Recent allegations from the Right of malware on voting machines in New York's November Special Election may be overblown, but the long-overdue general concerns are right on point...
By Brad Friedman on 11/21/2009, 2:08pm PT  

On Thursday, Nathan Barker of upstate New York's Gouverneur Times --- a far-Right online publication (featuring columns by the likes of Michelle Malkin, Oliver North, Chuck Norris, and all the rest of the wingnutters) --- filed a lengthy, and somewhat breathless, report alleging a computer virus had infected several of the new e-voting systems in first-time use during the November 7th Special Election in NY's 23rd Congressional district between Democratic candidate Bill Owens, Conservative Party candidate Doug Hoffman, and Republican Dede Scozzafava (who dropped out of the race just prior to Election Day and threw her support to the Democrat).

Barker charged that a "VIRUS in the VOTING MACHINES" [his caps] resulted in "tainted results," "casting doubt on the accuracy of counts retrieved from any of the machines" used in the election.

Owens was reported to have won the election by a small margin on Election Night --- made smaller as errors were discovered during the post-election canvass --- before being hastily sworn in to the U.S. House just a few days later, in time to provide a crucial Democratic vote in favor of the health care insurance reform bill.

Barker's detailed report clearly offers a hard-right undertone, obviously in support of the Conservative Party candidate Hoffman. The article also advances several unsubstantiated conspiracy theories and features a number of out-and-out inaccuracies as well. A number of the piece's key allegations, though important, are also disputed by election officials, and at least one lead member of New York's election integrity community --- which is, itself, split between supporters of the new optical-scan e-voting systems and those calling for the retention of the Empire State's long-used mechanical lever voting machines.

Nonetheless, Barker raises a number of significant points and important concerns, about which The BRAD BLOG has been warning for years, often in the face of derision, notably from the same Rightwing circles crying foul now, who had previously dismissed such concerns as those of 'tin-foil hat wearing, sore losers and conspiracy theorists' despite actual hard evidence and scientifically-sound details proffered about such concerns.

It's somewhat amusing to see some on the Right, now that they have concerns about a close election, suddenly find religion on the very issues they'd derided as nonsense so stridently in the past. It's very tempting to either disregard them now entirely, or torture them mercilessly on that point. But we'll try to take the high road here since their central concerns, now that they've finally arrived and no matter how long overdue, have been ones that we've shared for years, whether or not they might have stood to adversely affect Democrats, Republicans or independents.

The bottom line is that whether a computer virus, malicious or otherwise, affected the results of the NY-23 Special Election or not --- we've seen no actual evidence that it did, and state officials offer a differing explanation for the e-voting system failures that did occur --- it certainly could have. The direct threat to democracy inherent in the concerns expressed by Barker (whether substantiated or not), underscore the foolishness of using such secret vote-counting systems at all. In New York --- where voters, in real elections, are essentially being forced to serve as beta testers of these new, federally-uncertified systems, made by a company with a long track-record of failure, lies, obfuscation, near-bankruptcy, secretive foreign ownership, election disaster after disaster, and dissembling to the media, as well as federal, state and local officials --- the foolishness is all the more apparent, unnecessary, unfortunate and a clear and present threat to democracy itself...

Allegations of a 'Virus' Lead to 'Suspect' Results

We're on the road at the moment (literally, typing this in the car at 75mph) so we're unable to check with officials for confirmation or clarification of details right now. So we'll have to rely on Barker's report at face value for the time being, along with those from others in New York who've posted or offered testimony disputing several of his key allegations.

According to Barker [Note: it's unclear who the words in quotes are attributed to, or if they are simply meant as scare quotes]...

Cathleen Rogers, the Democratic Elections Commissioner in Hamilton County stated that they discovered a problem with their voting machines the week prior to the election and that the "virus" was fixed by a Technical Support representative from Dominion, the manufacturer. The Dominion/Sequoia Voting Systems representative "reprogrammed" their machines in time for them to use in the Nov. 3rd Special Election. None of the machines (from the same manufacturer) used in the other counties within the 23rd district were looked at nor were they recertified after the "reprogramming" that occurred in Hamilton County.

Republican Commissioner Judith Peck refused to speculate on whether the code that governs the counts could have been tampered with. She indicated that "as far as I know, the machine in question was not functioning properly and was repaired" by the technician.

Commissioners in other counties have stated that they were not made aware of the virus issue in Hamilton County.

Barker further reports that in St. Lawrence County, "Republican Commissioner Deborah Pahler said that the machines kept 'freezing up... like Windows does all the time,' and that they experienced several paper jams as well. The voted ballots that could not be scanned were placed in an Emergency Lock Box and re-scanned later at the St. Lawrence County Board of Elections. Election officials in St. Lawrence County were given no advance knowledge of a potential virus in the system."

