Eyes Wide Open:

Eyes Wide Open: The Real Situation in New York

By Dr. Wanda Warren Berry

Board of Directors, New Yorkers for Verified Voting

A moment finally arrived this Spring when it seemed New York at last had set its direction with regard to compliance with HAVA. The last direct recording electronic voting machines (DREs) withdrew from the certification process and the counties all chose ballot marking devices compatible with scanners to meet the judge-mandated partial compliance this Fall. Now, however, implementation of ballot marking devices is revealing problems with quality control and with the training of equipment managers. In addition, a flurry of articles on the Web, is trying to create public demand that New York State change its plan for HAVA-compliance in order to keep lever machines permanently.[1] The following essay aims to analyze some of the weaknesses in these articles.

1. The articles misinterpret court rulings: The articles at issue again and again say that “…no court has ever interpreted HAVA as requiring New York to replace its lever machines.”[2] They accuse New Yorkers for Verified Voting (NYVV) of misleading the public, presenting us as saying “a court has ruled that our lever machines are not compliant with HAVA and that the court has ruled that they must be replaced.”[3] NYVV has not made a point of saying this, but whether we like it or not, our eyes are wide open to the fact that it is closer to New York’s real situation than the opposing claims. Here are some of the facts:

In the United States District Court Northern District of New York, Federal Judge Gary Sharpe ruled in favor of the “Memorandum in Support of United States Motion to Enforce the June 2, 2006 Remedial Order” that had been submitted by the Department of Justice on November 5, 2007. Judge Sharpe issued his ruling after considering a number of amicus curiae briefs, including one prepared by Andi Novick, who authors some of the articles. Several of the briefs address the topic of lever machines.
The Department of Justice memorandum says: “New York plans to use its ancient lever voting machines in all polling places in the State in the spring and fall federal election in 2008, despite the clear failure of lever machines to meet HAVA’s voting system requirements—at the least the machines are not accessible as required by Section 301(a)(3) of HAVA, and are not capable of producing a permanent paper record with a manual audit capacity, as required by section 301(a)(2) of HAVA” (page 15).
In addition, when this memorandum was first submitted, I pointed out to groups including Ms. Novick that it seems to rely upon a widely disseminated advisory from the federal Election Assistance Commission. On September 8, 2005 in EAC Advisory 2005-005: Lever Voting Machines and HAVA Section 301(a), the EAC ruled that there were four “areas of non-compliance” that “would have to be addressed and remedied before a lever system could be lawfully used in an election for Federal office on or after January 1, 2006.” These four are (1) the lack of the capacity “to produce a permanent paper record with a manual audit capacity…”, (2) a “documented, tested error rate that meets the one per 500,000 standard”, (3) capacity to meet “the number of alternative languages required in a given jurisdiction by the Voting Rights Act”, and the advisory reminded that (4) exclusive use of levers would fail to comply with the requirement that at least one system must be supplied at each polling place that is “capable of meeting the disability standards in Section 301(a)(3).”[4]
In addition, the Supplemental Remedial Order issued by Judge Sharpe on January 16, 2008 summarizes the process to that date, referring to “a hearing, on January 4, 2008”… “at which arguments of the parties were heard.” Saying that it has considered submissions of amicus curiae as well as the defendants, the Court rules that "full compliance with HAVA’s voting system requirements and the replacement of all lever voting machines in the state of New York, must be accomplished as soon as possible but in no event later in time for use of fully HAVA-compliant voting systems during the fall 2009 State primary and general elections.” (3).

In the light of these facts, it seems that only some specious technicality could be used to justify a claim that “no court has ever interpreted HAVA as requiring New York to replace its lever machines.”[5]

2. The articles seem to lack concern for accessible voting: Part of the current argumentation for the retention of lever machines involves asserting that, inasmuch as New York has purchased at least one ballot marking device for each polling place, the state has complied with the only requirement of HAVA that levers do not meet. The above summary of the 2008 Court ruling and 2005 EAC Advisory makes it clear that there are additional ways in which levers have been judged to fall short of HAVA compliance. With regard to accessible voting, we should note:

Those who argue for retention of levers seem to be content with the idea that the ballot marking devices that they criticize would be deployed for those that need them, so long as those without special needs can use levers. This shows a lack of concern for the genuine accessibility required by democracy.
Their arguments use rhetorical devices aimed to rouse the public in ways that ignore, for example, the actual experiences of persons with disabilities with the ballot marking devices. For example, Ms. Novick says that it is “a worthy goal but the most able-bodied person in the world wouldn’t vote unassisted on these pieces of crap.”[6] She cites no evidence from trial use by persons with disabilities, who in many cases have found the AutoMARK highly usable and the Image-Cast BMD adequately so.[7] Some election officials think that at least some of the current “failures” with the new machines actually are caused by management’s lack of experience with them.

3. The articles ignore practical, managerial, and legal problems embedded in their recommendations:

The suggestion that the ballot-markers purchased for 2008 be used to provide accessibility to persons with special needs while the levers are retained for most voters ignores the huge financial investment in new machines that were intended to be the single machine replacing the lever machine. In addition, new lever machines would be needed. Because of expecting the replacement of the levers, some counties have been functioning with a minimal number of working lever machines, rather than buying new ones. In addition, wastefulness is apparent in that most of the new machines are tethered to a scanner that sits on a ballot box; the ballot marker cannot be separated from the scanner but, apparently, would not be used in the proposal to retain the levers. Shouldn’t we instead focus on making these new machines work?
This plan ignores the election management problems involved in deploying not only enough lever machines, but the Image-Cast ballot marker. To do this in 2008 will require much effort; it seems hardly feasible as a long term plan. Additional stress for counties would be caused by continuing the need to store the levers as well as the new equipment.
In addition, a closer look at NY’s Election Reform and Modernization Act (2005) is required to determine whether such a plan would violate the rule that no more than two voting systems be deployed in any polling place. Most county Boards of Elections would need to manage (1) the lever machines, (2) the ballot marker/scanner Image Cast, and (3) paper ballots for absentee, military, emergency, and provisional use.

