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Robert Millman

Undoing a Done Deal

Activists make headway in their push for a say in how New York’s votes will get counted

 

During the 2006 midterm elections, the race for an open seat in Florida’s 13th Congressional District was among the dozens of close, sometimes dead-heat races for seats in the U.S. House of Representatives. So, when the Republican candidate was declared victor by a margin of only 369 votes, and Sarasota County election officials reported that more than 18,000 votes were inexplicably missing from the county’s touch-screen voting machines, many cried foul.

Election officials offered two explanations for the missing votes. Some speculated that more than 18,000 voters intentionally chose not to vote in the contentious race to protest what was an ugly campaign. If true, it means approximately 13 percent of total voters in Sarasota County declined to vote on that ballot line, an undervote rate that’s dramatically higher than the 5-percent undervote rate recorded in the other four counties that comprise Florida’s 13th District.

The more likely explanation, most argue, is that the county’s touch-screen voting systems, a form of voting technology known as direct-recording electronic (DRE) machines, failed to record those thousands of votes. A recount would do nothing to recover the essentially nonexistent votes.

Several politicos and voter-advocacy groups now are calling for a new election, and proponents of paper ballots with optical-scan voting systems—a paper-based alternative to DRE machines—have documented the situation as an electoral disaster that provides anecdotal evidence for their argument that DREs are an unreliable technology and highly susceptible to malfunction.

The problems in Sarasota County may serve as an example for counties and states across the country as they modify their voting technology and policies now and in the future, but the scenario has immediate repercussions in New York, which is the only state that has yet to purchase new voting machines in order to comply with the federal Help America Vote Act. Under the 2002 HAVA legislation, New York must replace its current lever machines because they do not meet the requirements that machines be handicap accessible and provide “second chance” voting—the opportunity for voters to confirm their selections before formally casting their ballots.

All states were to be compliant with HAVA’s voting-machine specifications by Jan. 1, 2006. New York has not made that switch, and although county election commissioners are expected to choose new voting systems soon, they have yet to indicate whether they will choose DRE or optical-scan machines.

“It has been good, I think, for New York state to look and see what’s happening in some of the other states that have adopted electronic touch-screen voting technology,” says Bo Lipari, executive director for New Yorkers for Verified Voting. “[We can] see the kind of problems and the kind of expenses they’re having, the failure rates, see that some states are looking at replacing multimillion-dollar investments in touch-screen voting machines and abandoning that for paper ballots and ballot scanners.”

Lipari, a retired software engineer, has become one of the chief activists in the movement to bring optical-scan voting systems to New York. He says he first became interested in the issue back in 2002, when voting technology became a widely debated topic due to continued criticisms about the debacles during the 2000 presidential election, as well as discussion about the HAVA legislation.

“When I first started reading about electronic voting machines, [it] immediately struck me as a bad idea,” Lipari says. “You would be very hard-pressed to find more than a handful of computer experts who support DRE technology. There are some very serious computer-technology people who have said these machines are vulnerable.”

Regardless, Lipari says politicians throughout the country were touting DRE machines as the answer to problems such as those that occurred during the 2000 presidential election. As early as 2002, it appeared as though New York state also was headed down the path toward adopting DRE systems, says Lipari, who began giving presentations about the vulnerabilities of DRE machines throughout the state.

In 2004, Lipari founded NYVV as one of the first organized efforts in petitioning the state to purchase optical-scan voting systems. Additional organizational advocacy comes from the League of Women Voters of New York State and A Regional Initiative Supporting Empowerment, which is better known by its acronym, ARISE.

This small group of advocates has been, at the very least, a quiet voice for years. Members attended public hearings, placed phone calls to state representatives and beefed up their organizations’ Web presences. The year 2006, however, may prove to have been the most successful of their campaign. Advocates’ messages caught the ear of additional local, county and state representatives, as well as individual citizens. It appears as though—for the first time, many activists say—state officials may seriously be reconsidering whether to continue down the path toward purchasing DREs.

“It’s hard to pick out one exact mo ment,” says Rob ert Millman of when he first became interested in New York’s pro cess for selecting new voting machines, “but the closest I can come to is the first public hearing that was held by the State Board of Elections to review the guidelines for voting machines.”

