Summary of Issues in the Suit to Retain Lever Voting Machines

[clear eye]

Re-Media Election Transparency Coalition <http://re-mediaetc.blogspot.com/> is pursuing a suit with the aim of retaining lever voting machines in NYS. The background to the suit is outlined in layperson's language by the group's spokesperson, Rady Ananda, here: <http://www.opednews.com/articles/LET-S-CLEAR-THE-AIR-by-Rady-Ananda-080707-380.html>, but for the convenience of DU readers I will summarize.

In a nutshell: It seems that the lever machines were invented to deal with the problems of paper ballot tampering (ballot box stuffing, etc.) that tended to occur when counts were done after election night and the ballots had been transported. A formerly skeptical technology professor, Dr. Bryan Pfaffenberger, author of a soon-to-be-published book, "Machining the Vote", was startled to find that the lever machines have an error-free rate that no other form of balloting has been able even to approach. The old dangers, and even more serious new ones, will be introduced along with optical scanners since the necessary check on their accuracy must be a post-election day audit of a portion of the paper ballots. In 2004 Co-chair and State Board of Elections (SBOE) Commissioner Douglas Kellner testified that our lever voting system is HAVA-compliant but for one HAVA standard - the accessibility requirement.

Furthermore, the electronic machines that the counties have been forced to purchase, even after their SBOE testing, have been delivered to them with an over 80% failure rate upon arrival according to the chair of the Nassau County BOE. The ballot marking devices included for the handicapped have a systemic flaw the manufacturer warned the SBOE about, but the SBOE accepted them anyway w/o alerting the counties. Recently, Kellner has been quoted widely as saying, “the voting industry sells crap. And that's the problem.”

Most importantly, numerous programming experts, including academics with PhDs, and an industry whistleblower, Clint Curtis, have published that there is no way to certify software as safe and accurate for ballot counting purposes since it changes in use, requires patches, and can be altered with malicious software that later self-destructs in a way that prevents detection even by experts.

The legal questions are: 1)Can the 2005 law the NYS legislature passed requiring the replacement of the lever machines by electronic machines be shown to displace a secure system for one that can be expected to disenfranchise voters and be therefore ruled in violation of the NYS Constitution? and 2)With the addition of ballot-marking devices for the disabled at each polling place, are NYS's lever machines HAVA-compliant?

The biggest sticking point IMO is the 2005 law since a state is permitted under states rights to make voting requirements that are more stringent than or different from the federal requirements as long as the state mandates don't contravene the federal ones. And NY has already accepted HAVA funds to make the replacement. Therefore I encourage individuals and groups within the state to pressure their State Legislators (esp. Senators) at their summer district offices to act when the legislature reconvenves in January to repeal the provisions within the 2005 law that require discarding the lever machines.