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New York: Last in HAVA Compliance or First in Election Integrity? PDF  | Print |  Email
By Howard Stanislevic, VoteTrustUSA E-Voter Education Project   
June 27, 2006
You've read about it in the press, seen it on the Internet, perhaps even blogged about it yourself, but what's really behind New York's reported tardiness in complying with the Help America Vote Act? Perhaps it's the State's preoccupation with election integrity.

The history of New York's purported non-compliance with Help America Vote Act (HAVA) is a long one. Much has been made of HAVA's lack of requirements for voter-verified paper audit records (VVPARs) or paper ballots that can be used to allow independent verification of e-voting system tallies produced by Direct Recording Electronic (DRE) and Optical Scan (OS) systems (paper ballots provide this capability inherently of course). But bills in the New York State legislature from both sides of the aisle have required VVPARs with random audits since at least 2004. New Yorkers may be stubborn but they're not stupid.

It would be patently absurd to replace a transparent, statewide, non-proprietary, low-tech mechanical lever voting system that even prevents write-in overvotes and can only be corrupted the old fashioned way -- one machine at a time -- with opaque, proprietary, computerized e-voting systems, programmed en masse by as few as a single insider, with no means of independent verification whatsoever. And contrary to popular belief the potential for programming error or malfeasance applies equally to DRE and Optical Scan technologies. Fortunately, the independent verification issue was resolved here years ago; the legislature declared, "There shall be paper." So too was the issue of source code escrow, which recently prompted at least one major e-voting vendor (Diebold Election Systems) not to compete in the state of North Carolina. As in the Tarheel State, the escrow of vendors' proprietary software has been a requirement in New York's legislation for years.

New York law also requires the testing of every e-voting machine or system in the state approved after 1986 with at least 800 votes per year. While some may consider this excessive it's not burdensome to do with optical scanners. However, it should be noted that a typical ballot can have literally trillions of valid vote combinations, all of which cannot be tested. This is one reason why New York law also provides for party representatives and others to audit the ballot definition programming generated by election management systems. The significance of this statute is something that even some in the election integrity community do not yet fully appreciate.

In numerous states we have seen incidents of miscounted races, the outcomes of which were reversed by errors or misconduct affecting ballot programming (also known as election configuration, ballot definition files and election definition). Clearly New York and all other states need to be able to audit this data before it's loaded onto their voting systems for each election and vendors must be required to provide a means for doing so on every machine or scanner to ensure its correctness. New York provides for this, including a formal definition of the Election Configuration, in its latest Voting System Standards approved unanimously by the State Board of Elections last April. After all, verifying the ballot definition can easily be done by any poll worker with a lever machine simply by inspecting the ballot face. Unlike e-voting systems, with lever machines what you see is what you get.

New York has also chosen to keep its full-face ballot requirement, which applies to all but paper ballots. While the legislature has taken some heat over this from advocates for disabled voters (and even from some of its own members) this requirement makes it more difficult for DRE machines to be programmed to switch votes from one candidate to another without the consent of the voter. In our neighboring state of Pennsylvania, one vendor's DREs (Unilect) were actually decertified for exhibiting poor behavior that would not have been so egregious and confusing to voters had they displayed a full-face ballot. This behavior resulted in residual vote rates (undervotes) of over 7% -- easily enough to affect the outcome of an election! (In the 2004 General Election, the undervote rate for New York City's 7,300 lever machines was 0.9%.)

Another issue which can compromise election integrity is allowing one party -- or better yet, just one person -- to control the statewide election administration. In states where a Secretary of State or other official is in charge of running elections, there has been the appearance if not outright evidence of improprieties. This has prompted the bi-partisan Carter-Baker Commission to call for bi-partisan election administration as well as VVPARs. It defeats the purpose of paper ballots when only one party is in charge of counting them or selecting the machines to do so.

Partisan election administration is not an issue in New York. On July 12, 2005 an election integrity bill with the deceptively bureaucratic title, "Relates to the salaries of certain state officers; and appointment of members to the state board of elections" was signed into law by the Governor. This law makes it impossible for the four Commissioners and two Executive Directors of the State Board of Elections to be anything other than bi-partisan and balanced at all times -- even when a vacancy must be filled. This allowed Douglas A. Kellner to be appointed as the Democratic Co-Chair of the Board a few months later, serving alongside his Republican counterpart, Neil W. Kelleher. Until this vacancy had been filled it would have been impossible for New York to write voting system standards and regulations or to select HAVA-compliant voting systems in an equally bi-partisan fashion.

This brings us to the current state of play. Since New York's Voting System Standards were approved in April, 2006, after public comments from such luminaries in the field as Drs. Douglas W. Jones and Rebecca Mercuri, Attorney Larry Rockefeller, election integrity groups such as New Yorkers for Verified Voting and the League of Women Voters, and hundreds of citizens and election integrity activists across the state (including the author), not one purveyor of electronic voting systems has submitted a system for state certification in New York. Perhaps e-voting systems vendors are reluctant to comply with rigorous up to date standards, or they just don't want to disclose their political campaign contributions and equipment test results and malfunctions as required. Only HAVA-compliant accessible ballot markers have been tested so far. The paper ballots which they mark to reflect the intent of disabled voters (and others who may choose to use them) will likely be hand counted this year, although they will be checked by the marking devices for over- and under- votes first.

Most disabled voters surveyed have indicated a preference to vote absentee while many other voters in the state have expressed a preference for retaining lever machines. Even some county executives and elections commissioners have gone on record against e-voting, expressing their desire to retain lever machines for use by all but disabled voters. State Board Co-Chair Kellner and Election Assistance Commission Vice-Chair Ray Martinez have both stated that lever machines are in fact HAVA-compliant as long as Accessibility requirements are met by ballot markers or other devices for voters with special needs.

The Remedial Order entered on June 2, 2006 in the US Department of Justice's lawsuit against New York orders the State Board of Elections to submit, "a proposed detailed schedule for implementation of its long term proposal for replacing all lever voting systems in the state with all HAVA-compliant voting systems in every polling place by September 2007." It appears to be a pointless exercise to require the replacement of HAVA-compliant machines with other HAVA-compliant machines. Few, if anyone, would argue with HAVA's stated purpose of making it easier for disabled voters to cast their ballots at the polls but this can be accomplished by adding an accessible ballot marker at each polling place without replacing the levers. Only the court can clarify its request which may be the subject of continuing litigation.

While New York's new Voting Systems Standards certainly would make e-voting safer, it is still not safe. This is evidenced by the weak federal standards to which vendors currently build, poor reliability, high failure rates, security flaws and poor vendor performance we have seen elsewhere.

Meanwhile, back at the State legislature, Section 11 of the Election Reform and Modernization Act of 2005 (ERMA 2005, Chapter 181) states that the amendments to the election law that would ban lever machines, "shall not be applicable with respect to such lever machines during any period of time during which such lever machines are lawfully utilized." In other words, the New York State legislature did not intend to ban the levers.

Finally, the Board has weighed in with its own regulation which states that, "no voting machine certified after May 1, 2006 may be used in any election until the State Board adopts regulations for routine maintenance and testing, voting system operations procedures, and central count procedures." In other words, we can expect additional regulations designed to protect the integrity of our elections. These will probably include the much needed paper ballot/VVPAR auditing procedures in excess of the minimum 3% required by New York election law. While any audit is a step in the right direction, very few close races can be confirmed with a 3% audit. Surely the election professionals on the State Board are aware of this fact.

In New York we continue to take our elections seriously and election integrity will trump HAVA compliance every time. By some measures New York may be last in HAVA compliance but we may just be number one in election integrity.
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