Teresa Hommel

www.wheresthepaper.org
10 St. Marks Place, New York, NY 10003
admin@wheresthepaper.org
212 228-3803

Organizational Meeting
Committee on Governmental Operations
Gale Brewer, Chair
February 9,2010, 1:00pm
th
14
Floor Hearing Room, 250 Broadway, NY NY

The City Council should show awareness of voting machines issues and concern for
the problems with paper ballots and optical scanners.

City Councilmembers, as elected officials, and the City Council, as the local legislative
body representing approximately 40% of the voters of New York State, should pass
Resolution 2236 of 2009 to show recognition of the serious problems we will face if we
replace our lever voting machines with paper ballots and optical scanners at this time.

Election law is the province of the state (and to some extent, the federal government).
However, the City Council can raise concerns so that issues are accurately understood,
and can provide political support for action at the state and federal levels.

An example of misrepresentation of voting machine issues is the Daily News editorial

published last week, Tuesday, Feb. 2, 2010 by Joseph Addabbo, former City Council-
member and now chairman of the Election Law Committee of the New York Senate. In
his editorial Senator Addabbo says that our future scanners will bring greater efficiency
and accuracy while ensuring that every vote cast is counted accurately. Unfortunately that
is not true because our counties cannot afford software-independent statistically-
significant audits, and counties are not even required to perform spot-check audits of
every race on the ballot. Why are audits needed?

• Ballot programming errors, such as those in Erie County in their pilot use of ES&S
scanners in the Nov. 3, 2009 general election.
• Software errors, such as those discovered by Dominion shortly before the Nov. 3,
2009 general election but not corrected in all machines.
• Scanner calibration “drift” on election day.
• Tampering by insiders and outsiders

The only way to determine whether a scanner counted votes properly on election day is to
hand-count the votes on the same paper ballots after the election. The only way to
determine whether the outcome of a scanner-counted contest is correct is to hand-count
the ballots from a statistically-significant number of scanners (or other audit units).
Nothing in our state election law requires this. No county has the funds or desire to do it.
Money: This is the wrong time to replace lever voting machines—due to deficits at
the city, state, and federal levels.

Our city and state do not have the money or political will to perform software-
independent, statistically-significant audits of scanners. Scanners are computers, and need
audits appropriate for computers. If we can’t afford election audits, we shouldn’t use
computers in our elections. We should do everything in our power to keep using our lever
voting machines which are mechanical, have lesser vulnerability to innocent and
malicious errors, and can be secured via inexpensive methods.

State Election Commissioner Douglas Kellner testified on November 12, 2009 that the
cost of running elections in New York City would rise 15 to 20 percent with the new
equipment. http://www.wheresthepaper.org/09/TranscriptSenElecCmteHearingNov I 209.pclf pp5 I-52.

Meanwhile Mayor Bloornberg’s proposed budget for the Board of Elections in the City of
New York would reduce their budget. He also proposed that the Board reduce their staff
by one third. Such budget and staff cuts will produce chaos in our elections.

Our fiscal crisis will pit community against community in the struggle for scarce
resources and essential services. Our election technology need not make things worse—
we can and should continue to use our lever voting machines, and not switch to more
expensive, more vulnerable voting technology until we can afford to handle it properly.

The Governmental Operations Committee Should Hold a Hearing for Resolution

2236 of 2009 and Urge Passage of the Resolution by the Full Council

I urge the Governmental Operations Committee to hold a hearing on Resolution 2236 of

2009, vote to approve it, and recommendation it for passage by the full council.

20 upstate counties have passed resolutions to keep their lever voting machines on the
bases of lever machines’ affordable cost and reliable ease of use.

The New York City Council should join these counties and urge our state to take all legal
means to avoid replacing our lever voting machines now.