4. The articles ignore limitations of lever machines: While some of the criticisms of levers are acknowledged, scant weight is given to not only their failure to comply with ruling interpretations of HAVA, but to additional problems many voters find with them.

· Not only do voters with disabilities object to using a completely separate system, many voters know that levers have a history of stalling as the counters role over to the next 100. They have learned to want a record of their individual votes, which the EAC says HAVA requires and which the lever machines cannot provide. Often voters realize only after pulling the large levers to register their votes that they missed a race. If they had been marking a paper ballot in a privacy booth, they would have taken time to check the ballot and even get a new ballot if needed. In a primary, the voter sometimes finds only after having entered the machine and having started to vote that it is set for the wrong party. With paper, a wrong ballot can be perceived immediately and can be returned, voided if necessary, as the voter receives the right one. In addition, write-ins are particularly difficult on lever machines and nearly impossible for those who are short or who have visual limitations.

· The authors present false information about lever machines, claiming, e.g., that “Our lever voting system does create a piece of paper that can be audited.”[8] Some of NY’s lever machines provide an imprint of the counters at the end of the election. Many do not. When available, the imprint is only of the totals. Current discussions of audits of elections assume the recounting of individual votes. There is no record of individual votes with a lever machine.

· The 2007 Voluntary Guidelines from the National Institutes of Science and Technology (NIST) recommend a software-independent verification process. An analogous requirement for levers would be for some kind of independent verification system that would reveal any errors in the lever machine tabulation. None exists. New York’s Election Reform and Modernization Act requires that NY follow the EAC voluntary guidelines. If the NIST recommendation is incorporated in the EAC guidelines, as is usual, the requirement for independent verification might become mandatory.

· While one lever advocate acknowledges that “if the lever machine fails or is tampered with there’s no trace of how the voter voted,” she plays down this invisibility of the counting of the ballots in the lever machine in order to stress what she calls “the unseen calculation of the optical scanner.”[9] She does not explicate the efforts to establish careful pre-election testing of machines and post-election protection of ballots through New York’s bipartisan election administration.

5. The articles sponsor disparagement of the work of some officials and other election integrity activists: Some advocates of the retention of levers disparage the intention of New York’s careful certification requirements as well as its audit requirement, developed due to the hard work of citizen activists. They disparage the fact that NYVV and the NY League of Women Voters have argued that voter-marked paper ballots provide a fail-safe so that the voter’s intention can be checked through audits and recounts. Mockingly they presented this argument as saying, “…we know the optical scanners can be rigged without ever being detected, but we can hand-count some of the ballots to check against the computer results” and go on to say, “It’s true—we can do that, but we’re not.”[10]

This “we’re not” is unjustified. Steps toward effective security and audits are being taken. Both officials and concerned citizens are working hard to discover and to implement effective systems for protecting the chain of custody of ballots and for audits.

Conclusion: Eyes Wide Open and Ready to Work:

New Yorkers for Verified Voting have shared from the beginning the concern about electronic voting machines that drives the current “retain the levers” movement. But we have learned that progress can be made through pragmatic action, through coalitions of good government groups, and through persistent effort. As a software engineer, our Executive Director was so concerned about electronic voting that he resigned from his professional position five years ago to volunteer to establish and lead NYVV. With eyes wide open, he has led us in the smart, step-by-step battle that Margaret Yonco-Haines has summarized on the Democratic Underground. With eyes wide open, we have kept direct recording electronic voting machines out of New York through a five year struggle.

With eyes wide open, we knew from the beginning that a system based on voter-marked paper ballots would need to be paired with precinct-based scanners, in order to allow voters feedback as each individual submitted her ballot to the scanner. The purpose also was to reduce the likelihood of accidental or malicious mis-programming infecting large systems. With eyes wide open, we knew that the scanners would need to be checked not only through pre-election testing but through post-election audits. We worked for and got adopted what were then the strongest certification testing rules and audit requirements in the country.

With eyes wide open, we now are insisting that counties not be allowed to implement untested and uncertified scanners. With eyes wide open, we now are working with experts on a strengthened audit policy. With eyes wide open, our members are working to strengthen provisions for trained election inspectors and for poll watchers. With eyes wide open, we hope to find time to research and reveal to the public the exorbitant charges the vendors are levying for their inadequate equipment. With eyes wide open, we are urging voters to insistently check their registration in the voter database.

We ask other activists to recognize that New Yorkers for Verified Voting have our eyes wide open, are not naïve, and that our interest is in election integrity that might protect our democracy. WE are not your enemy. The enemy is the greed that may have caused companies to sign contracts that they could not fulfill without producing low quality equipment. New Yorkers should not have to rely upon and pay for shoddy equipment. Let’s work together to make sure that reliable equipment such as that used for almost twenty years in Oklahoma’s paper ballot scanner system is developed.

Contrary to Andi Novick’s repeated claims, the real situation in New York, is that the ship indeed has sailed, the court has ruled, the county commissioners have chosen. Let’s get on with it, insisting on better ballot markers and scanners!

Wanda Warren Berry, Ph.D.

Board of Directors, New Yorkers for Verified Voting

49 University Ave.

Hamilton NY 13346 315-824-2543