In USA v. New York State Board of Elections, et al. (US District Court, Northern District of NY, Civil Action No. 06-CV-0263), the politicized Department of Justice, which has done everything in its power to undermine its mission to defend the right to vote, argued in motion papers filed on Election Day, that even though no electronic voting systems exist that meet NY's voting technology standards (and, indeed, none meet federal standards either), NY must use this flawed and repeatedly proven failed technology. In essence the federal government's position is this: it doesn't matter that the voting machines being sold by irresponsible private vendors have been proven to be hackable in less than a minute, they still comply with the Help America Vote Act so NY should buy them in time for the 2008 elections.  

 California Secretary of State, Debra Bowen, recently conducted the largest independent top-to-bottom-review of these voting machines and the results were devastating, exposing both Paper Ballot Optical Scan and touch-screen DRE systems’ “inadequacy to ensure accuracy and integrity of election results.” Both systems were shown to be easily hacked without detection. http://www.sos.ca.gov/elections/elections_vsr.htm 

The California report confirms what at least two dozen Prior studies from prestigious universities, the Government Accountability Office, the Brennan Center and the federal government’s own technical advisors, the National Institute of Standards and Technology have concluded: the machines Americans are voting on are shockingly insecure and seriously vulnerable to attacks that could change the outcome of elections.  While tampering has always been a risk to every type of voting system, the threat created by computerized systems is exponentially increased: 

 “Potentially, a single programmer could ‘rig’ a major election” The National Institute of Standards and Technology, December 2006 

The absurdity of the federal government's position goes even further. The DOJ's memo of law worries that someone might get away with something: "To view this scenario otherwise would allow a state to ignore with impunity HAVA's minimal federal voting systems requirements for however long it pleases."   Hmm.  Is this anything comparable to the telephone companies violating the US Constitution, the Bill of Rights and various state and local laws by spying on US citizens for the federal government, with impunity?   

If the federal government is magnanimous enough to grant immunity to such gross violations of liberty in the Land of the Free, certainly it can allow a State to demand securable voting, despite HAVA's arbitrary deployment deadline.  

"Why are we being forced to buy machines that have been found incapable of accurately providing a reliable vote tally, but have been found to be readily capable of rigging the elections in a way that is not detectable by the people?" asked Andrea Novick, a New York based attorney, Co-Coordinator of Education with Election Defense Alliance and Co-Founder of Northeast Citizens for Responsible Media.  She continued, "The California Secretary of State decertified these very machines because they were unable to provide the means of conducting a secure, reliable election.  And yet the state of New York is only considering the purchase of these rejected machines." 

Now the DOJ is trying to force NY to purchase these defective machines without even permitting NY to perform testing certification of systems which are known to fail. Novick said, "It's like forcing Americans to buy Ford Pintos even after they were revealed to blow up upon impact in accidents.  Why would we knowingly purchase dangerous products.  The computerized voting systems on the market are so dangerous they enable theft on a massive scale never before possible. These machines should have been recalled, but instead the DOJ and NYS want us to use tax payers' dollars to buy these flawed systems". 

A recent Zogby poll documented a record breaking polling statistic: 92% of Americans insist on the right to watch their votes being counted. 80% strongly object to the use of secret computer software to tabulate votes without citizen access to that software.  And yet, all computerized voting systems on the market count the votes in secret!  Under NY's laws, the partisan voting vendor and a few select members of the government would see the source coding which provides some inkling into how the computers were programmed to process and count the votes, but the citizens are never permitted to know how their votes are counted.  The DOJ objects to even a few members of state government knowing how the machines are programmed to count the votes, while defending Microsoft's right to keep vote counting secreted from the people over the people's right to see and know that their votes are being accurately counted.  

The voting vendors who sell these flawed systems which fail to produce fair, honest  elections, conceal the myriad of problems their systems experience. In addition to covering up or failing to tell other states about known software problems that caused the mis-tabulation of votes or other computer problems in another state, the vendors have engaged in a wide range of deceptive practices including documented cases of lying to election officials, secret installation of unapproved software and a long list of ethical violations.  Many of these violations are documented at www.votersunite.org, Why Recall the Machines?,Voting System Companies Fail to Meet New York State’s Requirements for “Responsible Contractors”, More Evidence of Vendor Unfitness, by Andi Novick, Esq., And More by Andi Novick, Esq. 

 New York's Procurement Laws prohibit NYS from entering into contracts with "non-responsible" vendors.  New York's courts have upheld findings of vendor non-responsibility for the very ethical violations these vendors have committed as well as barring the state from doing business with vendors with criminal indictments, criminal convictions, and of course records of failed past performance.  The voting vendors are guilty of multiple infractions of all these criteria.  

The three largest vendors among this very small group of voting vendors are ES&S, Diebold and Sequoia and among the founders, employees, programmers and managers of these companies to which we are supposed to entrust our vote are felons who have been convicted of bid-rigging, anti-trust violations, computer-aided embezzlement, money laundering, tax evasion, bribery and kick-back scandals – to name a few.   The voting vendors have a long record of failed past performance which includes repeated instances of failure to timely deliver machines or ballots- jeopardizing elections and creating a nightmare for officials; forcing election officials to compromise their ethics and integrity in running elections ("What I was expected to do in order to 'pull off' an election," an election programmer in Texas complained, "was far beyond the kind of practices that I believe should be standard and accepted in the election industry"); holding election officials hostage to contract re-negotiation (Oregon’s SOS sued when ES&S refused to deliver machines pursuant to the contract unless the terms of the contract were changed, saying: “We will not leave our elections in the hands of companies that do not follow through on their obligations, and we will not be coerced into altering our contract”); thousands of reports of documented equipment failures including malfunctioning machines, election day breakdowns, vote-switching on DREs, tabulation errors, paper jams, data transfer failures, excessively high undervotes, phantom votes (in the 2004 election, Gahanna Ohio recorded 4,258 votes for Bush when only 638 people cast votes at the polling site). 

 The documented evidence of the above criteria of non-responsibility was submitted to the SBOE and other agencies within the Governor's office, but has been ignored to date.

Elections belong to the people.  They are our means of choosing those we want to represent us. The Legislature, Executive and the Attorney General in NY as well as the federal government all claim to be protecting our interests, but what part of our interests are protected when the government permits secret vote counting? What part of our interests are protected when we are forced to vote on machines that have been repeatedly demonstrated to be easily rigged?  What part of our interests are being served by machines which deprive citizens of the right to observe the casting and counting of our votes and see that the count is accurate?

Now the DOJ has insisted NY better put a HAVA-compliant system in place by 2008 or else.  NY insists it can't possibly certify machines in time.  The Feds have now shot back- that's OK, don't certify them- just buy the machines which have been found to be defective and unreliable.  There is now only a single solution to the deadlock our respective governments find themselves in.  We can cast our votes by our own hand and count them ourselves, without the interference of theft-enabling computers.  Those who need assistance voting independently can use a ballot marker to produce a paper ballot to be manually counted with all other paper ballots.  We don’t need to waste our millions performing expensive testing certification.  We don’t need to waste money buying these lemons.  We have a year to prepare our citizens to count each others votes honestly, transparently and reliably. How ironic that the only solution which is HAVA-compliant, can be implemented in time for the 2008 election, and best protects our interests is the one rejected out of hand by all those in government claiming to be looking out for our interests.