Saturday, December 15, 2007

Hand-Counting Paper Ballots Proposed In NY District Court

In March 2006, the US Department of Justice began legal proceedings ostensibly aimed at bringing the state of NY into compliance with the Help America Vote Act (HAVA). As of today, NY is still the only state that hasn't been bullied into outsourcing its election administration to the secret counting of a private corporation. Arguments will be heard in Case No. 06-CV-0263(GLS), US v NY State Board of Elections, starting next Thursday, December 20.

Yesterday was a big day in the long arc of this story. Attorney Andrea Novick filed a Memorandum of Law of Proposed Amici Curiae, also called an amicus brief or a friend of the court brief, on behalf of 33 election integrity advocates and organizations proposing to hand-count the two federal races on the November 2008 ballot. While it was Novick who filed the brief, it will be Jonathon Simon who will be in the courtroom with the possibility of a rare and extraordinary opportunity to make oral arguments.

There are many documents related to this case and I have started collecting some of them in a new folder in the GuvWurld News Archive. In particular, there are some very impressive declarations filed to provide the credentials of those involved in crafting the brief. You can now also see the projections for 15 NY counties developed using Rady Ananda's voter turnout projections and the hand-count forecast tool I built. Our methods are detailed in our declarations and the brief. It's all in that new folder.

More documents will surely be added in the days and weeks ahead. As of this hour, I am withholding my declaration as corrections are being made. It is uncertain whether an amended declaration can be filed, but when the update is complete you can at least locate it as described above. This is so unfortunate because we all spent ridiculous amounts of time this week, only to get snagged by document version control.

Here are some of the highlights of the brief:

p.7 of the brief - crux of our "proposal":

As the United States' memorandum has made clear, HAVA recognizes the State's right to hand count paper ballots, as long as Ballot Marking Devices (BMDs) are provided in every polling place, producing a paper ballot identical to the paper ballots marked by able voters. Thus, were the Court to direct a hand count of the two Federal races, the defendants would not have to choose between purchasing failed computerized systems or remaining in violation of a federal statute, thereby subjecting the State to this Court's directing an outside party to decide how New York's elections will be held in 2008.

p.11 - closing of the summary section; features some points made previously by Paul Lehto and here at WDNC:

Amici Curia respectfully urge the Court to act as the judiciary has and must when government's potential conflict of interest, in having the authority to determine the means by which it may be re-elected, would so regulate the people's elections as to thwart the full exercise of the franchise as secured by the Constitution. The right to choose our representatives means nothing if the people cannot know - not merely trust - that their will has been accurately reflected by the results of our elections. That right was not granted to the people, but rather was deemed "unalienable," by nothing less than our Declaration of Independence. Governments' role is to secure that right. There is nothing secure about voting on computerized systems which have shown themselves time and again to be readily corruptible while defying detection. We implore the Court to protect the citizens' means to observe and secure our elections so that we may see, not trust, that our consent to the outcome was respected.

page 16 - from the core of the argument, a fine distillation of a point this country should have seen about five years ago as "Do not pass go, do not collect $200":

Not only have the essential democratic safeguards been obliterated by oblique computerized processes, but all of the voting systems sold by these voting vendors have been revealed to be seriously vulnerable to attacks that can change the outcome of entire elections. As demonstrated below and in the declarations of Lukacher, Anderson, Simon and Freeman, computerized voting offers by far and away the greatest opportunity for theft this nation has ever seen. After 200 years of successive legislative efforts to protect the integrity of our elections by minimizing the opportunities for tampering, we are witnessing a complete reversal wherein the opportunities for tampering are massively multiplied, enabled solely by the introduction of computers into our electoral process. Such action is in direct conflict with our Constitution.

pages 23-24 - another part of the main argument, and another point we have tried to make here in Humboldt about how unsavory (really how unthinkable) it is now to do business with Diebold/Premier:

New York's Procurement Laws prohibit the State from entering into contracts with "non-responsible" vendors26. The voting vendors who sell America's computerized voting systems share a history of multiple infractions of "non-responsible" conduct as defined in New York's laws -- including, in addition to failed performance and unethical conduct, criminal indictments and convictions, bid rigging, computer-aided embezzlement, money laundering, tax evasion, bribery and kick-back scandals to name a few -- any one of which would render them ineligible to do business in New York.
26,, and see Lukacher Declaration.
Two memorandums (amici's exhibits "B" and "C") containing 80 pages of documented reports of vendors disqualifying "not-responsible" conduct were submitted to the SBOE and various agencies within the Governor's office. The defendants ignored the evidence, avoiding their affirmative obligation to investigate these vendors.

