Brennan Center Drops The Ball On WNYC Radio As Host Suggests Keeping Levers Would Prevent Overvoting

[Bill Bored]

Podcast: http://beta.wnyc.org/shows/bl/2010/jul/14/cancel-voting-machines

The Brennan Center refuses to give up on electronic vote counting, even if it means thousands of votes will be lost.

The pitch to keep New York's lever voting machines came TWICE from WNYC host Brian Lehrer, who was one of the few mainstream journalists to cover the voting irregularities in Ohio in 2004.

Lehrer asked Wendy Weiser of the Brennan Center's so-called Democracy Program: "You say that either the machines should be set to...reject an overvote....or what?....We are already close to Primary Day, which is Sept. 14...Are you actually advocating that we go back to the lever machines?":think:


Weiser: "Absolutely not.":grr:


And she drops the ball AGAIN when Lehrer asks: "So if the court rules in your favor, it is...possible...that we'll be using the lever machines one or two more times this fall.":applause:


Weiser: "No! We are not seeking to have us return to the lever machines. We're just seeking to have the Board fix the other setup.":mad:


OK, we get the picture. Someone dropped a lever machine on her big toe when she was a child and she'd rather count votes with computers now, even if the NY State Board of Elections can't get the overvote notification right. I can understand that. Shit happens.

But in my opinion, the Brennan Center does NOT have a case, because they're going to federal court over a violation of a state law. HAVA does NOT require voting MACHINES to notify voters of the effect of casting overvotes -- the New York State Election Law does.

If I were a federal judge in this case, I'd tell 'em to get over it, or use the levers, which of course are allowed by HAVA.

It's clear that the NYS election officials are incompetent and therefore not able to run computerized elections. If they can't even get overvote notification right, how the hell can we expect them to stop vote switching, vote padding, vote deletion, and all the other crap that can happen when vote-counting is delegated to computers?

[Wilms]

1. As much as they got right I cringed at their seeming unfamiliarity with the technology.

The best part is at the very end where one of the guests says their whole point is to get the state to make the software change prior to the fall election, emphatically arguing that testing would not take long.

She should consult better "experts" about how long certification takes.

[Bill Bored]

2. The configuration change would not take long.

They are right about that.

But they're wrong to trust software and the ability of election officials to manage it. The SBOE should have seen to it that the scanners complied with NY election law. If they can't do that with the software, then all bets are off and there can be no public confidence in elections run with software.

This is the issue the Brennans and most others keep missing. The certification process is useless when it comes to software.

[Wilms]

3. How long to recert? n/t

[Bill Bored]

5. Long time. But that's only if we assume compliance with the election law.

The Brennan Center says they'd be happy with the machines just spitting out the overvoted ballots. That's just a ballot definition file change that does not require recertification.

HOWEVER, HAVA does not require a machine to notify the voter of the effect of casting overvotes; NY Election Law does. So they are suing in federal court over a violation of a state law.

They might get somewhere claiming it's a violation of the Voting Rights Act, but the defendants will claim they got pre-clearance from the DOJ and Judge Sharpe!

As far as HAVA is concerned, voter education is enough to prevent overvoting -- and NY is using it.

I'd say since HAVA is not being violated, and HAVA allows levers, and levers prevent overvoting, there is no federal issue here, so case dismissed! (Sorry folks, you should have sued to keep the levers which would also have avoided a number of other threats to our democracy besides just unintentional overvoting, as serious as that is.)

[WillYourVoteBCounted]

8. plus $ to recertify. about $100K for small fixes, $1 M for whole system change

From my conversations and from old docs. It may cost more now.
But it can take a really long time!

[Bill Bored]

12. MONEY IS NO OBJECT when it comes to replacing lever machines! nt

[OnTheOtherHand]

10. yeah, it's a Voting Rights Act lawsuit

They aren't "suing... over a violation of a state law," or anything to do with HAVA. They're suing because they say SBOE's proposed policy "will disproportionately harm minority voters."

"...the defendants will claim they got pre-clearance from the DOJ and Judge Sharpe!" There's no such thing as preclearance of a Section 2 violation. Section 5 covered jurisdictions need to seek preclearance for changes, but that doesn't apply to New York. The state may claim that the proposed remedy isn't feasible because of the constraints they are under with Sharpe.

[Bill Bored]

11. The VRA applies to Kings, New York and Bronx counties in NY.

The lawsuit is filed in the Eastern District of NY, which includes Kings County (Brooklyn).

The SBOE will claim they have obtained preclearance using the state election law and regulations -- which the scanners violate. They will attempt to conceal the latter and claim they got preclearance and that's that. They may also claim that HAVA allows voter education to inform voters of the effect of casting overvotes, which is true and the SBOE is using it.

