The Heart and Success of New York's Democratic Electoral System Has Been Ensuring the Ability to See How Our Votes Are Counted and Providing Check Points to Deter, Detect and Reveal Tampering
The security of our electoral system is ensured both by making the commission of fraud difficult, but also by providing the means to detect fraud should it occur. The ability for the public and their election officials to be able to detect and observe tampering is essential to protecting our constitutional rights. As described by State Board of Elections Co-Chair Commissioner Douglas Kellner, explaining how our electoral system successfully prevailed to detect and expose tampering to lever voting machines in a scandal in the 1940s:
"The fraud of the 1940s was uncovered because volunteers from the polling stations noticed that the numbers on their machines at the counting location were not the same as when they left the polling station. Similarly, any tampering with a lever machine today would be plainly visible to the volunteer preparing it for poll opening. Becoming aware of fraud on an e-voting machine would be much more difficult, because so much of their inner-workings are invisible to all but the software programmers.
Fighting fraud carried out by code is also particularly expensive. Some e-voting systems run on 150,000 lines of code and to uncover whether fraud has occurred, or by whom and how, requires an army of programmers, a number of years, and millions of dollars. Even then, there is no guarantee that their examination will produce results." (emphasis supplied)
The ability for regular people to observe tampering and the built-in safeguards designed to enable this detection is the crux of the success of New York's electoral system and is precisely why the planned computerized system is unconstitutional: it is impossible to observe the programming to or tampering of concealed software. Vote counting on software-driven optical scanners and DREs is invisible. Even if the public wasn't literally barred from observing the source code of the software, we still could not see the fraud because software can be programmed to steal our vote and erase itself. It is not possible to sufficiently safeguard such an undetectably mutable system from fraud. Indeed software-driven systems conceal fraud while at the same time exposing our ballots to known and new opportunities for tampering!
By Exposing Our Ballots and the Evidence of How We Voted on Election Night to Post-election Verification, the 2005 Legislature Destroyed Additional Constitutional Safeguards New Yorkers Have Enjoyed: The Preservation of the Evidence of How the People Voted on Election Night
The creation and preservation of evidence establishing how the results were arrived at on election day serves as yet another deterrent against the commission of fraud. We don't allow our ballots to be exposed to post-election tampering because, as the Court of Appeals explained in Brink v. Way, 71 N.E. 756 (1904):
"The object of the preservation of the ballots [was to] furnish a further check upon the perpetration of fraud by local boards of canvassers. It accomplishes this, necessarily, because the canvassers know that for six months after the canvass the evidence of how the people voted is to be preserved ... it may be used against the canvassers in criminal proceedings. That, of course, must necessarily operate as a check upon those who might otherwise be persuaded into wrongdoing." (emphasis supplied)
Rather than preserving the ballots, New York's new system, by its routine use in post-election verification, exposes them to the risk of alteration and destruction, removing the deterrent effect the preservation of the ballots was intended to provide.
Moreover, by failing to protect and preserve the people's evidence, the legislature has invited the loss of our only evidence. Without proof of how the votes were actually counted on election night or proof of fraud, the people's right to prevent their disenfranchisement in a court of law is effectively annulled. Although we are constitutionally entitled to seek relief in the courts in order to prevent the loss of our constitutional right to vote, without adequate evidence we are left unable to prove how we voted or to prove fraud.
The computerized evidence produced by software is insufficient to demonstrate how we voted or to prove fraud because it can be undetectably altered. If the paper ballots are also altered in the days and weeks following the election, there is then no evidence of what really happened on election day. An election can be stolen and the people, bereft of sufficient or responsible evidence, will be powerless to challenge the theft in court. This represents the ultimate destruction of checks and balances secured by our constitution, exposing us to the loss of our constitutional rights without legal recourse.
Concealing How Our Votes Are Counted Invites and Enables Unseen Tampering. It Is the Ultimate Constitutional Offense.
What is crystal clear from our case law and legislative history in New York is that concealing any aspect of the canvassing process – before during or after the election – enables prime conditions for fraud and leaves the electorate uncertain as to whether fraud has occurred. The failure to "...guard against the danger and the opportunity for tampering with the election returns" disenfranchises the electorate (Ex parte Coy, 127 U.S. 731, 8 S.Ct. 1263, 1270 U.S. (1888)). Depriving the electorate of the information it needs to determine whether the legislature has satisfied its responsibility to "conduct the election in such a manner in point of form, that the true number of legal votes can be ascertained with certainty" further disenfranchises the electorate. People v Cook, 8 NY 67, 86 (emphasis supplied) (Court of Appeals, 1853)
While the issue of concealed vote counting has never been directly put to our courts in New York – because who would have thought such a thing could even be conceived in America – we nonetheless have direct precedence from the Court of Appeals regarding the worthlessness of any returns (the election night results) produced in a concealed manner. In 1874 during the vote counting, the lights went out. The Court of Appeals wrote in Judson v Thacher, 55 NY 525, 535:
There was a short interval of entire darkness.... The opportunity to commit the fraud existed.... The return was no longer entitled to be regarded. It was rendered wholly uncertain to what extent the fraudulent substitution had been carried, and it was not material whether the inspectors were privy to the fraud by which the uncertainty was occasioned .... [The return was rendered] so uncertain and unreliable that it could not be used for any purpose." (emphasis supplied)
The election return produced from software code, which is not a human language, and which can be altered without detection, is as unreliable and uncertain as the return created in darkness.
