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Overview: Why New York's Legislature's Plan to Computerize Our Electoral System Is Unconstitutional

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And Why New Yorkers Need a Lawsuit to Stop It



For 231 years the success of New York's democratic electoral system has depended on the ability to see how our votes are counted. That transparency is essential to prevent opportunities for fraud, as well as to provide citizens with a rational basis to trust election results and be able to evaluate their government's performance in conducting their elections. We can see how our votes are counted in a lever-counted or hand-counted voting system. We cannot see how optical scanners or DREs are programmed to count our votes, thus concealing the very fraud we must be able to detect and deter.

Attempting to first verify the unreliable software-generated count by hand counting a small portion of the ballots after the election is over, after the press has declared the winner, and after the ballots are exposed to heightened opportunities for post-election ballot tampering has historically been understood to be the least secure way to conduct an election. In fact, post-election ballot tampering has always been seen as so difficult to protect against that since the founding of the State, New York has mandated the election results be reliable, verified, and completed on election night.

It is the exposure of our franchise to these unprotectable opportunities for fraud before, during and after the election, that renders the new electoral system created by New York's 2005 Legislature unconstitutional.

The People Have the Constitutionally Protected Right to Know How Their Votes Are Counted and to See that Fraud Is Prevented

New York's Constitution expressly provides a protected right not to be disenfranchised (Article I, Section 1) as well as an explicit right to vote (Article II, Section 1). These two constitutional rights have been repeatedly interpreted and defined by the Court of Appeals, the highest court in New York State, as including implicit constitutional rights that enforce the explicit constitutional rights. These so called correlative constitutional rights include the right to a maximally safeguarded electoral system that provides the greatest protection against even the opportunity for tampering and the right to know that one's vote was fairly counted as cast. In 1909 the Court of Appeals in Deister v Wintermute, 194 NY 99, 108, proclaimed:

The right of an elector to vote is conferred by the Constitution.... [the elector] is entitled to see that his vote has been given full force and effect.... any method of holding an election which would deprive the electors.... of the right of casting their ballots and having effect given to the votes so cast would plainly be unconstitutional. (emphasis supplied)

The right to the protection of the integrity of the election from dilution by fraud and the right to transparency have been the bulwark of our electoral system for New York's proud history– that is until 2005 when New York's legislature enacted laws requiring the replacement of our secure lever voting system with unreliable, secretly programmed software-driven optical scanners or DREs. This new computerized electoral system, now scheduled to go into effect for the 2009 election, violates our laws, ignores our precedence, and unconstitutionally disenfranchises all New York voters.

New York's Constitutional Right to Vote and Constitutional Right Not to Be Disenfranchised Has Always Required that the Electoral System Provide Procedures to Prevent Even the Opportunity for Fraud

In 1888, the United States Supreme wrote in Ex parte Coy, 127 U.S. 731:

"The manifest purpose of.... legislation [was] to remove the ballot-box as well as the certificates of the return of votes cast from all possible opportunity of falsification, forgery, or destruction. (emphasis supplied)

For more than two centuries New York's electoral system has required an open, transparent process, which became more open and transparent over the course of the 19th century with the express object of more effectively preventing the perpetration of fraud. To protect this most valued constitutional right, the Court of Appeals explained in Stapleton et al. v Bell, 119 N.Y. 175, 178-179 (1890):

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