So, does HAVA violate the VRA? That would be an interesting ruling!:popcorn:

I'm not familiar with Section 2, but I'd think that if the new system was precleared under Section 5, unless someone claims this was inappropriate because the scanners violate the conditions under which the preclearance was issued, the plaintiffs may have a tough time.

The SBOE can do what the plaintiffs want by changing the ballot programming. But they are concerned about longer lines, increased ballot printing costs, etc. And it's embarrassing that they didn't catch the cryptic error message which does violate state law. So much for the toughest certification process in the nation!

[OnTheOtherHand]

13. the VRA applies to the entire country, but not viz preclearance

Section 203 requires jurisdictions with large proportions of minority language speakers to provide special assistance. Most of New York presently falls under that mandate. But nothing in the lawsuit has anything to do with Section 203.

It's OK if you don't care what "preclearance" means, but then I don't understand why you insist on using the word.

[Bill Bored]

14. The Brennan Center brought up "preclearence" in their complaint to the DOJ.

They claimed:

"After extensive research, we have concluded that these (overvote notification) policies violate New York State law and should have been precleared with the Department of Justice, pursuant to Section 5 of the Voting Rights Act. This apparently was not done. We have alerted the Department of Justice, and the New York State and City Boards to our findings."

http://www.brennancenter.org/blog/archives/brennan_center_notifies_doj_that_new_york_voting_changes_were_not_precleare/

Here's their notice of "Unprecleared Voting Change"
http://brennan.3cdn.net/2458e481184c5d02ee_ukm6i93ft.pdf

That wasn't my idea. However, the SBOE claims they're voting system was precleared, which is not my idea either. In seeking preclearance, the SBOE misrepresented the operation of the voting system.

You are correct that the actual lawsuit is about Section 2, which is not preclearance, but the defendants are going to say the system was precleared by the DOJ.

[OnTheOtherHand]

15. the _memo_ to the DoJ isn't relevant

At that time, the Brennan Center argued to DoJ that this change would need to be precleared under Section 5. The Brennan Center doesn't really say why, and it isn't at all obvious that the assertion is correct. Apparently it wasn't obvious to DoJ, either.* Regardless, it has nothing to do with the lawsuit, except in the sense that if DoJ had slapped down the state board, the lawsuit wouldn't have been necessary.

*ETA: I don't think I ever read a DoJ response; I'm just inferring from the failure to act.

However, the SBOE claims they're voting system was precleared, which is not my idea either.

I'd be interested to know whether the SBOE has indeed claimed that. The board submitted 6210 for preclearance, which makes sense given the wide scope of 6210 (including minority language provisions) -- but I don't see where 6210 says that overvoted ballots will be retained.

It doesn't matter, because preclearance under Section 5 doesn't confer an exemption from Section 2. SBOE may try to argue, with whatever degree of plausibility, that DoJ blessed its treatment of overvotes, but that issue has no direct bearing on the lawsuit.

[Bill Bored]

16. No law or regulation says overvoted ballots should be retained.

The NY law says the machine must inform the voter of the effect of casting an overvoted ballot. The error message that the scanners display violates the NY law by not informing the voters that their overvotes will not be counted. That is a failure of the certification process.

Not retaining the overvoted ballots is a workaround. Even this does not inform the voters of the effect of casting such ballots. It makes it impossible, or more difficult, to cast them, but it still violates the NY election law.

The important thing for me aside from the obvious overvoting problem is that the certification process failed to detect a clear violation of the plain language of an election law. If that can happen, we shouldn't be relying on this process to determine the outcomes of elections in lieu of a rigorous software-independent audit, but this is exactly what New York will be doing.

The voters of New York -- ALL the voters of New York -- are being sold a bill of goods about the value of software certification. Our tax dollars at work -- NOT!

[OnTheOtherHand]

17. seems like a non sequitur to me

I agree that the configuration change is a workaround that doesn't bring the systems into compliance with NY election law.

...the certification process failed to detect a clear violation of the plain language of an election law. If that can happen, we shouldn't be relying on this process to determine the outcomes of elections in lieu of a rigorous software-independent audit...

This argument makes no sense to me at all. Complying with this provision of law wouldn't mitigate the need for audits, and failing to comply with it doesn't increase the need for audits. Whatever.

[Bill Bored]

18. In case you haven't noticed, we've been bombarded with all kinds of (false) assurances...

...that our certification process is some kind of cure-all. It's supposed to be the toughest one in the nation; we are to trust our new voting system; etc.

If so, then the fact that this process missed an election law violation (by the software) that could have been detected by reading plain English -- not even computer code -- doesn't give me the warm fuzzies.

The fact that the SBOE is responding to this in a way that will disenfranchise thousands of voters, shows just how easy it is to screw things up with this new system, whether intentionally or not.