###

Attachments
1. Briefing Cover List
2. Mayor Bloornberg’s budget proposal, summarized in the Commissioners’ Meeting
Agenda of 2/2/10, page 9
3. Senator Addabbo’s editorial
4. Resolution 223 6-2009 introduced by City Councilwoman Helen Diane Foster
Teresa Hommel
212 228-3803
tahommel@earthlink.net
10 St. Marks Place, New York, NY 10003
Chair, Task Force on Election Integrity, Community Church of New York Unitarian Universalist
All materials: www.wheresthepaper.org/nv.htrnl#KeepLevers
Feb. 9, 2010

Briefing Cover List: Keep the Levers

Abbreviations
HAVA Federal “Help America Vote Act of 2002”
—

ERMA New York State “Election Reform and Modernization Act of 2005”
—

EAC — Federal Agency, “Election Assistance Commission”

DRE “Direct Recording Electronic” voting machine, aka touchscreen voting machine
PBOS voting system that uses voter-marked paper ballots, and precinct-based optical scanners
—

BMD “Ballot Marking Device,” assists voters with disabilities and limited English proficiency
-

to mark a paper ballot without direct human assistance.

Lever mechanical lever voting machine
—

Objectives
New York City Council — pass Resolution 2236-2009 to keep lever voting machines.

New York State change Election Law to rescind ERMA and keep lever machines;
—

OR make these four changes in ERMA:

1. Replace the word IshallH with “may” in the section of ERMA that says our counties
“shall” replace the lever machines (and make related changes).
2. Ban DREs.
3. Prohibit counties from implementing optical scanners until after the state adopts legal
requirements for paper ballot security and verification of computer function.
a. Voted ballots and other election-day materials shall remain in public view from
close of polls until certification of winners, to enable meaningful observation,
and prevent tampering, opportunity, and suspicion. Counties shall establish
procedures that facilitate observation.
b. Replace our current “audit” mandate for a 3% spot-check with a requirement
for statistically-significant audits (consult with expert Howard Stanislevic,
E-Voter Education Project, hsconims@verizon.net, 718-746-0449)

Federal —oppose Holt and other bills if they:

1. require replacing the levers, whether explicitly or as a side effect of requirements
2. fail to ban DREs
3. fail to require jurisdictions with PBOS to facilitate full, meaningful public
observation of the chain-of-custody of voted ballots etc from close of polls until
certification of winners, and statistically-significant manual audits of optical scanners.
Desirable language for federal legislation to protect levers is available upon request.
I. Public Policy: Lever machines serve the public good.
A. No computer is as secure as a mechanical machine.
B. Levers are manageable for election staff, poii workers and most voters.
C. Levers are affordable to maintain and use, but the higher cost of scanner elections will drain
funds from other essential services, and scrimping on electronic elections will cause chaos.
D. New York Law is not ready to safeguard paper ballots or scanners with requirements to:
--enable continuous public observation of chain of custody of ballots etc, and
--perform audits that provide statistical confidence of correct outcomes in all races (rather
than a 3% spot-check).
E. We can barely recruit sufficient poii workers. Can we recruit sufficient observers?

1 Legislative Memorandum
v wwheresthepaper org/LegislativeMemorandumKeepLe eisJunel5 09 pjj
2 Why Keep Lever Voting Machines
vhcresthcpajer org/ WhyKeepi cerVotingMachincs htrn

II Arguments against levers and for computerization don’t make sense

3 FAQ Why Keep Lever Voting Machines

7
Where sThePapei org/LAO Wh KeepLevers pdf

III NYVV and LWV want software-independent verification of mechanical levers that
have no software, and won’t address the problems with paper ballots and sèanners.

A. Rebuttal of ‘anti-lever” circular arguments, misrepresentations, and omissions of fact.

4. Back to Basics
www.wheresthepaper.om/RebutLeverageBackToBasicsApr 11 _09.pdf

B. The League of Women Voters of NY State says that lever machines don’t complywith
security requirements for computers. But vice versa is worse computers don’t offer the
—

security of lever machines you cant open the back of a computer and confirm correct
—

programming by visual inspection and simple mechanical tests.

5. Computers need software-independent audits. Levers need somebody to look in the

back. http://www.wheresthepaper.org/rebutNYVV LWVNYS Sept 1 5_09.pdf

IV. Privatization means price gougng and loss of accountability and control.

6. Vendors are Undermining the Structure of U.S. Elections, VotersUnite, Aug. 18. 2008
http://www.votersun ite.org/info/RecaimEIections.pdf

V. Lever Maintenance: Parts and new machines are available. Most parts are sbindard
hardware store items. A few have always been made in a machine shop.

