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).
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.