New York State’s highest Court has upheld lower Court decisions to stop any further counting of ballots and declare a winner in the 7th Senate District race. The decision is unfortunate on many levels, not the least of which is that it sets legal precedent in the State for how we verify election results by auditing and recounting paper ballots. New York’s Courts have now ruled, in essence, “We do not use paper ballots to verify elections.” The Court, displaying a lever-machine mindset, believed it’s okay to trust the machine. It never was of course, but New York has never had a way to verify election results before. The Court didn’t understand why we need to compare machine reported results with a manual inspection of ballots in the audit, failing to grasp that the way we get to the real result is counting the paper, not avoiding it at all costs.
Author - Bo Lipari
In the first test case of how we verify election results using New York’s new paper ballots, the State Judiciary is in the process of setting an egregious precedent – Judges are free to nullify audits and recounts in the interests of having a quick decision. In Nassau County’s contested 7th Senate District (SD7) race, two State Courts that have heard the case to date have made very bad decisions. Ruling that even if New York’s audit laws require a further hand count of paper ballots, accepting the machine results and declaring a winner outweigh the public’s right to know who really won the election. [ See news reports here and here.]
The Johnson and Martins dispute demonstrates the typical dynamic in close political contests when paper ballots are available to inspect – regardless of party affiliation, the candidate in the lead wants to stop further ballot counting, the candidate behind wants to continue. And the Courts almost always become involved in one way or another. In the SD7 case, Johnson asks the Court to order a full manual recount, since several machines failed the initial 3% audit. Martin’s legal team on the other hand argues that “At the end of the day we must balance accuracy with finality”. The meaning here is hardly disguised – stop counting ballots, we’re more interested in winning than getting an accurate result.
The 2010 elections quietly marked a milestone in election technology history. For the first time in over a hundred years, this was the first national election in which mechanical lever machines were not used. Lever machines were at one time so ubiquitous in US culture that the phrase “pull the lever” is still the go-to phrase we use to mean “cast the vote”. Most states made the transition from levers years ago, beginning in the 1980s when the first optical scanners were employed. But in New York State, this election was the first one without levers in a very long time. Fortunately, the new technology the State chose to use is paper ballots and optical scanners, not paperless electronic voting. And those paper ballots are proving their worth already in several disputed elections around the state.
Media reports of “problems with the new voting systems” really have it the wrong way around. Perhaps it’s because New York isn’t yet used to having an actual paper record of votes, so we don’t yet understand the value of a recount. When outcomes are uncertain or disputed, recounting paper ballots is the best way there is to find out who really won an election. New York’s new ability to count the paper is not a problem, it’s the solution.
For years, computer security experts have said that casting ballots using the Internet cannot be done securely. Now, after a team from the University of Michigan successfully hacked the Washington D.C. Board of Elections and Ethics (DCBOEE) public test of Internet voting, we have a visceral demonstration of just how serious the threats really are.
Prior to rolling out the Internet voting system this November year, the DCBOEE allowed a 5 day trial period, inviting the public to test the ballot casting system and probe its security. Despite short notice given to the public, Dr. Alex Halderman and a team of students took up the challenge. What they were able to achieve in 36 hours demonstrates how vulnerable Internet voting is to a whole host of attacks, and how serious the security threats really are.
In testimony before the DC Council Hearing of The Committee on Government Operations and The Environment, Dr. Halderman detailed the extent to which his team was able to take complete control of DCBOEE’s Internet voting system:
On September 29th Senator Joseph Addabbo, chair of the Senate Elections Committee held a hearing on the recent New York State primary when new paper ballot and optical scan systems were used statewide for the first time. The hearing focused on reported problems that occurred in New York City, the largest election jurisdiction in the country with almost 4.5 million registered voters. In addition to the New York City Board of Elections, others giving testimony included the New York City Public Advocate Bill de Blasio, the Brennan Center for Justice, the League of Women Voters of the City of New York, NYPIRG, Commissioner Doug Kellner of the State Board of Elections and others. Senator Addabbo chaired the hearing, with Senators Bill Perkins, Liz Krueger, and Daniel Squadron also attending.
The hearings started out focusing on the principal witnesses, New York City Board of Elections Executive Director George Gonzalez, President Julie Dent, and other key staff. While acknowledging that problems did occur on Primary Day, the Board seemed particularly unwilling to accept any responsibility for them. Alternately blaming lack of funding, insufficient time to prepare, not enough staff, rigorous pre-election testing requirements, media focus on problems, the Police Department and the Mayor’s office, the Board’s testimony was remarkable in its failure to admit any blame for Primary Day problems. If the public had a nickel for every time the City Board accepted responsibility for problems during the hearing, we’d be flat broke.
