting). That constitutional requirement has been undermined by the use of vote-counting software. But almost no one wants to hand-count more than 3% of the vote. Counting substantially more than this means the machines were a waste of money. No one wants to hear this after spending $50 million on them, plus the recurring costs of ownership which will be much more over time. One notable exception is Columbia County in which, prior to the elections, both election commissioners agreed to conduct 100% hand counts. Before an election is the best time to make such an agreement since partisan disputes over winners and losers of contests will not arise. You can read more about that good news here, thanks to Commissioner Virginia Martin.

4. Instead of the facts about NOT trusting computers to count votes, what our public officials and the media have been told is that:

  • New York has the most "rigorous software certification process";

  • paper ballots would be "available" for audits and recounts, "if necessary";

  • NY would "RELY on the paper ballots";

  • NY has a 100% "recount" law (the Election Law § 9-208 "recanvass," which never required recounts of ALL paper ballots, but only absentee, emergency and provisional ballots, and was recently amended only to require some form of ballot accounting).
All of the above provided New Yorkers who did not fact-check these statements with a false sense of security about our voting system, our election laws and our ultimate "reliance" on paper ballots to "verify" elections.

In other words, New Yorkers have been sold a bill of goods and the Legislature and Judiciary have heard very little to correct this record.

With respect to the SD 7 no-recount case, perhaps the attorneys should have had a computer scientist such as Ron Rivest or Rebecca Mercuri testify about the need not to trust software to count votes. But the judge didn't even want to hear testimony from an election auditing expert.

And please remember, the lawyers in the SD 7 case were working for the NY State Senate -- who also have their OWN lawyers who have written some of the very election laws in question in this case! This is part of the same Legislature that has not been properly educated about the risks of computerized vote-counting in the first place -- only to have it come back and bite them in their bids for re-election.

The future for election integrity looks pretty bleak in the Empire State, but we'll keep watching and waiting. The other major bright spot is of course Nassau County's bipartisan lawsuit to return to the lever voting system, which is ongoing.

Monday, December 14, 2009

The End of Innocence -- NY State Board of Elections Says Ballot Scanners Switched Votes in 2009 General Election

The Help America Vote Act does not require computerized vote counting. But earlier this year in U. S. District Court, the New York State Board of Elections (SBoE) and the U. S. Department of Justice agreed that the Board would certify a new optical scan computerized voting system by December 15, 2009. As that date approaches, the Board is displaying a dismissive attitude toward the risks and problems encountered with the systems they say they will certify.

At a November 12th State Senate Elections Committee hearing in New York City, SBoE Co-Chair Douglas Kellner testified about what he called "glitches" in the programming in one of the new systems that went undetected by Erie County election officials in the 2009 general election. Only after officials noticed some anomalous election results, did they realize their system's configuration files had been compromised.

If future election results are not so anomalous, there is a strong chance such errors will not be detected at all.


At the hearing, Commissioner Kellner confirmed our worst fears about e-vote counting (see his testimony below). Kellner stated that in Erie County, during the process of entering ballot programming data, vote switching between candidates had been programmed into the computer (Election Management System or EMS) that, in turn, programed the county's optical scanners. The scanners then proceeded to switch the votes at the polls as the ballots were cast on election day. This real-time vote switching was undetectable by voters, poll workers or other election officials.

Kellner said in this case the vote switching was detected later because the election results appeared to be implausible. The scanners supposedly failed their pre-election Logic and Accuracy test due to the vote-switching problem. That's good, but county election officials ignored the results of their own tests and held the election using the vote-switching configuration anyway.

Commissioner Kellner also stated that this county, which uses ES&S systems, was among the best in the 2009 "pilot" elections (held with real voters and candidates). We don't doubt his word that the errors were eventually corrected. But if Erie was one of the best counties, we'd hate to see one of the worst counties that participated in this experiment.

Different Vendors, Same Design

Different vendors employ the same architecture of centralized EMS programming and configuration. Both of New York's new voting systems (including accessible ballot marking devices) are programmed this way for each election. There are no "stand-alone" voting devices in New York, except the lever voting machines. It is disingenuous to claim otherwise.

Even if the Logic and Accuracy testing had been done properly and had not been ignored, there is no guarantee that vote switching would have been detected. Computer scientists have proved that such tests can be rigged to perform correctly at any time, while the machines can be rigged to switch votes during the election without detection. Under such conditions, subtle manipulations of vote counts, whether intentional or not, would not be detected.

Computers Are Not Voting Machines

Today's e-voting computers are not voting machines; they are Von Neumann machines (stored-program computers). Such general purpose machines can be programmed to do anything the programmers wish. For example, a computer playing an Internet video mimics some functions of a television set. In New York, such computers are supposed to be programmed to mimic the logical functions of the lever voting machines that have served us well for over 100 years. But there is no way to guarantee that a computer is faithfully emulating a real voting machine, just as there is no way to tell simply by observation that a personal computer is not a TV set.

