Two Ulster County legislators and a Dutchess County lawmaker, all Democrats, have filed a friend-of-the-court (amicus curiae) brief, joining with some 32 other election groups presenting information to a federal judge who is deciding whether the U.S. Department of Justice should oversee upcoming presidential elections in New York State, the only state in the nation that has not complied with new federal requirements for updating voting machines.
Ulster legislators Gary Bischoff (D-Saugerties) and Susan Zimet (D-New Paltz) and Dutchess legislator Joel Tyner (D-Rhinebeck/Clinton) have filed a court paper joining with the Election Defense Alliance, seeking to get the feds to allow New York State to decide on its own how to run voting for the presidential election and congressional elections of 2008 in the Empire State, including allowing the state to decide on which voting machines are best. The brief agrees with the other interested parties filing similar court papers who say that, if necessary, the state should be allowed to keep using the tried-and-true lever machines that have been used in New York for decades. And it argues that the most tried and true method of voting is handwritten ballots counted by hand, a method used in dozens of industrialized democracies around the world.
The Justice Department recently asked the court to assume control of the selection of voting machines for New York State because the state Board of Elections has failed to meet deadlines set by the court for complying with the Help America Vote Act (HAVA), which was passed in the wake of the contested 2000 national election. New York has consistently delayed making a selection on voting machines, with the choices primarily between electronic touch-screen machines (DREs) and the so-called optical scanner, in which a voter manually fills out a ballot, which is then tabulated by a machine, recording the vote while preserving the hand-written ballot. The original deadline was 2004, which was pushed back to 2006, and as of now is still in process. The federal government has provided some $220 million to New York State to comply with HAVA.
The state has set up a stringent certification program to ensure that the voting machines pass muster. While charges of political machinations are rampant, election officials say they are acting cautiously in the wake of problems in states that moved rapidly to comply with HAVA, only to find that the machines they selected were either faulty in terms of recording votes accurately or were potentially vulnerable to tampering by hackers and others knowledgeable about computers.
“I object to the Justice Department (DOJ) forcing a decision on New York State, effectively ignoring the state’s certification testing program,” said Bischoff in a press release dated Dec. 17. “The DOJ is saying some machine, any machine, be selected, and used for the 2008 election. The travesty of this position becomes obvious when many other states are presently scrapping their DREs in favor of a paper ballot system. The Justice Department does not have the best interests of New York voters at heart in this case.”
The Election Defense Alliance is led by co-counsels Andrea Novick and Johnathan Simon. They are arguing against the DOJ suit, saying that if the judge rules in favor of the feds, “It would likely result in untested electronic voting machines being imposed upon the voters of New York State,” according to the Dec. 17 press release.
Many of those involved in fighting against the DOJ suit say the best option is to do hand-counted paper ballots, an essentially foolproof voting system. Dozens of industrialized countries do hand-counted paper ballots, said Tyner, the Dutchess County legislator.
Tyner said that the most important outcome “is to make sure there are paper ballots for every election. The touch screens are really hackable, but the optical scan voting machine has also been shown to be hackable as well. I’ll take optical scan over a touch screen. The optical scan machines are way better than DREs, but are far from perfect. … So why can’t we make sure there is a real paper record?”
The briefs argue that New York’s currently used mechanical lever voting machines are legal under the federal HAVA legislation, if supplemented by accessible ballot-marking equipment for voters with special needs. It also argues that, if the court were not to agree, hand-counting the two federal races in New York in 2008, together with the addition of a disabled-accessible “ballot marking device” in every polling site, will bring the state fully into compliance with HAVA as sought by the DOJ.
The briefs offer more than 200 pages of supporting documentation – including evidence and analysis of possible tampering methods for electronic vote machines, evidence of mistaken tabulations, as well as guides, tools, and detailed instructions for hand-counting votes, all prepared and submitted to the court by election reformists from a broad spectrum of organizations.
New Yorkers for Verified Voting, the League of Woman Voters, the New York Public Interest Research Group and Citizen Action of New York are among those suggesting the adoption of paper ballot voting rather than DRE electronic voting machines.
But in a democracy these days, nothing is simple, especially voting. Thomas Turco, the Republican election commissioner for Ulster County (each county has a Democratic and a Republican election commissioner), said that right now New York State is “nowhere” in terms of HAVA compliance.
Turco noted that the two state election commissioners have each put forward a plan for HAVA compliance, that the 124-member State Election Commissioners Association has submitted a plan, and that a minority within that association has advocated a different plan. “The bottom line is we have not chosen a (voting) machine,” said Turco.
Turco said that he believes that DREs are not as mistake-prone, nor are they as vulnerable to hackers as they have been made out to be. And though he concedes that DREs have been shown to make major mistakes, and that many states are moving away from their use, he claims optical scanners have also had problems. He says election commissioners would most strongly oppose any solution that would require interim measures for 2008, saying that the federal HAVA money would be spent on such measures, leaving state taxpayers to fund a costly permanent solution to voting machine woes.
The case, United States v. New York State Board of Elections (case number 1:06-cv-263), is tentatively scheduled to be argued in U.S. Federal Court in Albany on Dec. 20. It is being argued before U.S. District Court Judge Gary L. Sharpe, who could rule in this case as early as this week.