Guest Blogged by Andi T. Novick, Esq.

New York is the last state in the nation to have a non-computerized, transparent voting system. We still use immutable, theft-deterring mechanical lever machines to count our votes. (* - Please seen bottom of this article for a quick explanation of how lever machines work, for those who may not know.)

New Yorkers are fighting to keep their current voting system, notwithstanding that New York's legislature passed a law in 2005 that says we should give up our observable, reliable levers in exchange for unreliable, concealed software-based vote counting machines. Nearly 1,800 New Yorkers have signed a petition, and three counties (Dutchess, Ulster, and Columbia, all PDFs), have passed resolutions to save New York's lever voting system.

The Association of Towns (half of New York's entire population lives in towns) recently passed a resolution to save the levers [PDF], and Nassau, Greene, and other counties are presently considering similar action to retain New York's lever voting system.

Moreover, reliable sources have confirmed for me that neither the Governor nor the Attorney General nor the State Legislature that passed the "Election Reform and Modernization Act" (ERMA) want to replace the levers anymore either (what politician would want to be responsible for choosing to cut essential programs for hungry children or the elderly, just to be able to replace our superior and affordable voting system with budget-breaking computers that are notoriously corruptible and defective?). But the State Legislature has not repealed ERMA and the Attorney General, to date, has supported the State (not the citizens).

So what is driving New York State to stick with a law that so many in New York believe to be such a bad idea? As a New Yorker who has been talking to many election commissioners, legislators and citizens, I was surprised to learn how many people believe the "Help America Vote Act" (HAVA) actually banned lever machines.

I read HAVA. It clearly does not ban levers. I recently discovered what has helped fuel this misinformed opinion in part: it is the discredited position of the discredited U.S. Election Assistance Commission (EAC), as detailed in a newly-unearthed document prepared for the state of Pennsylvania, at their request, in regard to the legality of lever voting machines.

Although the agency is not a court of law, and not even an agency deserving of deference for its opinions --- its allegiance has clearly been shown to be not with either voters or democracy --- the "HAVA-banned-levers" rumor was given the imprimatur of the EAC through this little-noticed document...

Guest Blogged by John Gideon of VotersUnite.org

"It is through the Constitution that we control the reins of government and insure that it remains the protector of individual, unalienable Rights - i.e., the servant of the People.

"Therefore, it behooves the People to show the Government that the People know what their Rights are and what Government's obligations are, that the People are watching Government as it exercises its delegated powers and that the People are prepared to act if the Government steps outside the boundaries drawn around its power by the Constitution." --- We The People Foundation

The U.S. Election Assistance Commission (EAC) works for the People. It doesn't work for special interests. It doesn't work for the voting system vendors. The EAC has an obligation, spelled out in its past advisories, public statements and, most importantly, in federal law, to carry out oversight of the voting systems we, the People, use in our federal elections. It does not matter that the EAC commissioners are not elected to their positions. They are still servants of the People.

Not long after being created by the Help America Vote Act (HAVA) of 2002, the EAC published, on June 8, 2004, "Chairman Soaries' Remarks about Electronic Voting Security Strategy for the November 2004 Presidential Election." The comments, by then EAC Chairman DeForest "Buster" Soaries included recommendations "to insure election integrity and promote voter confidence in the administration of the 2004 federal election," and stated, in part: "[The] EAC should solicit information about suspicious electronic voting system activity including software programming and should request aggressive investigative and prosecutorial responses from the U.S. Department of Justice Elections Crimes Branch in the Criminal Division."

The above was restated in a July 13, 2004 "Commission Advisory Letter" [PDF].

It's clear that if there is to be any federal body to recommend investigation and/or prosecution to the DoJ, in regards criminal violation of federal law concerning voting systems, it is to be the EAC, the body charged with testing, certifying, and performing as the "national clearinghouse...with respect to the administration of federal elections" (42 U.S.C. § 15322) and the electronic voting systems employed across the country.

And yet, the EAC has continued to utterly fail in those duties, as a particularly maddening chain of inquiries and emails --- back-and-forth and round-and-round --- that we'd sent to the EAC commissioners and their spokesperson over the past three months illustrates all too well. All we were trying to do was get a simple answer to a very simple question...