Commissioner Kellner and his colleagues at the SBoE have been quite cavalier about this threat to our democracy, which we find very troubling. For example, in his testimony, Kellner compared the readily observable and limited problem of a lever machine's misaligned ballot face (which the election law requires poll workers to recheck and realign after every voter leaves the booth), to the invisible and unlimited problems of computer programming errors (and possible malfeasance). He implied that these two problems are equivalent when clearly, they are not.

Citizens Barred From Citizens' Meetings

Last week, there was a meeting of the Citizens Election Modernization Advisory Committee (CEMAC) that was closed to nearly all the citizens of New York State. To what extent will the potential for undetectable vote switching be used as a criterion for or against certification of the new systems? Since the meeting was closed to the public, we may never know. However, there is nothing in the certification standards that we know of that prohibits (or that can prohibit) such vote-switching capabilities in computers. So in all likelihood, the new vote-switching machines will be certified.

New York State’s Committee on Open Government (COG) provides oversight and advice regarding the state's Open Meetings Law. In the opinion of COG Executive Director Bob Freeman, CEMAC's restricting of public access via a protracted "executive session" was unlawful. As its reason for doing so, CEMAC had cited a discussion of “proprietary software information” rather than any of the eight allowable grounds found in the Open Meetings Law.

We have learned that the "citizens" committee, comprised mostly of election officials and other insiders, voted 10 to one to advise the SBoE to certify the new machines.

The End of Innocence

New York will soon join the long list of states burdened by electronic vote-counting systems that are so unreliable and untrustworthy that paper ballots must be used as a backup. Every state in the country besides New York uses at least some vote-switching computers [PDF] to run their elections.

These states expect their election officials to do the impossible: to somehow transform a concealed system of voting into a transparent one. It is terribly unfair to ask election officials to do so.

The Citizens' Burden

The burden New Yorkers will face as a result of the unnecessary change to our voting system is going to be huge and unending. Eternal vigilance would be easy compared to what will be required of us.

County election officials will have to redirect their modest resources toward an electronic voting process that is exponentially more resource-intensive than the system it replaces.

The SBoE seems to believe that counties can and will, at every single election, successfully accomplish every one of the new and myriad processes necessary to ensure safe and accurate elections. Even if they do so, new laws will have to be written to regulate technology that is nearly impossible to regulate. It is doubtful that such laws will be enforced.

Most importantly, enough paper ballots will have to be counted by hand to find out who won and who lost each and every election contest -- sometimes a small fraction of such ballots; sometimes more; sometimes all of them. There is no magic number of votes to count by hand, despite the fact that legislators and election lawyers continue to ask for one.

The cost of making these changes will of course be borne by the taxpayers. Other essential services will have to be cut. The alternative is to give up on free and fair elections and trust the computers to decide the outcomes. That's what 49 other states have done, whether they acknowledge it or not.

The Path of Least Resistance

One might reasonably ask why the State Board of Elections would even consider certifying a voting system that can so easily be programmed, intentionally or accidentally, to add together votes intended for two different candidates, and then allocate the total of those votes to just one candidate. We can only speculate that the Board is simply taking the path of least resistance in Federal Court, rather than fighting to protect the constitutional rights of New York's voters, candidates and their fellow election officials.

Those officials are being asked to certify county-level election results without any knowledge of their correctness. This would be a felony under New York's election law if our election officials were made aware of it. As we said, it's terribly unfair.

Commissioner Kellner's testimony, and the full transcript from the 11/12 hearing are available here [PDF].

Here is the relevant vote-switching excerpt:

Kellner from Pgs. 13-14 (Erie County ES&S vote-switching testimony)

[T]here is one other scanning issue
that had come up with the 9th Legislative District in
the Town of Cheektowaga in Erie County where the
machine had not been set up properly.
So that the ballot -- the election management system was
improperly programmed so that the scanning results did
not accurately report the results on the ballot.

Because it had set up the election management system,
that even though there were two different candidates' names,
the persons who had programmed the machine had marked
those candidates as the same candidate so that the votes
were counted as if you were voting twice for the same candidate.

Saturday, November 21, 2009

NY CD-23: Questions Remain About "Pilot" Federal Election

We have written previously about New York's reckless rollout of uncertified voting systems in real elections. Letters from good-government groups to the US Dept. of Justice, the NY State Attorney General and the NY State Board of Elections have also expressed these concerns. The only response from these officials has been to stay the course.

While experts tell us that testing and certification of computerized voting systems is never a guarantee that the outcome of an election will be correct, there are lingering questions about the uncertified machines used in New York's 2009 CD-23 special election, including the procedures purported to reduce the chances of wrongly declared winners of elections.

An article quoting an election official who claimed there was a "virus" in the voting system has been criticized for the misuse of this term. While technically, the critics may be correct -- a bug discovered in the software is not necessarily a virus -- critics also seem unaware of the history of the machines in question.