The evidence of the disaster of computerized voting presented herein is only the tip of the proverbial iceberg. In urging that New York become HAVA-compliant by purchasing this equipment, the United States' motion fails to mention that none of this equipment can provide a secure, reliable or accurate election result. The United States cannot justifiably compel the purchase of equipment that would disenfranchise millions by virtue of these machines' unacceptably high security vulnerabilities and documented failures.

New York should be free to abide by its rich democratic history in which the rights of citizens to oversee and monitor their elections has historically and progressively been recognized, respected and upheld as constitutionally required. This would be impossible if New York State were forced to purchase these machines, as the United States is urging this Court to direct.

pages 26-27

To satisfy the United States' motion that the State become HAVA-compliant for the federal election (since that is the only election relevant to the federal statute), the State only has to hand count the two Federal races in 2008, providing BMDs in every polling place so that disabled voters could create the same paper ballots as abled voters. Amici have gone to great lengths to assist New York by determining what would be required to hand count these two races, demonstrating as well how simple and feasible it would be for New York to return to a hand count for 2008's Federal election.

Rady Ananda and Dave Berman have analyzed the official data for each New York county and, using a forecast tool designed by Mr. Berman expressly for this purpose, have demonstrated that New [sic] will require only four citizen-counters in each polling place to be able to count the two races in less than four hours.29
29The forecast tool is based on the procedures as explained to Mr. Berman by New Hampshire's Assistant Secretary of State, Anthony Stevens. Forty-five percent of New Hampshire's polling places still hand count their ballots and, as explained in greater detail in the Tobi declaration, New Hampshire's ballots are far more complex, and their precincts larger, than New York's. [WDNC: Note that the first part of this footnote is among the points of clarification in my declaration. I did not attend Assistant Secretary Stevens' presentation or ever meet or speak with him. The forecast tool was inspired by a .pdf of Stevens' presentation on the website of Democracy For New Hampshire.]
page 29 - arguing that lever machines are HAVA compliant, and that failing to approve HCPB, all levers would still be preferable to anything electronic:

Lever machines do produce a permanent paper record. Some lever machines imprint the total number of votes cast onto a piece of paper. At the close of the election, poll workers remove the paper from the lever machine and use it to create another paper record of the tallies. Other lever machines don't produce an imprinted piece of paper with the tallies, but the poll workers perform the same function, taking the voting tallies off the lever machines and writing them down on a piece of paper, thus satisfying HAVA's requirement for a permanent paper record.

The United States' argument that the lever machine doesn't produce a permanent paper record with manual audit capacity presumably ignores the human being's role as part of the "voting system". However, just as with a hand count, a human being is very much a part of the voting system, and in the case of lever machines a human being is producing the permanent paper record required by HAVA.29
29 It is worth observing that there are voting systems which the United States considers HAVA-compliant that clearly do not "produce a permanent paper record with a manual audit capacity" as required by the statute. Certainly no paperless DRE can be said to produce a permanent record, but the United States is not suing those states with paperless DREs to compel their compliance with HAVA. Moreover the paper produced by DREs with printers attached to them, creating so-called voter verified paper audit trails (VVPATs), have been shown unreliable for auditing purposes in that they have been known to have as high as 20% unreadability, and as corroborated in the recent reports from California, can be rigged to correspond to the electronic tally, neither equating with the machine's official tally.
* * *
I have immense respect and admiration for all the people working on this project, many of whom I haven't named and some of whom I may not even realize are on the team. I believe that everyone understands what a long shot this is but I have seen nothing but positivity toward the project. We know that regardless of the outcome of the case, in which we are neither plaintiff nor defendant, we have created a new body of work that advances the election integrity movement and will serve as a future reference countless times. In this way, I again cite confluence with the Voter Confidence Committee's Humboldt hand-count campaign. In Thursday's media advisory, we did not just request public information from the Registrar, we made a leap in our framing. Months ago, when our Report on Election Conditions in Humboldt County was first released, we postured "Hand-Counting Paper Ballots Is On The Table - Let The Community Dialog Begin!" Like the District Court in NY, with enough information to demonstrate the time, cost, labor and other logistical concerns, the Humboldt community shall now be asked to judge the viability of our proposal.


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