Millman says he attended that meeting, held during the first few weeks of 2006, as a private citizen intending to speak to express his concern about proprietary software—programming that is protected as a trade secret—being used to count votes.

“Have you ever been to a job interview where you knew you were wasting your time, that the person on the other side of the desk really wasn’t listening?” he says. “That was simply the impression I had from that first public hearing. This was a show public hearing.”

Millman says he quickly sensed that the state already had decided, even if not formally, to purchase DRE voting machines and that any opportunities for public input were simply pro forma.

“It was a steamroller going to get these machines in,” says Millman, who has a background in filmmaking and currently works as an audio-visual coordinator within the New York State Bar Association. “As a result, that finally kind of made me decide that I personally had to make a film.”

Four months of shooting and four additional months of editing resulted in Bought and Sold: Electronic Voting in New York, a 45-minute documentary that examines the state’s process for selecting new voting machines and how it has been skewed in favor of DREs. In September, Millman began screening the film at locations throughout the state.

Although Millman came to the movement for optical-scan systems late in the game, activists consider his documentary to be effective and significant to the overall debate. His film has been embraced by many, including LWV, which has broadcast the documentary at its events and provides a 10-minute version on its Web site.

One of the first speakers in Millman’s documentary is Lipari, who explains that the key difference between DRE and optical-scan voting machines is how an individual’s vote is recorded: first by a machine, and then by human hand.

When people vote on a DRE machine, they indicate their selection by touching a ballot screen that would look similar to the format used on current lever machines. The appearance of the box the voter selects will change, typically by altering color, to confirm the voter’s choice.

New York legislators passed a law in 2005 requiring that all voting machines include a voter-verified permanent paper trail. For the DRE system, this paper receipt appears under a pane of glass adjacent to the touch screen for the voter to confirm that the machine understood the selections he or she made. If voters choose to adjust their ballots, they have the opportunity to do so before the machine formally casts and counts the ballot. The paper receipt is stored in the machine and available for a recount.

The alternative to DRE machines is hand-marked paper ballots counted by precinct-based optical scanners. In this process, a voter receives a paper ballot and enters a privacy booth to hand-record his or her selections by filling in circles next to candidates’ name, much like how he or she would fill in the bubbles of an ACT or SAT test. The voter then feeds the hand-marked ballot through a scanner, which will spit the ballot back out if the voter undervoted or overvoted in any of the races. At this point, the voter may choose to correct the ballot or submit it as is. When the ballot is submitted, the computerized scanner will tabulate the number of votes for each race. The original ballot is stored in a box below the scanner if needed for a recount.

While Millman’s documentary clearly advocates for optical scans, he says the only bias he brought to the filming was that proprietary software is a fundamentally bad idea for voting machines. He says that in the beginning he was unclear about whether there was an advantage to one system over the other.

“I approached it as if it was a trial,” Millman says. “Not that I’m an attorney, but I understand that if you’re going to go to trial, you don’t have to win every single argument, you just have to prove that one argument is better than the other. When you stack them up one against the other, paper-ballot optical scan, in my estimation, is superior in terms of transparency and accountability.”

Other activists add security and efficiency to the list. Lipari also calls optical-scan systems the more mature technology, pointing to an approximately 20-year history of use in U.S. elections. These systems may end up being the cheaper alternative as well. Estimates for optical-scan machines range around $5,500. DREs are expected to cost at least $9,000 per machine.

Not only may the physical units be more cost- efficient, but the nature of optical scanners as a vote-tabulation and not vote-recording device means each polling place would require only one or two scanners. DREs likely would replace lever machines at least at a one-to-one ratio.

Proponents of DRE machines debate the cost-efficiency argument for optical scanners by pointing to the additional cost associated with the technology. Individual privacy booths, in which voters mark their ballot, would be needed at a cost of a few hundred dollars each. Election officials also would need to purchase new paper ballots for each election. Election commissioners say these costs could add up quickly, and some estimate the costs could be anywhere from 80 cents to $1.30 per ballot.

Optical-scan advocates contend that such figures are absurdly overestimated. Lipari says he has received estimates that are more in the 15-cent to 29-cent range.

While optical-scan advocates argue that state officials, especially county election commissioners (the officials empowered by the state Legislature to choose which voting machine to purchase for their respective counties), haven’t given ballot scanners serious consideration, election commissioners slap the same accusation back on activists.