Guest Blogged by John Gideon and Ellen Theisen, VotersUnite.Org

There can be little doubt that, of the issues springing from elections held since George W. Bush signed the Help America Vote Act (HAVA) of 2002, two are among the most significant. Those issues are failures of voting systems to meet the HAVA mandates for accuracy and accessibility and the confusion over the proper use of provisional ballots.

The states should have been able to look to the federal Election Assistance Commission (EAC) for guidance on both issues, but the EAC has failed to give the necessary Assistance, thus failing to fulfill duties assigned to the agency by federal law.

Now the EAC is proposing to extend its dereliction of duty for another two years. The result will be the publication of these important guidelines a full eight years after HAVA was enacted. The delay is inexcusable and intolerable, and the cost to American elections, on many fronts, is nearly incalculable...

Following up on the latest monumental failure by Diebold/Premier --- whose voting system was recently found by a citizens' transparency project to have lost hundreds of ballots in a single precinct in Humboldt County, CA --- Wired's Kim Zetter covered the issue earlier this week.

Her article touched on a number of technical issues involved in the failure of the Diebold GEMS central tabulator which, though we hadn't noted them in our own coverage, are nonetheless important, even if somewhat down in the weeds, and perhaps most of note to technical election integrity geeks only.

As quoted below in some detail from Zetter's report, she advances the story by noting:

• The problem, which Diebold admits has been in its system for years, likely wouldn't have been noticed at all were it not for the unique, experimental, citizen-led "Humboldt Transparency Project." Even CA's required 1% random post-election "audit" wouldn't have uncovered the problem, since absentee ballots are not included in that audit.
• The chances of the problem occurring, which resulted in ballots being deleted without notice by the Diebold GEMS tabulator, are rather high, even if chances of discovery of the error by election officials are very low.
• Diebold's explanation for the failure may or may not be legitimate.
• The GEMS internal "audit logs" (the GEMS system was used in 34 states around the nation last November) aren't actually audit logs at all, and may not actually note the complete set of events which occurred on the voting system, even if anyone is allowed to review those logs in the first place.

Let's take a look at the details...

By John Gideon and Brad Friedman

"Some people have called those who have long decried our nation's move toward voting machines nuts or just sore losers," reads the editorial from yesterday's Eureka Times-Standard.

"They were loud, and they were strident in proclaiming that they didn't trust election technologies as much as they trust the ability of actual human beings to count votes," the paper continues in response to the citizen's "Transparency Project" in Humboldt County, CA which, as The BRAD BLOG reported last week, discovered some 200 ballots that the county's Diebold optical-scan system had deleted from the initially certified count. Humboldt registrar Carolyn Crnich --- who deserves much credit for working with local election integrity advocates to allow them to create a more transparent, open-source optical-scan system as a check on the buggy Diebold hardware and software --- was forced to to re-certify the November 4th election with new results after the findings.

"The recent discovery, thanks to the Humboldt County Election Transparency Project, of a discrepancy in election results due to flawed software reveals that these activists were right to make noise, and right to complain about a company that has been less than responsible in dealing with the problem."

Thanks for noticing, Times-Standard. Now will the rest of the country notice? Specifically, will the U.S. Election Assistance Commission, responsible for testing and certifying these machines at the federal level, and the U.S. Dept. of Justice, responsible for enforcing federal laws --- which again seem to have been violated by Diebold (whose election division now calls themselves Premier) --- notice and take action?

Interviews with and responses from CA officials from Crnich to Sec. of State Debra Bowen's office indicate a serious problem, yet again, with Diebold's handling of the software failure which the company has known about for four years, even as they allowed election officials to continue using the same system in several states.

The BRAD BLOG has obtained a copy of Diebold's original terse, emailed notice of the software failure, sent to Crnich's predecessor in 2004, but never sent to CA's new Sec. of State, despite her "Top-to-Bottom Review" of all e-voting systems in the state which she undertook after taking office in 2007. (The Diebold email notice is posted below, in full.)

At the same time, local software programmer Mitch Trachtenberg, who developed the simple, transparent, open-source optical-scan software, using off-the-shelf hardware for the citizen's project --- including the ability to post all scanned ballots onto the web for citizen review --- may have inadvertently revealed the scam perpetuated by the nation's electronic voting machine vendor's who were allocated some $3.9 billion federal tax dollars for their efforts at creating proprietary systems, which don't even work as promised...or as required by federal law...

