Thursday, March 20, 2008

NY: Planned Lawsuit Challenges Constitutionality of E-Vote Counting

An open letter to New York's election commissioners, citizens and poll workers, penned by Andrea T. Novick, Esq., the attorney who filed the amicus brief in the US Dept. of Justice's lawsuit against the state, suggests that, among other things, electronic vote counting violates the state's Constitution.

In addition to the constitutional claim, the letter also makes the following claim about New York's current voting system, which is comprised almost entirely of non-computerized lever voting machines used to count votes only on election day:

The present machines are legal under the Help America Vote Act (HAVA), as long as Accessibility requirements are met with at least one accessible ballot marking device per polling place to accommodate voters with disabilities.

Such HAVA accessibility compliance is currently underway in NY.

To support the lever compliance argument, Novick cited the opinion of former New York City Election Commissioner Douglas A. Kellner, as stated in a speech before the NYC Voter Assistance Commission in 2004. Kellner, a Democrat, is now one of two NY State Board of Elections Co-Chairs.

Reading law is hard work

Any reasonable reading of HAVA seems to confirm Kellner's assertion that levers are compliant, since Section 301 of the HAVA statutes, "Voting Systems Standards":

  • does NOT require voter-verified paper audit records or ballots (which would make many DRE (usually touchscreen) voting machines non-HAVA-compliant);
  • does NOT require the voting system to use a printer to produce the paper records required by HAVA; and
  • does NOT contain accuracy requirements that are applicable to either lever machines or hand counted paper ballots.
The mostly theoretical accuracy requirement of an error rate of 1 in 500,000 ballot positions referred to in the statute, is taken from the 2002 federal Voting System Standards/Guidelines. That document, as well as the subsequent 2005 version produced by the US Election Assistance Commission (EAC) under HAVA, only contains standards for voting systems comprised of DREs, computerized electronic ballot scanners and central tabulators.

All other HAVA requirements such as overvote notification, permitting the voter to correct their ballot before it is cast, etc., have been met by the lever machines for decades -- long before electronic voting systems offered such protection.

Novick wrote of the decades-old machines:
"Levers in their mechanical simplicity have a transparency that enables regular human beings to observe both foul play and innocent failures. The evidence of the failed votes can be proven in court just the way the evidence as reflected by the hand-count tally sheets could prove that the people's will may not have been realized."
In truly bi-partisan fashion, which is another state constitutional requirement of NY's election system, Novick also included the following testimony, given by Nassau County Republican Election Commissioner John A. De Grace to the State Board at a Dec. 2005 hearing:
"I can only speak for myself, although I am certain that all other Commissioners in the State of New York feel as impassioned as I do. My main responsibility is to the voters, to ensure that my Board does all it can to implement the law as well as to guarantee fair, just, accurate elections. Up until now I have felt secure and confident that I have been able to do this. Through the use of the Automatic Lever Voting Machines, though aged, I am able to certify election results and I am certain of the accuracy by which we conduct our elections."
In its litigation in the Dept. of Justice case, NY State failed to make the case that levers are in fact HAVA-compliant, even though the attorney for the United States admitted recently in his remarks to the court that HAVA does not require voter-verified paper records to be produced. The issue of lever machine compliance therefore remains unadjudicated.

NY Election Law exempts lever machines from new requirements for as long as they are lawfully used, but also requires their replacement at some future unspecified date. The State Legislature extended the lever replacement deadline indefinitely last year in an amendment to the Election Reform and Modernization Act of 2005.

Reading newspapers is another story

The judge in the DoJ case, the Honorable Gary L. Sharpe has stated that he gets information about the case from reading the newspapers. To the extent that our media will cover Novick's impending lawsuit, perhaps Judge Sharpe may be made aware that federal statutes do not ban the levers after all. If not, he can look it up in HAVA Section 301.

The EAC, for its part, has issued an advisory stating that they believe levers are not HAVA-compliant, presenting the usual thus far unadjudicated arguments.

Should New York not wish to return the HAVA money earmarked for lever replacement, Novick says that there is another possible remedy that would satisfy both HAVA and the state constitution: hand counting paper ballots for federal elections, while the lever machines could continue to be used for state and local elections that are not subject to federal law. This would involve at most, three hand counted contests, and in 2008, would involve only two, since there is no US Senate seat up for grabs this year. Under this plan, the lever machines could be used as privacy booths, allowing most voters to hand mark their paper ballots for the one to three possible federal contests, and then proceed to vote in other elections on the familiar mechanical ballot displayed on the lever machine. A supply of federal ballots, pens and clipboards would be the only required changes to the current voting system -- and of course the hand counters for the federal elections.

Other solutions might involve partial hand counts on election night to check computerized electronic ballot scanner tallies, however NY Election Law not only specifies a number of such hand counts that is not statistically grounded (just 3%, regardless of how close a contest may appear to be or how many electronic voting machines or computerized ballot scanners are involved), but also requires the manual count to begin up to 15 days after an election, raising constitutional questions as well as concerns about the chain of custody of the paper ballots.

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