Eyes Wide Open: The Real Situation in New York
By Dr. Wanda Warren Berry
Board of Directors, New Yorkers for Verified Voting
A moment finally arrived this Spring when it seemed New York at last had set its direction with regard to compliance with HAVA. The last direct recording electronic voting machines (DREs) withdrew from the certification process and the counties all chose ballot marking devices compatible with scanners to meet the judge-mandated partial compliance this Fall. Now, however, implementation of ballot marking devices is revealing problems with quality control and with the training of equipment managers. In addition, a flurry of articles on the Web, is trying to create public demand that New York State change its plan for HAVA-compliance in order to keep lever machines permanently.  The following essay aims to analyze some of the weaknesses in these articles.
1. The articles misinterpret court rulings: The articles at issue again and again say that “…no court has ever interpreted HAVA as requiring New York to replace its lever machines.” They accuse New Yorkers for Verified Voting (NYVV) of misleading the public, presenting us as saying “a court has ruled that our lever machines are not compliant with HAVA and that the court has ruled that they must be replaced.” NYVV has not made a point of saying this, but whether we like it or not, our eyes are wide open to the fact that it is closer to New York’s real situation than the opposing claims. Here are some of the facts:
In the United States District Court Northern District of New York, Federal Judge Gary Sharpe ruled in favor of the “Memorandum in Support of United States Motion to Enforce the June 2, 2006 Remedial Order” that had been submitted by the Department of Justice on November 5, 2007. Judge Sharpe issued his ruling after considering a number of amicus curiae briefs, including one prepared by Andi Novick, who authors some of the articles. Several of the briefs address the topic of lever machines.
The Department of Justice memorandum says: “New York plans to use its ancient lever voting machines in all polling places in the State in the spring and fall federal election in 2008, despite the clear failure of lever machines to meet HAVA’s voting system requirements—at the least the machines are not accessible as required by Section 301(a)(3) of HAVA, and are not capable of producing a permanent paper record with a manual audit capacity, as required by section 301(a)(2) of HAVA” (page 15).
In addition, when this memorandum was first submitted, I pointed out to groups including Ms. Novick that it seems to rely upon a widely disseminated advisory from the federal Election Assistance Commission. On September 8, 2005 in EAC Advisory 2005-005: Lever Voting Machines and HAVA Section 301(a), the EAC ruled that there were four “areas of non-compliance” that “would have to be addressed and remedied before a lever system could be lawfully used in an election for Federal office on or after January 1, 2006.” These four are (1) the lack of the capacity “to produce a permanent paper record with a manual audit capacity…”, (2) a “documented, tested error rate that meets the one per 500,000 standard”, (3) capacity to meet “the number of alternative languages required in a given jurisdiction by the Voting Rights Act”, and the advisory reminded that (4) exclusive use of levers would fail to comply with the requirement that at least one system must be supplied at each polling place that is “capable of meeting the disability standards in Section 301(a)(3).”
In addition, the Supplemental Remedial Order issued by Judge Sharpe on January 16, 2008 summarizes the process to that date, referring to “a hearing, on January 4, 2008”… “at which arguments of the parties were heard.” Saying that it has considered submissions of amicus curiae as well as the defendants, the Court rules that "full compliance with HAVA’s voting system requirements and the replacement of all lever voting machines in the state of New York, must be accomplished as soon as possible but in no event later in time for use of fully HAVA-compliant voting systems during the fall 2009 State primary and general elections.” (3).
In the light of these facts, it seems that only some specious technicality could be used to justify a claim that “no court has ever interpreted HAVA as requiring New York to replace its lever machines.”
2. The articles seem to lack concern for accessible voting: Part of the current argumentation for the retention of lever machines involves asserting that, inasmuch as New York has purchased at least one ballot marking device for each polling place, the state has complied with the only requirement of HAVA that levers do not meet. The above summary of the 2008 Court ruling and 2005 EAC Advisory makes it clear that there are additional ways in which levers have been judged to fall short of HAVA compliance. With regard to accessible voting, we should note:
Those who argue for retention of levers seem to be content with the idea that the ballot marking devices that they criticize would be deployed for those that need them, so long as those without special needs can use levers. This shows a lack of concern for the genuine accessibility required by democracy.
Their arguments use rhetorical devices aimed to rouse the public in ways that ignore, for example, the actual experiences of persons with disabilities with the ballot marking devices. For example, Ms. Novick says that it is “a worthy goal but the most able-bodied person in the world wouldn’t vote unassisted on these pieces of crap.” She cites no evidence from trial use by persons with disabilities, who in many cases have found the AutoMARK highly usable and the Image-Cast BMD adequately so.  Some election officials think that at least some of the current “failures” with the new machines actually are caused by management’s lack of experience with them.
3. The articles ignore practical, managerial, and legal problems embedded in their recommendations:
The suggestion that the ballot-markers purchased for 2008 be used to provide accessibility to persons with special needs while the levers are retained for most voters ignores the huge financial investment in new machines that were intended to be the single machine replacing the lever machine. In addition, new lever machines would be needed. Because of expecting the replacement of the levers, some counties have been functioning with a minimal number of working lever machines, rather than buying new ones. In addition, wastefulness is apparent in that most of the new machines are tethered to a scanner that sits on a ballot box; the ballot marker cannot be separated from the scanner but, apparently, would not be used in the proposal to retain the levers. Shouldn’t we instead focus on making these new machines work?