NY: Appellate judges deny Johnson-Martin recount (Bush v. Gore revisited)

[Bill Bored]

Appellate judges deny Johnson-Martin recount

December 15, 2010 10:17 PM By DAN JANISON

How sure can you be that your vote will count?

That was the most meaningful question raised Wednesday as lawyers and judges tangled over whether there must be a manual recount in the 7th Senate District - the last potential obstacle toward a GOP Senate majority.

But by Wednesday night, all four appellate judges - two Democrats and two Republicans - who heard the case had upheld the Dec. 4 ruling of State Supreme Court Justice Ira Warshawsky that a manual process wasn't required under the laws of our new voting system.

-snip-

The panel paved the way for a further appeal by Sen. Craig Johnson (D-Port Washington) - declared the loser by 451 votes - to the state's highest court, the Court of Appeals. But it wasn't immediately clear whether Johnson will do so or finally concede to Mineola's GOP Mayor Jack Martins.

-snip-

Wednesday's court session covered such workaday matters as what distinguishes an "audit" from a "canvass," whether or when a court may or must overrule an election board, and the mathematical possibility that the result here could change with further counting.

In a friend-of-the-court filing, Common Cause, a nonpartisan good-government group, had come out on the side of ordering a recount, to assure the voters that their verdict would be shielded from possible machine errors. "There are quite a number of examples in which a voting machine malfunction caused a candidate to receive the wrong number of votes," the group's missive said.

-snip-

For his part, Stephen Schlesinger, lawyer for Nassau Democrats, Wednesday opened the court session in Brooklyn by ironically quoting Soviet dictator Josef Stalin as saying those who vote decide nothing but those who count votes decide everything.

Appellate Division Judge John M. Leventhal, first on a four-member panel to quiz Schlesinger, made clear his own lack of immediate interest in historic quips. Leventhal delved instantly into the here and now.

-snip-

Read the whole thing at:
http://www.newsday.com/columnists/other-columnists/appellate-judges-deny-johnson-martin-recount-1.2545833?qr=1

[EFerrari]

1. K&R

[Wilms]

2. What did you expect?

The audit laws in NY are only so strong. Cuomo was screaming to get it over with. The Dem lawyer comes into to court and quotes bumper stickers. Bo Lipari's New Yorkers for Verified Voting are mum. And the EI movement only enjoys the support of Common Cause.

The Dems lawyer should have immediately put up Phillip Stark, as they did in the lower court, and let him finish his testimony that was cut short there. A computer scientist, like Stanislevic who was stranded in the bull-pen last week, would have been a nice touch.
But quoting Stalin? :wtf: Did he bring a torch and pitchfork, too? The judge was right to silence him.

Maybe they'll take the case to the "Highest Court in the Land". :) That's where it probably would have gone had the appellates sided with those who want actual verified voting.

But there's little doubt that this is a victory for Lipari, NYVV, and ES&S. Audits and recounts scare the hell out of them all.

Lipari convinced many in the state that the paper ballot would be available for counting if there were any questions. Apparently, he's not available when there are questions. I've got a question or two about him.

[truckin]

3. Lipari did write this:

"In the first test case of how we verify election results using New York’s new paper ballots, the State Judiciary is in the process of setting an egregious precedent – Judges are free to nullify audits and recounts in the interests of having a quick decision. In Nassau County’s contested 7th Senate District (SD7) race, two State Courts that have heard the case to date have made very bad decisions. Ruling that even if New York’s audit laws require a further hand count of paper ballots, accepting the machine results and declaring a winner outweigh the public’s right to know who really won the election."

http://www.bolipari.com/boblog/2010/12/count-the-paper/

[Bill Bored]

4. It's the voting system and those who forced it on us that deny the public's right to know.

Look, no powers that be in NY ever seriously considered the need to hand-count paper ballots to verify software-counted elections. If they had, the audit and recanvass laws would have been written a LOT differently, and so would the SBOE's half-assed regulations.