“I don’t know of any commissioners who have not given the optical scan a fair shake,” says Thomas Turco, president of the Election Commissioners’ Association of the State of New York and the Republican commissioner from Ulster County (each county has one commissioner from each of the two major parties). “If anything, I think some of these groups have been overzealous in their approach to this whole process. . . . I think they probably haven’t given the DRE a fair shake. Because of the certification process here in New York, the DREs we would use are entirely different than the nightmares that you read about throughout the country.”

For example, the requirement of a voter-verified paper trail is intended to prevent disasters such as what occurred in Sarasota County in November. Advocates, however, contend that a machine understanding a vote and accurately counting a vote are two distinct processes. In other words, even if a print-off shows that the computer understood what selections a voter made, that is not to say that the computer will actually tally those votes correctly.

DREs also meet HAVA’s handicap-accessibility requirements in one system, coming equipped with capabilities such as audio and a Braille keyboard. Most also can be lowered for voters in wheelchairs.

In order to meet the federal accessibility requirements, locations with paper-ballot optical scanners would need to purchase a separate ballot-marking device for voters unable to mark their own ballots. These machines price comparably with the ballot scanner.

While advocates for optical-scan systems point to examples of DRE machines malfunctioning in election situations, James Clancy, the Democratic election commissioner for Albany County, notes that optical scanners aren’t foolproof either. He calls to mind the technical problems with scanners that caused students’ SAT scores to be tabulated incorrectly during October 2005. Many advocates counter that they recognize the potential problems of optical-scanning systems but approve of this system over DREs because voters directly record their votes onto an easily auditable paper ballot.

“I take this task for choosing new machines for Albany County’s future very seriously,” Clancy says. “I’m doing my due diligence. I’m collecting data and information on all machines. I want to make that emphasis, on all machines, and there are pros and cons for all. The advocacy groups for the optical scans refuse to believe that there are pros and cons for both.”

It may also be premature to talk about pros and cons to specific machines, as county election commissioners, when choosing new machines, are limited to those certified by the State Board of Elections. To date, no machine has been certified, and many of them have proven incapable of meeting New York’s strict requirements for certification.

According to Robert Brehm, deputy director of public information for the state Board of Elections, five machines from five different manufacturers are currently being reviewed for certification. However, only two have satisfied initial testing: Diebold Election Systems’ AccuVote OS, an optical-scan system, and Liberty Election Systems’ Liberty Vote, a DRE machine.

The other three machines were found to have “anomalies” preventing them from moving forward in the certification process. When such problems are noted, they are reported to the vendor, and the manufacturer is free to fix the anomaly and then continue with certification process.

“The simple fact is this is a vendor-driven process,” Millman says of the way the selection of new voting systems has progressed in New York. “You don’t have to be a conspiracy theorist or have a tin-foil hat to make the simple judgment that vendors have an economic interest in this. . . . The analogy I like to use is if you had to buy a vehicle and you went to a car dealer, which would the car dealer rather sell you, one pick-up truck or five high-end sedans?”

Between 2002 and the end of 2005, voting-machine vendors spent nearly $1.5 million lobbying in New York, according to data from Common Cause, an organization that advocates on several political issues. Optical-scan activists argue that vendors have steered election commissioners down the path toward purchasing DREs because these machines would result in higher profit margins for manufacturers.

Around the time when he founded NYVV, Lipari says, bringing DREs to New York was essentially a “done deal.” Vendors weren’t talking about or displaying their ballot-scanning models, only their DREs, and election officials weren’t asking about optical scans, either.

According to Lipari, Assemblywoman Sandy Galef (D-Ossining), a proponent of optical scans, once inquired about why a particular vendor wasn’t displaying any of his company’s optical-scan machines. “He said, ‘New York state is a DRE state,’ ” Lipari says. “And she said, ‘According to who? I’m a New York state legislator, and I haven’t heard that.’ ”

In the end, New York realistically could end up being both a DRE state and an optical-scan state, thanks to the political punting of the state Legislature. During 2005, state lawmakers could not agree which machines the state should purchase, and passed the decision-making authority to the county level and into the laps of unelected election commissioners, who are unaccountable to the general citizenry.

