In delivering this order the judge affirmed many of the constitutional issues which ETC has articulated, finding that, among other things, “the Legislature may not adopt policies which deprive voters of crucial protections under the New York State Constitution,” and “any burden on the State is far outweighed by the public’s interest in the right to cast a meaningful vote and its right to know whether the new machines jeopardize the security and integrity of New York’s electoral process.”

Responding to the court ruling in a press statement, Nassau County Attorney John Ciampoli said, “It is my firm belief that these new voting machines adversely affect voters… in their ability to cast their votes and have them count. In addition, in my opinion, the new voting equipment is an invitation to high tech and low tech fraud. Finally these voting systems will explode the cost of running elections by a multiple of as much as ten times the cost of running an election on our reliable lever machines.”

Nassau is among a minority of New York counties to have opted for the ES&S optical scan machines, one of two systems certified for use in NY by the State Board of Elections. The ruling only applies to the machines of the petitioning county (Nassau). This currently leaves the Dominion system, which was chosen by the majority of New York counties, exempt from independent testing.

Most of the twenty counties (see sidebar for list) that passed resolutions expressing concerns about the optical scan voting systems and petitioning to retain their lever machines are scheduled to use Dominion Optical Scanners in fall elections. ETC urges these counties to join the Nassau suit so that all the voting machines will be subjected to independent professional scrutiny.

Nassau County Attorney John Ciampoli’s press statement and the full court ruling can be read here: Nassau Discovery Ruling & Statement.

The Brennan Center For Justice has filed suit against the NY State and NYC Boards of Elections to prevent election officials from configuring newly purchased optical scan voting machines in a manner that would disfranchise large numbers of voters. The suit, filed on behalf of NAACP, the National Coalition on Black Civic Participation, the Working Families Party and other plaintiffs, seeks to compel election officials to use procedures to prevent votes from being disqualified when a voter selects too many candidates in a particular race, known as “overvoting.”

Of course it is important to require procedures to prevent overvoting, but The Election Transparency Coalition (ETC) has repeatedly insisted that all protective procedures New York has enjoyed for centuries be maintained, including the opportunity for meaningful public oversight of our elections. The Brennan Center’s lawsuit, by focusing on a single protection, fails to address the much more significant problem: the State’s insistence that counties deploy concealed fraud-enabling vote-counting technology in the first place!

ETC maintains that the Brennan Center suit is akin to fretting over the seasoning in a poisonous brew. If the Brennan Center’s case succeeds, overvoting may be less likely to occur, but votes can still be nullified by the concealed vote counting system the Brennan Center supports!

While correctly pointing out that lever voting machines make overvoting impossible, the Brennan Center’s case fails to mention that lever machines also cannot be secretly programmed or “hacked” to switch and miscount votes without detection — which is eminently possible with optical scanners.

As ETC has been saying for years, electronic optical scan vote counting systems are vulnerable to tampering and malfunction that is completely undetectable. The way in which such voting machines were programmed to count, as well as how they in fact counted, is hidden, violating centuries of New York State election law mandating public oversight and accountability. That’s why we have been working so hard to bring our own lawsuit challenging the constitutionality of NY’s Election Reform and Modernization Act (ERMA), which is forcing NY’s counties to replace their existing secure, transparent HAVA-compliant voting systems.

Nassau County has filed a lawsuit in State Supreme Court similar to ETC’s upcoming suit  and a federal judge has ruled that federal law does not require replacement of lever voting machines. Yet the Brennan Center’s case continues to promote the widely held misconception that the federal Help America Vote Act (HAVA) mandates replacement of NY’s trusted lever machines. The State of NY had also made this erroneous claim and argued that Nassau’s case must be tried in Federal Court. But last month, Federal Court Judge Joseph Bianco rejected the State’s arguments and remanded Nassau County’s suit back to State Court. As Nassau had argued, New York has been in compliance with HAVA since 2008, when the State augmented the lever voting system with ballot marking devices at every polling place to increase accessibility for voters with special needs.

The late Supreme Court Justice William Brennan understood the imperative for public scrutiny of government processes, repeatedly finding the public’s right to witness and safeguard its interest to be constitutionally protected.

The Brennan Center website quotes Justice Brennan as saying, “. . . the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.”

The Election Transparency Coalition calls upon the Brennan Center to honor its namesake by challenging the dangers posed to our democracy by concealed vote-counting systems. ERMA must be declared unconstitutional so that transparency and citizen oversight can be returned to our elections and we can perform our duties as citizens to ensure that every vote will be counted correctly.

