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By Andi Novick and Rady Ananda

--Optical Scanners and DREs Operate on Undetectably Mutable Software, Depriving New York Voters of the Accuracy and Transparency We Have Enjoyed for More than a Century. --No Court Has Ever Ruled that HAVA Requires Lever Machines Be Replaced.

Now Let's Go to Court and get a Ruling that Lever Voting Machines are HAVA-compliant so We Can Continue to Enjoy the Security and Transparency Offered by Our Lever Voting System.

Fact: New York has a secure, reliable electoral system that has served the State of New York for more than a century – preventing dilution of the franchise from fraud and ensuring that the will of the people is preserved.

Fact: The lever voting system in New York (and the hand-count voting system as it existed since 1896) provide a transparent process by which many eyes are involved in securing the electoral process, particularly the count. Both systems are designed to detect, deter and expose fraud.

Fact: The State of New York decided that rather than fight the federal government, which would like every state voting on new, budget-breaking, shoddy, vulnerable-to-undetectable fraud, software-driven optical scanners or DREs, it would capitulate, passing laws in 2005 to have New York surrender its secure lever voting system for these unreliable computers. The Election Reform and Modernization Act of 2005, Chapter 181, §11. (See NY Election Law)

Fact: The computerized voting systems that the federal government claims satisfy the Help America Vote Act (HAVA) - even in their "crappy," theft-inviting condition - disenfranchise those who are forced to vote on them, depriving citizens of the right to a transparent, open voting system and the ability to know that their votes are being counted as cast. (See Synopsis of the Litigation.)

Fact: These so called HAVA-compliant electronic voting systems are not transparent, concealing from the people the way in which the software is programmed to count our votes. Indeed optical scanners and DREs are nothing more than secret vote counting machines, anathema to any notion of a democratically run election.

Fact: Unlike New York's lever voting machine or a hand-count voting system -- which require a completed, verified count on election night (because exposing the count to the watchfulness of ongoing public surveillance has been considered the most secure way to count our votes for the history of the State of New York), the new computerized systems will abandon the security provided by ongoing public scrutiny and no longer provide a completed, reliable, secure count on election night. NY Election Laws, McKinney's Chapter 17 at New York State Board of Elections.

Fact: New York's lever voting system is far superior to the computerized voting system planned - in terms of transparency, security, expense, reliability, trustworthiness, theft-deterring ability and the protection it provides to New York Voters' constitutionally protected franchise. (See these July articles posted at Re-Media Election Transparency Coalition: Merits of the Lever Machine: A Scholar Speaks Up, and Eyes Wide Shut.

Fact: The federal government's position is that lever machines are not HAVA-compliant, but no court has ever ruled on this issue because the State of New York never argued this position in any court.

Fact: In litigation commenced by the Department of Justice (DoJ) in 2006 to force New York to become HAVA-compliant, the DoJ claimed lever voting machines were not HAVA-compliant because: a) they could not be made accessible to disabled voters; and b) they don't produce a piece of paper that can be manually audited. While many in New York believed the DoJ's interpretation of HAVA to be an erroneous interpretation, the State of New York declined to put this in issue before the court, having already decided in 2005, before the DoJ sued, that New York will replace our lever voting machines with software-driven machines.

Fact: In 2004 Co-chair and State Board of Elections (SBOE) Commissioner Douglas Kellner testified that our lever voting system is HAVA-compliant but for one HAVA standard - the accessibility requirement.

Fact: In 2008, the State Board of Elections agreed to install ballot marking devices in every poll site and is in the process of completing that, thus complying with the only federal standard New York's lever machines did not meet. Hence, with ballot marking devices in every poll site, there is no longer an impediment to the lever voting system's compliance with HAVA.

Fact: The federal government's remaining objection to lever machines, to wit they don't provide a manually auditable piece of paper, is not true. Our lever voting system does create a piece of paper that can be audited. In any event, this is the DoJ's interpretation of HAVA, but since no court has every ruled on this, it's just an interpretation. It is not what the law says and no court has ever interpreted HAVA as requiring New York to replace its lever machines.

Fact: The State Board of Elections has found over a thousand defects in the ballot marking devices that have been bought for New York and has shipped the counties these computerized machines, many in an unusable state. (See Nassau County Letter 1, Letter 2, Letter 3, and NY Loves Its Levers as New Systems Fail.)

Common myth: HAVA requires us to replace our levers. It does not.

Common myth: A court has ruled that levers are not HAVA-compliant. No court has ever made any such ruling.

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