We showed this material to Professor Pfaffenberger, who replied:
"No, it does not. Again, there are a finite number of things that can go wrong with a lever voting machine, and when they do, the machine stops working until it is fixed."
He adds the "exception of counter failure," which would be caught during maintenance and testing. He summarizes:
"The takeaway point here is that [lever breakdowns] were typically resolved in a few minutes! In other words, these machines are fully understood; there is a finite number of things that can go wrong with them, people know how to fix them, and they can fix them quickly."
Not so with software-driven systems. NY is cautioned that federal standards allow much higher failure rates of any duration for touchscreens and optical scanners (almost 10%), nearly twice the 2006 lever breakdown rate of 5.68%, and 72 times the lever failure rate of 0.126%.
By enacting ERMA, the NY legislature reveals its failure to recognize the fundamental difference between mechanical and software engineering. Software is undetectably mutable, whereas any tampering to a lever machine is plainly visible to those election officials, party representatives and media who observe the machine during pre-election testing or post-election, when the vote totals are transcribed.
The post-election process is minutely detailed, allowing election officials, citizen watchers, party representatives and media to observe the tallies as they are transcribed from the machine onto paper.
1956 New Yorker cover (Arthur Getz), collecting vote totals from a lever machine
NY's Election Law History
To understand the wisdom of the electoral scheme prior to ERMA, attorney Andi Novick summarizes her research and provides her legal analysis when comparing NY's past electoral scheme with its 2005 scheme:
"The electoral scheme that has existed for more than two centuries has required a transparent, conclusive count of the ballots on election night, when the watchfulness of election officials, authorized watchers, party representatives and the press could best deter fraud.
"[S]ince 1896, the Election Law has required contemporaneously created record evidence of the count or of fraud. A verified, completed count, publicly recorded and announced at each poll site on election night, before the aggregate of the total votes is known, is still mandated.
"For 231 years New York's electoral system has protected the safeguarded election night-count from corruption by forbidding post-election recounts, it being historically understood that once the ongoing public scrutiny of the poll site ended and the results of the election night count were known, the count was at greater risk of subsequent tampering.
"The newly enacted legislative scheme represents an unprecedented and unconstitutional reversal of existing and long-standing presumptions and requirements, permitting vote counting for the first time to be performed by concealed, undetectably mutable software.
"Repeated scientific studies have shown software-driven voting machines to be vulnerable to unseen tampering and incapable of providing trustworthy election results. New York's Legislature recognizes that the software-generated election-night count is not reliable and proposes to first attempt to verify and complete the count after the election with a partial hand count.
"Not only does the State unconstitutionally bifurcate the canvass, but its choice of a software-driven system further undermines constitutional safeguards by eliminating contemporaneously created evidence (or any evidence) of the count or of fraud. Indeed, because software cannot be secured, both the ballots and the evidence of how they were counted can be manipulated - leaving no trace of the crime.
"Pursuant to ERMA, New York will no longer strive to count every vote: in fact none of the votes will be securely counted. Instead the State will use computers to produce a questionable count and once the election is over and the results announced, will then check the uncertain count by performing a manual count of a small portion of ballots that may or may not have been tampered with and therefore are not representative of the actual ballots cast on election night."