Dear Election Commissioners, election workers, citizens of New York,
We in New York have a rich history of safeguarded, reliable elections. Yes, there's been manipulation; in fact the propensity towards fraud when elections are concerned is so pervasive that the super majority of electoral reforms over our 150 year history of addressing these issues has been directed at eliminating the opportunities for fraud. But thoughtful legislatures and courts over the years have created an electoral system that had certainly minimized that manipulation. The current state legislature however has cast 150 years of legislative wisdom out the window in passing statutes that undermine the very foundational cornerstones of our electoral laws.
Those foundational principles, which were first implemented more than one hundred years ago based on the experiences that had preceded a monumental piece of electoral reform in 1896, involved protecting both the citizen's ability to freely cast his/her vote and ensuring against what was considered the greatest threat to the integrity of the ballot – fraud perpetrated by insiders (prior to 1896 election inspectors were free to create the official returns with very little public scrutiny, and then destroy the evidence of what actually happened on election day). In 1896 the legislature responded by requiring the creation of evidence of what occurred on election day as well as requiring a massive number of safeguards be implemented to safeguard the count. (They actually required a lot more but you can read about that later).
As a result of the reforms the following became fundamental aspects of our electoral system in New York: All counting was done publicly and observably by election officials which included inspectors, poll clerks, ballot clerks, representatives of the various parties. Each and every step of the process was checked by all of these "watchers" in a publicly observable manner. In order to address the temptation for fraud which arose after it was known just how much manipulation was required to alter the election outcome, all counting was to be done immediately after the polls closed, simultaneously in every election district in the state and a contemporaneous, self-proving tally sheet was to be created as the tally progressed. In this way no one counting knew the outcome; the numbers as they were publicly recorded became part of a public record in advance of the final tally within the polling site as well as the full state. Each ballot was publicly announced as it was tallied and publicly written down on the tally sheet. At the end all numbers had to be reconciled and if the total number of votes cast did not match the total number counted an immediate recount was had. A final tally was not announced until the numbers checked out - a self-audited process resulting in a reliable first count on election night.
To further deter the temptation towards fraud during the counting process and in order to provide evidence, should fraud occur notwithstanding the myriad of safeguards thrown around the election, the contemporaneous tally sheets which recorded the details of the count made at the time each vote was announced, were required to be preserved along with the ballots. The evidence of how the count was arrived at on election night, as well as the ballots, were sealed and preserved -- not for the purpose of recounting the ballots -- but solely to retain the evidence. Evidence was needed both to discourage those who might commit fraud (knowing the evidence could later nail them), and also as proof, should the people's will be undermined by manipulation.
It has also been part of the foundation of our electoral system that the count be known promptly on election night because the greatest opportunities for fraud were understood to occur once the public scrutiny of the polling site ended. Again since it was the very opportunity for fraud that had to be eliminated if the election was to be secure, the legislature in its wisdom disallowed recounts because once those ballots were sealed after election night they were considered inherently vulnerable to manipulation. True the ballots could be sealed, but the legislature understood that no one could watch those ballots 24/7 and thus they were considered inherently suspect after election night. The only recounts permitted were of the ballots that had been identified as questionable and so marked, during the count. Those ballots were not permitted to be redeposited into the sealed ballot boxes. The identified ballots sealed in a separate envelope and could be recounted later, but access to the ballot box itself was prohibited except in extraordinary cases and only pursuant to court supervision in a proceeding brought by the Attorney General and only if it could be proven that the chain of custody had remained inviolate. It was quite clearly understood that a recount could pollute the tightly controlled, safeguarded first count.
During the twentieth century the state gradually switched over to lever voting machines. Levers were designed to be fraud deterring machines. Unlike paper ballots that were seen as fragile in that they could be lost, destroyed, altered, etc. levers were considered stable. Once the count was registered on the lever machine it was locked in place. It is true levers could be rigged and they could break, but it is time consuming to break into a lever machine before or after an election and I have yet to be told of a rig that wasn't observable to the human eye once the machine's back door is open. Levers in their mechanical simplicity have a transparency that enables regular human beings to observe both foul play and innocent failures. The evidence of the failed votes can be proven in court just the way the evidence as reflected by the hand-count tally sheets could prove that the people's will may not have been realized.
Both well run hand-counted and lever-counted elections produced reliable first count results on election night, thus satisfying the legislative scheme which recognized that the integrity of the election could not be protected if the opportunities for manipulation (without the many eyes watching each other on election day and night) were not eliminated. The chain of custody issues inherent to any system in which ballots can be lost, altered, destroyed were far less of a problem with levers because a locked lever machine is static. The only way those numbers locked on the machines could move is by a rig and that would be visible and known should someone have gained access to any particular lever machine. Thus the Board of Elections could return within the weeks after the election and recanvass the votes cast on the levers because the lever ballot could not be lost, altered or destroyed the way paper ballots could.
