Independence Day, 2009
ERMA unconstitutionally excludes the possibility for public scrutiny by concealing the vote counting process. Software-based voting machines are secretly programmed by vendors; their inner workings hidden. The machine count cannot be verified so ERMA relies instead on a 3% manual count of ballots conducted after election night: after the ballots have been in the exclusive control of election officials, no longer observed by the public; after contemporaneous public vigilance is no longer possible.
In March 2009, Germany's Constitutional Court declared the country's computerized voting system unconstitutional based on the same "fundamental decisions of constitutional law in favour of democracy [which] ... prescribes that all essential steps of an election are subject to the possibility of public scrutiny."
In addition to describing unobservable elections as a subversion of the will of the people, New York's Court of Appeals has also recognized that a method of voting which exposes the count to known opportunities for fraud is unconstitutional. And yet the evidence of certified software-based voting systems' vulnerability to unpreventable fraud is irrefutable. Moreover, the scientific studies corroborate that the existence and extent of software exploits cannot be discerned by election officials or observers.
"the return was no longer entitled to be regarded. It was rendered wholly uncertain to what extent the fraudulent substitution had been carried" rendering "the return so uncertain and unreliable that it could not be used for any purpose, and its value as evidence was wholly destroyed." - Judson v Thacher,10 Sickels 525, 534-535 (Ct Appeals, 1874).
ERMA's method of voting results in election night returns that are equally worthless because the counting is as concealed as if the lights went out, the opportunity to commit fraud irrefutable, and the extent of fraud reflected in the software-generated tally is not capable of being known. As one of the California scientific reviews confirmed, if software had been exploited:
"There would be no way to know that any of these attacks occurred; the canvass procedure would not detect any anomalies, and would just produce incorrect results. The only way to detect and correct the problem would be by recount of the original paper ballots."
But recounting the original ballots requires that we know they are the original ballots. ERMA provides no means to determine if the original ballots are the ones being used in the 3% audit/partial recount required by the new law's post-election night verification procedures. Although this recount is conducted after the ballots have left the uninterrupted surveillance of the poll site, ERMA fails to require that the chain of custody be proven before these ballots can be used to try to verify the unreliable software results. Instead ERMA leaves us only to trust election officials' word that while the ballots have been in their exclusive control there was no opportunity for tampering. As with software "there would be no way to know" if fraud was committed and the wisdom of the past two centuries is that the risk of tampering increases with concealed opportunities. That is why for 232 years New York has protected the transparent original count from corruption by prohibiting the use of these ballots. Moreover even if the ballots were counted on election night, before chain of custody became a factual issue to be adjudicated, a 3% sampling is too small to detect discrepancies.
Thus ERMA's verification procedure will produce the illusion of certification, requiring that we accept the results of the secretly programmed exploitable software, regardless of whether those results are false, because we have no way to prove otherwise.
The Constitution is intended to be a limitation on legislative power. New York's legislature has no authority to enact legislation that makes the right to vote less secure. The lever voting machines were required to satisfy the myriad of constitutional safeguards that had evolved through a century of experience (unlike today's voting computers which dictate the terms, requiring we ignore constitutional imperatives). New York's lever voting system enables meaningful transparency at every step of the process, exposes and prevents known opportunities for fraud, and ensures full public knowledge of the accuracy of the count, including knowledge of error or fraud.
Once ERMA's "useless formality"of a verification procedure confirms the erroneous tally, it won't matter that 'at least we have the paper ballots' as so many have erroneously insisted is necessary to protect us. Those paper ballots will be as useless as voting will have been rendered pursuant to ERMA's undemocratic method of vote counting.
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