While a virus discovered on one voting machine is reason enough to check all voting machines in use in the county, since such viruses could be spread from machine to machine via the central programming and/or tabulation system, there is little reason to believe that a virus found in Hamilton County might affect machines in use in an entirely different county --- unless it might have infected the machines at the manufacturer level, in this case, Dominion Voting and/or Sequoia Voting Systems.

Nonetheless, Barker is correct to suggest that such a problem, if it was discovered, should have been disclosed fully and publicly, so that other counties could carry out similar pre-election inspections on all machines as a precaution.

He then goes on to report that "counts from any district that used the ImageCast machines are suspect" due to "''the virus'" and that "one County official" (who is not named) "has raised concern that it's possible that ALL of the machines in the NY-23 election had the 'virus' but only a few malfunctioned as a result."

'There Was No Virus'

But New Yorkers for Verified Voting's Bo Lipari, a state leader in the fight against the use of touch-screen voting --- once considered by the state as a replacement for their lever machines --- and in favor of the new paper ballot-based optical-scan systems, reports that there was no virus on the machines at all.

"There was no virus in the NY-23 machines," Lipari writes on his personal blog, basing his assessment, in part, on the Dominion/Sequoia ImageCast's use of the Linux operation systems, which, he says "is nearly immune to viruses." But while Linux may be used on the ImageCasts themselves, Lipari's belief in their near-immunity to virus --- or out and out malware --- may be somewhat overstated. Moreover, the Election Management System (EMS) used to program the ImageCast ballot readers is, indeed, Microsoft Windows-based.

Lipari also points to the NY State Board of Elections' account of the problem, as offered on November 10, in which officials downplayed machine failures as a memory problem rather than a virus or malware, limited to "a handful of machines" and not "catastrophic". Lipari says he confirmed their report of what happened "in a phone conversation with staff earlier this week".

"A problem did occur that affected certain machines around the state," he says. "The issue was a bug in the Dominion source code that caused the machine to hang while creating ballot images for certain vote combinations in multiple candidate elections". He reports that it was discovered and fixed during pre-election testing:

The problem was determined to be in the ImageCast source code, which may not be modified without retesting and certification prior to use. But it was possible to modify the ballot configuration file to contain less ancillary text, freeing up a bit more memory and preventing the crash. The Board of Elections approved the configuration file change, the 10 counties which had races susceptible to the bug were identified, and the changes made to the files in plenty of time for the election. Everything worked the way it should have, except for one thing - the process of identifying machines which needed the fix missed some of them, so the modified configuration file was not installed, and, as expected, these machines hung.

Lipari gave the voting machine companies "an 'F' for blowing an easy one in their first roll-out of their new scanner" but lauded the process in which "pre-election testing found the bug before the election. He says "a reasonable fix was found and approved, and it was applied to the machines that needed it before the election - well, almost."

Both he and NY's elections operation director Anna E. Svizzero averred that the problems with the paper-based op-scan systems were an improvement over the state's lever systems because at least a paper ballot record of the voter's intent was available for a manual count after the election where problems occurred.

"When the scanner stopped working, the ballots were removed and counted, so no votes were lost," Lipari contends. "Compare this to lever machines, where counters on the back would get stuck and wouldn't turn when the vote is cast, something that occurred with far more frequency than most New Yorkers realize. When the counters on the back of a lever machines froze, a machine bug typically not discovered until the polls close, those votes were lost forever."

"We certainly have more lever machine problems than BMD (ballot marking device) or scanner issues," Svizzero told the NY Board of Commissioners in Albany during her post-election report.

[Update: Howard Stanislevic, another New York election integrity advocate and a critic of the state's new e-voting system offers a number of additional questions about the state's explanations for the problems and the failure of officials to properly mitigate the bugs discovered in the software just prior to the election.]

Supporters of Lever Machines See It Differently

While the Right, at least those who supported Hoffman in NY-23, may be turning into new converts to the realities of the dangers of e-voting (whether or not they fully understand the issue is a separate matter, which we'll speak to in a moment), and longtime opponents of touch-screens who've supported new op-scan systems in NY see the latest developments in a positively light, there are many who advocate sticking with the lever systems which have served the Empire State well, for the most part, for the last century. New York is now the only state still using those machines.

"We've used lever voting machines for 100 years, without any election integrity movement arising to claim that they didn't like the equipment," Teresa Hommel, an advocate of lever systems, involved in the fight to keep them in the state tells The BRAD BLOG. "The machines can be properly maintained and used for another 100 years. There is no shortage of parts and service," she added in response to those who have alleged such systems can no longer be appropriately serviced.