The case, filed in March, seeks to have NY’s Election Reform and Modernization Act (ERMA) declared unconstitutional for many of the same reasons ETC’s upcoming litigation does: chiefly, the disaster that would be caused for our democracy should the electronic vote-counting systems ordered by ERMA be deployed throughout New York. Defendants had the case moved to federal court, claiming that federal issues were involved.

But Judge Bianco disagreed, saying “Plaintiffs’ claims (1) do not assert a federal cause of action, (2) necessarily raise a substantial question of federal law, or (3) come within the “artful pleading doctrine.” As such, there is no federal jurisdiction over this case, and remand is required.”

The State has repeatedly claimed that federal law, the Orwellian-named Help America Vote Act, forbids continued use of lever voting machines. However, in his ruling, Judge Bianco affirmed what Nassau (and ETC) have been saying: that HAVA does not rule out the use of lever voting machines.

Bianco’s ruling also states, “In short, there is no indication Congress sought to transform all state law claims dealing with the administration of elections or voting systems into federal claims. In fact, the opposite appears to be true given that Congress gave the states a significant amount of discretion as to how to implement HAVA.”

Judge Bianco’s ruling thus correlates with what ETC has said all along: that HAVA does not require that NY abandon its lever voting systems. NY came into compliance with HAVA when ballot marking devices were installed at every polling place to provide increased access for voters with special needs. The full ruling can be viewed here.

March 26, 2010 The Election Transparency Coalition applauds Nassau County for filing suit against the State of NY over its unconstitutional election law, the Election Reform and Modernization Act (ERMA). ETC has long held that ERMA is unconstitutional because its mandate that counties switch over from the time-tested, trustworthy and transparent lever voting systems to electronic vote-counting systems will end meaningful public oversight of the public’s elections. That mandate must not be allowed to stand. Since New York State has already complied with the federal requirement of at least one accessible voting device for voters with special needs at each poll site, we urge the Court to act quickly and decisively to halt the implementation of the state’s legislation before more taxpayer dollars are spent on equipment that must not be used to count votes in New York.

His article released last night reveals, “The election results certified by the St. Lawrence County Board of Elections for New York’s 23rd Congressional District contain some numbers that are mathematically impossible.” The article goes on to detail the negative numbers included in certified vote totals. Read it. It reveals important information everyone concerned about democracy should know.

St. Lawrence County was part of the State’s “pilot project,” an early rollout of the optical scan voting technology that will be required to replace lever voting systems by our next election — if not stopped by legal action. The Election Transparency Coalition is preparing to file litigation to have concealed vote counting — such as the counting that takes place inside optical scan voting systems — declared unconstitutional.

St. Lawrence County’s now-certified election results cannot be accurate. The true vote count cannot be known. And while other counties involved in the early rollout of electronic vote-counting systems may have produced possible vote totals, their true vote counts are no more knowable. Only with a system where the public has access to meaningful observation of every step of the vote-counting process do we have a basis for confidence in election results.

This is why Virginia Martin, Democratic Election Commissioner from Columbia County, recently testified that she would refuse to certify an election in which she could not verify the accuracy of the vote count.

Richard Hayes Phillips joins ETC in supporting NY’s time-tested and transparent lever voting system. The reasons for his support are detailed in his article, “In Defense of Lever Voting Machines,” published on his own website, and reiterated in the Gouverneur Times piece.

While the pilot project is clearly in a nosedive, the State is proceeding with its plan to certify the very electronic voting system responsible for the impossible numbers in the NY-23 race. This certification would be meaningless and would lead to elections that are just as meaningless. As Phillips says, “How can we have a democracy if we cannot know if the vote count is accurate?  If election officials cannot know, and if the candidates cannot know, and if the voters cannot know that the official results are true and correct, why even have an election?”

Please join us in our work to stop the abandonment of NY’s working, affordable, trustworthy voting system and its replacement with systems that keep the true vote count secret from the voters themselves.

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On this Thanksgiving, we at ETC are thankful for the work of Dr. Phillips, Commissioner Martin and all those who dedicate themselves to the constitutional principles of transparent democracy.

Breakdowns of new electronic voting machines have already made news in St. Lawrence, Fulton and Lewis Counties. Official results in some races may not be known for a week or more, frustrating NY voters accustomed to results on election night. But fury may have been their response had they fully understood that with the state’s new optical scan technology, the genuine results of NY’s elections will never be known.

