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The "People's Lawyer" Should Defend the People's Interest in Elections: Hand Counted Elections

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November 15, 2007

The Honorable Andrew Cuomo

I write to you as a very concerned citizen of New York, an attorney, a coordinator with Election Defense Alliance, a national election integrity group, and the co-founder of Northeast Citizens for Responsible Media, a media reform group in the Hudson Valley. I have written extensively on the issue of democratic elections and voting systems; most of my work can be found at . I recognize that while you are charged with representing the people and the state of New York, those interests are not always the same. The litigation with the Department of Justice (DOJ) unfortunately presents the clearest example of this historical conflict.

While the Legislature is charged with protecting the integrity of our elections, elections belong to the people. As I wrote in The Department of Justice v. New York State v. The Citizens of New York:

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Elections belong to the people- not their governments. If the people can't see that their votes are being accurately counted, they have lost their constitutionally protected right to vote, which includes the right to know that one's vote has been counted. Voting on computers disenfranchises people because people cannot see how their vote is being processed inside the black box of a computer. A recent Zogby poll documented a record breaking 92% of Americans insist on the right to watch their votes being counted. 80% strongly object to the use of secret computer software to tabulate votes without citizen access to that software. [In New York] No one is representing the people's right to an observable, transparent, reliable electoral process.

If your office decides its client in the DOJ litigation is the State Board of Elections (SBOE), the people are ignored. The SBOE believes the people should be voting on opaque computers that count our votes in secret. The fact that NY law requires the source coding be escrowed only allows some members of state government to see the secret source coding pursuant to a non-disclosure agreement enjoining them from disclosing any information to the people. The people don't really care if the secret vote counting is done by the vendor or the government: it is still secret vote counting which should never be tolerated by a free people.

I further recognize the SBOE is merely following New York's Law which permits this secret vote counting, but as Attorney General wouldn't you have some responsibility to the people of the state of New York when such an unconstitutional law is imposed on them? The constitutionally protected right to vote includes the right to know that one's vote was counted as cast. Dozens of independent studies (,, including the most recent top to bottom review by the Secretary of State in California, have confirmed that both DREs and optical scanners can be easily rigged without detection. Accordingly there is no way a voter can be assured that her/his vote was counted as cast. Thus voting on either of these computerized systems effectively disenfranchises voters in violation of our rights as conferred by the Constitution:

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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)

Deister v Wintermute, 194 NY 99, 108

New York State must be able to exercise full control over the electoral process which the public must be able to observe and scrutinize in order to hold its government accountable. Computerized voting systems conceal that which must be transparent. When counting the votes consists of running proprietary software to process that data, the voter who is "entitled to see that his vote has been given full force and effect" can no longer observe the process (quoting Deister v Wintermute, supra). Public transparency, oversight and accountability are thus rendered impossible.

If your office decides its client is collectively the county election commissioners, who also believe that New Yorkers should be required to vote on these computers, again the people's interests are ignored.

The State owes a duty to its citizens to run democratic elections in an open and trustworthy manner. This duty cannot be delegated to private corporations. Private corporations are not accountable to the public. Once the State permits privately controlled computers into our election process it can no longer fulfill its fundamental obligation to the people to provide a safe and secure means of protecting the integrity of the ballot.

Only a citizen-owned process can legitimize government through the consent of the governed.

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Conducting our elections with paper ballots and hand counting those ballots in an open, transparent and secure way, is the best means of providing free and fair elections. It is also HAVA-compliant, so long as we provide a means for the disabled to vote.

The DOJ has threatened to take over our elections if we are not HAVA compliant by 2008. Everyone, except the federal government, understands implementing an entirely new voting system in a presidential election will only further the disenfranchisement of citizens. But we can satisfy the DOJ and HAVA by hand counting the federal races with ease since there are only two. We can amend or extend implementation of our state law to permit the use of our lever machines for the state races. We can provide ballot marking devices for the disabled to independently vote, as the Democrat Election Commissioners have proposed. This would protect the voters of New York in both securing . It might not make those who wish to impose theft-enabling private computers on voters happy, but the Attorney General's responsibility is first and foremost to the constitutionally protected rights of the citizens of New York.

Thank you for your attention to this matter.

Very truly yours,

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