“You have appointed officials who are going to choose not only the way you vote, but are going to choose how your tax money is going to be spent,” Millman says.

Although HAVA provides funding to each state for the purchase and implementation of new voting machines, some wonder whether the $220 million that is supposed to come to New York will be enough to cover all expenses, especially since there’s concern about whether some of that money will be taken away as punishment for New York’s continued noncompliance.

Robert Brehm

According to Lipari, by allowing each county to choose its own machine, the Legislature opened up a can of worms in terms of vendor lobbying. The possibility for each county to choose a different system increases the likelihood for all vendors to profit since voting-machine selection is no longer a statewide all-or-nothing deal.

In Albany County, Legislator Timothy Nichols (D-Colonie) says he has sensed “a strong preference from both of [Albany’s] commissioners, that they were leaning heavily toward DREs,” and he suggests that it is because vendors steered commissioners toward DREs.

“It was troubling to me that there seemed to be a preference toward more electronic, computerized or DRE-type machines,” Nichols says. “[Voting-machine vendors] would have a demonstration someplace, and they would have salesmen, and the salesmen would talk about all the bells and whistles of the DRE machines and really talk them up. Whenever anybody would ask about optical scan, it would be over in the corner with dust on it.”

Nichols was one of three county legislators who introduced a nonbinding resolution encouraging the two Albany County election commissioners to purchase optical-scan machines for the county. The legislation originally was introduced during the spring of 2006 and sat in committee until it was taken off the shelf and overwhelmingly approved in October. Nichols gives partial credit for bringing the bill back onto the table to the advocacy work of organizations such as LWV and NYVV.

“I really do believe that they did the lion’s share of work, not just for us here in Albany County, but statewide,” Nichols said. “Had they not been there, I don’t think we’d be having this discussion.”

The 2006 midterm election was supposed to be the last time New Yorkers heard that familiar, “Cha-ching,” upon sliding the voting booth lever to register their vote and fling open the voting booth’s curtains.

In March, the U.S. Department of Justices sued New York state for violating HAVA through its continued noncompliance. The state and Justice Department came to a “Plan B” agreement, which allowed New York to delay replacing lever machines until September 2007, but it now appears that will prove to be another meaningless deadline.

Brehm says the State Election Board isn’t ready to say New York won’t be able to meet the 2007 deadline, but most others are saying it with confidence.

According to Clancy, the inability of the state to meet a September deadline was determined during a December meeting between the State Board of Elections and the Election Commissioners’ Association.

“We are looking now into 2008,” Clancy says. “We’re moving forward with trying to figure out how we’re going to run this year, what the federal government and the federal courts will let us get away with, so to speak, because we weren’t in compliance last year and they allowed us to go forward with Plan B. We’re not quite sure if they’re going to let us go forward with the same Plan B, or if they’ll have to make modifications, or, for that matter, if they’ll let us do it all. But, we will not have new electronic machines for 2007.”

It’s all for the best, agree most advocates for optical scanners.

“I actually take [the missed deadline] as a gigantic victory for activists because, like I said, this was a steamroller,” Millman says. “It really was, and not to say that the steamroller has been stopped—it’s still there, and they have a full tank of gas. The people and the interests that want DREs in New York state have spent a lot of money and they’re not going to just roll over on this.”

If at least one machine is certified in the near future, it may be possible for specific counties to implement new systems by the 2007 election cycle, but statewide implementation is beyond impractical.

“We’ve been very, very successful because at this point it’s an open question whether New York state will adopt touch-screen voting machines or paper-ballot, optical-scan options,” Lipari says. “But, the paper ballot is an option on the table, and that’s not something the vendors wanted. I think there has been a distinct change, and it’s clearly come through citizen advocacy and the work of organizations like ours. That has forced change.”

Advocates also hope the new reform-minded Gov. Eliot Spitzer may change the direction of, or at least add to, the debate. Spitzer has released public statements favoring optical scanners.

“I really hope that Gov. Spitzer will really take control of this issue and solve it, not just for Albany County but statewide,” Nichols says. “I think a new governor, and someone like Gov. Spitzer, will be able to demonstrate the leadership that we really needed when all these issues came about a couple years ago.”

nklaas@metroland.net


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