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

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

Wednesday, July 15, 2009

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.

Thursday, June 4, 2009

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.

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!

Wednesday, May 27, 2009

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

Friday, May 22, 2009

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:

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.

Tuesday, April 28, 2009

Remembering John Gideon (1947-2009)

John Gideon, a Co-Director of VotersUnite and Editor and Publisher of Daily Voting News passed away in a Seattle hospital last night after a short bout with bacterial meningitis.

John's absence is so keenly felt that it already feels like an eternity has passed since getting this awful news. The election integrity community is devastated by this loss and many have been posting their thoughts in various places on the Internet. There is no central repository for them at this time (because there is no Daily Voting News) but here are a few of my thoughts about the man I knew and respected:

John gave voices to the voiceless.
His featured articles in Daily Voting News called attention to election integrity issues that would otherwise have been under-reported.
Who will report them now?

John was a man of courage.
Never have I seen him take a position for the sake of political correctness or to appease special interests.
He would have made a great New Yorker!

John brought people together.
He was one of the few people in the movement who was willing to talk to all the group-thinkers, true-believers and self-appointed experts from its various factions -- and even folks who actually know what they're talking about! He would bring them together from time to time, with his fire extinguisher at the ready.

John kept the integrity in election integrity.
He never took a position to obtain funding, access or favors.
And if he were occasionally proven wrong, he would stand tall but corrected.

John was humble.
Never a self-promoter, he showed up for work everyday and got the job done, really, really well. E-mails to John seldom went unanswered.
He treated everyone with kindness and respect -- but without compromising his principles.

I hope John is not irreplaceable.
But I have my doubts about that.
He was a rare breed.

We extend our deepest heartfelt sympathy to his family and to Ellen Theisen.

Donations to make it possible for VotersUnite to continue John's work can be made here.

Monday, April 20, 2009

NYVV Asks Voting System Vendors for Announcements, Plans and Promises

In an April 15th open letter to vendors of computerized voting equipment, New Yorkers for Verified Voting (NYVV) cited what they call "the growing ill-will" and "understandably increased voter skepticism that many New Yorkers feel" toward the machines these companies want to sell to New York.

NYVV's letter points to reports of voting system failures from "around the world" published in the Daily Voting News, as well as two debacles right here in the Empire State:

Despite these difficulties, NYVV has continued to advocate for replacing New York’s mechanical lever voting system with a system of paper ballots, 97% of which will be counted only by computers.

According to New York's Election Reform and Modernization Act (ERMA), which requires the levers' replacement, paper ballots from only 3% of the computerized optical scanners must be hand-counted -- up to two weeks after an election. This has raised concerns among statisticians and election integrity advocates alike.

Now, says NYVV, the vendors have made the task of "creating enthusiasm" for this new kind of system even more difficult. Indeed, they say, the vendors' delays are making some New Yorkers "increasingly impatient" about the change.

To remedy this situation, NYVV urges the vendors to improve their image in order to "encourage citizen confidence." Their advice to the purveyors of these shoddy products:
  • announce quality improvement and staffing plans;
  • negotiate "supportive" policies for software licensing;
  • promise to adhere to original pricing; and
  • announce an "open source" software provision.
Critics of both NYVV and the vendors question whether such announcements, plans, and promises can make computerized vote-counting more acceptable to New Yorkers who are still reeling from the effects of scandals such as the AIG, Bear Sterns and the sub-prime mortgage meltdowns.

"I'm sure NYVV means well, but I question whether any assurances from vendors can make unverified, computerized vote-counting safe," said Joanne Lukacher, Executive Director of the Election Transparency Coalition.

Virginia Martin, who serves as an Election Commissioner for Columbia County, has called electronic voting "a boon for vendors and a nightmare for taxpayers."

"Federal law does not require the replacement of lever voting machines. They work well, we own them and they cost next to nothing. So why not keep them?" Lukacher said.

With respect to "open source" software, we learned some time ago that at least one vendor had already committed to disclosing their source code, provided however, that their voting system gets to be "certified." Unfortunately, as any computer scientist knows, investigating lost votes by reading source code is no better than investigating a building collapse by reviewing blueprints.

We commend NYVV for scratching the surface of what's wrong with computerized vote counting and the privatization of our elections, but we recommend that New Yorkers read an in depth analysis of the problems we will face, published by long-time New York election integrity advocate Teresa Hommel, the founder of

In her essay, "Back to Basics: New York should not replace our lever voting machines", Hommel methodically debunks the entire electronic vote-counting paradigm which, she suggests, is completely unnecessary for New York. Given her deadpan prose, we doubt that she's an "increasingly impatient" New Yorker when it comes to changing voting systems. Fortunately, patience can be a virtue.

We'll have more to say about Hommel's work in a future post.

Sunday, February 22, 2009

Long-Time NY Election Integrity Advocate Opts Out of Op Scan

New York City--

Since the passage of HAVA, Teresa Hommel has been a tireless leader in the fight for voter-marked paper ballots in New York as an alternative to direct recording electronic (DRE -- usually touch screen) voting machines that lack a reliable voter-verified paper trail. But in a Feb. 22nd essay published on her website,, entitled: Why Keep the Lever Voting Machines?, she comes to the conclusion that the state should keep its current manually operated voting system, rather than switch to a computerized paper ballot optical scan (PBOS) system.*

Why? In a nutshell, because it's too expensive to make the switch and do it right.