7. Voting Machine Service Center, Inc. (AVM machines)

flp://www.wheresthepaper.org/VotingMachineServiceCenterOct2 1 09.pdf
8. International Election Solutions (Shoup machines)
http://wwwwheresthepaper.org/IntlE1ectionSo1utionsOct22 09.pdf
Briefing: Keep the Levers 2
VI. Resolutions & Statements to keep the levers: 20 counties, Assn. of Towns, etc

9. 20 Counties: Chenango, Columbia, Cortland, Deiware, Dutchess, Essex, Fulton,

Greene, Herkimer, Montgomery, Rensselaer, Schoharie, Schuyler, Sullivan, Tioga,
Ulster, Warren, Washington, Westchester, Wyoming
vww.wheresthepaper.org/ny.htm1#CountyResoIutions
10. Association of Towns of the State of New York, Intercounty Legislative Committee
of the Adirondacks (Clinton, Essex, Fulton, Hamilton, Herkimer, Lewis, St.
Lawrence, Saratoga, Warren, and Washington counties), Democratic Rural
Conference, Town of Copake, Town of Greenburgh, Town of Shandaken, Brooklyn
Older Womens’ League, Independent Neighborhood Democrats (Brooklyn), Joint
Public Affairs Committee (JPAC), National Organization for Women, Brooklyn-
Queens Chapter, New York StateWide Senior Action Council, NYC Chapter, 504
North Star Democratic Club, New York City Alliance for Retired Americans
(NYCARA), United Hebrew Trades, Village Independent Democrats (Manhattan)
http //Vv vheresthepaper org/nv htrnl#KeepLeversResolutions
11 District Council 37, AFSCME Return HAVA money and keep levers
wwv hc esthepapcr org/I)( 3 7_WeSupportKecpmgl evers pdf

VII. Money: At this time of deepening economic crisis, we should keep the equipment
we already own which is reliable, trustworthy, and costs little to maintain and use.

12. Testimony of Douglas Keilner, Co-Chair of the State Board of Elections:

“The increased costs to the small counties can be ... as much as doubling it. And the
increased costs to the larger jurisdictions will not be insignificant. ...at a minimum for
New York City, for example, it’s probably going to be fifteen or twenty percent.” P.51
http://www.wheresthepaper.org/09/TranscriptSenElecCmteHearingNov 12 09.pdf
13. Electionline, Feb. 19, 2009: nationwide economic crisis hits election administrators.
www.wheresthepaper.org/Electionline090220StateCtyEiecOfficesEconomicCrisis.htm

VIII. Optical scanners have many failures, (but DRE touchscreens have 3 times more)

14. “Ballot-Scanner Voting System Failures,” 186 occurrences of malfunctionO incorrect

www.votersunite.org/info/OpScansintheNews.pdf
IX. New York’s use of uncertified optical scanners in the 2009 Primary and General
Elections resulted in wrong vote-counting due to ballot programming errors.
15. Stanislevic: “End of Innocence”
http://www.wheresthepaper.org/09/HSC09 121 4iHndOfinnocence.htrn

X. New York City will face difficulties that are foreseeable based on the experience of
other jurisdictions: vendor unresponsiveness to problems, system security flaws, voter
privacy complaints due to large scanner screen display, design flaws in our new
scanners that caused a 1600% increase in overvotes in Florida, cumbersome handjmg
of write-in votes. In addition, the vendor may have future legal problems that reduce
their attention to New York City.

