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D-Day in New York: How we can continue fight against computer vote counting beyond tomorrow's primary

Message Diana Finch
Tomorrow September 14 is Primary Day in New York State, and for the first time we will use ES&S Diebold Op Scan machines.
For a whole host of reasons, the preparation for the switch-over was woefully delayed and then rushed at the last minute - poll workers only received training in the last three weeks.
Looks like one of the biggest problems is going to be the ballot - which can either be marked with a pen or with a ballot-marker device (intended for disabled voters but available to anyone who wants to use it.
New York State has a 'full-face ballot' requirement, a hold-over from the lever machines, which stipulates that all candidates and all races need to be on one page. This is intended to make the election fair, so that no one, and no race, is relegated to a second page.
With the lever machines, this was not a problem, as the machine only had one large surface, so it always met this requirement. And few voters used paper ballots, which were printed on very large sheets.
When NY switched to the Op Scan machines, they kept the 'full-face ballot' requirement for candidates. (Referendums are printed on the back of the ballot - where they will probably be overlooked by most voters who won't turn the ballot over.)
Especially for the primaries, this now means that the ballot front is very crowded and the type is very small. A lot of people are going to have trouble reading through the ballot and aligning their votes with the right candidates in the right columns, making sure not to overvote or undervote, especially in the races where you are instructed to 'vote for any two' or 'vote for any three', etc.
Some have already compared the NY ballots to the infamous Florida 'butterfly' ballot design. The media seems to be all over it - at the last minute. Where were they last December when the decision on the machines was going down, and why didn't they think about these issues then? Yet another massive media fail . . .
So, election activists, stay tuned for tomorrow's results!
And here's info on a NY activist group's lawsuit -- in desperate need of a law firm to take the case.
Diana Finch

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Dear Friends,

Tomorrow's primary election could mark the end of New Yorkers' ability to trust our election results. ETC is still working to ensure that the cause of democracy will not be abandoned. Deployment of the new electronic vote-counting systems violates our constitutional rights as voters, and the need to challenge these violations will remain until we reach victory.

However, our lawsuit to stop electronic vote-counting in NY is in danger. Your help is urgently needed.

As you know, Nassau County, building upon the thorough and copious work of ETC over the past three years, has filed a case against the State challenging electronic vote counting. Already Nassau has successfully defeated the State's efforts to prevent the case from being aired in a court of law. A federal judge has rejected the State Board of Elections' attempt to move the case to federal court, and Nassau has won a ruling in state court ordering its experts to be allowed to examine the optical scan machines for their vulnerability to tampering, despite claims of "proprietary" rights by the voting machine company.

Yet Nassau's case is missing a critical component that only a case by the voters can offer.There are simply some causes of action which apply directly to voters that the county does not have the ability to bring forward for the court's consideration. Nassau acknowledges the vast amount of groundwork for their case done by ETC and the need for the county's case to be complemented and strengthened by a case filed on behalf of the voters.

In order for ETC to file our suit we urgently need your help in finding us a law firm that will stay the course with us.

We're writing today to fill you in on what's happened and where things stand, and to ask for your immediate assistance in one of two ways:
  • help us find a law firm willing to take on the case pro bono
  • find us a major donor or small group of donors willing to pay a law firm (estimated cost: $100-200K)
The lawsuit is ready to file. It has not yet been filed because our law firm quit on us at the final moments! We have been scrambling to find new legal representation, but have not yet succeeded.Without the necessary legal support, we cannot move forward.

Here are the details of recent events and our current situation:

For the past four years, Election Transparency Coalition founder and attorney Andi Novick has led ETC in preparing a suit challenging the use of electronic vote counting with optical scanners on constitutional grounds. The case is strong, and it's crucial to our democracy!

After a long search, last fall we secured the pro bono (without charge) services of a prestigious law firm. Using materials provided by ETC as the basis for the case, they were to file by early December in order to meet a critical December filing deadline. The firm repeatedly missed agreed-upon deadlines and the work they performed was shoddy. We expressed our concerns with how they'd gutted the case of its most important points and with the continual delays. As the deadline approached they used our objections as an excuse to drop the case at the last minute. This behavior was extraordinary and highly unethical.

We immediately reinstituted our search for a law firm, and were delighted when we were approached by another prestigious firm that had heard about our case from an article in the NY Times. We met with two of the firm's partners and a small group of associates. They understood time was of the essence and assured us they could file the litigation within a month's time. But again we experienced delay after delay in the firm's performing the work they'd promised. After agreeing on a final draft of the summons and complaint and within 24 hours of a crucial and agreed-upon filing date, they too withdrew from the case!

TWICE now we have witnessed our case delayed unnecessarily and then dropped at the last minute. Both times we had provided a draft summons and complaint complete with all the legal research to the firms, minimizing the time and effort needed to commence the litigation, and yet both firms dragged us along as we watched our efforts to get into court thwarted. The reasons given for withdrawing were blatantly disingenuous. So here we are. We have a very strong case that's ready to be filed and MUST be filed. We have no law firm. And our own legal consultant, while still with us, is prohibited for health reasons from leading the case.

ETC has recently received a generous grant from the Threshold Foundation to help provide for our staffing needs and other operating expenses. Yet in order to move forward with our most important work suing the State of NY to halt the changeover to electronic vote-counting legal representation is URGENTLY needed.

We are turning now to you, our supporters.

Please think about attorneys you know who work at law firms that might be willing to take on this high-profile impact case. Please either approach them or reply to this email with their contact information and your permission to use your name when we call them.

We ask you to think, too, about people you know who care about the future of democracy and might have the financial resources to fund the hiring of a law firm. If there's someone you'd like to approach, we'd be happy to work with you to assemble a packet of information to present with your request.

And to those of you who expressed your willingness to become plaintiffs, this special note: We very much appreciate your dedication. Should we find a law firm and be able to move forward with our case, we will contact you as soon as our need for plaintiffs is clear. Different attorneys have contrasting views about the number of plaintiffs needed and whether or not we want a variety of counties represented.

We thank you all for your ongoing support of ETC's work. Without you, we could not have come this far. With you, we hope to make it to the finish line: preserving NY's trustworthy and transparent voting system!


Joanne Lukacher
for theElection Transparency Coalition

P.S. Updates on Nassau's excellent work can be found at our website www.electiontransparencycoalition.org

P.S. 2 Whether or not relevant to the constitutional issues we are defending, ETC would be interested in hearing about your experiences at the polls tomorrow. Send your accounts to Joanne@etcnys.org
You are receiving this email because you signed up for occasional communication from the Election Transparency Coalition. You may have signed up back when our name was Re-Media ETC. We're the same group, simply with a clearer name. We've replaced our informal email list with a more formal one to bring you better quality communication in a more appealing format.

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Diana Finch is a member of the New York City Community Church Election Task Force
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