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