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New York's New Voting System Renders Voting a Useless Formality: Nullifying the Consent of the Governed

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By Andrea Novick, Esq. ElectionTransparencyCoalition.org,
Independence Day, 2009

Executive Summary

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The most fundamental concept of democracy is the idea that government exists to serve the rights of the people and must be based on the consent of the governed. More than any other public business conducted by the state on behalf of the people, elections must be the most vigilantly scrutinized because elections are the main vehicle for renewing and maintaining that consent. New York's highest court has long since ruled that a method of vote counting which permitted even bipartisan government insiders to perform an essential step of the election unobserved by the public was unconstitutional, rendering "voting a useless formality as it depends upon the will of the inspectors of election as to who shall hold the offices, and not upon the vote of the people." New York's Election Reform and Modernization Act (ERMA) returns us to a system wherein voting is once again, a useless formality.

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.

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New York's highest court has also held that such an election tally returned would be worthless. When the lights went out during a manual canvass of paper ballots, the Court noted "the opportunity to commit fraud existed" and because the extent of fraud could not be ascertained:

"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.

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For 232 years New York has mandated that the count be concluded on election night, while contemporaneous public scrutiny of every step is possible, resulting in a verified accurate first count. That transparent maximally-guarded count has always been unalterable, protecting it from the heightened opportunities for corruption once the public is no longer watching. That is why recounting of the voted ballots cast by voters at the poll site, after election night, has been prohibited for all of New York's history. ERMA turns two centuries of precedence on its head, requiring that the first count be invisibly tabulated by undetectably exploitable software. Adding constitutional insult to injury that uncertain count is to be confirmed by a post-election partial recount of non-adjudicated ballots which the Court of Appeals described as "not only the weakest but the most dangerous."

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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http://electiontransparencycoalition.org/
Andi Novick Election Transparency Coalition, www.etcnys.org, http://nylevers.wordpress.com/

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