She also echoed, in her comments, a point made by Barker, that once ballots have left the precinct after the election, the chain of custody for those ballots, and therefore their integrity, can fall into serious question. "Paper ballots can be a blessing or a curse, because they hold an authentic record of the voters' intent ONLY UNTIL THEY ARE REMOVED FROM OBSERVERS' VIEW." [her caps].

"New York law allows paper ballots to be removed from observers' view for up to 15 days after close of polls on election day, before audits and recounts take place," Hommel writes. "Lipari is apparently happy to rely upon 'documented chain-of-custody' --- which is unreliable because if someone wants to tamper, they will make sure that their documentation is perfect."

She also disputes Lipari's claim that op-scan systems are better than lever machines because, as he contends, "When the scanner freezes, everyone knows about it," unlike with lever systems where problems are generally discovered only after the close of polls, and votes can be potentially lost in the bargain.

"Maybe," Hommel says in reply, "but when a scanner switches votes, it is not likely that people will know about it because New York law requires only a flat 3% audit of scanners (after the ballots have been out of observers' view for up to 15 days). The flat 3% audit means many races will not be subject to audit at all."

In her defense, even though we have our own misgivings about lever systems, we'd also add that where lever machines might fail, only the votes cast on that one machine are in jeopardy. There is no way, unlike with electronic voting systems, that a problem --- whether due to a virus or a memory problem, as said to have occurred in NY-23 --- can plague machines county wide and thus jeopardize the entirety of the resulsts of an election.

Hommel also points out that moving to op-scan systems, as New York is in the process of doing, will cause a significant increase to county election budgets in the state which is already facing massive budget shortfalls. The result, she suggests, will be a decrease in the number of polling places, something that has occurred in state after state where electronic voting systems have been introduced over the last several years.

Her full reply to Lipari's blog item disputing the alleged "virus" in NY-23, can be read here [PDF].

Where Barker is Right and Wrong

The Gouverneur Times' Barker, who, we're happy to see, has done quite a bit of studying up on the issue, is correct in some of his key assertions, while being wildly off-base on others.

He stokes Hoffman's recent, silly, wholly unsubstantiated assertion that the community organization ACORN may have been involved in "stealing" the election. Such baseless, knee-jerk assertions may play well among the rightwing base, a majority of which, according to a recent Democratic poll, actually believe ACORN stole last year's Presidential Election for Barack Obama. But such claims are entirely without evidence and only serve to undermine Barker's legitimate concerns.

He also stokes fears of ballot box stuffing vis a vis op-scanners where, he charges, "10 voted ballots could be deposited in the slot for every one voter... and if the electronic count was compromised, the 'paper backup' would be useless." That point is partially true, and partially not. While it's possible to physically stuff such a machine, it would be fairly easily discovered (unlike an electronic hack of the same machines), when the number of scanned ballots did not match the number of physical ballots in the box itself. Which ballots were actually scanned, and which ones were simply stuffed into the box would also then be easily determined, presuming the software works as intended. [UPDATE: See CORRECTION/CLARIFICATION to that point, issued at end of this article.] But he, and Hommel, are right in that once physical ballots leave the polling place, chain of custody issues come into question, casting a potential cloud over election results in the case of a challenge.

On one point that Barker notes at the very end of his article, he is just flat out wrong. He asserts that "the State had no choice but to use" the new machines due to a federal court order "demand[ing] that New York have the machines in place and use them or be found in violation of the Help America Vote Act of 2002 which requires that all polling locations have handicapped-accessible voting machines with a variety of options available so that anyone may use the machine to vote."

The fact is that HAVA requires only one disabled-accessible voting system per polling place. Though both state and federal officials --- as well as the most ardent proponents of e-voting, such as the voting machine companies who have profited handsomely by them --- offered disinformation for years contending that HAVA required all voters to use e-voting systems, and outlawed lever machines. That claim is simply wrong. Lever machines are perfectly legal under HAVA, and as long as the state assures that the disabled have a way to vote privately and independently at each polling place, lever machines may be used in full compliance with federal law.

But where Barker is correct is of the most note.

He is right to have concerns about the USB ports on the op-scan machines, which could potentially be used for all sorts of nefarious purposes. He is right that the Sequoia Voting Systems company itself, as well as their machines, have proven themselves to be unreliable (to put it generously), even though Sequoia has mostly removed themselves from the state contract due to cash-flow problems, deferring to their partner Dominion, a Canadian firm. He is right that Sequoia was once and, as The BRAD BLOG reported exclusively in a detailed 2006 investigative series, is still working directly with a Venezuelan firm tied to Hugo Chavez, even though they've lied to state and federal officials about that relationship.