The state is not going to enforce its own election law with respect to overvote notification.

The state is not even willing to consider a workaround for the 2010 elections that might save thousands of lost votes.

And the state is not going to rely on software-independent audits, but rather on the software itself to determine most of our election results -- even though we now have proof that the process used to "certify" that software is flawed.

This is a far worse system than the one it's replacing where most, if not all of this incompetence and malfeasance is not possible, except perhaps for a very limited number of voting machines or precincts.

[Wilms]

19. That's a bit more clear than your previous post.

I agree that it's not confidence inspiring seeing the certification process miss such a flaw.

And an EAC-approved ITA looked it over, too? I think that must be right. So there are at least two groups. Is NYSTEC in the mix? Then there's the citizen board...they missed the problem.

[Bill Bored]

20. Yes, everyone looked it over, and they were warned after the problem was found in FL in 2008.

So my point is that the certification process sucks and the voting system sucks because it allows boards of elections to set it up in a way that will disenfranchise voters.

Those who still think it's a better system than the lever voting system have not considered the ramifications of this.

A board of elections, or other insiders, could not possibly setup a lever voting system to behave in a way that would disenfranchise so many voters.

The certification process for a lever voting system would not have missed an error as obvious as allowing unintentional overvotes, which levers have been specifically designed NOT to allow for over 100 years.

This is just one example of what can go wrong. And look how the SBOE is trying to save face by not admitting they screwed up, using voter education instead of following the NY election law, saying they precleared the system with the DoJ even though the system does not operate as the SBOE claimed, etc.

This is what happens when you replace a system that's relatively free of such risks with one that's replete with them. Even honest election officials may feel compelled to deceive the public and the authorities.

Why should any of our tax dollars go to support such a system?

[aquart]

4. WTF is the Brennan Center and who elected them?

[Bill Bored]

6. Excellent question! Here are some answers:

http://www.brennancenter.org/pages/about

"The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector."

It's named after:


SCOTUS Justice William J. Brennan, Jr.

They are the go-to guys for voting rights lawsuits in New York. No one wants to go to court without them, except for election lawyers paid by campaigns or political parties (hacks). (The exception is Nassau County who is REALLY fighting for out rights!)

Unfortunately, this has the effect of limiting rather than protecting the rights of voters.

Say you're a voter and you want to go to court to protect your constitutional rights, and you don't have a lot of money to hire a lawyer. You damn well better get the Brennan Center on your side, or you will NOT be represented by any other pro bono NY lawyer!

Now, say for example the Brennan Center's standards of what democracy is are so low that they think it's just fine to count votes with computers and only a 3% hand count of the paper ballots conducted weeks after an election (the new voting system NY will be implementing according to state law). Because the Brennan Center is seen as the guardian of democracy, such a system will be considered acceptable by a lot of lawyers who might otherwise be willing to represent voters in court to protect their constitutional right to have their votes counted as cast. But if they can't use the Brennan Center's name, forget about it!

This is as much the fault of New York's pro bono legal community as it is the Brennan Center's. But if the Brennan Center would do the right thing with respect to e-vote counting, it would be a lot easier to get other lawyers to help, as they have with the overvoting problem.

Things the Brennan Center thinks are important:

- Voting accessibility (no argument there);
- Eliminating the full-face ballot (kills lever machines, could result in butterfly ballots, FL CD13 ballots, ballot design exploits to disenfranchise voters);
- Use of computers (ANY COMPUTERS!) to count votes (they never favored scanners over DREs when they had the chance);
- Instant Runoff Voting (IRV -- more computers running elections, practically unauditable with centralized counting of votes);
- Audits (but not necessarily risk-limiting audits designed to find out who really won and lost elections with high probability; they're fine with spot checks)

So in other words, the Brennan Center would be OK with a voting system consisting of: touchscreen DREs, VVPATs, centralized counting, unauditable IRV, and spot checks instead of rigorous audits.

And these are our go-to guys for voting rights in New York?:wtf:

It's clear they don't like lever voting machines, even though New York has been in compliance with HAVA since 2008 by providing at least one Accessible voting device per polling place for voters with special needs.

Unfortunately, like most anti-lever folks, they have yet to offer a viable alternative.

[aquart]

7. Thank you. They and I seem to have irreconciliable differences.

[Bill Bored]

9. On the other hand, they sued to improve the undervote rate on NYC levers a few years ago and...

...they won that one! It was a matter of reinstalling a simple mechanical interlock that prevents the curtain from being opened unless at least one vote is cast (or at least one blank write-in is cast by those who want to cast a blank ballot intentionally).

This resulted in NY State having one of the lowest undervote rates in the 2004 Presidential election. But we don't hear the Brennan Center or anyone else who's pushing e-vote counting mentioning that now.