16. Teresa Hommel, Testimony to NYC Board of Elections, Dec. 29, 2009
http://www.wheresthepaper.org/09/TeresaHornme1Dec29 09.htm

Briefing: Keep the Levers 3

XI. Federal Law: NY’s lever-plus-BMD equipment complies with Federal law (HAVA).
Legal Issues, more info: Andrea Novick, Esq., anovickfnklaw.com , 845-876-2359

A. HAVA requires one accessible voting device in each poli site. NYS counties have
satisfied this requirement by purchasing and using accessible Ballot Marking Devices.
17. VotersUnite, 1-page, HAVA does not require replacement of lever machines
www.wheresthepaper.org/ResponseToNYVVFactSheet.pdf
18. New York Can Keep Levers: Federal Law, HAVA
http://www.wheresthepaper.org/NYCanKeepLevers HAVA.pdf
B. EAC Advisory 2005-005 wrongly stated that HAVA required replacement of levers, but this
Advisory is now discredited as substantively inaccurate and politically motivated.

19 Advisory 2005-005
www wheresthepapei org/I ACAdvisoryOnLeverMachrnes05 005 pdf
20 Advisory 2005-005 should be revoked
heresthepaper org/EACAdvisoryShouldBeRe okedAndiNovickF b24 09 pdt

XII State Law ERMA’s requirements to replace lever machines with software driven
systems can be rescinded Our agreement in Federal Court is based on ERMA and is
therefore voidable

21 Testimony before NYC Board of Elections, March 4, 2009

www.wheresthepaper.org/AndreaNovickTestimonyNYCBoEMar409.pdf
22 Synopsis of Litigation legal theory why optical scanners are unconstitutional
www.wheresthepaper.org/SynopsisOffheLitigation.pdf
23 Only a Transparent Vote-counting System Can Protect Democracy
www v hercsthpaper org/ReMedia1)emocravC ompi iantV otmgS’v stLm pdf

XIII. Much criticism of levers is uninformed and inappropriate:

A Criticism Lever machines don’t have a paper trail & don’t allow software-independent audits
Answer Lever machines don’t have software Conversely, computers don’t meet mechanical
standards--you can’t open the computer and visually see if the programming is correct.
B Criticism Some localities don’t maintain or secure their lever machines
Answer: Use of computers will not solve faulty maintenance and administrative practices, but
scanner software errors and ballot programming errors can go unnoticed more easily than
lever machine problems which are easy to prevent, detect, and correct.
C. Wrong belief: Now that the optical scanners are certified, they will work properly.
Why uninformed: No computer testing today can guarantee proper function tomorrow, any
more than repairing a car today guarantees that it will run tomorrow. See item 4. above, and:

24. Stop-Gap Mitigations for Deployed Voting Systems

www.wheresthepaper.org/YouGoToElectionsStopGapJviitigations.pdf
25. FBI Press Release, results of the FBI 2005 Computer Crime Survey
www.wheresthepaper.org/FBI ComputerCrirneSurveyPR.pdf
26. New York City Council Resolution 228A-2006 recommendations are still needed but
have not been implemented
www.wheresthepaper.org/ny.html#CCreso228

Briefing: Keep the Levers 4

 JULIE DENT MARCUS CEDERQVIST
PRESIDENT ExEcuTivE DIRECTOR

JUAN CARLOS J.C.” POLANCO GEORGE GONZALEZ

SECRETARY DEPUTY EXECUTIVE DIRECTOR

JOSE MIGUEL ARAUJO

NAOMI BARRERA PAMELA GREEN PERKINS
JAMES J. SAMPEL BOARD OF ELECTIONS ADMINISTRATIV MANAGER
NANCY MO1TOLA-SCHACHER IN
J.P. SIPP THECITYOFNEWYORK
GREGORY C. SOUMAS EXECUTIVE OFFICE, 32 BROADWAY JOHNJ.WARD
JUDITH D. STUPP NEW YORK, NY 10004—1609 FINANcE OFFICER
FREDERIC M. UMANE (212) 487—5300
COMMISSIONERS www.vote.nyc.ny.us

To Commissioners BCE NYC January 29, 2010

From Finance Officer BCE NYC

On Thursday January 28, 2010, the Mayor released the January Budget Plan showing
adjustments to FYI 0 and FYI 1.

