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Secret Vote Counting and Corporate Proprietary Rights Have No Place in American Elections

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Testimony of Andi Novick before NYC Voter Assistance Commission,

June 28, 2007

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I am speaking to you as a citizen, as an attorney, as the founder of Northeast Citizens for Responsible Media (, a media reform organization which has taken the issue of our elections & democracy as its priority issue as New York moves towards deciding which voting system to use, but most importantly as a citizen.

The discussion in NY has centered on which of the two types of machines offered by the same private vendors should NY choose. I would like to broaden that discussion to refocus us on the issue of which type of voting system best serves the democratic process and the citizens of New York.

In a national Zogby poll conducted last year (, responses revealed overwhelming public attitudes that have been ignored by our election officials and elected officials across the country, but in New York, which has not yet committed to a voting system, there is still the opportunity for those with authority to stop and listen and I'm imploring you to further that effort.

The Zogby poll responses demonstrated wide-spread public awareness of the potential for manipulation and fraud in electronic computerized voting machines.

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The possibilities for tampering with both the touch-screen DRE and the paper ballot optical scanner (PBOS) – the only two options under consideration in New York – have been documented in numerous government studies, as well as University studies, that have found both DREs and PBOSs can be rigged without detection. (See Memo to Governor's office included, specifically endnotes 2, 3, 4,6). The Zogby poll responses demonstrated that the public too is widely aware of the potential for manipulation and fraud in electronic computerized voting machines:

– Almost 2/3 of the population sampled reflected this awareness, which was the same among Democrats and Republicans.

– Perhaps the most impressive number in the Zogby poll was the near universal response- 92%- of citizens stated that they believed they were entitled to view and obtain information about how election officials count the votes.

– There was also overwhelming objection to private vendor specific software used to count votes outside the public observation. 80% of those surveyed agreed that computerized voting should be transparent to the public. That secret, proprietary software, meaning secret vote counting, is totally unacceptable.

And yet, notwithstanding our deliberateness in New York in waiting to make a decision and notwithstanding all we have learned from the mistakes of other states, privately controlled voting machines using secret, proprietary software are the only options the State Board of Elections (SBOE) is getting ready to start testing for certification. That would be both DREs and Optical Scanners, offered by private vendors who assert secret proprietary rights to the source code- the very information which directs the functioning of the computer, including vote counting.  

Yes it's true that NY law provides for escrowing that source code, but not only as we saw last week in Albany are private vendors ignoring NY's law and trying to rewrite it in their self-interest so as to abolish or minimize the escrow requirement, but even if NY holds to its escrow requirement, that means a few election officials get to see the secret source code under a non disclosure agreement – meaning the public- whose elections these are – recall government of the people, by the people, for the people – never get to know how their vote is being counted. The citizens of New York would never know the very information 92% of the people in the Zogby poll believe they have a right to! And indeed they do: Because once the counting of the vote is controlled by private corporations and the government that contracts with these private vendors to count our votes, one has to ask- what happened to democracy? Where are the safeguards; the checks and balances? What's happened to free and fair elections?

Proprietary intellectual rights are fine in certain situations. I don't need to know what secret recipe Coca Cola uses. But these proprietary rights of corporations have no place in our elections – the mechanism by which a self-governing people preserve their independence. To keep secret the very information that shows me and you how our votes are being counted- deeply offends my patriotism.

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Our Constitution is not based on trust. Quite the opposite. It provides a system of checks and balances precisely because it is our duty to stay vigilant and not just trust that the government is doing what it says it's doing. Once the government enters into non disclosure agreements with private corporations- to control and count our sacred ballots- the public is quite literally cut out of its own election process.

There are alternatives which are not being discussed in NY and it's not too late to entertain them. I came down here today in the sincere hope that you will encourage the exploration of some of these more democratic alternatives before New York makes a fool of itself by choosing the same machines the rest of the country has, without the benefit of the excuse of having rushed into its decision.

Personally I am a great fan of the people and believe that adults are fully capable of counting to 300 or 500 or even higher. In most democracies of the world, elections are hand counted. I recognize that there had been ballot stuffing when we hand counted in the last century and that New York installed our beloved lever machines as a response to the fraud that occurred when we hand counted. But there are protocols we could institute today, particularly in the age of surveillance cameras, that could greatly reduce manipulation in hand counting, the most advanced means we know of to preserve citizen oversight and protect the integrity of the count.

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