Hommel writes:

For nearly six years we have worked against improper use of computers in elections. ... We have said, "IF WE HAVE TO REPLACE OUR LEVER VOTING MACHINES, we should choose PBOS." At this time it appears that no DREs are likely to be certified or purchased in New York. It is very late in the process to say, "Stop! Let's not computerize at all!" But that is what we are saying.
Rather than continuing to fight the last war (PBOS vs. Brand X, i.e., DREs), Hommel goes on to say that lever machines are more secure, easier to manage and less expensive to maintain and use than any other voting technology.

She says that in this time of economic crisis, the higher cost of computerized elections will have to be paid for with cuts to other essential services. Recent conversations we have had with county legislators and election commissioners bear this out.

In fact, so far at least three New York counties have passed resolutions in favor of keeping their lever machines, either unanimously or with only minor opposition, with more such resolutions expected.

Hommel also cites the need for continuous observation of post-election paper ballots to prevent fraud, as well as the need for statistically grounded audits (i.e., hand counts) of paper ballots initially counted only by computerized ballot scanners. Such audits would be designed to either confirm electoral outcomes or trigger full hand recounts when the outcomes are in doubt with a high level of statistical confidence.

But all of this costs time and money we don't have, according to Hommel.

In this realistic assessment of New York's electoral system, Hommel discusses the obstacles to keeping our lever machines, as well as the following benefits of doing so:
  • Lever voting machines cost less, require fewer observers, and don't use software.
  • Our counties don't have to spend one extra dollar to use lever machines, because we already have them.
  • Lever machine technicians are paid somewhat less than computer technicians.
  • Lever voting machines are rarely tampered with because it takes too much time to do so. For this reason these machines do not require a group of observers to sit and watch them continuously.
  • Without software that can fail in unexpected ways, software-independent audits are not required.
  • Lever machines are immune to systemic exploitation.
  • Meaningful, observable testing of lever machines can be readily accomplished.
  • Lever voting systems comply with HAVA when used in combination with accessible ballot marking devices for voters with disabilities and limited English proficiency. (See HAVA's definition of "Voting System" in Section 301 (b)).
We strongly recommend that anyone truly concerned about the integrity of New York's elections read Ms. Hommel's excellent piece in its entirety. It's a far cry from some of the dogma we have been seeing from some other advocates who apparently have not fully considered the problems of election verification, or what the solutions would actually entail -- even as they continue to advocate for more computerized vote counting under the guise of voter-marked paper ballots.

* Note: Of course, as in 2008, to comply with HAVA, accessible hand counted paper ballots would continue to be used to accommodate any voters with special needs who wish to use ballot marking devices at the polls, rather than voting absentee.

Wednesday, February 11, 2009

New York -- Transparency vs. Certification: Fact & Friction

The Election Transparency Coalition of NY (ETC) has issued a 2 page essay entitled, Only a Transparent Vote-Counting System Can Protect Democracy, now available on their blog at the above URL and here in PDF format.

This short essay by ETC's Founder and Legal Counsel, Andi Novick, Esq., prepared with the assistance of county election officials and the E-Voter Education Project, clearly explains why:

  • New York's transparent lever voting system is superior to unobservable software-based voting technology;

  • state and federal "certification" of a software-based vote-counting system is not an adequate safeguard;

  • the risks inherent in post-election hand counting of paper ballots have caused New York to prohibit recounts of such ballots cast at polling places, except as required on election night before the election inspectors adjourn (we recognize that in other states where software-based vote counting has become the norm, post-election audits and recounts may be the best that can be hoped for to verify election results);

  • the Help America Vote Act does NOT ban lever voting systems, which can be made fully HAVA-compliant with the addition of at least one accessible voting device for voters with special needs at each polling place (as NY has done in 2008 without exposing anyone's votes to the risks inherent in software-based vote counting).
New York has yet to replace its lever voting system, and has yet to enact any meaningful post-election audit laws or regulations. Those of us who have been studying this problem for years as the battle over which software-based voting system (touchscreens vs. ballot scanners) has been waged, understand exactly what will be necessary to effectively verify election results produced by software -- independently of software -- and, where possible, with confidence approaching that provided by the current lever voting system. We also know what New York's counties will be asked to do to comply with such rules. The task ahead of us is clearly a daunting one, but moreover, it's an unnecessary one -- if we keep and properly maintain our mechanical lever voting system.

Professor Bryan Pfaffenberger of the University of Virginia, who received a grant from the National Science Foundation to study the lever voting machine, has described New York's current machines as follows:
one of the most astonishing achievements of American technological genius, a fact that is reflected in their continued competitiveness against recent voting technologies in every accepted performance measure;

a technology that solved the characteristic problems of American elections;

immune to systemic exploitation, which could affect hundreds of thousands of machines;

in sharp contrast to the way Americans talk about voting machines today ... the lever voting machine—though lacking an independent audit trail—had done something today’s voting technologies have been unable do: it won the confidence of American voters and election officials
After thinking it through and weighing the available alternatives, we are forced to agree with Dr. Pfaffenberger's conclusions. Transparency trumps "certification" every time.