Throughout New York State, county legislatures and election authorities have raised serious concerns about state and federal laws requiring them to replace lever machines with electronic systems before the September primaries.
The advocacy group Election Transparency Coalition has a map showing over 20 counties that have passed resolutions or sent letters to the State Board of Elections opposing the transition. The election commissioners of Nassau County have filed a lawsuit to stop the transition to computerized machines on the grounds that the new machines are untested, faulty, owned by a corporate giant and prone to fraud.
In New York City, however, the major concern is that changing the machines properly is going to be too expensive for the Board of Elections to afford amid budget cuts. George Gonzalez, the deputy executive director of the New York City Board of Elections, last month told a state Assembly committee that state and federal legislation is forcing the city to switch voting machines without providing "adequate financial and human resources" to implement the change. During the upcoming September primaries, he said, the Board of Elections' funding crisis can put the rights of "4.4 million voters in the City of New York at great risk."
His claim is ironic, given that the transition to the new machines was a response to voter disenfranchisement. Two years after the voting irregularities in Florida during the 2000 Presidential elections, Congress enacted the Help America Vote Act (HAVA), providing federal payments to states that sought to replace punch card and lever systems with computerized machines.
The New York State Legislature passed the Election Reform and Modernization Act to implement HAVA's mandates statewide in mid-2005—too late for the state to meet the January 2006 deadline to implement HAVA. The United States government sued the New York State Board of Elections in 2006, and since then, a federal judge has entered three remedial orders directing the state elections board to comply with HAVA.
Late last year, state election commissioners approved two computerized models for counties to choose between, and this past January, New York City adopted the DS-200 optical scanning system, which reads paper cards marked by voters. It is manufactured by the voting-machine giant Election Systems and Software.
But Gonzalez pointed out that the transition to computerized systems is more than a change in equipment. "The way we conduct elections, including almost every system, task and procedure, is being modified or in many instances changed entirely as we deploy the new voting system for the first time," he testified.
He says that the new systems demand additional resources for training and staffing poll workers, educating and reaching out to the public, acquiring fully accessible poll sites, transporting equipment and materials and printing the ballots for testing, demonstrating and actually using the machines.
However, Gonzalez says the Board of Elections is being asked to implement these "historic changes" despite a $3 million reduction in its budget for the current fiscal year, which ends on June 30.
Moreover, he says the mayor's proposed executive budget for the fiscal year beginning in July 1 seeks to cut the budget by an additional $22 million.
He wants the city to restore its proposed cuts and add an additional $3.3 million for the full-time staff positions that would be needed to handle the new machines.
"The conduct of fair, honest, and open elections is a fundamental right in our democracy and the cuts made by the city to the board's budget in fiscal year 2010 and the further reductions proposed in the mayor's executive budget for fiscal year 2011 at this critical time has put our democracy in peril," Gonzalez warned.
The City Hall press office did not respond to phone and email inquiries about Gonzalez's comments.
As for the other 20-plus counties mapped by the Election Transparency Coalition, most have been more concerned about election integrity than financing.
The most dramatic example is in Nassau County, where Democratic and Republican Commissioners challenged the Election Reform and Modernization Act as unconstitutional for mandating a technology that they argue will disenfranchise voters.
In their 50-page complaint filed in state court in March, the Nassau County commissioners described "computerized voting technology" in general as being "notoriously vulnerable to systemic hacking, tampering, manipulation and malfunction."
"Overall, Nassau County Board of Elections staff and voters alike trust the lever machines and have grave concerns about replacing them with electronic optical scan voting systems," the complaint says.
The Nassau commissioners also raised doubts about the DS-200 voting machines in particular, claiming that they had a history of failure.
In an expert affidavit filed on Nassau's behalf, University of Connecticut Professor Alexander Schvartsman argued the computerized voting machines are not to be trusted even when they are certified properly. Schvartsman says that the National Institute of Standards and Technology, the agency that writes the federal voting system standards and advises the United States Election Assurance, argued that testing software-based voting systems "is from a practical perspective not possible."
An ES&S spokesperson deflected any questions about the allegations of Nassau County's lawsuit to the state's Board of Elections, which did not immediately respond to a phone inquiry.
Since HAVA is a federal statute, the state Board of Elections has sought the assistance of two federal courts to prevent Nassau County's "interference" with its implementation of HAVA. The state effectively got the case moved from state court to federal courts in the Eastern District in Suffolk County and the Northern District in Albany.
On May 20, Northern District Judge Gary Sharpe ordered Nassau to switch to electronic machines, in a decision that argued "that full compliance with HAVA will not be achieved until all lever voting machines in the State are replaced by fully-HAVA-compliant voting systems."
But Howard Stanislevic, founder of the E-Voter Education Project, says the use of lever machines—which Nassau would prefer—doesn't violate HAVA if electronic ballot-marking machines are also made available (for people with disabilities and other who want to use them) at every poll site, as they were statewide in 2008.
Nassau County has since challenged the Northern District case in the Second Circuit Court of Appeals. And the county just scored a legal victory in an Eastern District order remanding the case back to state court.
Meanwhile, one of the most prominent supporters of electronic voting machines is concerned with how New York City is handling the transition.
Lawrence D. Norden, senior counsel at NYU School of Law's Brennan Center for Justice, said in a phone interview that he prefers the electronic machines because of their accessibility to people with disabilities, their ability to call attention to referendums that usually have low voter turnout and their use of a paper trail.
Still, he wrote the Department of Justice an 11-page letter (with over 100 pages of attachments) warning about a flaw with the ES&S DS-200 machines that the Brennan Center believes can disenfranchise voters, particularly "members of a racial or language minority group."
The problem, he said, is not the machines themselves, but their configuration. When a person selects more than one candidate for a particular office, the DS-200 screen is currently programmed to flash "Over-Vote" without explaining what the word means, or that the consequences of accepting the submission will mean losing one's vote.