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

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