About it have been erected many safeguards, with the object of securing to each qualified elector the fullest and freest exercise of his constitutional privilege, and also of obtaining the greatest protection against the perpetration of frauds at the polls which shall be consistent with a certainty that every person entitled to vote shall have his ballot received, deposited, and counted. (emphasis supplied)
In 1900, the Court of Appeals reiterated in Coffey v Democratic General Committee of Kings County, 164 NY 335, 338:
The settled conviction that safeguarding of our institutions requires the untrammeled exercise of the franchise by the citizens and that the result be protected from fraud, has led to no inconsiderable amount of legislation during the present generation--legislation aimed largely, although not entirely, at the frauds of majorities who, at times, have manifested a disposition to retain their power, let the cost be what it might. (emphasis supplied)
By 1896, New York had enacted a myriad of safeguards that remain with us to this day, aimed at protecting the franchise from dilution by fraud. The Court of Appeals has considered these safeguards necessary to protect our constitutionally guaranteed right to vote and right not to be disenfranchised. But the 2005 Legislature ignored two centuries of case law, disregarded these safeguards in permitting concealed vote counting on software-driven computers, and exposed our elections to existing and new risks of fraud.
Software driven Optical Scanners and DREs Count Our Votes in Secret – Exposing the Election to Unprotectable Opportunities for Fraud
As 231 years of New York's case law reveals, concealed vote counting is a known and open invitation to fraud. Dozens of scientific studies, most of which have come out since 2005 when New York's legislature changed our laws to permit computerized vote counting, corroborate that software is vulnerable to undetectable tampering. Perhaps in 2005 the Legislature didn't appreciate how insecure these voting computers were, but the evidence is clear and continues to mount. If New York's Legislature will not revisit its decision to abandon our levers for these computers, as of 2009 our elections will be determined by an unconstitutional system that permits our votes to be counted in an unprotected manner, exposing the results to unprotectable opportunities for tampering.
New York's Legislature does acknowledge however, that the "official" software-generated count is too unsecured and uncertain to depend on. That is why the new laws require a partial hand count of the ballots in an attempt to see if there was any basis for accepting the official software-produced results. But checking the vulnerable-to-tampering software count with a post-election hand count, itself known to be dangerously vulnerable-to-post-election-tampering, is the least secure way to run an election. Both the first count and the post-election verification expose our election results to unprotectable opportunities for tampering, historically considered by New York's courts to amount to unconstitutional disenfranchisement of the voters.
Generations of New York legislatures and the Court of Appeals have upheld our right to the most secure electoral process: one which eliminates these unsecurable opportunities for fraud by insisting on a transparent, safeguarded count on election night. For the first time in our history, the legislature has abandoned our constitutionally protected right to the most secure means of protecting the count, instead permitting the official count to be unreliable, unsecured, unknowable and incomplete on election night. When the election is over and the winner publicly announced on election night, it will be impossible for anyone to know with any reasonable certainty whether the 'official' computerized count is accurate, whether it is free from dilution by fraud, or whether the will of the people has been undermined and the election stolen.
For Two Centuries New York's Laws Have Required an Accurate Completed Reliable Count on Election Night: The Days Following the Election Invite Heightened Opportunities for Ballot Tampering Thus Requiring Any Verification/Recount to Be Completed on Election Night
Since New York's founding, our laws have required that the vote counting be conducted in an observable secure manner, subjecting the count to public scrutiny in order to prevent opportunities for tampering. For this reason New York's Election Law requires that the official election results must be accurate and completed on election night and the results publicly "...declared without any bias arising from a knowledge of its effect upon the aggregate result, or from exposure to subsequent influences." McLaughlin v Ammenwerth, 197 NY 340 (Court of Appeals 1910).
A transparent process is required by New York's laws both to provide the greatest deterrence against opportunities for tampering and to prove to the public that their public elections have a rational basis for confidence. A free people must be able to evaluate the performance of their government, particularly the manner in which the legislature conducts the people's elections. The new laws not only permit secret vote counting, but leave us no alternative, hiding from the people the very information they must have in order to retain control over their elected representatives and therefore, ultimately, over their sovereignty.
For more than two hundred years our courts and legislators understood that once the transparency enabled by the poll site conditions ended, opportunities for ballot tampering increased. In fact, the risk of post-election fraud was considered so likely and so difficult to prevent that New York has never permitted the election night count to be subjected to the potential for corruption from post-election tampering. The problem in securing the sealed ballot boxes after election night was explained by the Court of Appeals in Brink v. Way 71 N.E. 756 (1904):
[T]he custody of the boxes is in the officer specified by the law, but he cannot always be personally present to guard them.... Thieves will break through and steal, and no legislative enactment can prevent them. The same is true with reference to guarding the ballots from substitution by interested and evil disposed persons. The result of an important election, state and national, may be changed by the disclosures made upon the opening of one of these boxes. (emphasis supplied)
Recognizing that the heightened risk of post-election fraud could not be sufficiently protected against, New York has always banned post-election recounts: both when we hand counted and now with our lever voting system. Forbidding recounts is an important safeguard in a transparent, secure electoral system that requires we get it right on election night. It protects the securely and publicly counted first count from subsequent corruption. New York built verification into the overall electoral system which included a reliable, accurate first count.
The new laws of 2005, requiring post-election verification of the ballots and potentially a full recount, is a serious breach of our existing observable and theft-deterring system. If we must routinely verify the results after the election is over, the electoral system has failed. Indeed the new system scheduled to go into effect in 2009 is a failed system because it permits the first count to be concealed from the public and vulnerable to fraud. It allows the first count to be unknowable, unreliable and incomplete. It proposes to complete the "official" count with post-election ballots that are likely to have been altered, leaving the true results of the election uncertain and unreliable.
Having Unconstitutionally Permitted the Computerized Election-night Results to Be Exposed to Undetectable Error and Fraud, New York's New Electoral Plan then Seeks to Check these Unknowable 'Official' Results by an Equally Vulnerable Post-election Manual Verification of a Small Portion of the Ballots
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