Exclusive: Discredited federal E-voting oversight commission issued an incorrect 2005 'legal advisory' helping to keep NY on a collision course with democracy
But it's not too late to save the last transparent electoral system in the United States...
By Andi Novick on 3/2/2009, 3:45pm PT  

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 But the State Legislature has not repealed ERMA and the Attorney General, to date, has supported the State (not the citizens).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...

The Voters Get Little 'Assistance' From the EAC

As The BRAD BLOG and Voters Unite have tirelessly documented, the EAC --- a federal agency purportedly created to assist voters as the states transition to complex and what have now been revealed to be defective computerized voting systems --- eschews the interests of voters for vendors. Apparently the "Assistance" part of the Election Assistance Commission refers to assisting e-voting vendors by covering up their failings and ignoring the myriad HAVA violations caused by these computerized voting systems.

As Voters Unite explained in their report on the EAC's violation of federal law early last year: "By its negligence, the EAC has allowed private voting system vendors --- with an undisputed conflict of interest --- to become the de facto authorities on determining whether their own equipment is HAVA compliant. As a result, the states have poured billions of taxpayer dollars into inaccessible, unreliable, inaccurate equipment in a misguided attempt to avoid violating federal law. Voters have paid for equipment that has been shown to lose their votes or count their votes inaccurately. Voters with disabilities have paid for equipment on which they cannot vote independently and privately."

In a recent article at The BRAD BLOG, "EAC-Ya: The Nation's Federal Voting System Oversight Commission Refuses to Do Its Job, Answer a Simple Question - Maddening chain of email, querying the status of the Diebold failure discovered in Humboldt County, CA, illustrates the EAC's continued protection of e-voting vendors, at the expense of the voters," Voters Unite's John Gideon recounts his painstaking efforts to get the EAC to do its job and investigate a recent violation of HAVA's Error Rate Requirement.

Due solely to the work of the "Humboldt Election Transparency Project", it was discovered that Diebold's optical-scan voting system simply lost votes, in violation of federal law. As Gideon noted: "Diebold knew that their voting system might lose votes and, worse, had known about the flaw in their system for more than 4 years," but Diebold kept it a secret (secrecy is the only way these vendors operate and the only way Americans votes are counted on these systems).

As seen in his report, Gideon pleaded with the EAC to take action, insisting, "The voting machine vendors should not be allowed to continue to put out voting systems that violate the mandates in HAVA while the EAC ignores the issue."

After two and a half months of letters back and forth between Gideon and and the EAC, it was clear the agency would continue to ignore the Diebold system's HAVA violations, just as it had ignored similar demands for enforcement made by Voters Unite since 2004. (See, Voters Unite's testimony to the EAC at: http://www.votersunite.o.../EACTestimony12_8_08.pdf)

The EAC Offers a Free Ride...To Vendors...and Pennsylvania...

The EAC doesn't always ignore letters requesting its cooperation to enforce HAVA. However, it appears only manufacturers of software-based systems get a free ride to ignore HAVA, while transparent mechanical lever voting systems aren't so lucky; even when they are in compliance with the federal law!

I recently discovered a letter written by Pennsylvania's Department of State requesting that the EAC issue an interpretation of HAVA regarding lever voting machines that would ease the way for the state to purchase computerized Direct Recording Electronic (DRE, usually touch-screen) voting systems.

As the 2005 Pennsylvania letter [PDF] reveals, the State wanted to replace its mechanical lever machines with electronic voting systems in several of its counties, but opponents of the failed electronic voting machines had been urging Pennsylvania to keep their lever systems, now that the State had complied with the disabled-voters accessibility requirements of HAVA by purchasing non-tabulating ballot marking devices for such voters. Pennsylvania, however, was intent on using its HAVA monies to buy shiny new DREs and needed the EAC's blessing.

Unlike Gideon's frustrating experience, this time the EAC took less than a week to respond and gave the State of Pennsylvania exactly what it asked for: a means to justify the purchase of software-based equipment to replace its lever system.

The EAC issued an advisory [PDF] interpreting HAVA in such a way that no lever voting system could ever be deemed HAVA-compliant. The advisory completely disregarded the law's statutory language which explicitly recognizes lever systems, along with DRE and optical-scanner systems, as being legal for use, so long as HAVA's requirements are met. A legal memo [PDF] I've published exposes the EAC's advisory as specious.