Despite the impressions received from media reports, the September 14th primary was not the first time that New Yorkers voted on paper ballots and scanners. In the 2009 off-year election, 47 counties in upstate New York used the new systems as part of a pilot program. This trial run taught participants valuable lessons, and New York City’s decision to abstain led directly to many of the problems reported there. In general, things went smoother upstate than in the City. Problem reports broke down into a few main categories:
Privacy Issues – One of the big lessons from the 2009 pilot was that voters felt that their ballots were too often exposed to public view. Some of this was inevitable – using a lever machine, surrounded on all sides by panels and curtains, the voter is in an isolation booth. Today, the small privacy booths where voters fill out their ballots are open on the back side, and if not placed correctly at the poll site (for example with the open side facing a wall) one can feel exposed. It’s very important that Boards of Elections think about layout and lines of sight within the polling place. A second frequent privacy complaint concerned carrying the paper ballot in plain view over to the scanner. This can only happen if Boards of Elections do not provide sufficient supplies of ‘privacy sleeves’ (folders which conceal the completed ballot) and adequately train poll workers in their distribution and use. Lack of privacy sleeves is an administrative failure, and is really inexcusable.
If we can use the Internet to deliver blank ballots, then why not use it to return voted ballots? Part of the answer lies with the nature of the Internet itself. If we are to be sure that the vote cast is the same as the vote counted, we need a way to guarantee that 1) the voted ballot has not been substituted or altered in transit, and 2) the ballot received actually was sent by the voter, not someone impersonating them. But due to the way the Internet currently works, neither of these conditions can be assured. Before looking at sending ballots via Email, it’s helpful to understand how all Internet communication works, whether it be an email, website, file download, or tweet. What we now call the Internet grew out of research on connecting computers of different types and at different locations into a single network. One of the problems facing researchers was how to move electronic information reliably on pathways that are unknown and unpredictable. Two computers might be connected via a wire across the room, or across a huge network of sub-connections spanning the planet.
As noted in Part One of this series, one of the goals of the MOVE Act is to improve access to election materials such as voter registration forms and blank ballots. Examining why (and ignoring voter registration for the moment), we see that there are two parts to the process of voting from an overseas location: 1) obtaining a blank absentee ballot, and 2) returning the voted ballot. The first problem, obtaining a blank ballot, should be refined a bit – part of the problem for overseas voters is obtaining a blank ballot with sufficient time for it to be returned within state designated absentee ballot deadlines. And one way to solve this part of the problem is to send blank ballots to military and overseas voters via the Internet.
In a wired world, it was inevitable that the subject of Internet Voting become a hot topic sooner rather than later. But more than just a topic of discussion, this year eighteen states will allow overseas ballots to be returned via email in November’s elections. Yet according to security experts, voted ballots sent via Internet simply cannot be made secure, and make easy and inviting targets for attackers ranging from lone hackers to foreign governments seeking to undermine US elections.
The Pentagon rejected the idea of returning voted ballots via the internet as recently as 2004, when the SERVE (Secure Electronic Registration and Voting Experiment) project was canceled. In a memo, Deputy Defense Secretary Paul Wolfowitz said “In view of the inability to ensure legitimacy of votes that would be cast in the SERVE internet voting project, thereby bringing into doubt the integrity of the election, I hereby direct you to take immediate steps to ensure that no voters use the system to register or vote via the internet.”
For members of the military, their families, and other United States citizens living overseas, voting has always presented unique challenges. Some of these problems include reliable delivery of blank ballots to the voters, secure and timely return of voted ballots, and authenticating that ballots were completed and returned by the same person they were sent to. According to an EAC study, Voting from Abroad: A Survey Of UOCAVA Voters:
“There are no reliable data available on the number of [military and overseas] voters dispersed around the globe; some estimates hover around 4 million. Active-duty military are estimated at 1.5 million and family of military another 1.5 million.“
In 1986 and again in 2009, Congress passed laws looking to improve access to voting for military and overseas voters. And today, as communication technologies like fax and email have become available, states are moving forward with plans for electronic transmission and receipt of ballots, all too often without sufficient regard for the privacy and security issues involved.