Can New York Keep Lever Machines?

NY election law and the DOJ Lawsuit Say "No"

Long Island verified voting advocates have been asking me if New York State can keep it's lever machines, as proposed by Suffolk county executive Steve Levy in a recent Newsday article:

Mr. Levy argument for keeping levers runs into two big problems however -

1) New York State election law unambiguously declares that lever machines must be replaced by September 2007, and

2) The Department of Justice lawsuit settlement with the state of New York unambiguously declares that lever machines will be replaced by this same date.

I've provided some amplification on these two points below.

While it is clear that many New Yorkers would prefer to keep lever machines, New York State law as written and currently interpreted by the State and County Boards of Elections, state legislators, and citizen advocacy and good government groups says that we cannot. Changing this to allow lever machines would require new legislation passed by the State Legislature and signed by the Governor, and figuring out how to circumvent the binding ruling by the US District Court that levers must be replaced.

Rather than pursue chimeras, New Yorkers for Verified Voting believes that citizens efforts are best spent on ensuring that New York chooses the most reliable, auditable, accessible and cost effective option - hand marked paper ballots augmented by precinct based ballot scanners and ballot markers. The final decision in New York on new voting equipment is upon us - there's no time to waste on a long shot unsupported by the legal situation in New York.

1) New York State law unambiguously calls for replacement of lever machines:
According to New York’s current laws and regulations, we cannot retain lever machines. Lever machines lack the voter verifiability, auditability, and other new required features for voting systems to qualify for use in the Empire State. Verifiability and auditability requirements are specified in Section 7-202(1j) of the New York 2006 Election Law.

The law says this about the voter verification requirements of ANY voting machine or system:

1. A voting machine or system to be approved by the state board of elections shall:
j. retain all paper ballots cast or produce and retain a voter verified permanent paper record which shall be presented to the voter from behind a window or other device before the ballot is cast, in a manner intended and designed to protect the privacy of the voter; such ballots or record shall allow a manual audit and shall be preserved in accordance with the provisions of section 3-222 of this chapter;

Clearly lever machines cannot meet these requirements. Further, the NY law goes on to say:

23 Effective September 1, 2007, all lever machines in New York state
24 shall be replaced by voting machines or voting systems which meet the
25 requirements of section 7-202 of the election law, provided, however,
26 that with respect to any board of elections which determines to retain
27 lever machines on or after the effective date of this act and prior to
28 September 1, 2007, the provisions of this act which impose new standards
29 for voting machines which were not required prior to the effective date
30 of this act, including the amendments to section 7-202 of the election
31 law made by section six of this act, shall not be applicable with
32 respect to such lever machines during any period of time during which
33 such lever machines are lawfully utilized. (ERMA 2005, S-7209, S 11).

This paragraph begins “Effective September 1, 2007, all lever machines in New York State shall be replaced by voting machines or voting systems which meet the requirements of section 7-202 of the election law…" This says unambiguously that lever machines are banned after September 1, 2007.

The rest of the paragraph ("provided…") is a convoluted way of saying that the standards imposed on new voting technology cannot be applied to lever machines during their lawful use, which includes any time before September 1, 2007. In other words, counties that wish to continue using lever machines up to August 31, 2007 may legally do so without making any changes to their existing lever machines.

2) The settlement with the DOJ explicitly calls for replacement of lever machines. Here is the relevant phrase from the Court Order signed by Judge Gary Sharpe on June 2, 2006:

"No later than August 15, 2006, the SBOE must file with the Court 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."