The Help America Vote Act of 2002 (HAVA) was signed into law in Oct. 2002. Amongst other things HAVA required the formation of the Election Assistance Commission (EAC) and provided some mandates, in Title III of the law, for federal elections including some standards for voting systems. Those standards include, but are not limited to, accessibility for voters with disabilities and accuracy in the vote count. Testing by experts in accessibility has shown that none of the Direct Recording Electronic (DRE, usually touch-screen) voting systems presently in use meet the requirements for accessibility for disabled voters. Failures in testing and vote counting in real elections have also proven that, at times, the voting systems presently being used across the country do not meet the federally mandated requirements for accuracy.

So what guidance has been provided by the EAC to the states with regards to Title III? Well, actually none. In fact even though voting systems presently in use do not meet federal law the EAC is just now getting around to issuing guidance to state and local election officials and, according to the draft of the plan ‘featured’ below, it is going to take another two years before the EAC can complete the guidance.

Why can’t they just tell the vendors and the states that the law is clear and, if they fail to follow that law, violations will be referred to the DoJ? The fact that the vendors misrepresent their products as being accessible is a clear violation of the law. It is time they are held responsible and it doesn’t take two years of studying Title III of HAVA to make that clear....

Guest Blogged by John Gideon of VotersUnite.org

The U.S. Election Assistance Commission (EAC) received this letter [PDF] well over a week ago from Oakland County, MI, concerning ES&S precinct-based optical-scan systems that "yielded different results each time" the "same ballots were run through the same machines"...

This problem, discovered during pre-election "Logic & Accuracy" testing of the systems, would hardly be the first time that ES&S has failed to deliver on maintenance contracts, adversely affecting voters and election results in the bargain. We saw many similar problems during the 2006 primary election cycle. These precinct-based scanners are used throughout the nation, as ES&S is the nation's largest distributor of voting systems in the U.S.

The EAC received this letter a week ago, and we're trying to learn when it was finally posted to their website. But, more importantly, as they have a mandate via the Help America Vote Act (HAVA) of 2002 to serve as a "clearinghouse" for such voting system problems, has the EAC sent a warning about this issue to any other jurisdictions where the same equipment or company is used?

If we didn't know better, we might think that someone over at The Colbert Report is reading The BRAD BLOG, as he nailed it from top to bottom last night, on the GOP's ACORN 'Voter Fraud' Hoax, the Help America Vote Act, and all that's related.

Now that it's officially made its way into the national joke lexicon, it seems to us this may signal the beginning of the end of the GOP's once-useful "voter fraud" scam. Not that common sense and becoming a national joke has ever succeeded in shaming, or stopping, them before. But still. Enjoy...(and thank you, Stephen!)...

From Saturday's Washington Post, on the "November Surprise" we've been trying to shout about for months now.

The lede: "Thousands of voters across the country must reestablish their eligibility in the next three weeks in order for their votes to count on Nov. 4, a result of new state registration systems that are incorrectly rejecting them."...

Still running from one thing to another today, so only the briefest coverage here for now, on two very important points (and even victories!) today...

We've been reporting on the GOP's October "Surprise" over the last few days (challenges to Democratic voter registrations in a number of states, and, perhaps more notably, their bogus PR campaign to charge that ACORN, a community organization that heroically registers millions of low-income voters who nobody else bothers to, is committing "voter fraud." See here, here and here, for example.)

But the November Surprise, as we've been trying to warn for many months (if not years), will undoubtedly be the thousands who show up to the polls to vote on November 4th, only to find out that they have somehow "fallen off" the voter rolls.

We've urged folks to check their registrations, even if they recently voted in a primary election, to make sure they haven't been purged (info on how to do that quickly in all 50 states, right here).

Late last month, CBS News reported on voter purges occurring in at least 19 states across the country, many of them swing states, naturally.

Today, the New York Times has published a scathing report, based on a detailed investigation revealing that "Tens of thousands of eligible voters in at least six swing states have been removed from the rolls or have been blocked from registering in ways that appear to violate federal law."