As explained in the letter from Pennsylvania, because the state statute permitted lever machines, it needed the Federal statute to be construed in such a way that would render the levers illegal. Ignoring the clear language of HAVA, Pennsylvania urged that the Paper Audit Requirement of HAVA should be interpreted as banning levers in every circumstance, notwithstanding that the lever machines were expressly not prohibited by HAVA.

Indeed, as the letter from Pennsylvania points out, a primer on HAVA, published by the Department of Justice (DoJ), stated that lever machines are not prohibited by HAVA. But Pennsylvania chose to reject that statement in the primer, as the personal opinion of a DoJ attorney. Yet, the plain language of HAVA makes it far more than a mere personal opinion. The statute does not prohibit levers any more than it prohibits the other two systems mentioned by HAVA, Section 301 (a) (1), which refers to: "The voting system (including any lever voting system, optical scanning voting system, or direct recording electronic system)."

Although it is irrational to interpret one section of a statute as prohibiting levers under all circumstances, when another section of the statute explicitly includes them, Pennsylvania needed a way to proceed with its plan. And they received it. In stark contrast to Gideon's experience, this time the EAC was quick to cooperate. Within a week, the EAC had issued an advisory adopting all of Pennsylvania's arguments as its own --- notwithstanding the DoJ primer and the explicit language of HAVA to the contrary.

In accommodating Pennsylvania, the contorted EAC analysis reveals the fallaciousness of its interpretation, further serving to discredit the EAC's tarnished reputation. (See "EAC Altered Report On 'Voter Fraud'," New York Times, on the EAC's involvement in the scandalous whitewashing of a voter fraud report. Also see one of the authors of the pre-altered report who wrote in the Washington Post on the same matter: "This is not the way an institution created to promote democracy should function...It should not be in the business of suppressing information or ideas...this agency's structure and procedures need to be seriously reexamined in light of this episode.")

How did the EAC "assist" Pennsylvania's voters? By adopting the State of Pennsylvania's fallacious and self-serving pro-DRE/anti-lever interpretation, Pennsylvania was able to saddle the voters with unreliable, theft-inviting DREs, which have kept them embroiled in litigation with the State ever since. In April 2007, the voters succeeded in obtaining a ruling from the court permitting them to challenge the use of these DREs "that provide no way for Electors to know whether their votes will be recognized."

The EAC's advisory demonstrates still again the agency's consistent interest in protecting the vendors at the expense of the voters. The EAC advisory was instrumental in Pennsylvania's ability to replace reliable lever voting machines with unreliable software-based machines and the citizens continue to pay dearly for this collaboration. The Election Assistance Commission should be recognized for what it is and who it serves. After all, as former EAC commission Donnetta Davidson has pointed out in the past "'Assistance' is [its] middle name."

Now that the EAC's legal interpretation is revealed as disingenuous, it is not too late for New York to learn from the experience of Pennsylvania and the rest of the nation. As State Board of Elections Commissioner Greg Peterson summed it up [PDF], in favor of our lever machines over the optical scanners: "If you have something that works and something that doesn't work, I vote for the thing that works."

* * *

* For those who don't know, here's how lever machines work:
Voter pulls lever for candidate of her choice; gears increment a mechanical counter by one and only one vote --- only for the desired candidate. No vote switching or overvoting is possible! (Some machines increment the counters as the big lever is pulled, but unlike software, either method of operation can be observed and thoroughly tested before and after each election and both have been completely disclosed in the machines' patents.) Rinse and repeat for the entire ballot, which takes less than a minute for most voters. Change or correct your votes as many times as you like - not just three. When you're done, just pull the big lever that casts the ballot, locks in all your votes, opens the privacy curtain, and repositions the candidate levers for the next voter, leaving the locked immutable mechanical counters as the durable record of all the votes cast on the machine --- until after the election is certified. On election night, a permanent paper record of the vote tallies on each machine is produced by the machine, and/or by bi-partisan teams of poll workers, before the machine is moved and the poll workers are permitted to leave.


Andrea Novick is the founder and legal counsel for the Re-Media Election Transparency Coalition. She will be testifying to the New York City Board of Elections this week in regard to her findings concerning the use of mechanized lever voting systems.

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