Of most note, however, are Barker's concerns about even the possibility of a system-wide machine failure --- be it from a "virus" as he alleges, a "memory problem" as Lipari and state officials claim happened in NY-23, or from hackers either inside or outside of election official offices. Those very real and substantiated concerns illustrate the direct threat to confidence in election results and, subsequently, to democracy itself. These are issues that e-voting supporters have yet to contend with, despite all manner of warnings about such concerns, from numerous state studies, to academic findings, to even testimony from CIA cybersecurity experts who have found that e-voting cannot be properly secured.

(We'll also note here that open source voting systems, which have become the new hope for e-voting proponents of late --- even Sequoia, after years of disingenuously claiming that disclosed source code would jeopardize security of voting systems has announced plans to submit such a system for federal certification testing --- do little to mitigate security and accuracy concerns, and may actually offer an even more menacing and unjustified sense of security in such secret vote-counting systems.)

Barker writes that "A manual paper-ballot recount of the vote could resolve computer vote accuracy questions." The truth is, no it couldn't, due to the chain of custody concerns about those ballots, as Hommel notes in her response to Lipari. Such a manual hand-count of all votes cast in the NY-23 election should certainly occur nonetheless, as it should have in the first place, but it would certainly be appropriate now, given the questions and various failures that are confirmed to have occurred.

Even with such a count however, and even if the Conservative Party's Hoffman was found to have received more votes than the Democratic Party's Owens, the occupant of the House seat in NY-23 is no longer up to state officials, voters, or even the courts of New York. The custody of that seat is now firmly in the hands of Democrats in the U.S. House of Representatives, a regrettable fact underscored by a shameful precedent set by Republicans following a similarly convoluted 2006 Special Election in California, as The BRAD BLOG detailed last week.

The Solution to the Continuing Election Madness

These situations will only increase over time, as they have in the last several years, particularly now that supporters of both parties --- as well as independents --- are becoming more and more aware of the threats posed by e-voting.

In that light, we recently called, in an OpEd, for pilot programs to be instituted around the country to study the positives and negatives of implementation of "Democracy's Gold Standard": fully public, transparent, hand-counting of paper ballots, at the polling place on Election Night, before ballots are moved anywhere.

While critics of hand-counting and proponents of e-voting --- most notably those on the Right --- have long held that hand-counting is the least accurate way of determining election results, their claims are without merit. Hand-counting is only "inaccurate", according to such critics, in elections other than those that really count. In the closest of elections, a hand-count is always called for, and is used to determine the definitive winner.

If such manual counts are accurate enough to determine the winner of the closest elections, aren't they accurate enough for all elections?

Transparent, citizen-overseen hand-counting of paper ballots at the polling place on Election Night is not unlike universal, single-payer health care, in that the majority of experts on both issues likely appreciate --- even if only to themselves --- that while mitigating policies may be put in place for the short-term, eventually there is only one real, ultimate solution. For health care, it's both a civil and human right to receive treatment for illness and disease, and thus, eventually we will have to move to a single-payer system where all are entitled to health care. For true democratic self-governance, as described in the U.S. Constitution, the citizenry need to be able to oversee and verify the results of their own public elections. Only hand-counted paper ballots, at the polling place on Election Night, offer that full transparency to we the people.

We welcome rightwingers like Barker and the Gouverneur Times to this issue, and hope that they will become allies in the fight for true, reliable, secure and transparent democracy of which we can all be proud some day, whether our own favorite candidates may win or lose under such a fully democratic (small "d") system.
CORRECTION/CLARIFICATION: A number of New Yorkers have contacted us to note that paper ballots stuffed into the op-scanner's storage box could not be "easily" identified as fraudulent, as we asserted in the article above. While digital images of the properly scanned ballots could be used to determine which ones were correctly voted and which ones weren't, such images can also be gamed, and couldn't be relied on, in any case, "if the electronic count was compromised," as originally asserted by Barker in his Gouverneur Times article. Identification of which ballots were legit and which ones were not, could also not be determined by the use of serial numbers or barcodes, as is possible in other voting systems used elsewhere, since NY election law disallows the use of such identifying marks on ballots.

However, John W. Conklin, NY Board of Elections' Public Information officer has issued a statement in response to several of the points raised in Barker's article, including his assertion that a slot in the op-scan systems allowed that "10 voted ballots could be deposited in the slot for every one voter."

"A gap between the scanning device and the ballot box was discovered during functional testing of the ballot marking devices more than a year ago," Conklin writes. "Every machine in use on Election Day was retrofitted to completely block access to that gap."

UPDATE 11/23/09: A number of responses have now been posted in reply to the Gouverneur Times' Thursday article. We cover those responses, and re-iterate our call for a full hand-count of the NY-23 election in an update piece now posted here...

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