Our time-tested electoral system, which required as its core principles the participation of human beings to watch and observe and check against fraud, is about to be eliminated. Computerized voting - be it on a DRE, on which a vote is cast and counted, or a paper ballot optical scanner, on which a vote is counted- is concealed voting. There is nothing for the human watchers to observe. Whereas we could see how a mechanical lever machine worked and see when it didn't work, none of that is possible with a computer. How that computer is programmed to interpret and count votes is not known by anyone at the polling site- not the voter, not the election officials who has the responsibility to oversee the integrity of the voting process. Nor is it known by anyone at the State Board of Elections (SBOE) nor the election commissioners of the various counties whose responsibility it is to ensure secure elections, nor the legislature- no one. Only the one who programmed the computer or the one who rigged the software might know. Thus with DREs or optical scanners we will have returned to the very insecure electoral system that was found inadequate to protect our ballots. We have returned to the system which existed prior to 1896 in which a small handful of people can change the outcome of the election and leave no evidence of the crime (or of some more innocent but just as dangerous error by the computer or programmer).
Moreover computers do not produce reliable first counts on election night. They count votes in an unreliable, unguarded, vulnerable way and under the new laws of 2005, we get to find out if there was any basis for our blind faith on election night, two weeks later at best. Not only don't we have accurate results on election night when computers control the election, but the belated manual hand count audit only checks 3% of the computers! Go ask your legislators how they arrived at that figure. They won't be able to point to one scientific study that provides any basis for their reliance on this 3% so-called audit. In fact a manual hand-count of 3% of the computers, assuming chain of custody hasn't been violated (a huge gaping hole in the security of the elections as the laws of the last 150 years recognized chain of custody was extremely difficult to preserve- and in fact is now not just difficult, but impossible with software driven computers), is wholly inadequate to provide any reason to trust the unobservable, concealed computerized count conducted on election night.
As some of you have heard me say, what's the difference between the guy from the ABC Counting Corporation showing up at the end of a well secured hand-counted election, taking the ballot box off to a room without windows to count the votes, only to return shortly to let you know the results versus casting our votes on DREs or optical scanners? That's a rhetorical question posed to demonstrate how unreliable these computerized voting systems have been repeatedly revealed to be. But our legislators and our SBOE are not looking at the evidence which is crying out to be seen.
Where are our state legislators? They have abdicated responsibility. I have searched the legislative record. When they passed the so-called Election Reform and Modernization Act of 2005 they did not look back at the wisdom which was acquired over the past century. They disregarded the very foundation of the requirements not only of a democratic electoral system, but of the very electoral system we had in New York. They apparently failed to read any of the reports of independent computer scientists which reveal the vulnerabilities not only of software, but of the voting systems being offered by a handful of vendors, whose records of irresponsible conduct and failed systems have proliferated since the implementation of HAVA. True there have been many more studies since 2005, but it's not like the legislature or the SBOE, as the agency whose responsibility it is, are taking these into account. If they did they would know that they are about to deliver the citizens and the election commissioners into an undemocratic hell that will take years and wasted millions of our dollars from which to recover.
It is the election commissioners in our 62 counties who will be left holding the bag. They are the ones who will be effectively neutered by these computers. How can they be expected to do their jobs when they cannot possibly attest to the workings of a DRE or an optical scanner? How will they or the election workers know how the votes were counted? Election officials' roles and duties have been rendered impossible by these computers with their oblique processes. Whereas on a lever machine they could see if the machine was properly prepared to function and could see if there was a problem later, with computers there is no way for them to know. There will be no evidence of the breakdown or the crime. And yet it is their duty to certify the results. They are being asked to do quite literally an impossible job.
I wish to share with you a quote from the Nassau County BoE Commissioner which a colleague sent me in response to a draft of this letter. I believe it captures precisely what I had been trying to convey herein:
I can only speak for myself, although I am certain that all other Commissioners in the State of New York feel as impassioned as I do. My main responsibility is to the voters, to ensure that my Board does all it can to implement the law as well as to guarantee fair, just, accurate elections. Up until now I have felt secure and confident that I have been able to do this. Through the use of the Automatic Lever Voting Machines, though aged, I am able to certify election results and I am certain of the accuracy by which we conduct our elections. --John A. De Grace, Nassau County BoE Commissioner (R) Dec. 20, 2005 testimony to SBoE in NYC.
It is not only election officials' sense of duty and responsibility that will be undermined by the introduction of DREs and optical scanners, but the electoral system built up over the past 150 years depends on the fulfillment of election officials' duties. The system required that they be afforded every opportunity to know that the canvass of the vote speaks the truth. But the legislature has rendered it impossible for them to know and if they can't know than the citizens, to whom those duties are owed, can't know either. The entire electoral system falls once we blindfold our election officials through the use of these computers.