November Plan FY10 January Plan FY10 January Plan FY11

PS $17,543,014 PS $26,252,076 PS $17,756,641

OTPS $68,675,379 OTPS $82,175,379 OTPS $49,316,283

Total $86,218,393 Total $108,427,455 Total $67,072,924

FY10 PS increase of $8,709,062

Funding adjustment $7,000,000 (One Time)
Union and Managerial raises $ 1,709,062 (Base Line)

FY10 OTPS increase of$ 13,500,000

Runoff

FYI 1 PS funding of $17,756,641

Inadequate base line
Additional $1,495,435 cut

FYI 1 OTPS funding of $ 49,316,283

Inadequate base line
Additional $4,489,096 cut
Reduction of $14,870,000 in HAVA funding

Headcount 0MB 319 BOE NYC 351

9
Tuesday, February 2,2010 DAUY NEWSNYDaIIyNews corn
New scan voting machines.
reliable move to the future.
n a recent vote the New York City testing before being used for the first
I Board of Elections chose the elections
System and Software D5200 optical
scan voting machines to replace our
aged lever machines.
The ndw machines will be used in this

time in this September’s primary etéc

tiUns. 1 encourage and will work with the
Board of Elections to inform and train
our voters and poll workers to ensure an
efficient Election Day operation this year.
fall’s primary and general elections, and All New Yorkers can be confident that
will bring greater efficiency and accuracy
they will have the most trustworthy and
to the electoral process, while ensuring
reliable voting machines available.
that every vote cast is counted accurate in a close or suspect race, if necessary.
ly. While some concerns have been ex
As we prepare for this change, I want pressed regarding privacy due to the lay s we make this transition to optical
to assure all New Yorkers of their reli out of the poll sites, as well as difficul
ability. The state Board of Elections en ties some phil workers have had in oper
gaged in a long and meticulous process ating these machines, these are easily
over almost three years, and examined curable election management issues that
every aspect of the programming and have nothing to do with reliability. The

A -

scan voting machines, I look for

warc to working with individuals
across our city to educate voters
on their use. I also plan to work with the
city Board of Elections to reach out to
operation of these voting machines, in only instances when the machines re communities and districts to ensure they
cluding reviewing mil portedly failed to count a have the necessary resources to success
vote were when the vot
lions of lines of code, to
make sure that they are The new machines er incorrectly marked the
fully complete this transition.
I am concerned about the education of
trustworthy and accu ballot in a way that indi
our poll workers as well. As chairman of
rate. will bring greater cated his intention but
could not be read by the the state Senate Elections Committee, it
Last year, the Senate is my intention to pass whatever legisla
Elections Committee
took additional steps to
efficiency & accura-. machines, such as by cir
cling a candidate’s name tion we can to make the administration
instead of filling, in the of our elections easier and more effec
ensure that these ma
chines would meet the
cy to the process.
... bubble next to the name. tive, such as by allowing poll workers to
Joseph Addabbo work half-day shifts, and there is sub
highest standards and
are trustworthy and reli The machines showed stantial support in the Senate for reforms
able. Last fall, the state Board of Elec a minimal miscount, mainly from people to accomplish that.
tiOns also instituted a pilot program us inserting their bailøts incorrectly. There • My goals this year as Elections Com
•ingptical scan machines in 47 of our .62 were minor privacy issues, but they were mittee chairman will continue building
counties, which proved one thing: These easily rectified. upon the priorities we had last year: to
machines produce results that the pUblJc Throughout this year, the state Board increase voter turnout because we’ve
can trust. of Elections will work with personneL, made the voting process easy, enjoyable,.
Voters also can be assured that al from Elections Systems & Software to more accessible and efficidrtt
though we are eliminating the lever, we run a series of compliance tests to en
are instituting the use of paper ballots sure proper functioning and accuracy. Af State Sen. Joseph Addabbo, a Democrat
that are a permanent record and can. be ter the machines are delivered to New represents western Queens’ 15th Seiate
used for an audit of the machine results York City, they will undergo even more District
 Res. No. 2236-2009

Resolution calling upon the New York State Legislature, the New York Board of Elections, the
New York United States Senators, the New York Congressional delegation, and the New York
Governor, to take all appropriate actions that may be necessary to enable New York counties to
continue using lever voting machines supplemented by accessible voting technology for people
with disabilities.