All this was entirely predictable and what Lipari says or doesn't say is irrelevant, except for the fact that he and his crew advocated for the replacement of lever voting machines, without the checks and balances in the election law needed to verify computerized elections.

In fact, NO OTHER STATE has such protections in place either, but most other states did not have the option of staying with lever voting machines. New York clearly had that option, but the state failed to exercise it, at Lipari's and some others' urging.

The facts are:

1. HAVA did NOT require replacement of lever voting machines.

2. Lever voting machines don't switch votes during elections the way ballot scanners can and do.

3. The number of ballot scanners whose ballots must be counted by hand to prove that enough vote switching did NOT occur to change the winners of elections can be quite large -- much more than the paltry 3% that our election law requires. Much more than Connecticut's 10%.

4. Paper ballots enable other kinds of fraud not possible with lever voting machines.

5. Certification of software touted by Lipari and the State Board of Elections can NOT be used as the basis for certification of election results.

Until New Yorkers realize these basic facts, we are fucked! Just like Connecticut, Pennsylvania and the other ex-lever-machine states.

WE ARE ALL FLORIDIANS NOW!

[truckin]

5. I agree with almost everything you say. Just responding to

Wilms' comment that Lipari is silent. You and Wilms disagree with Lipari's methods but I do believe that he wants the same thing both of you, and I want, accurate and transparent elections where everyone's vote counts.

[Wilms]

6. If Lipari wanted accurate and transparent elections he'd have supportted the recount at once.

Not AFTER two courts decided. His silence is indefensible, your "belief" not withstanding. Action's speak.

[truckin]

7. It seems like he does. From his article:

"This demonstrates something I’ve been saying for a long time – getting new systems and paper ballots was only the first step towards verifiable elections. Now that we have the paper ballots, we’ve got to work on using them correctly. And that means knowing when we need to count them. In New York State, that means we citizens will have to push for changes to New York’s election law that allow recounts when warranted, making them more specific and subsequently less subject to judicial fiat. Here’s three changes we New Yorkers could make to the law that would get us a lot closer to where we need to be:

1) Adopt risk based auditing methods, replacing the current escalating flat percentage.

2) State law currently requires agreement of both election commissioners to escalate an audit. But this will never happen, because in New York one commissioner is appointed by Democrats and the other by Republicans. And these appointees are expected to represent their parties position in election disputes, particularly in an important race like SD7. So we must change New York law to allow either commissioner to escalate the audit.

(3) Adopt new standards that require a hand count in close elections.

If we can make changes like this, we will be a lot closer to realizing the full potential of our paper ballots than we are today. The new Legislative session starts in January, and as you can see there’s much work to be done. Ready to get started?"

Don't want to get in a contest over this, I'll take Lipari at his word. You obviously don't.

[Wilms]

9. After the fact activism is CYA.

If Common Cause could petition the court, so could have NYVV.

Pretty simple.

[Bill Bored]

10. Never mind THIS election. Where has he been for the last 2 years?

Lipari should know there's worse than a snowball's chance in hell of getting any of that shit passed, esp. now that the legislature is divided, thanks to these unverified elections. The Dems had both houses for 2 years. They didn't do fuck all on election integrity and Lipari and crew didn't say "Boo!"

Instead they hid in undisclosed locations hoping that the lever machines and their supporters would go away and that all future elections in New York would be landslides. Neither of those scenarios happened.

They could take a lesson from the Congress as they debate how NOT to reduce the deficit, burdening future generations with it. New Yorkers will now have the burden, for the foreseeable future, of unverified, software-driven, computer-counted elections. Or maybe another $50-million in taxpayer dollars spent on the "backup system" -- computers to check the computers we're not checking now.

The handwriting was on the wall for years. No one in NY wants to hand-count paper ballots, least of all our election officials (with a few notable exceptions). What they want is to TRUST their "certified" ballot scanners as if they were lever voting machines rather than computers -- despite ALL the expert advice to the contrary.

[Wilms]

8. Did he write that AFTER reading my post?

Just askin'.

Day late much?