We've got to run out to host an hour of "Election Year Special Coverage" right now on KPFK/Pacifica, (guests to include filmmakers Patty Sharaf of Murder, Spies & Voting Lies: The Clint Curtis Story and John Ennis of Free For All!: One Dude's Quest for Democracy), so here are some very notable, must-read excerpts from the Times full report for the moment. So, we may have more thoughts on all of this later today, but for now, please read on!...

In today’s featured article the Brennan Center for Justice and the Advancement Project have reported that thousands of Florida voters may be disenfranchised by a last minute decision by the Secretary of State, Kurt Browning, to enforce a “no match, no vote” law. “No match, no vote” essentially says that if a voters name or information on their registration does not exactly match their name or information on their ID they cannot vote or they can vote a provisional ballot and take the same ID to the county election office after the election to prove they are who they say they are.

"This 11th-hour decision is an ill-advised move to apply a policy the state has never enforced in its current form, at a time when registration activity is at its highest," stated Beverlye Neal, director of the Florida State Conference of the NAACP, a plaintiff in a lawsuit that challenges Florida's matching law. "The Secretary's decision will put thousands of real Florida citizens at risk due to bureaucratic typos that under the 'no-match, no-vote' law will prevent them from voting this November," said Alvaro Fernandez of the Southwest Voter Registration and Education Project, another plaintiff in the case.

"Voters who do everything right, who submit forms that are complete, timely, and accurate, will suddenly find themselves unregistered when they go to vote, just because someone somewhere punched the wrong letter on a keyboard," said Myrna Pérez, counsel at the Brennan Center for Justice. "The no match, no vote policy is unjust and unnecessary, and Florida voters will pay the price this fall," stated Jean-Robert Lafortune, president of the Haitian-American Grassroots Coalition, another plaintiff in the lawsuit...

-- Brad Friedman

Last night we offered the quick skinny on the abrupt resignation of Colorado's state Election Director, Holly Lowder, just 60 days out from what promises to be one of the largest and most important --- and potentially closest --- elections in the state's history.

We summarized some of the dizzying background on the exceptionally embarrassing and dysfunctional state of certification, decertification and recertification of e-voting systems in the Centennial State over the last two years, under current Sec. of State, Republican Mike Coffman (who is overseeing his own election for the U.S. House this November), and in previous years under two former Republican SoS' (one of whom was promoted by George W. Bush to do the same lousy job of e-vote testing for the U.S. Election Assistance Commission).

We also suggested, based on information from sources in the states, that the old euphemism about "election officials being in bed with voting vendors" may well become more than just a euphemism when the full explanation for Lowder's sudden departure became known.

And today, as we'd hinted last night, some of that information has now become known...

Those conspiracy theorists over at Scientific American just refuse to move on and get over it.

Here's the latest headline from those whackos: "Planning to E-Vote? Read This First", subtitled "With less than three months before the presidential election, the hotly contested state, Ohio, along with others, continue to have problems with E-voting technology."

The tin-foil hatters over there (so-called scientists) have the temerity to report stuff like this:

What next? Aliens sending anthrax letters?

Addendum: To those who didn't get it, yes, my comments above about "conspiracy theorists" were, in fact, satirical. The SA article is right on target, a must-read, and concurs with virtually everything we've been trying to get across here on The BRAD BLOG for about 4 years straight. Even as we, ironically, were tarred by the democracy-haters as "conspiracy theorists". Hope that clarifies.

Guest blogged by John Washburn

I have been a long time critic of the federal 2002 Voting System Standards (2002 VSS) and of the 2005 Voluntary Voting System Guidelines (2005 VVSG). In fact, both sets of standards are virtually worthless. There are two reasons for this. First, the requirements enumerated in the standards are, in and of themselves, much too weak for something as vital as administering an election. Second, both sets of standards have an explicit loophole that allows almost all the requirements — weak as they are — to be ignored. This second objection was first brought to my attention two years ago by Howard Stanislevic.

We now have proof that this loophole is used by the labs in order to “pass” systems that don’t meet the standards. The proof is laid out clearly in the most recent certification test report submitted to the Election Assistance Commission (EAC) by SysTest labs (one of the labs accredited by the EAC and the National Institute of Standards and Technology - NIST). SysTest recommended certification for the new voting system by Premier Election Solutions (formerly Diebold) even though the lab's findings listed 79 specific failures to meet the standards.

As you read this article, keep in mind that the standards actually allow 77 of these 79 failures to be ignored!...