Vendors Try an End Run Around NYS Election Law

Uncertified DREs to be used in Troy School Election on May 15

In a brazen attempt to get their uncertified DREs used in New York State, Liberty Election Systems and their Dutch partner Nedap made the City School District of Troy New York an offer they couldn’t refuse – use of 10 of their DREs in the upcoming May 15, 2007 School District Election at no cost to the district. Unfortunately, the LibertyVote/Nedap DRE has not completed New York State testing or met any of the State’s regulatory standards, and is not certified for use in the State by the New York State Board of Elections.

The voting machine vendors have been frustrated by their inability to meet New York’s high certification standards and source code escrow requirements. They’ve found a way to get around the testing halt instituted in January by NYS Board of Elections when the New York Times revealed that Ciber, the agency conducting New York’s tests, had lost federal accreditation six months earlier. Liberty Election Systems is preying upon cash strapped school districts, offering them free use of machines and support personnel to run their elections. Of course, Liberty doesn’t mention that their DREs haven’t passed state certification, have documented security vulnerabilities, and will be supported by Dutch technical staff working for Nedap.

Dutch Technicians to Oversee DREs in US Election

Liberty Election Systems is a privately held New York State corporation that markets the Dutch DREs here in the US. Liberty doesn’t do tech stuff; they handle the sales and marketing end. The Dutch company “Nederlandsche Apparatenfabriek”, known as Nedap, provides the technical expertise; designing, writing and supporting all software and hardware. So far in New York State Nedap engineers have provided all technical oversight and support of the LibertyVote/Nedap DRE during tests, demonstrations, New York State Board of Elections meetings, you name it. But the election on May 15th isn’t a demo, it’s a real election with an $88.3 million dollar budget at stake. The technical advisors running the LibertyVote/Nedap DREs on Troy’s Election Day will be foreign citizens. Do we really want foreign nationals running voting machines in American elections?

In an article in the Albany Times Union, Liberty/Nedap dodges, implying this election will be as American as apple pie. It’s more like baloney - pure spin. Liberty should immediately provide the public a complete list of the names, companies, nationalities, and responsibilities of all personnel who will be in attendance and providing any form of support for the LibertyVote/Nedap DREs on the May 15th election.

False Claims in a Public Election Notice

Liberty has posted a troubling brochure on the Troy City School District website. The brochure contains numerous misleading statements and false claims (the biggest Big Lie – “The LibertyVote is not a computer...”) which we refute in this document. It’s outrageous that a private company can be given a role in a public election and then lie through their teeth on materials they distribute to the public. And for a taste of things to come as we increasingly put private vendors in charge of our elections, note the intermingling of private company promotion with official School District election information – a disturbing combination of public elections and corporate advertisement.

It Can Happen Here

In New York State, where citizens have fought with some success for a voice in the machine selection process, strict voting system standards, and independent oversight of voting machine vendors, it’s tempting to think that we have the hard work behind us. Not so. This back door effort to get around our hard won protections shows the voting machine vendors have no interest but their private interests, no interest in Election Law except in how it can be bypassed, and worst of all, absolutely no interest in the truth.

Citizens around the state are joining together right now to fight this in every way we can. I’ll be posting more to this blog in the next few days, and NYVV will be posting actions you can take to help prevent this end run around state regulations.

For starters, you can visit NYVV’s Troy School District Election Resource page, where we’ve posted much to help you understand what’s at stake. You can also join NYVV’s mailing list so you’ll receive updates and alerts as we face this new crisis in New York State’s struggle for secure and verifiable elections.

Microsoft Says – We Won’t Escrow

Software giant tells New York - “Forget about it”

On Friday, April 13, 2007, the New York State Board of Elections notified vendors hoping to certify voting systems in the state that Microsoft would not comply with the source code escrow requirements of state election law. Microsoft Windows operating systems and applications are used by several DREs, Ballot Marking Devices, and all Election Management Systems (EMS) currently submitted for New York State certification. With Microsoft unwilling to place source code in escrow, voting systems which use Microsoft products are not eligible for certification and use in the state.

New York State Election Law, Section 7-208 states that the voting system vendors "shall place into escrow with the state board of elections a complete copy of all programming, source coding and software employed by the voting machine, system or equipment." Voting system vendors are also required to file a waiver with state and local Boards of Elections "which shall waive all rights of the vendor or manufacturer to assert intellectual property or trade secret rights in any court of competent jurisdiction hearing a challenge to the results of any election.", and must also file "a consent to having and cooperating in the testing of any programming, source coding, firmware, or software, pursuant to an order of any board of elections or court of competent jurisdiction."

The State Board had been holding discussions with Microsoft in order to determine how compliance with State Election Law would be met. The Board also submitted a list of questions to Microsoft about the escrow issue. In these discussions and answers, the software giant indicated that it does not and will not put its source code in escrow accounts, and it does not and will not escrow source code through any third parties or the National Institute of Standards and Technology. In other words, the Redmond behemoth is telling New York State, and any other states that have a high legal bar for escrow and review of software source code, “Forget about it.” Microsoft, which has only recently begun to weigh in on voting system software proprietary claims, is taking the same stance that voting machine vendors have always taken – the public cannot have access to the software we vote on.

In its notice, the State Board of Elections told voting system vendors “Be advised that you should prepare to take whatever actions you deem necessary to comply with the requirements of Election Law Section 7-208 in order to obtain certification.” If the State Board enforces the law, that means Microsoft software must be removed from voting systems, or the system can’t be certified for use in New York State. Of the systems submitted so far to the state, the Avante and Sequoia Advantage DREs and the Automark ballot marking device use MS Windows operating systems. The same goes for submitted EMS systems from all vendors – Sequoia, Avante, ES&S, Diebold, and Liberty – which use not only Windows but MS Access, SQL Server, and Office products such as Word and Excel.

But an operating system, or a database system as used by the EMS products, is not something you just casually change – it means a complete and total rewrite of all software. We’re not talking about going back to Square One; this is going back to Square Zero. It simply can’t be done within a few months, and none of the systems using these products is likely to be used in New York State as long as the State Board of Elections and the Legislature remain firm on protecting New York voters.

But will they? One of the questions the State Board of Elections asked Microsoft was: “If there are significant problems with the law as written and those problems would preclude us from agreeing to an escrow arrangement, are there any changes to the law that Microsoft would suggest?” Ah yes, let’s be sure to let the private corporations of the world have their say in how our election laws can be changed to better serve their interests. Stay tuned.