The optical scan machines mandated to replace all lever voting machines by next year count paper ballots electronically using concealed software that can undetectably alter the outcome, whether intentionally or unintentionally. “What you don’t know can hurt you,” said Andrea Novick, attorney and founder of the Election Transparency Coalition (ETC). “The problems seen by voters and election workers Tuesday are nothing compared to the problems that are invisible. In the counties participating in the state’s early rollout of the optical scanners Tuesday where machines broke down, election officials are at least aware that there was a problem. Where the scanners appeared to run smoothly, election officials, candidates and voters are led to believe everything is fine. But either way, whether the optical scanners appear to be functioning properly or not, the true count is unknowable.”

Because the working parts of a lever machine are visible, elections officials and observers can witness all critical steps and know the machine’s count is accurate. But under ERMA (the Election Reform and Modernization Act) the certainty of the election night count is replaced with an unreliable electronic count, subject to verification if a subsequent 3% manual count matches the computer tally. “We are abandoning our transparent, secure system for knowingly exploitable vote-counting computers,” explained Novick.

State Elections Commissioner Douglas Kellner confirmed the new computers’ untrustworthiness, stating, “The system in New York is not to rely on the machines, but to rely on the paper,” referring to ERMA’s post-election night hand count of some paper ballots. Historically, NY, learned not to trust any step taken outside of public view after repeated Tammany Hall style elections. Now ERMA mandates reliance on paper ballots that have been removed from the public eye. “If we don’t stop ERMA,” says Novick, “elections will from this day forward become what a New York court has already declared to be ‘a useless formality.’” The ETC is preparing to file suit to stop the changeover to electronic vote-counting on constitutional grounds.

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What: Public Forum: The Threat to Voting in New York and What to Do About It

When: Thursday, July 9, 2009 at 7:30 p.m.

Where: Main Sanctuary at St. Marks Church in the Bowery, 10th Street and 2nd Ave in Manhattan

Who: Douglas Kellner, Commissioner of NYS Board of Elections
Mark Crispin Miller, renowned author of “Fooled Again, The Real Case for Electoral Reform”
Andi Novick, attorney and driving force behind efforts to preserve New York’s constitutionally-compliant lever voting system, founder of the Election Transparency Coalition

Sponsored by the Village Independent Democrats

Why: New York State is the only state in the U.S. that conducts elections in a transparent and verifiable manner. All other states have moved to electronic vote-counting systems that make it impossible for election officials, official observers, candidates, or the public to determine whether the announced vote totals accurately represent the votes cast. These secret vote-counting systems violate the principles of a constitutional democracy as represented in two centuries of statutory law and judicial precedence interpreting New York’s Constitution, and as recently held by Germany’s Constitutional Court. Yet electronic voting systems are slated to be fully operational in New York by 2010. At this free public event, Andi Novick will outline the reasons New York’s Election Reform and Modernization Act (ERMA) is unconstitutional, Mark Crispin Miller will discuss the dangers of electronic vote counting systems, and Douglas Kellner will explain the state’s insistence on an expensive change in election technology beyond what is required by the federal government.

Links:

Andi Novick/Election Transparency Coalition

Mark Crispin Miller
Douglas Kellner
Village Independent Democrats

The one page statement (.pdf) urges the State to return to the federal government the funds accepted for lever machine replacement, saying these funds “will not cover the initial or continuing costs of computerized equipment, and those costs will drain our limited resources away from other essential services at every level of government.”

Calling the move to computerized elections “unwise and unnecessary,” the union goes on to say, “New York already owns our lever machines. We have the expertise and experience to maintain and use them. We have relied upon these machiens for many years. We should not replace them.”

The Election Transparency applauds this action by District Council 37 of AFSCME and welcomes other unions, community groups, and local as well as county governments to adopt similar resolutions. To date, 11 counties in New York have passed resolutions urging the State to repeal the Election Reform and Modernization Act and allow continued use of lever voting systems.

Clinton, Essex, Fulton, Hamilton, Herkimer, Lewis, St. Lawrence, Saratoga, Warren and Washington Counties are represented on the InterCounty Committee. The resolution, introduced by Warren County Supervisor Daniel Belden, passed by a unanimous vote.

The ETC applauds all those who take a stand against ERMA (the Election Reform and Modernization Act) and in favor of our time-tested, dependable and observable lever voting system!