Sponsors: Helen D. Foster, Rosie Mendez, Tony Avella, Erik Martin Dilan, Simcha Felder, Alan
J. Gerson, Sara M. Gonzalez, Robert Jackson, Letitia James. Melissa Mark-Viverito, Annabel
Palma. Domenic M. Recchia, Jr., Kendall Stewart, David I. Weprin, Thomas White, Jr.

Whereas, New York City has successfully used its highly accurate lever voting machines for
many decades with very few problems and wants to continue using them; and

Whereas, The New York City Council believes that continued use of lever voting machines is in
the best interest of the public because they are secure, inexpensive to use, and built to last
indefinitely with low-cost routine maintenance and replacement of worn parts with new parts
that are readily available; and

Whereas, The federal Help America Vote Act (“HAVA”) requires every poll site to offer
accessible equipment for voters with disabilities, and all counties in New York State have
acquired and deployed accessible Ballot Marking Devices in order to comply with that mandate;
and

Whereas, HAVA does not ban non-computerized voting technologies, such as systems that use
hand-counted paper ballots or mechanical lever voting machines; and

Whereas, Under HAVA, lever voting machines may be used together with accessible Ballot
Marking Devices; and

Whereas, The New York State Board of Elections agreed in federal court to replace lever voting
machines in compliance with the New York State Election Reform and Modernization Act of
2005 (ERMA), but such agreement was not required in order to comply with HAVA; and

Whereas, Most parts needed to maintain lever voting machines are standard items that can be
purchased in hardware stores, and the rest have always been made in machine shops and can
continue to be so made; and

Whereas, Changes have occurred in recent years in the public’s understanding of Direct
Recording Electronic voting machines (“DREs”), also known as “touch screens” and DREs, with
or without a paper trail, are now known to be insecure, failure-prone, difficult to use by voters,
poll workers, and election administrators, as well as more expensive to use than non
computerized voting technologies; and

Whereas. In recent years, voting systems consisting of voter-marked paper ballots and optical
scanners have also caused numerous problems and high costs in other jurisdictions; and

1
Whereas, No jurisdiction, including New York State, has rules requiring voted ballots to be in
full public view from the close of polls until the certification of winners, which would prevent
tampering, suspicion and unanswerable questions; nor has New York State established a legal
requirement to perform audits that would provide confidence that the DREs are working
accurately; nor do New York’s counties have the money to pay the escalating costs of elections
with paper ballots and optical scanners; and

Whereas. ERMA’s requirement that counties replace their mechanical lever voting machines with
either DREs or precinct-based optical scanners (supplemented by accessible voting technology
for voters with disabilities) should be eliminated to reflect current knowledge and economic
constraints, and counties should be allowed to keep their mechanical lever voting machines
supplemented by accessible voting technology; and

Whereas, The cost of the acquisition of, transition to and use of optical scanners in New York,
including the cost of post-election audits, has not yet been studied or estimated by any
governmental agency, but studies by citizens and information from other jurisdictions show that
computerization of voting technology dramatically raises the cost of holding elections; and

Whereas, The current economic crisis in our nation, state, and city is pitting community against
community in competition for scarce financial resources, and is causing the actual or scheduled
cutback of essential services; and

Whereas, In the current economic crisis it would be unwise to initiate a change of voting
technology that would increase the cost of running elections, especially given that New York
City already owns its mechanical lever voting machines as well as its accessible Ballot Marking
Devices and New Yorkers are able to vote in a manner that is compliant with all federal
requirements; and

Whereas, Available funds could then be spent to provide training for poll workers so they could
better assist voters who wish to use the accessible voting equipment that New York now offers,
as well as to develop voter communication materials in all accessible formats and to disseminate
such materials multiple times prior to elections through a wide variety of outlets; now, therefore,
beit

Resolved, That the Council of the City of New York calls upon the New York State Legislature,
the New York Board of Elections, the New York United States Senators, the New York
Congressional delegation, and the New York Governor, to take all appropriate actions that may
be necessary to enable New York counties to continue using lever voting machines
supplemented by accessible voting technology for people with disabilities.

JCG
08/31/09
LS# 7775