That history involves the use of uncertified software distributed by Sequoia Voting Systems to third party vendors such as ballot-printing shops. This so-called "Bridge Tool" program allows such vendors, rather than bi-partisan county election officials, to configure uncertified voting machines (or for that matter, certified ones).

Last year -- and this year in counties that did not participate in the pilot -- the Bridge-Tool method was used to provide accessible voting by outsourcing the configuration of ballot marking devices (BMDs) used by voters with special needs. While a small number of accessible paper ballots could easily be hand-counted to ensure that these votes are counted as cast, there is a broader problem: the BMDs are part of the same optical scan systems being used to count thousands of votes in CD-23 this year -- the Sequoia/Dominion ImageCast ballot scanners.

Today we have received reports that BMDs configured using the Bridge Tool, incorrectly printed what was supposed to be a two-sided ballot. In one county, out of 58 ballots printed, one ballot had the races on the front duplicated on the back, omitting the proposals that should have been on the back. On another ballot, only the front side printed, again omitting proposals on the back. On another ballot, both the front and back of the ballot printed, but the races from the front were reprinted over the proposals on the back. Because this small number of ballots were counted by hand, these errors were detected. But consider how such problems might manifest themselves if these ballots, or thousands of pre-printed ballots, were scanned and counted by the same unreliable machines -- the Sequoia/Dominion ImageCast ballot scanners.

No one knows exactly what data was transferred to the scanners using the Bridge Tool and removable memory cards last year, or if some of that data remains on the memory cards to this day. New York has no procedure to independently inspect the contents of scanner memory cards, a service performed by the University of Connecticut at the request of their Secretary of the State. New York has not adopted the rigorous procedures reportedly followed in the State of California to attempt to ensure that its voting machines and Election Management System PCs used to configure them are free of malware.

So the following unanswered questions remain about the electronic vote counts and the voting system used in CD-23 and elsewhere in New York:

Election Security Concerns

1. Was the uncertified Sequoia Bridge Tool program used by any third-party vendors to program any CD-23 ImageCast machines in past elections or the current one? If so, what was the method by which the ballot definition files were transferred to the ImageCast machines and how do we know this did not deliver malware to the scanners? (It's been claimed that because the scanners are Linux machines, it's unlikely that a "wild virus" was introduced. But this does not rule out malicious configuration files. Also, note that the Election Management System PCs that configure the Linux scanners run Microsoft Windows -- NOT Linux.)

2. Are there any internal USB ports in the ImageCast scanners, besides the one the SBoE says is used only for the printer?

Election Integrity Concerns

1. If the problem was caught by a pre-election logic and accuracy test as claimed by the State Board of Elections, then why wasn't the problem caught on every machine where it existed? The SBoE has said that not all machines with multi-winner races were identified, but all machines were supposed to be tested. This means that the tests may not have been run as required; or the tests may have failed to detect the problem in all cases; or the test results may have been ignored. (These are not mutually exclusive.)

2. Why did it take so long for the reported bug to be discovered? New York is supposed to have the most rigorous certification process in the nation -- yet these machines can't even support a simple "Vote-for-2", "Vote-for-3", etc. contest on the ballot. They crash.

3. Were all the relevant election officials informed about the discovery of the problem? If so, when?

4. Why wasn't this problem widely publicized before the election so that voters and candidates -- and not just election officials, vendors and other insiders -- could have known about it?

5. What exactly was changed in the ballot programming (which is not the source code), to serve as as a workaround for a reported bug in the source code? How was this done without preventing voters from voting for as many candidates as they were entitled to vote for (a violation of NY's Election Law and Constitution), or allowing voters to overvote without notifying them (a violation of State and Federal Law (HAVA))?

6. Were all emergency ballots counted at the polls on election night, or were they removed from public view and counted later?

7. Will there be a full hand count; a hand count of all the ballots cast on the machines that had the problems; a 3% hand count; or some other hand count based on the grossly inadequate Part 6210.18 audit Regulations?

8. If not a 100% hand count, will all the machines selected to be hand counted be chosen randomly with respect to the entire set of machines that counted the CD-23 race in each county, or will the machines be chosen because they are needed to audit other contests as provided for in the 6210.18 Regulations? (These regulations are written so as to require a great deal of non-random selections of machines with respect to an individual contest. This not only makes a lot of busy-work for the counties, but undermines the effectiveness of the random audit.)

Eddie Ajamian contributed to this article.

For more coverage of this story see The Brad Blog,
Bo Lipari's blog item and Teresa Hommel's response [PDF].

Tuesday, October 27, 2009

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.

Tuesday, August 4, 2009

$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


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.

Wednesday, July 29, 2009

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


Teresa Hommel
Chair, Task Force on Election Integrity,
Community Church of New York Unitarian Universalist